Filed 8/27/26 P. v. Dominique CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B350336
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 24CJCF06269
v.
GERAL DOMINIQUE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Drew E. Edwards, Judge. Affirmed.
Olivia Meme, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Maggie K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Defendant Geral Dominique was convicted by a jury of
assault with force likely to produce great bodily injury
(GBI assault; Pen. Code, § 245, subd. (a)(4)).1
He now appeals on the sole basis that the trial court failed
to instruct the jury, sua sponte, on the lesser included offense of
simple assault (§ 240).
To the extent Dominique was entitled to a simple assault
instruction, we conclude the trial court’s failure to give it was
harmless and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case is Maria C.,2 who had recently
turned 67 at the time of the incident in question. She owned a
property in Los Angeles improved by a five-bedroom house and a
freestanding studio apartment. Her daughter, Edith L., lived in
the apartment. Maria separately rented the bedrooms in the
house to different tenants, including the then-28-year-old
Dominique.
On October 7, 2024, Maria went to the property to collect
rent. While there, she got into a confrontation with Dominique.
We need not recite the parties’ acrimonious history nor all the
events of the day. It is sufficient to say that Maria and
Dominique did not get along, could not communicate effectively
due to a language barrier, and Maria was in the process of trying
to evict Dominique. Maria encountered Dominique inside the
1 The acronym “GBI” stands for “great bodily injury.”
Undesignated statutory references are to the Penal Code.
2 We identify the victim and other witnesses in this case by
their first names and last initials only. (Cal. Rules of Court,
rule 8.90(b)(4) & (b)(10).)
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house holding Maria’s broom. She demanded the broom, and he
refused. She tried to grab it. From his bedroom, another tenant,
Carlos R., heard Dominique tell Maria to “back away” or he
would “slap the shit out of [her],” followed by scuffling, the sound
of something or someone hitting a wall, and a scream. Dominique
struck Maria with an open hand, causing her to fall back, impact
something with enough force to leave a significant bruise on her
right buttock, and lose consciousness.3
Edith, whom Maria had called for shortly before, arrived to
find Maria face down on the floor and unresponsive. She called
911. Carlos also arrived shortly after hearing the commotion and
he, too, saw Maria unconscious and face down on the floor. He
shook her and called her name to wake her up but she did not
respond. He estimated she came to about five to 10 minutes later.
When she did, “[i]t looked like she was dizzy. She didn’t know
exactly what happened.” She complained to Carlos of “some small
pain” on the left side of her neck and face. Carlos observed no
bleeding, bruising, or red mark on her face, but she appeared
“confused” and “disoriented” for about 15 minutes after reviving.
The paramedics arrived and examined Maria at the house.
They offered to take her to the hospital, but, despite being in
pain, Maria declined. She testified she declined because she did
not want to pay for medical care. She testified she did not do
3 Dominique suggests the record is ambiguous as to whether
Maria lost consciousness. We reject this. We do not read her
testimony as inconsistent the way Dominique does. As Maria
explained in trying to answer questions about the specifics of the
fall and loss of consciousness, “[w]hen I take a blow like this, you
just don’t know anything.” In any event, Edith and Carlos
testified to seeing her on the ground unconscious.
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anything for her pain because her mentality was to simply tough
it out.
A sheriff’s deputy who interviewed Maria shortly after the
paramedics examined her thought she seemed “a little bit”
disoriented. Though she denied any pain to him, the deputy
described her as “having complications to pretty much just walk
around.” The deputy arrested Dominique.
In addition to the GBI assault count of which he was
convicted (§ 245, subd. (a)(4)), Dominique was charged with elder
abuse (§ 368, subd. (b)(1)) and was alleged to have actually
caused GBI as an enhancement to the GBI assault count
(§ 12022.7, subd. (a)).
The case was tried to a jury. Dominique was represented by
counsel. His counsel did not request an instruction on simple
assault (§ 240), and none was given. Dominique’s defense in
closing argument to the GBI assault count was that Maria
fabricated the entire incident. According to Dominique’s counsel:
“Ladies and gentlemen, she was acting. She put herself on the
ground.”
Defense counsel urged the jury to acquit on the elder abuse
count for the same reasons and the additional reasons that the
prosecution had presented no evidence Dominique knew or
reasonably should have known Maria was 65 or older.
After some deliberation, the jury’s foreperson advised the
trial court it had reached a verdict on GBI assault but was
deadlocked on the elder abuse count and the GBI enhancement.
It was split 7 to 5 on the former after two rounds of balloting and
6 to 6 on the latter after three rounds of balloting. The court
declared a mistrial on those matters and requested the jury’s
verdict on GBI assault. The verdict was guilty.
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At sentencing, the People agreed to dismiss the elder abuse
count. For the GBI assault conviction, the trial court sentenced
Dominique to the midterm of three years.
Dominique timely appealed.
DISCUSSION
Dominique’s sole contention on appeal is that the trial
court erred by failing to instruct the jury on simple assault.
Simple assault is a lesser included offense of the GBI assault for
which he was convicted (People v. Rupert (1971) 20 Cal.App.3d
961, 968 (Rupert)), comprising all the same elements except that
the defendant used force likely to produce GBI. We conclude that,
even to the extent Dominique was entitled to a simple assault
instruction, he was not prejudiced by the trial court’s failure to
give it.
I. Law and Standard of Review
“In a criminal case, a trial court must instruct on general
principles of law relevant to the issues raised by the evidence,
even absent a request for such instruction from the parties.
[Citation.] The obligation extends to instruction on lesser
included offenses when the evidence raises a question as to
whether all the elements of the charged offense were present, but
not when there is no evidence that the offense committed was
less than that charged.” (People v. Cruz (2008) 44 Cal.4th 636,
664.) Put another way, the trial court must instruct on the lesser
included offense if there is “ ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[]” ’ that the
lesser offense, but not the greater, was committed.” (Ibid.) “ ‘The
rule’s purpose is . . . to assure, in the interest of justice, the most
accurate possible verdict encompassed by the charge and
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supported by the evidence.’ ” (People v. Shockley (2013) 58 Cal.4th
400, 403–404.)
We independently review whether an instruction on a
lesser included offense should have been given. (People v.
Manriquez (2005) 37 Cal.4th 547, 584.) Even if we find error,
however, “[r]eversal . . . is warranted only if, ‘ “ ‘after an
examination of the entire cause, including the evidence’ [citation],
it appears ‘reasonably probable’ the defendant would have
obtained a more favorable outcome had the error not occurred
[citation].” [Citation.] The question is not what a jury could have
done, but what a jury would likely have done if properly
instructed.’ [Citation.] ‘ “In making that evaluation, an appellate
court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the
evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which
the defendant complains affected the result.” [Citation.]’
[Citation.] We also consider the instructions as a whole, the jury’s
findings, and the closing arguments of counsel.” (People v. Larsen
(2012) 205 Cal.App.4th 810, 831.)
II. Analysis
The jury convicted Dominique of GBI assault. As
instructed, this required the jury to find that he (1) did an act
that would directly and probably result in the application of force
to Maria, and the force used was likely to produce GBI; (2) did so
willfully; (3) was aware of facts that would lead a reasonable
person to realize his act would directly and probably result in the
application of force to Maria; and (4) had the present ability to
apply force likely to produce GBI to Maria.
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At trial, the evidence showed Dominique threatened to
“slap the shit out of” Maria and then proceeded to strike her in
the face and neck area. Dominique’s defense did not seriously
refute this. Instead, he argued Maria threw herself on the floor
and pretended to be unconscious for several minutes, suggested
she was not really hurt, and called into question the authenticity
of a photograph Maria testified showed her buttock bruise
sustained in the incident.
It is well established that a strike with a hand, particularly
one that results in a fall, can support a conviction for GBI
assault. (Rupert, supra, 20 Cal.App.3d at p. 967; People v.
McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) But that
is not the question here. The question is whether a reasonable
jury could have concluded the force Dominique applied was not
likely to cause GBI, defined in the jury instructions as a
“significant or substantial physical injury[;] [one] that is greater
than minor or moderate harm.”
There is authority to suggest that a jury should be given
the option of simple assault where the defendant is alleged to
have struck the victim without using a weapon and no GBI
results. (See, e.g., Rupert, supra, 20 Cal.App.3d at p. 967; People
v. Roth (1964) 228 Cal.App.2d 522, 530–531.)
But even assuming without deciding the trial court erred in
failing to provide that option, we conclude any error was
harmless.
The evidence that Dominique used force likely to cause GBI
was quite strong relative to the evidence he did not. Maria
testified that the blow knocked her down. Carlos heard
something impacting the wall from inside his room down the hall.
Whether as a result of the blow or the fall it caused, Maria
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testified she lost consciousness. Edith testified to seeing Maria
unconscious. So did Carlos. Both described her as being slow to
regain lucidity after coming to. And even though Maria declined
to go to the hospital, the sheriff’s deputy described her as still
appearing disoriented and having difficulty walking some time
after the incident.
Weighing against this evidence was nothing but
speculation that Maria’s antipathy towards Dominique might
have driven her to set him up and purported inconsistencies in
witness accounts that Dominique’s counsel used to cast Maria as
a malingerer. As to the former, we are satisfied that the
cumulative testimony Maria lost consciousness and remained
disoriented after coming to renders it highly unlikely a juror
would have concluded Maria’s fall and loss of consciousness were
an act. As to the latter, we think any inconsistencies in the
testimony are trivial. None of them casts doubt on the compelling
and unrefuted objective witness testimony that Maria was on the
floor unconscious for several minutes immediately after an
enraged Dominique “very aggressive[ly]” threatened to “slap the
shit out of [her].”
Satisfied it is unlikely any reasonable juror would conclude
Dominique did not strike Maria with such force as to knock her
down and cause her to lose consciousness, we are equally
satisfied it is unlikely a reasonable juror would have found he did
not subject Maria to the risk of likely GBI, even if instructed on
simple assault. As instructed, GBI is “significant or substantial
physical injury[;] [one] that is greater than minor or moderate
harm.” To the extent Maria escaped GBI here—the jury split
evenly on the question—striking a nearly 70-year-old woman
with such force as to knock her to the ground and render her
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unconscious for several minutes is likely to cause more than
minor or moderate harm. (See People v. Clark (2011) 201
Cal.App.4th 235, 246 [“it is common knowledge that falling to the
ground as the result of an unexpected tripping creates a
substantial danger of broken bones, torn ligaments or other
injuries”]; cf. People v. Racy (2007) 148 Cal.App.4th 1327, 1336
[“as a matter of common knowledge, [74] is an age that carries
with it an increased risk of bone fractures from a fall”]; People v.
Berry (1976) 18 Cal.3d 509, 519 [choking a victim to the point of
unconsciousness “necessarily indicates force likely to produce
[GBI]”].)
Dominique asks us to infer the jurors struggled with the
likelihood of GBI based on the length of their deliberations, which
he calculates at nearly five hours, and their deadlock on the elder
abuse count and GBI enhancement. Such an inference is
unwarranted here.
As to the duration of the deliberations, the record shows
the jury spent a substantial portion of this time debating the
issues on which it ultimately deadlocked. The foreperson reported
the jury was split roughly evenly on these issues and went
through multiple rounds of balloting on each (five in total). It
never reported being deadlocked on GBI assault.
As to the fact of the deadlocks, that roughly half the jury
rejected the elder abuse count and GBI enhancement implies no
infirmity in the jury’s conclusion on GBI assault. As their
instructions made clear, the jury could convict Dominique for GBI
assault even if Maria did not suffer GBI. (Rupert, supra,
20 Cal.App.3d at p. 967 [“[section 245, subdivision (a)] focuses on
the type of force likely to cause [GBI] rather than the injury
which actually results”]; McDaniel, supra, 159 Cal.App.4th at
9
p. 748 [“ ‘ “The issue . . . is not whether serious injury was caused,
but whether the force used was such as would be likely to cause
it.” ”].) Though the foreperson’s report tells us roughly half the
jurors thought Maria’s loss of consciousness or bruise to her
buttock was more than “minor or moderate harm” but the other
jurors did not, there is no reasonable probability a jury would not
have found likely GBI if instructed on simple assault.
And, we reject Dominique’s argument that juror
disagreement over the elder abuse count shows the jury
“struggled with the prosecutor’s narrative of assault.” On appeal,
Dominique focuses on the similarities between elder abuse and
GBI assault. But at trial, the only special attention his counsel
gave the elder abuse count was to argue the prosecution had
offered no evidence Dominique knew or should have known Maria
was over 65—an element unique to elder abuse. Counsel’s
argument on this point was compelling. The prosecution had
conceded Dominique did not know Maria’s age and simply asked
the jury to conclude “a reasonable person . . . could tell that she’s
an elderly woman.” Based on this record, we think it highly likely
the jury focused on the only element of elder abuse defense
counsel did.
Contrary to the inferences Dominique asks us to draw, we
think the record of the jury’s deliberations indicates the jury
acted conscientiously and with diligence to reach their verdict
confidently. The deadlocks imply jurors were attentive to the
elements of the charges, attuned to the People’s burden, and
those who harbored doubt about whether that burden was met
were comfortable dissenting.
Under these circumstances, any error in failing to instruct
on simple assault was harmless.
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DISPOSITION
The judgment is affirmed.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.
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