P. v. Menjivar
Filed 9/18/13 P. v. Menjivar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JORGE JOSE MENJIVAR,
Defendant
and Appellant.
E055008
(Super.Ct.No.
FWV1101171)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Michael A. Sachs, Judge.
Affirmed.
Sarah
A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Jorge Jose Menjivar guilty of assault by
means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
suffered one prior serious or violent felony strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).) As a result, defendant was
sentenced to a total term of six years in state prison with credit for time
served. On appeal, defendant contends
(1) the trial court erred in denying his request to instruct the jury on simple
assault, and (2) he is entitled to additional presentence conduct credits under
the most recent amendment to section 4019.
We reject these contentions and affirm the judgment.
I
FACTUAL
BACKGROUND
On
April 29, 2011, at around 8:30 p.m., the victim was walking through an
apartment complex looking for his younger brother’s friend’s bicycle, which had
been stolen earlier that day, when he was approached by six to eight young
adult men. The men, including defendant,
surrounded the victim. One of the young
men asked the victim in a firm voice what he was doing there. The victim did not respond and tried to get
away, but the group surrounded him.
One
of the young men stated, “Let’s get this white fool.â€
in the left side of the face, causing his left cheekbone to swell up. After two or three punches by the assailants,
the victim hit the ground face up, wherein the young men began to kick the
victim. The victim “tried to cover [his]
head,†but defendant gave a “hard kick†to his right temple.
and put his face in the ground. The
victim was unable to see his attackers, but he continued to feel kicks and hits
to his ribs and back until law enforcement arrived. Defendant was identified as one of the
attackers and was eventually arrested.
The
attack lasted about one minute, and the victim was punched and kicked
approximately 15 to 20 times. After the
attack, the victim was disoriented and unable to maintain his balance, and
suffered redness, swelling, bruising, and scratches.
II
DISCUSSION
A. Failure
to Instruct on Simple Assault
Defendant
claims that the trial court erred in denying his request to instruct the jury
on simple assault as a lesser included offense of assault by means to produce
great bodily injury. He argues that a
rational jury could have found that when he kicked the victim, he did not
employ force likely to produce great bodily injury. He notes evidence that he was wearing tennis
shoes when he kicked the victim and that the victim “only†suffered “redness to
the area.â€
A
defendant has a constitutional right to have the jury determine every material
issue presented by the evidence. (
69, 102.) The trial court must instruct
on general principles of law that are commonly or closely and openly connected
to the facts before the court and necessary for the jury’s understanding of the
case, including lesser included offenses supported by the evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 148-149, 162; People v. Heard (2003) 31 Cal.4th 946, 980-981.) The duty to instruct as to the lesser offense
“arises if there is substantial evidence the defendant is guilty of the lesser
offense, but not the charged offense.
[Citation.] This standard
requires instructions on a lesser included offense whenever ‘ “a jury
composed of reasonable [persons] could . . . conclude []†’ that the
lesser, but not the greater, offense was committed. [Citations.]
In deciding whether evidence is ‘substantial’ in this context, a court
determines only its bare legal sufficiency, not its weight.†(Breverman,
at p. 177.) The “purpose of the
rule is to allow the jurors to convict of either the greater or the lesser
offense where the evidence might support either.†(Id.
at p. 178, fn. 25.) Any doubt
as to the sufficiency of the evidence requiring such an instruction should be
resolved in favor of the defendant. (
470, 476.) We independently review the
question of whether the trial court erred by failing to instruct on a lesser
included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
“Great
bodily injury,†within the meaning of section 245, means “bodily injury which
is significant or substantial, not insignificant, trivial or moderate.†(People
v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Felonious assault in violation of section
245, subdivision (a), requires proof that a person was assaulted and that the
assault was committed by the use of a deadly weapon or instrument or by means
of force likely to produce great bodily injury.
Felonious or aggravated assault is a general criminal intent crime, and
requires proof only of an attempt to commit a violent injury upon the person of
another. It does not require proof of an
actual injury. (People v. Griggs (1989) 216 Cal.App.3d 734, 739-740.) Simple assault is an unlawful attempt,
coupled with the present ability, to commit a violent injury on another
person. (§ 240.) Simple assault is a lesser included offense
of assault by means of force likely to produce great bodily injury. (§ 245, former subd. (a)(1);
Cal.App.4th 736, 747.)
Defendant
argues that a simple assault instruction was required because the victim’s
injuries were minimal, focusing on the fact that defendant’s “kick was not done
with sufficient force to make the infliction of great bodily injury
likely.†We disagree. As discussed above, the evidence amply
supported a finding that defendant’s assault on the victim was an aggravated
assault with force likely to cause great bodily injury and that defendant
participated in that group assault.
Accordingly, for the jury to have convicted defendant of only simple
assault, it would have had to find he acted alone. There was no evidence to support this
scenario. The defense was that defendant
did not assault the victim at all and that “one kick to the head, by someone
wearing a tennis shoe . . . is not force likely to produce great
bodily injury.†The evidence pointed to
a joint, coordinated six-to-eight-on-one assault, approved and orchestrated by
the shot-caller, and carried out together by the group, including
defendant. The group punched and kicked
the victim approximately 15 to 20 times as he lay defenseless on the
ground. The victim tried to protect
himself from getting hit in the head, but in the midst of these circumstances,
defendant gave a “hard kick†to the victim’s head, a vulnerable portion of the
body. Once the victim rolled over to
protect his face, the assailants continued to kick the victim in the ribs and
back area. Since no evidence supported
an independent simple assault by defendant, the trial court had no obligation
to instruct on simple assault.
Defendant’s
focus on the end result of the punches and kicks is misplaced. Section 245 prohibits an assault by means of
force likely to produce great bodily
injury, not the use of force which in fact produces
such injury. Although the results of an
assault may be highly probative of the amount of force used, they cannot be
conclusive. (People v. Muir (1966) 244 Cal.App.2d 598, 604; People v. Duke (1985) 174 Cal.App.3d 296, 302-303 [“if hands, fists
or feet, etc., are the means employed, the charge will normally be assault with
force likely to produce great bodily injuryâ€].)
The force of the kick, the manner it was carried out, and the
circumstances under which the victim was attacked show that defendant assaulted
the victim by means of force likely to produce great bodily injury. It is settled that a court need not instruct
on simple assault where the evidence is such as to make it clear that if the
defendant is guilty at all, he is guilty of aggravated assault. (People
v. Berry (1976) 18 Cal.3d 509, 519 [failure to instruct on lesser offense
of simple assault not error because choking a victim to unconsciousness
“necessarily indicates force likely to produce great bodily injury†and could
not constitute mere simple assault.].)
It is beyond reasonable dispute that the assault on the victim here was
likely to produce great bodily injury, and it was not a simple assault. In other words, the evidence did not support
an instruction on simple assault, and therefore the failure to instruct was not
error. We therefore reject defendant’s
claim that in addition to an instruction on simple assault, the trial court
should also have instructed the jury to give him the benefit of any doubt as to
whether the offense was aggravated or simple assault.
Citing
People v. Racy (2007) 148 Cal.App.4th
1327 (Racy), defendant states that
“there is a reasonable chance that at least one juror’s assessment of the case
would have changed had the jury been properly instructed on the lesser included
offense of simple assault.†Defendant’s
reliance on Racy is unavailing
because the facts of that case are distinguishable from those here before
us. In reversing the defendant’s felony
elder abuse conviction on the ground the trial court prejudicially erred by
failing to instruct the jury on the elements of misdemeanor elder abuse as a
lesser included offense of felony elder abuse, the Court of Appeal noted that
the victim “did not suffer great bodily harm during the incident, so the jury
was left to draw inferences about whether the circumstances or conditions under
which defendant inflicted physical pain or mental suffering were likely to
produce great bodily harm or death.†(
court explained that, “[f]rom the facts that appear in the record, it is
reasonable the jury could have viewed [the victim] as a rather large man who
was not likely to suffer great bodily injury or death during the incident
despite his age and physical limitations.
[He] is six feet three inches tall and weighs 210 pounds and even after
being ‘zapped’ with the stun gun and pursued by defendant, he was able to
retreat to the bedroom, attempt to make a 911 call, and lie down on the bed in
a defensive position. He emerged
tripped.†(Id. at p. 1336, italics added.)
Thus, the Racy court
concluded, “there was a ‘reasonable chance’ defendant ‘would have obtained a
more favorable outcome’ had the jury been instructed on misdemeanor elder
abuse.†(Ibid.)
Racy is factually
distinguishable and the Court of Appeal’s holding is limited to the facts and
circumstances presented in that case.
Here, the victim was repeatedly attacked by six to eight young men, and
was unable to retreat, call for help, or make an attempt to defend himself from
the group attack. In addition, in the
midst of the attack, defendant kicked the victim in the head hard. For reasons discussed, ante, we have concluded there is no substantial evidence from which
a jury composed of reasonable persons could conclude that the force defendant
used in assaulting the victim was force likely to produce great bodily injury,
and thus the court had no duty to instruct the jury on the elements of simple
assault.
In
any event, it is not reasonably probable that defendant would have received a
more favorable verdict if the simple assault instruction had been given. (People
v. Rogers (2006) 39 Cal.4th 826, 886; People
v. Watson (1956) 46 Cal.2d 818, 836.)
A trial court’s failure to instruct on all lesser included offenses that
are supported by the evidence “is not subject to reversal unless an examination
of the entire record establishes a reasonable probability that the error
affected the outcome. [Citations.]†(People
v. Breverman, supra, 19 Cal.4th
at p. 165.) We have reviewed the
record and cannot conclude that any error affected the outcome. This is because, as discussed
kicked the victim in the head with sufficient force to likely cause great
bodily injury while the victim lay defenseless on the ground and was being
kicked by defendant’s cohorts. In
addition, during closing argument defense counsel argued that defendant was not
the perpetrator of the kick; and that “one kick to the head, by someone wearing
a tennis shoe, with no apparent injury . . . is not force likely to
produce great bodily injury.â€
Essentially, defense counsel argued that defendant’s kick amounted to an
assault, but not an assault likely to produce great bodily injury. However, the jury rejected this
argument. Thus, we conclude that, even
if the jury had been properly instructed to allow it to convict defendant of
simple assault, it is not reasonably probable that it would have done so.
B. Custody
Credits
Defendant
also argues that the trial court erred in failing to award him day-for-day
credit for the time he served after amended section 4019’s effective date,
October 1, 2011, to the date he was sentenced, November 17, 2011. Defendant acknowledges the California Supreme
Court’s recent decision in People v.
Brown (2012) 54 Cal.4th 314 (Brown)
held an earlier iteration of section 4019 was not fully retroactive and did not
violate equal protection principles, but continues to maintain that under equal
protection principles, he is entitled to day-for-day credit for the time he
served from October 1, 2011 to November 17, 2011. As we explain post, he is incorrect.
A
defendant is entitled to actual custody credit for “all days of custody†in
county jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a), People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 provides that a criminal
defendant may earn additional presentence credit against his or her sentence
for performing assigned labor (§ 4019, subd. (b)), and for complying with
applicable rules and regulations of the local facility (§ 4019, subd.
(c)). These presentence credits are collectively
referred to as conduct credits. (
939.)
Section
4019 has been amended multiple times.
Before January 25, 2010, defendants were entitled to one-for-two conduct
credits, which is two days for every four days of actual time served in
presentence custody. (Former § 4019,
subd. (f), as amended by Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, the Legislature
amended section 4019 to provide that prisoners, with some exceptions, earned
one-for-one conduct credits, which is two days of conduct credit for every two
days in custody. (Stats. 2009, 3d Ex.
Sess. 2009-2010, ch. 28, § 50.)
Effective September 28, 2010, the Legislature again amended section
4019. (Stats. 2010, ch. 426, §§ 1, 2,
5.) Subdivisions (b) and (g) restored
the one-for-two presentence conduct credit calculation that had been in effect
prior to the January 25, 2010, amendment.
Most
recently, the Legislature amended section 4019 to provide for up to two days
credit for each four-day period of confinement in local custody. (§ 4019, subds.(b) & (c).) This scheme reflects the Legislature’s intent
that if all days are earned under section 4019, a term of four days will be
deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).) This version of section 4019 became operative
on October 1, 2011. (Stats. 2011, ch.
12, § 35.)
Although
numerous appeals have been filed contending that section 4019’s current scheme
for calculating conduct credits is intended to apply retroactively, i.e., to
prisoners awaiting sentencing for crimes committed before the operative date,
defendant acknowledges that the statute’s language is prospective only.
would result in impermissible disparate treatment of similarly situated prison
inmates simply based on the dates of their offenses. We disagree.
In
Brown, supra, 54 Cal.4th 314, our Supreme Court addressed contentions that
the version of section 4019 effective on January 25, 2010, must be held to
apply retroactively, in part because prospective application would violate the
equal protection clauses of the state and
federal Constitutions. The court
stated:
that persons who are similarly situated with respect to a law’s legitimate
purposes must be treated equally.
[Citation.] Accordingly, ‘“[t]he
first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.â€â€™ [Citation.]
‘This initial inquiry is not whether persons are similarly situated for
all purposes, but “whether they are similarly situated for purposes of the law
challenged.â€â€™ [Citation.] [¶] . . . [T]he important correctional
purposes of a statute authorizing incentives for good behavior [citation] are
not served by rewarding prisoners who served time before the incentives took
effect and thus could not have modified their behavior in response. That prisoners who served time before and after former section 4019 took effect are
not similarly situated necessarily follows.†(Brown,
at pp. 328-329, italics added.)
The
Supreme Court rejected the argument that its decision in People v. Sage (1980) 26 Cal.3d 498 (Sage) required a contrary conclusion. (Brown,
supra, 54 Cal.4th at pp.
329-330.) The version of section 4019 at
issue in Sage authorized presentence
conduct credit for misdemeanants who later served their sentence in county jail,
but not for felons who ultimately were sentenced to state prison. The Sage
court found this unequal treatment violative of equal protection, as it found
no “rational basis for, much less a compelling state interest in, denying
presentence conduct credit to†felons. (
effect of Sage “was to extend
presentence conduct credits retroactively to detainees who did not expect to
receive them, and whose good behavior therefore could not have been motivated
by the prospect of receiving them.†(
Nevertheless, it declined to read Sage
in such a way as to foreclose a conclusion “that prisoners serving time before
and after incentives are announced are not similarly situated.†(Id.
at p. 330.) Brown explained: “The unsigned lead opinion ‘by the Court’ in
conduct credits, by their nature, must apply prospectively to motivate good
behavior. A brief allusion to that
argument in a concurring and dissenting opinion [citation] went unacknowledged
and unanswered in the lead opinion. As
cases are not authority for propositions not considered [citation], we decline
to read Sage for more than it
expressly holds.†(Ibid.)
Finally,
Brown rejected the notion the case
before it was controlled by In re
Kapperman (1974) 11 Cal.3d 542, the case on which defendant relies in this
case. In Kapperman, the court held that equal protection required
retroactive application of a statute granting credit to felons for time served
in local custody before sentencing and commitment to state prison, despite the
fact that the statute was expressly prospective. (Brown,
supra, 54 Cal.4th at
p. 330.) Brown found Kapperman
distinguishable: “Credit for time served
is given without regard to behavior, and thus does not entail the paradoxical
consequences of applying retroactively a statute intended to create incentives
for good behavior. Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing
Following
Brown, the appellate courts of this
state have rejected the contention that equal protection principles require the
retroactive application of the version of section 4019 effective October 1,
2011. (People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397;
Cal.App.4th 42, 53-54 [finding prisoners who committed their crimes before and
after October 1, 2011, similarly situated but also finding a rational basis for
their unequal treatment]; People v. Verba
(2012) 210 Cal.App.4th 991, 995-997 [same].)
We therefore reject defendant’s equal protection challenge, and claim
that he is not entitled to additional conduct credits.
III
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All future statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title=""> [2] The victim testified that “most†of the
assailants were African American, and “maybe three to four of them were
Hispanic.â€
