P. v. Sengphinith
Filed 1/28/13 P. v. Sengphinith CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT SENGPHINITH,
Defendant and Appellant.
C068504
(Super. Ct. No. 10F05523)
A
jury found defendant Robert Sengphinith guilty of assaulting his mother with a
deadly weapon -- a meat cleaver (count
2; ADDIN BA xc <@ost> xl 9 s
BXPKYX000014 xpl 1 l "Pen. Code" Pen. Code,
BA xc <@osdv> xl 19 s BXPKYX000016 l "§ 245, subd. (a)(1)" §
245, subd. (a)(1)). The jury found defendant not guilty of
degree robbery (count 1; ADDIN
BA xc <@osdv> xl 5 s BXPKYX000017 xpl 1 l "§ 211" §
211) and making criminal
threats (count 3; ADDIN BA xc <@osdv> xl 5 s
BXPKYX000018 xpl 1 l "§ 422" §
422). In a bifurcated proceeding, the trial court
found true an allegation defendant had a prior serious felony conviction within
the meaning of ADDIN BA xc <@osdv> xl 28 s
BXPKYX000019 l "section 667, subdivision (a)" section 667,
subdivision (a), that also qualified as strike under ADDIN
BA xc <@osdv> xl 44 s BXPKYX000020 l "section 667, subdivisions
(b)-(i) and 1170.1" section 667,
subdivisions (b)-(i), and section 1170.12.
Defendant was sentenced to an aggregate term of 11 years in state
prison, consisting of the middle term of 3 years, doubled for the prior strike,
plus 5 years pursuant to ADDIN
BA xc <@$osdv> xl 28 s BXPKYX000019 section 667, subdivision (a).
Defendant appeals, contending there
is insufficient
evidence to support his assault conviction, and the
trial court prejudicially erred in failing to instruct the jury on brandishing
a deadly weapon as a lesser included offense of “robbery and [making] criminal
threats with the use of a deadly weapon.â€
Finding no error, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant often slept in his car
outside his parents’ apartment. On the
morning in question, he entered the apartment to get something to eat. His mother did not want him in the apartment;
she was afraid of him. When she asked
him to leave, he told her he would do so if she returned the $140 he previously
had given her to help with rent and other expenses. When he first requested the money, he did not
have anything in his hands. Later,
however, he emerged from the kitchen with a meat cleaver, grabbed his mother,
forced her down on the couch, and threatened to kill her. He swung the cleaver at her about three times
“just to scare†her.
gave him all the money she had -- $100 -- because she was afraid that he was
going to strike her with the cleaver.
Once she gave him the money, he left, and she called the police.
Sacramento police received a call from defendant’s
mother “indicat[ing] that her son was threatening to kill her.†Defendant’s mother told police that defendant
had repeatedly threatened to kill her that day.
Police were unable to locate
defendant until the following day. They
found him asleep in his car, which was parked outside his parents’
apartment. Defendant is bigger and appeared
stronger than his mother.
DISCUSSION
I
Sufficient Evidence Supports Defendant’s
Conviction for Assault with a Deadly Weapon
Defendant claims there is no
evidence to support his assault with a deadly weapon
conviction because “no reasonable juror could conclude that [he] did an act
that would directly and probably result in the application of force to the
victim . . . .†He is wrong.
“In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the whole
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence--that is, evidence that is reasonable, credible,
and of solid value--such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.†( ADDIN BA xc <@$cs> xl 47 s
BXPKYX000001 xhfl Rep xpl 1 People
v. Rodriguez, supra, 20 Cal.4th
at p. 11.)
To find defendant guilty of assault
with a deadly weapon, the People were required to prove that (1) defendant did
an act with a deadly weapon that by its nature would directly and probably
result in the application of force to a person; (2) defendant did the act
willfully; (3) when defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; and (4) when defendant
acted, he had the present ability to apply force likely to produce great bodily
injury or with a deadly weapon. (See ADDIN
BA xc <@cs> xl 47 s BXPKYX000002 xhfl Rep xpl 1 l "
Cal.App.4th 101, 121" People v. Golde (2008) 163 Cal.App.4th 101, 121.)
Assault is a general intent
crime. ( ADDIN BA xc <@cs> xl 45 s
BXPKYX000003 xhfl Rep xpl 1 l "People
v. Chance (2008)
cause injury or a subjective awareness of the risk that an injury might
occur. Rather, assault only requires an
intentional act and actual knowledge of those facts sufficient to establish
that the act by its nature will probably and directly result in the application
of physical force against another.†( ADDIN BA xc <@cs> xl 45 s
BXPKYX000004 xhfl Rep xpl 1 l "People
v. Williams (2001)
Acts such as “‘[h]olding up a
fist in a menacing manner, drawing a sword . . . or bayonet, [and] presenting a
gun at a person who is within its range, have been held to constitute an
assault. So, any other similar act,
accompanied by such circumstances as denote an intention existing at the time,
coupled with a present ability of using actual violence against the person of
another, will be considered an assault. . . . [¶] . . .
[¶] . . . [W]hen the party draws the weapon, although he
does not directly point it at the other, but holds it in such a position as
enables him to use it before the other party could defend himself, at the same
time declaring his determination to use it against the other, the jury are
fully warranted in finding that such was his intention.’†( ADDIN BA xc <@cs> xl 48 s
BXPKYX000005 xhfl Rep xpl 1 l "People
v. Raviart (2001)
BA xc <@cs> xl 44 s BXPKYX000006 xhfl Rep xqt xpl 1 l "
Cal. 547, 548-549" People v. McMakin (1857) 8 Cal. 547, 548-549.) Similarly, where the deadly weapon is a
knife, “it [is] not necessary that the prosecution introduce evidence to show
that the appellant actually made an
attempt to strike or use the knife upon the person of the prosecutrix . . .
.†(
ADDIN BA xc <@cs> xl 41 s BXPKYX000007 xhfl Rep xpl 1 l "
Cal.2d 177, 189" People v. McCoy (1944) 25 Cal.2d 177, 189.)
Here, defendant argues that he did
not attempt a battery, and merely “shaking†the cleaver was not an act that by
its nature would probably and directly result in the application of physical
force. The evidence shows
otherwise. Defendant did not merely show
his cleaver, he emerged from the kitchen with it, forced his mother down onto
the couch, and swung it at her about three times. This act by its nature would directly and
probably result in the application of force.
Furthermore, defendant’s actions would lead a reasonable person to
believe that the application of physical force was the direct, natural, and
probable result of his behavior. Indeed,
his mother testified that she was afraid he was going to strike her with the
cleaver. At that close distance, and
wielding the cleaver in such a manner, defendant had the present ability to
inflict violent injury on his mother.
Based on this evidence, the jury had a sufficient basis to convict
defendant of assault with a deadly weapon.
II
The Trial Court Did Not Err in Failing to
Sua Sponte Instruct the Jury on Brandishing
a
Deadly Weapon as a Lesser Included Offense
of
Robbery and Making Criminal Threats with the
Use of a Deadly Weapon
Defendant contends the trial court’s
failure to sua sponte instruct the jury on brandishing a weapon
as a lesser included offense of “robbery and [making] criminal threats with the
use of a deadly weapon†violated his Fifth, Sixth, and ADDIN
BA xc <@con> xl 14 s BXPKYX000021 l "14th Amendment" Fourteenth Amendment
rights to a jury trial and to due process.
He is mistaken.
“[I]t is the ‘court’s duty to instruct
the jury not only on the crime with which the defendant is charged, but also on
any lesser offense that is both included in the offense charged and shown by
the evidence to have been committed.’
[Citation.]†( ADDIN BA xc <@cs> xl 46 s BXPKYX000008
xhfl Rep xpl 1 l "People v.
Gutierrez (2009)
determining whether an uncharged offense is necessarily included within a charged
offense: the ‘elements’ test and the ‘accusatory pleading’ test. [Citation.]
. . . Under the accusatory pleading test, a lesser offense is included
within the greater charged offense if the facts actually alleged in the
accusatory pleading include all of the elements of the lesser offense. [Citations.]â€
(
ADDIN BA xc <@cs> xl 43 s BXPKYX000009 xhfl Rep xpl 1 l "
Cal.4th 740, 748" People v. Bailey (2012) 54 Cal.4th 740, 748.)
Defendant was charged in an amended
information with, among other things, first degree robbery (count 1; ADDIN
BA xc <@$osdv> xl 5 s BXPKYX000017 xpl 1 §
211) and making criminal
threats (count 3; ADDIN BA xc <@$osdv> xl 5 s
BXPKYX000018 xpl 1 §
422). In addition, it was alleged that defendant
“personally used a deadly and dangerous weapon(s), to wit, a meat cleaver†in
the commission of those offenses. ( ADDIN BA xc <@osdv> xl 21 s
BXPKYX000022 xpl 1 l "§ 12022, subd. (b)(1)" §
12022, subd. (b)(1)
.) Defendant argues that under “the
accusatory pleadings test, if the court was allowed to consider the ADDIN
BA xc <@osdv> xl 32 s BXPKYX000023 l "section 12022 subdivision
(b)(1)" section 12022
subdivision (b)(1) enhancement, brandishing a weapon is a necessarily
included offense to robbery and criminal threats with the use of a deadly
weapon.†As defendant acknowledges, our
Supreme Court has long held “that enhancements may not be considered as part of
an accusatory pleading for purposes of identifying lesser included
offenses.†( ADDIN BA xc <@cs> xl 42 s
BXPKYX000010 xhfl Rep xpl 1 l "People
v. Sloan (2007)
BA xc <@cs> xl 37 s BXPKYX000011 xhfl Rep xqt xpl 1 l "
Cal.3d 92" People v. Wolcott (1983) 34 Cal.3d 92.) Defendant also acknowledges that we are bound
by that long standing rule ( ADDIN BA xc <@cs> xl 74 s
BXPKYX000012 xhfl Rep xpl 1 l "Auto
Equity Equity Sales, Inc. v. Superior Court (1962)
450, 455" Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455),
and explains that “[t]his argument is being presented for the California
Supreme Court.â€
Putting aside the fact that we are
bound by the rule against considering enhancement allegations in determining
lesser included offenses, we note that defendant has failed to explain, and we
are unable to discern, how he was prejudiced by the court’s failure to instruct
the jury on brandishing a weapon as a lesser included offense of “robbery and
[making] criminal threats with the use of a deadly weapon†insofar as defendant
was acquitted of those counts, and brandishing a weapon is not a lesser
included offense of the count for which he was convicted -- assault with a
deadly weapon. (See ADDIN
BA xc <@cs> xl 51 s BXPKYX000013 xhfl Rep xpl 1 l "
Cal.App.4th 212, 217-221" People
v. Steele (2000) 83 Cal.App.4th 212, 217-221.)
DISPOSITION
The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
DUARTE , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the ADDIN BA xc <@ost> xl 10 s
BXPKYX000015 l "Penal Code" Penal
Code.
name="_ftn2" title="">[2] Since the issue before us, at least in part,
is whether there is sufficient evidence to support the jury’s finding that
defendant was guilty of assault with a deadly weapon, the facts are set forth
in the light most favorable to the judgment.
(
ADDIN BA xc <@cs> xl 43 s BXPKYX000001 xhfl Rep xpl 1 l "
(1999)
11)
