P. v. James






Filed 9/30/11 P. v. James CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. MICHELLE JAMES, Defendant and Appellant.

B226744 (Los Angeles County Super. Ct. No. NA083861)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.
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Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
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Michelle James appeals from the judgment entered after a jury convicted him of assault with a deadly weapon. James contends that the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of simple assault. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information, dated December 29, 2009, charged James with one count of assault with a deadly weapon under Penal Code section 245, subdivision (a)(1).[1] The information specially alleged that James had three prior serious or violent felony convictions that qualified as “strikes” under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior serious felony convictions within the meaning of section 667, subdivision (a)(1).
2. The Evidence Presented at Trial
a. The People’s evidence
On November 7, 2009, about 12:45 a.m., Alvis Tucker was standing outside a liquor store in Long Beach when he saw James, whom he had met about six years earlier when the two lived in a rehabilitation facility. James asked Tucker where he could get methamphetamine. Tucker responded that he did not “do that,” but James “kept bugging [him].” Tucker asked James to get away from him. The two men argued, and James eventually left the area.
Tucker remained outside the liquor store, talking with his friend Gregory Sawyer. About 1:45 a.m., Tucker saw a man, who was bending over and covering his face, looking as though he were picking up items from the gutter. Sawyer thought the man was a transient collecting cigarette butts. The man moved close to Tucker’s face, and Tucker saw that it was James. James said, “‘I’m sorry about earlier. Can we be friends‌’” James extended his right hand to shake Tucker’s hand, and when Tucker reached out to shake James’s hand, James struck Tucker in the nose with an object in his left hand, causing a cut and bleeding from Tucker’s nose. James cursed at Tucker and said, “What’s happening now‌” Tucker backed into the street, still bleeding, and James followed him. Tucker stopped, and James lunged at him. The two wrestled and fell to the ground. Both Tucker and Sawyer saw a shiny object in James’s left hand. Tucker grabbed James’s left wrist, but let go when Tucker’s elbow hit the ground. James, using the shiny object, struck Tucker on the right side of his neck, about three times on his right shoulder blade and in his rib cage. As Tucker tried to gain control, he got on top of James. The police arrived and told Tucker to get up. James stopped striking Tucker, threw the shiny object and “flop[ped] on the ground,” crying as though someone had hurt him. Tucker told the police what had happened. He suffered injuries to his neck, elbow, knees, back and nose (on which he had a one-half-inch scar at the time of trial). James had no injuries. The police found the shiny object, which was a silver cuticle cutter, about five inches long, with some blood on it. Tucker and Sawyer identified the cuticle cutter as the object that James had used to strike Tucker.
Tucker admitted that he had three prior convictions for petty theft, one prior conviction for taking a vehicle without the owner’s consent and one prior conviction for vandalism.
b. The defense’s evidence
James, who described himself as a transgender, testified in his own defense. James admitted to prior convictions for grand theft person, assault, assault with a deadly weapon, petty theft, battery on a peace officer, battery on a prisoner and robbery. He testified that, about 9:00 p.m., on the evening of November 6, 2009, he was near the liquor store when he saw Tucker, whom he had met at a rehabilitation facility. Tucker was with another man, whom James learned was Sawyer, panhandling. Tucker asked James for money. When James refused, Tucker “jumped on [him] and threatened to rob [him], attempted to rob [him], but [Tucker] snatched [his] purse and broke it and everything fell out.” Tucker “struck [James] in [the] face, [James’s] glasses fell off, [Tucker] snatched his purse. It broke and things fell out of [James’s] purse.” Tucker and James “tussled” in the street, and Tucker choked James. When the police drove by, Sawyer called to Tucker, and Tucker ran away.
After the incident, James went home and realized that he had lost a coin purse and a cuticle cutter from his purse and that a lens from his glasses and an earring were missing. James cried and watched a movie at home. About 1:50 a.m., when he thought the liquor store would be closing and people would be gone from the area, he changed his clothes and returned to the location to look for his belongings. Once there, James found his cuticle cutter and coin purse and noticed that a car had run over the lens from his glasses. While continuing to look for his possessions, James, who had not noticed that Tucker and Sawyer still were outside the liquor store, felt something hit him on the side of his head and saw that it was Tucker. James began “swinging wildly” at Tucker to fight back. Tucker backed James up into the middle of the street and got on top of him. Tucker hit James, and James swung back at Tucker because Tucker was on top of him. The police arrived during the altercation. Tucker got off James, and James lay in the street in pain. Tucker and Sawyer told the police that James had “jumped” on Tucker, but James said, “‘That’s not the story. I did not do that.’” On cross-examination, James admitted that he had hit Tucker in the face, back, ribs and neck with his cuticle cutter, causing injuries to Tucker.
3. The Jury’s Verdict and Sentencing
The jury found James guilty of assault with a deadly weapon as charged. James admitted the three prior serious or violent felony convictions specially alleged under the Three Strikes Law and the three prior serious felony convictions specially alleged within the meaning of section 667, subdivision (a)(1). The trial court struck two of the prior serious or violent felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, leaving one prior serious or violent felony conviction for purposes of sentencing under the Three Strikes Law. The court sentenced James to a state prison term of 23 years, consisting of the upper term of four years for the assault with a deadly weapon, doubled to eight years under the Three Strikes Law, plus 15 years for the three prior serious felony convictions within the meaning of section 667, subdivision (a)(1).
DISCUSSION
1. The Crimes of Simple Assault and Assault with a Deadly Weapon
Simple assault “is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) An example of an aggravated assault is an assault with a deadly weapon, which carries greater punishment than a simple assault. (Compare § 245, subd. (a)(1), with § 241, subd. (a).) Simple assault is a lesser included offense of aggravated assault, including assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
“As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon [that] is used in such a manner as to be capable of producing and likely to produce[] death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used [in a manner likely to produce death or great bodily injury], the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) “‘“When it appears, however, that an instrumentality . . . is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, . . . its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.” [Citation.]’ [Citations.]” (People v. Page (2004) 123 Cal.App.4th 1466, 1471.)
2. No Duty to Instruct on Simple Assault as a Lesser Included Offense of Assault with a Deadly Weapon Based on the Evidence in This Case
James contends that the trial court committed prejudicial error by failing to instruct sua sponte on simple assault as a lesser included offense of assault with a deadly weapon because the jury could have determined that the cuticle cutter he used in the assault was not a deadly weapon.[2] We disagree.
A trial court must instruct the jury sua sponte on a lesser included offense when some evidence in the record, if believed by the trier of fact, would show the lesser, but not the greater, offense was committed. (People v. Hagen (1998) 19 Cal.4th 652, 672.) It need not instruct on a lesser offense when no evidence shows the offense committed was less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 194-195; see also People v. Breverman (1998) 19 Cal.4th 142, 162 [instructing on lesser offense required when “evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury”].) The question at issue thus is whether some evidence demonstrated that James committed only a simple assault and not the greater offense of assault with a deadly weapon. If, based on the evidence presented at trial, the jury could find James either guilty of assault with a deadly weapon or not guilty, but could not find him guilty of only simple assault, then the trial court had no sua sponte duty to instruct on simple assault. (See People v. Page, supra, 123 Cal.App.4th at p. 1474.)
According to the undisputed evidence, James repeatedly hit Tucker, striking him in the nose, neck, back and ribs with a cuticle cutter, causing injuries to those areas, including a cut to the nose that left a one-half-inch scar, and a cut to the neck. Although James, through his testimony, presented a theory of self-defense, the jury implicitly rejected that theory.
Under those circumstances, no doubt exists that the cuticle cutter could be used in a dangerous or deadly manner and that James intended in the moment when he was striking Tucker to use his cuticle cutter that manner. The character of the cuticle cutter as a dangerous or deadly weapon thus is “‘“established, at least for purposes of that occasion.”’” (People v. Page, supra, 123 Cal.App.4th at pp. 1471, 1473 [no duty to instruct on simple assault because sharp pencil was a deadly weapon as a matter of law based on facts that defendant threatened to stab victim with it and “viewed it, at that moment, as an instrument of great bodily injury or death”]; People v. Golde (2008) 163 Cal.App.4th 101, 116-117 [no duty to instruct on simple assault because car constituted deadly weapon when defendant drove it toward the victim]; see People v. Simons (1996) 42 Cal.App.4th 1100, 1107 [screwdriver was deadly weapon as a matter of law on “particular occasion” because it was “capable of being used as a deadly weapon and . . . defendant intended to use it as such if the circumstances required”].) Accordingly, the evidence does not show that the offense committed was a simple assault, rather than the crime of assault with a deadly weapon as charged, and the trial court, therefore, had no sua sponte duty to instruct the jury on the lesser included offense of simple assault. (People v. McDaniel, supra, 159 Cal.App.4th at p. 749 [when jury implicitly found defendant did not act in self-defense, undisputed evidence showed no less than an assault with force likely to produce great bodily injury and jury could not reasonably conclude that force applied to victim’s head was not likely to cause him to suffer great bodily injury, eliminating any need for trial court to instruct on lesser included offense of simple assault].)[3]
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.



ROTHSCHILD, Acting P. J.


We concur:



CHANEY, J.



JOHNSON, J.




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