Opinion
D051823
9-9-2008
THE PEOPLE, Plaintiff and Respondent, v. LUE JAMES SINCLAIR, Defendant and Appellant.
Not to be Published
In this case concerning an altercation between two motorists, a jury convicted Lue James Sinclair of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1). In doing so, it found not true the count 1 allegation that Sinclair had personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a). The jury also found Sinclair not guilty of a second count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The trial court sentenced Sinclair to prison for a low term of two years.
All statutory references are to the Penal Code unless otherwise specified.
Sinclair appeals, contending there was insufficient evidence to support his aggravated assault conviction; the verdict and finding on count 1 were internally inconsistent constituting an acquittal as a matter of law; the trial court prejudicially erred in failing to instruct sua sponte on the lesser included offense of simple assault; the court erred in admitting an adoptive admission he allegedly made and in failing sua sponte to instruct under CALCRIM No. 359; and the court erred in giving the jury the "flight" instruction (CALCRIM No. 372). Although we conclude there is sufficient evidence to support the count 1 aggravated assault conviction, we reverse for the trial courts failure to instruct sua sponte on simple assault.
FACTUAL BACKGROUND
While driving his car on June 12, 2007, in the City Heights area of San Diego, Salvador Jesus Gomez experienced car trouble and his Honda Civic came to a stop in an alley at the corner of Orange and Marlborough, blocking the pedestrian path. After a few minutes, Gomez saw the male driver of a Ford Mustang, who was later identified as Sinclair, drive toward him in the Mustang from the opposite end of the alley and hit his car several times. Sinclair yelled to Gomez, "Move your fucking car." Gomez then got out of the Honda, telling Sinclair that his car was not running and could not move. As Gomez began to use his cell phone to call the police, Sinclair, who had gotten out of the Mustang, came toward him "with blows on the legs and punches one after the other," including to the face. Gomez fell backwards to the ground behind his car and lost consciousness for about 30 seconds. While Gomez was on the ground, his car rolled back and hit his shoulder and leg. He grabbed the underside of his car as another car then drove up and pushed his car to prevent it from rolling further back over him.
Paramedics who arrived at the scene took Gomez to the hospital, where he received eight stitches to close a cut near his mouth. Gomez also suffered headaches for about eight weeks from the altercation, missed a week of work, incurred $4,000 in hospital bills, and was left with a permanent scar on his face.
At trial, Gomez testified to the above facts and stated he had no idea why Sinclair had attacked him. Sinclairs aggressive action had taken Gomez completely by surprise.
Jorge Leyva, who was driving the car that pushed Gomezs car back, testified that he had been driving with his family through the nearby intersection that day when he saw the altercation between Sinclair, who he identified at trial, and another man. Sinclair was very angry and wanted the other person to move his car. Leyva then saw Sinclair hit the other man in the cheek once, kick at him and get into the mans car and start to push it backwards. As the car moved backwards, Leyva thought to himself, "hes going to run over this guy," and he positioned his own cars bumper against the bumper of the Honda. Sinclair then returned to his own car and backed down the alley to leave, despite Leyvas plea that he remain, saying, "I dont fucking care." Leyva was able to get the license plate number of the car Sinclair was driving and give it to the police.
Leyvas wife also testified that she had seen "one man[, whom she identified at trial as Sinclair,] hitting another man," and the man being hit landed on the ground, "a bit perturbed." She clarified that she saw Sinclair only punch the other man once on the side of his face before he fell. She also saw Sinclair get into the mans car and put it in reverse, while the man was trying to get up, grabbing the back part of the car. She yelled for Sinclair to stop moving the car because the other man was underneath it. When Sinclair then got into his own car, Leyvas wife stood in front of it, telling him he was not to leave and he would have to wait for the police. Sinclair looked at her like she was a "crazy woman," and "got [his car] in reverse and went."
The Defense Case
Sinclair testified in his own defense, explaining that he lived one block from the alley and was on his way to work when he noticed the Honda blocking his way. When he started to make a "reverse three-point" turn, he noticed Gomez near the Honda gesturing for him to help by pushing his car backwards. Sinclair did so until the Honda stopped at the start of the alley, where Gomez was approached by an unidentified woman and got out of the Honda to talk with her. When Sinclair got out of his car and approached Gomez and the woman, he overheard what he thought was a drug transaction and expressed frustration, which led to an argument with the woman. Gomez then began yelling at Sinclair, reached for a knife that was in a holder clipped to his belt, and spun toward him. As he did so, Sinclair "performed whats called a front thrust kick," kicking the knife out of Gomezs hand and "followed up" with a "snapping punch called a jab" to Gomezs face.
Sinclair then got into Gomezs Honda and began pushing it backwards. He stopped doing so when he heard people yelling that Gomez had fallen behind the car. Sinclair left in his own car, backing down the alley and continuing on to work.
San Diego Police Officer David West testified in the defense case that Gomez had told him in an interview at the hospital after the incident that Sinclair had parked his car three feet away from his disabled Honda before getting out and approaching him and that Sinclair had only punched him a single time. Gomez had also told the officer that his Honda had come within two feet of running over him when he fell.
Rebuttal
On rebuttal, a San Diego police detective testified that he had spoken to Sinclair several times after the incident and Sinclair had told him that Gomez had nothing in his hands during the encounter. The detective confirmed, however, that Sinclairs story to the jury was essentially the same as what he had told the detective. Sinclair had also told the detective that he had feared for his safety during the incident because Gomez was reaching for a knife on his belt and that is when he kicked and punched Gomez.
Another witness, who had observed two men arguing near the intersection that day, testified that the "Mexican" man was talking on his cell phone as the other man, first held and then put a knife away before punching and kicking the Mexican man, causing him to fall to the ground. The cell phone also was kicked out of the mans hand.
DISCUSSION
I
SUFFICIENCY OF EVIDENCE
Sinclair contends the evidence was insufficient to support his count 1 conviction for assault by means of force likely to cause great bodily injury on Gomez because the evidence at most showed a simple assault and the jury found "not true" the attendant great bodily injury enhancement for that charge. We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we determine "`whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether "`"any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt."` [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
With regard to the crime of assault "by any means of force likely to produce great bodily injury" (§ 245, subd. (a)(1)), the jury was required to find that Sinclair "did an act that by its nature would directly and probably result in the application of force to [Gomez]; . . . [he] did the act willfully; . . . [w]hen [he] acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; . . .[w]hen he acted, he had the present ability to apply force by means likely to inflict great bodily harm; [and he] did not act in self-defense. . . ." (CALCRIM No. 875.) For such crime, it is immaterial whether the victim is actually physically contacted or injured "because the statute focuses . . . on force likely to produce great bodily injury. . . ." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).) Under section 245, subdivision (a)(1), "`[l]ikely means `probable or . . . `more probable than not. " (People v. Savedra (1993) 15 Cal.App.4th 738, 744.) In other words, "[i]t is the likelihood, not the actual production of injury, which is the focus of Penal Code section 245, subdivision (a)." (People v. Roberts (1981) 114 Cal.App.3d 960, 964 (Roberts).) Although the results of an assault are highly probative of the amount of force used, they are not conclusive. (People v. Russell (2005) 129 Cal.App.4th 776, 782 (Russell).)
CALCRIM No. 875 as given in this case provided: "The defendant is charged in Count 1 with assault by means likely to inflict great bodily injury. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force by means likely to inflict great bodily harm. [¶] 5. The defendant did not act in self-defense or in defense of someone else. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object to touch the other person. [¶] The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by defendants act. [¶] But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was." (CALCRIM No. 875.)
Here, it is undisputed that Sinclair punched Gomez in the face causing him to fall to the ground and lose consciousness for a short time. He subsequently was taken to the hospital where he received eight stitches to close a cut on his face and then suffered headaches for several weeks. A jury could have reasonably found from these facts that Sinclair had used such force against Gomez likely to inflict great bodily harm within the meaning of the CALCRIM No. 875 instruction given.
Contrary to Sinclairs reliance on People v. Duke (1985) 174 Cal.App.3d 296 and the jurys not true finding on the great bodily injury enhancement allegation, the fact that the jury made such finding on the allegation simply does not negate the fact that there may be sufficient evidence in the record to support the jurys separate determination that the force exerted by Sinclair was such as would likely cause great bodily injury for the underlying count 1 assault offense. Unlike the situation in Duke where the defendant merely used a headlock on his victim momentarily with no injuries or danger from the force actually exerted, the force actually used by Sinclair in this case propelled Gomez to the ground with a cut on his face and rendered him unconscious having the danger or probable likeliness of leading to great bodily injury. (See id. at pp. 302-303.) The court in Duke even recognized that under a similar situation as here, in Roberts, supra, 114 Cal.App.3d 960 where the victim was kicked in the head and torso, causing cuts, a large welt and unconsciousness, but suffered no serious injury, a felonious assault would be upheld. (Duke, supra, 174 Cal.App.3d at p. 303.)
Moreover, to the extent Sinclairs arguments rely on the fact that the jury did not find that his punch actually caused great bodily injury, as noted above, such is not a prerequisite for finding the capability of causing or being likely to cause, great bodily injury. (Aguilar, supra, 16 Cal.4th at p. 1028.) It is enough that a person uses force in a manner that could foreseeably cause substantial injury. A defendants "acts need not actually result in serious injury, but must only be likely to cause great bodily injury." (Russell, supra, 129 Cal.App.4th at p. 788; Roberts, supra, 114 Cal.App.3d at pp. 964-965.) As to such determination, it was within the jurys province to decide whether the force actually used by Sinclair was likely to produce great bodily injury for the substantive assault offense regardless of whether the jury then found the injuries actually suffered by Gomez were not significant to support the enhancement allegation. We do not reweigh the evidence.
In sum, we conclude there was substantial evidence from which a jury could find Sinclair punched Gomez with such force that was capable of causing, and likely to cause great bodily injury to him. The count 1 conviction for assault by means of force likely to cause great bodily injury is therefore supported by sufficient evidence.
II
FAILURE TO INSTRUCT ON THE LESSER OFFENSE OF SIMPLE ASSAULT
Although we have found substantial evidence supports Sinclairs count 1 conviction, we find merit in his assertion that such must be reversed because the trial court prejudicially erred when it failed to instruct sua sponte on the lesser included offense of simple assault.
It is well established that in the interests of protecting the defendants constitutional right to have the jury determine every material issue presented by the evidence and safeguard the jurys function of ascertaining the truth, a trial court must, even in the absence of a request, instruct on the lesser included offenses of any charged crimes. (People v. Cunningham (2001) 25 Cal.4th 926, 1007-1008 (Cunningham).) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154); see also People v. Moon (2005) 37 Cal.4th 1, 25-26 (Moon).) The sua sponte duty to instruct on such lesser offense exists when the evidence, "`"raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense."` [Citation.]" (Moon, supra, 37 Cal.4th 1, 25; Cunningham, supra, 25 Cal.4th at pp. 1007-1008.)
As our Supreme Court has explained, "instructing on lesser included offenses shown by the evidence avoids forcing the jury into an `unwarranted all-or-nothing choice [citations] that could lead to an unwarranted conviction. [Citations.]" (People v. Hughes (2002) 27 Cal.4th 287, 365 (Hughes).) "[A] defendant is entitled to a lesser instruction . . . precisely because he should not be exposed to the substantial risk that the jurys practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." (Keeble v. United States (1973) 412 U.S. 205, 212-213 (Keeble), italics added.)
As relevant here, simple assault, defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240), is a lesser included offense of assault by means of force likely to produce great bodily injury. (People v. Rupert (1971) 20 Cal.App.3d 961, 968 (Rupert).) Although the force likely to produce bodily injury to support the greater offense may be found where an attack is made by use of hands or fists (People v. Kinman (1955) 134 Cal.App.2d 419, 422), whether the hands or fist used in punching a person would be likely to cause great bodily injury is a question of fact for the jury to determine by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. (Ibid.) If there is a question as to the character of the force actually used, the defendant is entitled to an instruction on the lesser included offense of simple assault and the court is required to give such instruction sua sponte. (Rupert, supra, 20 Cal.App.3d at p. 968.) In other words, if there is a question as to whether "the application of force likely to produce great bodily injury" element is present in a case and there is substantial evidence in the record that would justify a conviction of the lesser simple assault offense, the court is required to sua sponte instruct on such lesser offense. (See Moon, supra, 37 Cal.4th 1, 25; Cunningham, supra, 25 Cal.4th at pp. 1007-1008.)
Here, contrary to the Peoples argument otherwise, even though there was sufficient evidence to support the jurys verdict of the greater offense, there was also substantial evidence before the jury from which it might have reasonably concluded that Sinclair did not use force likely to produce great bodily injury on Gomez. Although Gomez had testified at trial that he did not know how many times Sinclair had punched him or kicked him, he had told investigating officers that Sinclair had only hit him once causing him to fall and that he had also kicked his cell phone from his hand. Several eyewitnesses confirmed that only one punch was thrown by Sinclair. Sinclairs defenses at trial were that he had hit and kicked Gomez during an argument because he feared for his life when Gomez pulled a knife from his belt and that the seriousness of Gomezs injuries were not substantial enough to constitute great bodily injury.
By its not true finding on the great bodily injury enhancement, the jury expressly found that Sinclair had not personally inflicted great bodily injury on Gomez even though Gomez had lost consciousness when he fell after Sinclairs punch and was taken to a hospital emergency room where he received eight stitches to close a cut on his face. In other words, the jury necessarily determined that Gomezs injuries were not substantial, but rather were insignificant, trivial or moderate. (See People v. Covino (1980) 100 Cal.App.3d 660, 668.) Under such circumstances, the answer to the question of whether Sinclair had used force likely to cause great bodily harm when he punched or kicked Gomez was not a foregone conclusion and the jury could have reasonably found Sinclair guilty of either the lesser or greater assault offense.
Notably, the last paragraph of CALCRIM No. 875 told the jury that if someone was injured, like Gomez, it could consider that fact along with the other evidence to determine whether Sinclair "committed an assault, and if so, what kind of assault it was." The problem in this case is that the jury was not given any instructions on other types of assault. With the element as to whether the application of force that Sinclair used was likely to produce great bodily injury in doubt and disputed, the trial court erred in failing to sua sponte instruct the jury on the lesser offense of simple assault.
On this record, we do not find the error to so instruct harmless. Without the lesser assault instructions, the jury faced an "`unwarranted all-or-nothing choice " of conviction or acquittal on facts showing that Sinclair was clearly guilty of some offense. (Hughes, supra, 27 Cal.4th at p. 365; Keeble, supra, 412 U.S. at p. 213.) We simply cannot say that "the availability of a third option—convicting [Sinclair] of simple assault—could not have resulted in a different verdict." (Keeble, supra, 412 U.S. at pp. 212-213; see also People v. Barton (1995) 12 Cal.4th 186, 196.) The judgment must therefore be reversed.
In light of this determination, it is unnecessary to discussion Sinclairs other contentions.
DISPOSITION
The judgment is reversed.
WE CONCUR:
NARES, J.
AARON, J.