Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD201616, Frank A. Brown, Judge.
McINTYRE, J.
A jury convicted Matthew R. Trace of assault with a deadly weapon on a peace officer, resisting an executive officer and battery. He appeals, contending the trial court erred in not sua sponte instructing the jury on (1) the defense of accident or misfortune and (2) the lesser offense of assault on a peace officer. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of September 16, 2006, Trace entered a 7-Eleven store in San Diego and started handling products in the medication aisle. Qayum Raofi, the store manager, approached Trace and offered him assistance. After Raofi helped Trace find a product, Trace got angry and started yelling and cursing. When Raofi turned to walk away, Trace hit him in the back of the head, knocking Raofi down, and then left the store. Another store employee called the police while Raofi held the door to the store shut as Trace pounded and kicked at it.
San Diego Police Officers Michael Belz and Michael Fender responded to the call, spoke to Raofi and viewed the store surveillance tape of the incident. The officers drove around the area until they located Trace and then approached him on foot to question him about the incident. After Trace denied any knowledge of the incident, Officer Belz told Trace they were going to detain him. As Officer Fender reached out to take Trace's arm, Trace shoved him away and started running. Officer Belz chased Trace on foot and Officer Fender followed in the patrol car. During the chase, Officer Belz struck Trace several times with his baton and yelled for him to stop, but after each engagement Trace broke away and continued running.
Eventually, Trace picked up a broken beer bottle and yelled at the officer to shoot him. Officer Belz drew his gun and ordered Trace to drop the bottle and get on the ground, but Trace refused and continued running. After several additional exchanges, the men ran into a dead end and Trace jumped onto a fence to escape. Officer Belz had not seen Trace drop or throw the bottle and did not know where it was because he could not see Trace's hands. He believed that Trace had dropped the bottle and he grabbed Trace around the waist to pull him off the fence.
As Officer Belz pulled, he slipped in the mud and went down on one knee. Trace came off the fence and Officer Belz pushed Trace away; Trace landed on his feet, spun around and struck the officer in the side of the head with his right hand. Officer Belz experienced ringing in his ears, everything went white and he thought he would lose consciousness. Officer Belz then drew his weapon and fired a shot because he was concerned that if he lost consciousness, Trace would take his gun and use it against him. After Officer Belz fired, he heard Trace yell, but was not sure whether he had actually hit Trace. He rolled over, anticipating Trace would continue the attack, but then saw Trace climbing the fence to escape.
Officer Fender radioed that shots had been fired and officers responding to the call ultimately apprehended Trace, who had a bloody leg wound. Officer Belz suffered a cut behind his left ear that required eleven stitches and the police collected a broken beer bottle from the scene. He suffered from dizziness and nausea for several days and missed six days of work.
An information charged Trace with assault with a deadly weapon on a peace officer, resisting an executive officer and battery upon Raofi. It further alleged as to the assault charge that Trace personally used a broken beer bottle as a deadly weapon and inflicted great bodily injury upon Officer Belz. A jury found Trace guilty of all counts and enhancements. The trial court sentenced Trace to a total term of seven years in prison and Trace timely appealed.
DISCUSSION
I. Accident Defense
Trace contends that, despite his failure to request an instruction on accident, the trial court had a sua sponte duty to instruct the jury on this defense because Officer Belz's testimony supported the theory. We disagree.
A trial court has a duty to sua sponte instruct on defenses "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157, italics deleted.) "When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of the fact." (People v. Gonzales (1999) 74 Cal.App.4th 382, 390 (Gonzales).) Accident is such a defense because it amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime. (Ibid.; People v. Lara (1996) 44 Cal.App.4th 102, 110.)
Here, the evidence was not sufficient to justify a sua sponte accident instruction. Officer Belz testified that Trace landed on his feet, spun around and struck him in the side of the head. This evidence does not support the suggestion that Trace was off balance and hit Officer Belz accidentally. In any event, even if we assume the court's failure to instruct the jury on the defense of accident was error, such error was harmless because a more favorable outcome for Trace was not reasonably probable. (Gonzales, supra, 74 Cal.App.4th at p. 391.)
The erroneous failure to instruct on a defense is harmless if the factual question posed by the omitted instruction was necessarily decided under other proper instructions. (People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315, fn. 9.) Here, the court instructed the jury that the crime of assault with a deadly weapon had to be proved beyond a reasonable doubt, including that Trace committed the act intentionally, purposefully or willfully. (CALCRIM Nos. 220, 250 & 860.) During closing argument, both the prosecutor and the defense attorney addressed whether Trace injured the officer intentionally or accidentally. Thus, this jury knew it had to find that Trace acted intentionally, not accidentally, in order to convict him of assault with a deadly weapon. Moreover, by finding that Trace used a broken beer bottle to commit the assault and to inflict great bodily injury on Officer Belz, the jury necessarily rejected the notion that Trace accidentally injured the officer. Accordingly, the omission of an accident instruction did not amount to reversible error under the facts and circumstances of the instant case.
II. Failure to Instruct on Assault of a Peace Officer
Trace contends that the trial court had a sua sponte duty to instruct the jury on the lesser included offense of simple assault on a peace officer because the evidence warranted the instruction. This contention is without merit.
A trial court has a duty to instruct sua sponte on all lesser included offenses, where there is substantial evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman, supra, 19 Cal.4th at pp. 154, 162.) Simple assault on a peace officer is a lesser included offense of assault on a peace officer with a deadly weapon; the difference between the two crimes is the use or nonuse of a deadly weapon. (Pen. Code, §§ 241, subd. (a), 245, subd. (c).)
Here, there was no evidence that Trace assaulted Officer Belz without a deadly weapon. Although Officer Belz did not know whether Trace still had the broken beer bottle in his hand when Trace struck him, the force of the blow made the officer feel as if he would lose consciousness, left his ears ringing and caused a cut behind his left ear that required three internal and eight external stitches to close and a broken beer bottle was found nearby. Cumulatively, this evidence established that Trace committed the assault with the broken beer bottle in his hand. Accordingly, the trial court did not err in refusing to instruct on simple assault on a peace officer because there was no evidence here substantial enough to merit consideration by the jury that Trace committed only simple assault.
Even assuming the trial court should have instructed sua sponte on simple assault on a peace officer, the failure to do so was harmless. The jury's guilty finding on the assault with a deadly weapon charge and true findings on the accompanying enhancements demonstrate it concluded that Trace had personally used a deadly weapon. Based on these findings, it is clear the jury would have convicted Trace of assault on a peace officer with a deadly weapon even if the trial court had instructed the jury on the lesser included offense in that the factual questions posed by the omitted instructions necessarily were resolved adversely to Trace under other, properly given instructions. (People v. Elliot (2005) 37 Cal.4th 453, 475.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.