Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. GA066774, Zaven V. Sinanian, Judge. Affirmed.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Hector H. Soto appeals from the judgment entered following his conviction by a jury on one count of assault by means likely to produce great bodily injury and two counts of misdemeanor assault (as lesser included offenses), contending the trial court erred in refusing to instruct on self-defense with respect to one of the two counts resulting in his misdemeanor assault convictions and the evidence was insufficient to support the jury’s verdict as to the aggravated assault. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Soto was charged in a second amended information with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) on Carlos Corral (count 1), assault by means likely to produce great bodily injury on Frederico Medina (count 2) and assault with a deadly weapon (heavy object) and by means likely to produce great bodily injury on Isadore Sotelo (count 3). The information specially alleged with respect to all three counts Soto had suffered one prior serious or violent felony conviction (robbery) within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and as to counts 2 and 3 he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The information further alleged Soto had served four separate prison terms for felonies (§ 667.5, subd. (b)). Soto pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
The information also included allegations of a number of aggravating circumstances identified in California Rules of Court, rule 4.421. Soto’s demurrer to the inclusion of aggravating factors in the information was overruled.
2. The Evidence at Trial
a. The participants in the August 21, 2006 melee
Corral, 52 years old at the time of trial, contracted polio as a young child and is confined to a wheel chair. In addition, he suffers from diabetes, asthma and high blood pressure. Barbara Aguilar, Soto’s sister, had been Corral’s caregiver for approximately four years, assisting him with basic life chores including personal hygiene, shopping and preparing meals. Aguilar did not live in Corral’s home.
Corral had a roommate and occasionally rented space in his home to others. Several days before the incident leading to the assault charges, Aguilar asked Corral to allow a woman named Yolanda, Soto’s girlfriend and a friend of Aguilar’s, and Yolanda’s three-year-old child to stay in Corral’s home. Corral agreed. After Yolanda moved in, Aguilar asked if Yolanda’s boyfriend, Soto, could also stay in the home. After initially refusing, Corral eventually said yes, but only for a day or two. Soto arrived with his clothes in a bag on Sunday, August 20, 2006, and slept in the house that night.
Medina, 65 years old at the time of trial, lived next door to Corral. Residing in the house with Medina were his wife, Martha; Medina’s oldest daughter, Victoria; Medina’s son-in-law, Sotelo; and three grandchildren. Corral’s and Medina’s front yards were separated by a low cinder-block wall.
b. Soto’s attack on Corral
On Monday evening, August 21, 2006, Corral and Aguilar were returning to Corral’s home from dinner when they heard shouts and arguing from inside the house. When they entered, they saw Yolanda sitting next to her daughter on the bed in the living room and Soto in the dining room, arguing with each other. Yolanda was crying; Soto appeared aggressive and out of control. As Aguilar tried to calm the situation, Soto yelled expletives at her. Aguilar then ran out of the house, crying.
Corral followed Aguilar outside to comfort her. Corral and Aguilar decided to go back inside the house, tell Soto to leave and threaten to call the police if he did not comply. When they re-entered the house, however, Aguilar went directly to Corral’s room. Corral remained in the living room, where he heard Soto continue to berate Yolanda. Soto then left the house. Yolanda immediately locked the black, metal, security screen door on the entrance to the house.
Soto returned and began to kick and hit the screen door, yelling he wanted his property. Corral told Yolanda to open the door to give Soto his things but not to allow him inside the house. Yolanda unlocked the door and began putting Soto’s clothes in a bag. At this point, Soto aggressively pushed open the door and rushed directly at Corral. Soto put his hand over Corral’s left cheek, as though he wanted to hit him hard, but made no actual contact. Soto, who was behind and to the left of Corral, then put his forearm around Corral’s neck or shoulders, pushed him backward (causing damage to a stabilizing wheel on Corral’s wheelchair), turned around, grabbed Corral’s arm and pulled back. Because he could only raise his arms to chest-level, Corral was physically unable to use his hands to resist Soto’s attack or protect himself.
While Soto was attacking Corral, Yolanda’s three-year-old daughter and Aguilar’s seven-year-old child, who had also been inside Corral’s house, ran outside. Yolanda screamed at Soto to leave Corral alone and tried to drag Soto off Corral. Aguilar came out of the bedroom to assist Yolanda. Together, they were able to pull Soto away from Corral. Aguilar then went outside, followed by Soto and Yolanda. Corral went to his bedroom and called the police emergency number.
At trial Corral testified he had felt only a little pressure when Soto pressed his forearm against his body and he had had no difficulty breathing. He said he had not been injured. However, Los Angeles County Deputy Sheriff John Hermann, who had been on patrol that evening and had responded to the assault call, testified Corral told him Soto hit his left eye with his right fist and choked him. Hermann saw some swelling in the area of Corral’s left eye. Testifying as a rebuttal witness, Los Angeles County Deputy Sheriff James Jordan, Hermann’s training officer, confirmed Corral had said at the scene that Soto hit him once in the face and choked his neck with an arm, which had caused some difficulty in breathing.
Aguilar, testifying for the defense, described Soto as standing in front of Corral when she came out of the bedroom, pressing his forearm against Corral’s chest, applying physical force. Aguilar explained she had left the bedroom because she was concerned Soto might do something to Corral. According to Aguilar, she and Yolanda were able to push Soto’s hands away from Corral’s shoulders. Soto followed Aguilar after she went outside.
c. The restraint of Soto by Medina and Sotelo
While inside their own house, Medina and his wife Martha heard the disturbance next door; Sotelo also heard screaming and yelling. Martha, Sotelo and Sotelo’s wife Victoria went outside. Medina followed them to the door to see what was happening and saw Aguilar and two young children running toward the house. Aguilar, who was crying, said there was a problem next door; Martha told her to put the children inside.
At this point Soto was outside, near the wall separating Corral’s property from Medina’s, speaking to a woman (Yolanda). Aguilar, who had stayed outside Medina’s house after the children were taken inside, was screaming, “Please don’t let him come over here. Don’t let him come over here.” Martha approached the wall, joined by Medina, Sotelo and Victoria; Martha told Soto, “You better not come over. You better get out of here. We called the police.” In fact, one of Martha’s granddaughters, as well as several neighbors, had already called the police.
Soto then came toward Martha, swinging his arms and yelling in Spanish, “Mind your own business.” Martha told Soto to calm down. Soto then began swinging a filled, dark plastic bag over his head and in the direction of Martha. Medina pulled Martha back; and Sotelo stepped between her and Soto, extending his arm to block the bag. The bag struck Sotelo’s arm. Soto swung the bag several more times and again hit Sotelo on the right forearm and upper shoulder.
The bag was described as being made of plastic, trash-bag-like material with a thin, half-inch braided-type rope at its top. It was approximately 12 inches wide. Its contents were unknown, but Sotelo described it as pretty heavy. Medina was not certain whether Soto had just picked up the bag or was holding it in his hand prior to swinging it at his wife.
Sotelo jumped over the wall, grabbed Soto and wrestled him to the ground, telling him to calm down. Soto, lying on his back, resisted. Concerned that he would break free, Medina also crossed over the wall and attempted to hold Soto down by his shoulders. As Medina was holding Soto’s upper shoulders and Sotelo was half on top of him holding his arms, Soto turned his head and bit Medina’s right wrist, breaking the skin and drawing blood. Other neighbors of Corral’s and Medina’s were present at the scene, and one or more of them apparently assisted in subduing Soto. When Deputy Hermann and Deputy Jordan arrived, three men were holding Soto down in the driveway to Corral’s house. The identity of the third man was not determined. During his investigation that evening, Jordan saw a metal iron (used for ironing clothes) lying in the grass near the wall separating Corral’s and Medina’s property.
The prosecutor suggested the iron was inside the bag swung by Soto at Sotelo, thus making the crime charged in count 2 assault with a deadly weapon, as well as assault by means likely to produce bodily injury. The jury rejected this theory in finding Soto guilty only of simple assault against Sotelo.
Aguilar gave a somewhat different version of the altercation. She testified, after the first man (Sotelo) came over the wall from Medina’s property and struggled with Soto, a teenager carrying a crutch joined the fight, repeatedly hitting Soto with the crutch. Aguilar attempted to stop the beating. A third person then joined in, kicking Soto three or four times and got on top of him while he was on the ground. Finally, a fourth individual came from the street, also went on top of Soto, held him by the hair and slammed his head into the driveway three or four times. Although Aguilar saw Soto holding a yellow paper bag, she testified she did not see him swing the bag at Martha or Sotelo.
3. The Request for a Self-defense Instruction
Prior to the close of the People’s case-in-chief, Soto’s defense counsel advised the trial court he was requesting self-defense instructions with respect to the aggravated assault counts involving Medina and Sotelo. Asked by the court for an offer of proof, counsel pointed to the testimony that Sotelo had stuck his arm out before coming over the wall, which could be interpreted as an aggressive gesture, and Medina only joined the struggle while Soto was being held down by Sotelo. The court refused to give the instructions, finding there was not sufficient evidence of self-defense. Defense counsel renewed his request at the close of all the evidence; the trial court again denied the request because there was not substantial evidence to support the giving of the instructions.
Defense counsel requested the trial court include in the general instruction on the elements of an aggravated assault (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 875 [assault with deadly weapon or force likely to produce great bodily injury]) element five -- “the defendant did not act in self-defense” -- as well as separate jury instructions on self defense.
During its deliberations the jury sent the court a question, “Are we to consider whether or not self-defense is a factor in the defendant’s actions in Count 2 [Medina]?” During a discussion in chambers, stand-in defense counsel (a different alternate public defender) advised the court he had spoken by telephone with trial counsel and they were once again requesting the court instruct on self defense. The jury’s question simply reinforced the defense view there was sufficient evidence to justify the instruction. In response the court explained it had a gatekeeper role and the fact the jury may believe there was some evidence of self-defense did not compel the court to give the instruction if it did not find substantial evidence to support the instruction. The court then wrote “no” on the jury’s question sheet, and the sheet was returned to the jury room.
4. The Verdict and Sentencing
The jury found Soto guilty of assault by means likely to produce great bodily injury on Corral (count 1), but found Soto guilty only on the lesser included offenses of simple assault, a misdemeanor, on Medina (count 2) and Sotelo (count 3). The court had bifurcated trial of the prior conviction allegations, and Soto waived his right to a jury trial on those allegations. Following a bench trial, the court found the special allegations true, granted Soto’s motion to dismiss the prior strike allegation and struck two of the four prior prison term allegations. Soto was then sentenced to an aggregate state prison term of five years six months: The middle term of three years for the aggravated assault, plus two consecutive terms of three months each for the simple assaults, plus two consecutive one-year terms for the prior prison term enhancements.
DISCUSSION
1. The Trial Court Properly Refused To Instruct on Self-defense
Soto has abandoned his contention he was entitled to a self-defense instruction with respect to his assault on Sotelo (count 3), but argues the trial court committed prejudicial error in refusing to instruct on self defense in connection with the assault on Medina (count 2) and in specifically advising the jury, in response to its question, it could not consider self-defense as a factor in deciding his guilt on that count. Based on our review of the entire record, we agree with the trial court’s assessment the evidence Soto acted in self-defense when he bit Medina’s wrist was, at best, insubstantial; and the request for self-defense instructions was properly denied.
In an overabundance of caution Soto’s appellate counsel argues, if we reject his contention the trial court prejudicially erred in failing to instruct on self-defense because of some failure of trial counsel, then defense counsel provided constitutionally ineffective assistance. As we have discussed, Soto’s trial counsel, including stand-in counsel, fully -- and repeatedly -- articulated the defense position in a timely manner. There was nothing more to be done.
In evaluating the trial court’s refusal to instruct on a defense theory, a reviewing court applies “the general principles that the trial has a duty to instruct on all material issues presented by the evidence and that ‘ . . . the jury must be allowed to “consider the full range of possible verdicts -- not limited by the strategy, ignorance, or mistakes of the parties,” so as to “ensure that the verdict is no harsher or more lenient than the evidence merits.”’” (People v. Elize (1999) 71 Cal.App.4th 605, 616 [holding trial court should have allowed jury to determine the self-defense issue by instructing upon it when requested].) However, a trial court is required to give a requested instruction concerning a theory of defense “‘only if there is substantial evidence to support the defense.’” (In re Christian S. (1994) 7 Cal.4th 768, 783 (italics omitted); accord, People v. Roldan (2005) 35 Cal.4th 646, 715 [trial court has the authority to refuse requested instructions on a defense theory for which “only minimal and insubstantial evidence” has been presented] see generally Judicial Council of Cal. Crim. Jury Instns. (2008) Bench Notes to CALCRIM No. 3470 [“[t]he court must instruct on a defense when the defendant requests it and there is substantial evidence supporting the defense”].)
In the closely related situation of the trial court’s sua sponte obligation to instruct on a lesser included offense, the Supreme Court in People v. Breverman (1998) 19 Cal.4th 142, 162, held such instructions are required whenever evidence the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude”’ that the lesser offense, but not greater, was committed.” (Ibid.; see also People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 [“evidence that a reasonable jury could find persuasive”].)
Although Soto suggests in passing that the third man involved in the melee described by his sister, Aguilar, might have been Medina -- that is, the one who purportedly kicked him several times and then got on top of him after he had been beaten by the teenager with a crutch -- Soto expressly disclaims any reliance on Aguilar’s testimony as a defense witness and asserts he was entitled to a self-defense instruction on count 2 based solely on the evidence presented by the prosecution. Yet that testimony established Sotelo was the first person to restrain Soto, wrestling him to the ground after he swung a heavy bag toward Sotelo’s mother-in-law. Medina subsequently crossed over the wall into Corral’s yard only to help Sotelo hold Soto down when Soto attempted to get out of Sotelo’s grasp. Medina placed his hands on Soto’s shoulders and put his weight on Soto to control him. Still struggling to get away, Soto bit Medina’s wrist. Nothing in these witnesses’ description of the incident even remotely suggests that Soto, the initial aggressor, reasonably believed his use of force against Medina was necessary to defend himself against imminent danger of bodily injury. (Cf. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for use of force to be in self-defense, “the defendant must actually and reasonably believe in the need to defend”].) The trial court properly denied the request for the self-defense instructions.
The jury’s inquiry during deliberations whether it could consider self-defense in determining Soto’s guilt or innocence on count 2 does not compel a different conclusion. Pursuant to section 1138, when the jury “‘desire[s] to be informed on any point of law arising in the case, . . . the information required must be given . . . .’” It remained the trial court’s obligation, however, to decide whether the original instructions were full and complete or whether additional explanation or supplemental instruction was required. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Having determined the evidence presented could not support a theory of self-defense, the trial court properly responded to the jury’s question and gave it the guidance it sought. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1213 [“[w]here, as here, the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information”]; People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220 [same].)
2. Substantial Evidence Supports Soto’s Conviction for Aggravated Assault
a. Standard of review
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “[R]eversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
“Substantial evidence” in this context means evidence which is reasonable, credible, and of solid value -- “such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. The jury could reasonably find Soto assaulted Corral by means likely to produce great bodily injury
Soto concedes he assaulted Corral but argues the evidence is insufficient to support the jury’s finding he used force likely to produce great bodily injury, a necessary element for conviction of aggravated assault under section 245, subdivision (a)(1). According to Corral, the evidence showed only that he applied pressure to Corral’s upper chest with one arm for a brief period and pulled Corral backward. Because there was no evidence Corral had a weak sternum or rib cage, Soto contends the force he applied was not likely to produce great bodily injury and the conviction on count 1 should be reduced to simple assault (§ 240).
Although Corral denied at trial that Soto had choked him and claimed not to have suffered any injury as a result of the incident, both Deputy Jordan and Deputy Hermann testified on the night of the attack Corral told them Soto had punched or hit him in the face, near his left eye, and choked his neck with an arm. Hermann saw swelling or puffiness on the left side of Corral’s face. Moreover, asked by Jordan if he had any difficulty breathing while Soto’s arm was around his neck, Corral responded “yes.” In addition, the force used by Soto while holding or grabbing Corral was sufficient to bend one of the metal wheels on this wheelchair. Drawing all inferences in support of the jury’s finding, as we must, it was certainly rational to conclude an attack of this nature on a wheelchair-bound man who suffers from asthma and high blood pressure, and who was unable to defend himself because he could not raise his arms to his face, was likely to produce great bodily injury. (See People v. Bolin, supra, 18 Cal.4th at p. 331 [reversal unwarranted unless “‘under no hypothesis whatever’” is evidence sufficient to support conviction].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: WOODS, J., ZELON, J.