P. v. Osborne

 

 

 

 

Filed 1/13/14  P. v. Osborne
CA2/5

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE
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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   RAYMOND HURDLE OSBORNE,               Defendant and Appellant.

B247119         (Los Angeles County       Super. Ct. No. YA080105)

 

 

            APPEAL
from a judgment of the Superior Court of
Los Angeles County, Scott T. Millington, Judge.  Affirmed with directions.

            Jean
Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys
General, for Plaintiff and Respondent.

 

 

 

 

 

I.  INTRODUCTION

 

            A jury convicted defendant, Raymond Hurdle
Osborne, of deadly weapon assault (Pen. Code, § 245, subd. (a)(1))href="#_ftn1" name="_ftnref1" title="">^[1] and misdemeanor vandalism
(§ 594, subd. (a)).  Defendant was
sentenced to 3 years in state prison.  We
affirm the judgment.  We direct the clerk
of the superior court, upon remittitur issuance, to amend the href="http://www.mcmillanlaw.us/">abstract of judgment and deliver a copy
to the Department of Corrections and Rehabilitation.

 

II.  EVIDENCE AND ARGUMENT

 

            Defendant
and the victim, Rodney Ballard, had a history of animosity stemming from a
transaction involving an automobile repair. 
On January
7, 2011, they encountered each other by
chance in a grocery store parking lot. 
The encounter culminated in the aggravated assault and vandalism charges
against defendant.

            According
to Mr. Ballard, defendant was the aggressor. 
Defendant challenged Mr. Ballard to a fight.  Mr. Ballard rode away on his motorcycle.  Defendant got into his truck.  Defendant chased Mr. Ballard.  Defendant reached out through the truck’s
window and swung a flashlight at Mr. Ballard.  
Mr. Ballard finally arrived at his apartment complex.  Defendant pulled in behind Mr. Ballard.  Defendant approached and swung the flashlight
at Mr. Ballard.  The blow landed on Mr.
Ballard’s right shoulder, fracturing his shoulder blade.  Mr. Ballard tried unsuccessfully to get
away.  Mr. Ballard tripped and fell to
the ground.  Defendant kicked Mr. Ballard
in the side and in the head.  Mr. Ballard
suffered a gash to the back of his scalp requiring 10 stitches.  Defendant also lacerated Mr. Ballard’s right
eyebrow area.  That wound also required
10 stitches.  Mr. Ballard was frightened
and did not fight back.  Defendant walked
away.  Paramedics were summoned and took
Mr. Ballard to the hospital.  

Before leaving
the scene, defendant vandalized Mr. Ballard’s motorcycle with the
flashlight.  A neighbor, Jose Perez, saw
defendant “going after” Mr. Ballard’s motorcycle with a flashlight.  Mr. Ballard, whose face was bloody, was
saying:  “Wasn’t that enough?  Just go.” 
Defendant appeared to be very angry. 
Mr. Perez never saw Mr. Ballard attack, punch or kick defendant.  

            Another
neighbor, Geovany Teran, witnessed portions of the physical altercation between
defendant and Mr. Ballard.  Mr. Teran saw
defendant swing a flashlight at Mr. Ballard several times.  Mr. Ballard fell to the ground and tried to
cover himself.  Defendant then struck Mr.
Ballard with the flashlight.  Mr.
Ballard’s motorcycle helmet flew off. 
Mr. Ballard never took a swing at defendant.  At no time did Mr. Ternan see Mr. Ballard
make an aggressive move towards defendant. 


            Defendant
testified Mr. Ballard was the aggressor. 
Defendant testified they met in the grocery store parking lot when, “[Mr.
Ballard] rolled over to me on his motorcycle.” 
Mr. Ballard began to threaten defendant. 
Defendant testified, “He was using profane language and making threats
along the lines of . . . what he was gonna do . . . .”  Defendant said to Mr. Ballard:  “I know you vandalized my car.  Can we just . . . get away from this stuff
and let it go[?]”  Mr. Ballard
responded:  “You know about that?  I’ll pay for it.”  Mr. Ballard agreed to pay defendant for the
damage.  Mr. Ballard said to follow him
home.  Defendant followed Mr. Ballard
home.  Defendant denied hitting Mr.
Ballard with a flashlight at any time.  Defendant
did not try to run Mr. Ballard down.  Eventually
they arrived at Mr. Ballard’s home.  Defendant
parked and walked over to  Mr. Ballard.  Mr. Ballard had gotten off his motorcycle and
was taking off his gloves. He still had his helmet on.   

            Mr.
Ballard spoke in an angry fashion.  Then,
“out of nowhere,” Mr. Ballard “clobbered” defendant.  Mr. Ballard admitted using his motorcycle
helmet to strike back.  Mr. Ballard
struck the left side of defendant’s face. 
Mr. Ballard grabbed defendant by the hair.  This caused defendant to panic.  Defendant grabbed Mr. Ballard by the hand.  Defendant admitted taking Mr. Ballard’s
helmet.  And defendant admitted striking
Mr. Ballard twice in the head with the helmet. 
Defendant also used a hand to hit Mr. Ballard.  Mr. Ballard was holding defendant by the
hair.  Mr. Ballard was trying to stop
this.  As they struggled, defendant once
again struck Mr. Ballard with the helmet. 
Then Mr. Ballard tripped and fell backwards.  Defendant fell to the ground with the helmet
in his left hand.  As he fell, defendant
dropped the helmet.  Defendant described
how the two men fell:  “He had his hands
in my hair and my hand is here.  And, so,
we were going backwards.  His feet got
caught up and he fell.  I saw his feet
because I’m looking down like this and I could feel him going back.  I came into him real close.”  Mr. Ballard fell to the ground.  Thereupon,  defendant’s shoulder landed in Mr. Ballard’s
sternum.  Mr. Ballard’s head bounced
twice against the concrete.  Mr. Ballard
let go of defendant’s hair as they fell. 
The fight ended. 

            Defendant
denied kicking Mr. Ballard.  Defendant retreated
down the driveway.  Mr. Ballard threw the
motorcycle helmet at defendant.  It fell
nearby.  Defendant admitted he took out
his frustration on the motorcycle.  He
hit the motorcycle several times with the helmet.  He did so because he was enraged.  Defendant testified he was not proud of what
he did.  

            Defendant
was represented by Deputy Alternate Public Defender Robert Cortes. Mr. Cortes argued
defendant acted in self defense: 
“Someone slams a helmet in your face and grabs your hair, starts pulling
your hair, you’re in imminent danger. 
Someone is gonna kick your butt. 
It is reasonable to believe that? 
Yeah.  Defendant reasonably
believed that immediate use of force was necessary to defend himself against
that danger.  [¶]  After he had been coldcocked, his hair was
being pulled, he was being dragged, he’s dazed, sees stars, maintains he’s
temporarily blinded, he attempts to do whatever he can to defend himself.  Grabs the helmet as he’s being led, and his
concern is not to have him start pulling chunks out of his hair.  He uses the helmet, starts smashing anything
he can to make the attacker stop. 
[¶]  Lastly, he uses no more force
than was reasonably necessary to disable the attacker.  Once Ballard trips, head bounces off the
concrete twice, he lets him go and walks away. 
This was confirmed even by Ballard. 
His hair was no longer tangled in his hand.  He was free to leave, and he walked
away.  He used enough force to stop the
attacker.”  

III.  DISCUSSION

 

A.  Lesser Included Offense Instruction

 

Defendant
asserts it was prejudicial error not to instruct sua sponte on simple assault
as a lesser included offense.  We find no
error.  A trial court has a sua sponte
duty to instruct on lesser included offenses whenever substantial evidence
raises a question whether all the elements of the charged offense are
present.  (People v. Smith (2013) 57 Cal.4th 232, 239; People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman (1998) 19 Cal.4th 142, 154, 162.)  In the lesser included offense context, our
Supreme Court has held:  “Substantial
evidence is evidence sufficient to ‘deserve consideration by the jury,’ that
is, evidence that a reasonable jury could find persuasive.”  (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; accord, People v. Cunningham (2001)
25 Cal.4th 926, 1008.)  The duty does not
exist, however, when the evidence is such that if the defendant is guilty at
all, he is guilty of the greater offense (People
v. Smith, supra, 57 Cal.4th at p. 240; People
v. Cunningham, supra, 25 Cal.4th at p. 1008); that is, “when there is no
evidence that the offense was less than that charged.”  (People
v. Breverman, supra, 19 Cal.4th at p. 154.) 
Section 240 defines a simple assault, “An assault is an unlawful
attempt, coupled with a present ability, to commit a violent injury on the
person of another.”  An aggravated
assault includes a violation of section 240 but with a deadly weapon such as a
motorcycle helmet.  (§ 245, subd.
(a)(1).)  Simple assault is a lesser
included offense of assault with a deadly weapon.  (People
v. Carmen (1951) 36 Cal.2d 768, 775, disapproved on another point in >People v. Flannel (1979) 25 Cal.3d 668, 684,
fn. 12; People v. McDaniel (2008) 159
Cal.App.4th 736, 747-748; People v. Yeats
(1977) 66 Cal.App.3d 874, 879.)

Here, in view of
the evidence introduced and the defense presented, the trial court did not have
a sua sponte duty to instruct on simple assault.  Defendant was either the aggressor who was
guilty of aggravated assault or he was not as he acted in self defense.  The jury could either find defendant
committed an assault with a deadly weapon or he did not.  The jury could not have returned a simple
assault verdict.  (People v. McDaniel, supra, 159 Cal.App.4th at p. 749; >People v. Yeats, supra, 66 Cal.App.3d at
pp. 879-880.)

 

B.  The Abstract Of Judgment

 

Defendant was
sentenced to three years in state prison on count 1, felony deadly weapon assault
(§ 245, subd. (a)(1)).  Also
defendant received a concurrent six-month county jail term
on count 2, misdemeanor vandalism (§ 594, subd. (a)).  Defendant committed the aggravated assault
prior to the October
1, 2011 effective date of the realignment
legislation.  (People v. Montrose (2013) 220 Cal.App.4th 1242, 1246; >People v. >Wilson (2013) 220 Cal.App.4th 962, 964.) 
The sentence is improperly recorded in the abstract of judgment as a
three-year, six-month state prison sentence. 
The “principal or consecutive term imposed” and the “total time
excluding county jail term” should be three
years; not three years, six months.

            In
addition, the abstract of judgment reflects a $40 court operations assessment
(§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code,
§ 70373, subd. (a)(1)).  However,
the trial court correctly ordered those assessments imposed >as to each count.  (People
v. Sencion (2012) 211 Cal.App.4th 480, 484; see People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.)  The abstract
of judgment must be amended to reflect $80 in court operations assessments
and $60 in court facilities assessments. 


 

 

 

 

 

 

 

 

 

IV.  DISPOSITION

 

            The judgment is affirmed.  Upon remittitur issuance, the clerk of the
superior court is to prepare an amended abstract of judgment that
reflects:  a principal state prison term of
three years was imposed; a concurrent county jail term of six months was imposed;
$80 in court operations assessments under Penal
Code section 1465.8, subdivision (a)(1); and $60 in court facilities
assessments under Government Code section 70373, subdivision (a)(1).  The clerk of the superior court is to deliver
a copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                TURNER,
P. J.

 

 

We concur:

 

 

            MOSK,
J.

 

 

            MINK,
J.href="#_ftn2" name="_ftnref2" title="">^*