People v. Marion CA2/6 ( 2021 )

Filed 4/21/21 P. v. Marion CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B300814
(Super. Ct. No. PA092451)
Plaintiff and Respondent, (Los Angeles County)
v.
OTTO CLIFFORD MARION,
Defendant and Appellant.
Otto Clifford Marion appeals the judgment entered after a
jury convicted him of assault with a deadly weapon, i.e., a box
cutter (Pen. Code,1 § 245, subd. (a)(1)) and battery (§ 242). The
trial court sentenced him to 4 years in state prison, plus 180 days
in county jail. Appellant contends (1) the court violated its sua
sponte duty to instruct the jury on simple assault (§ 240) as a
lesser included offense of assault with a deadly weapon; and (2)
the court abused its discretion in denying probation. We affirm.
All statutory references are to the Penal Code unless
1
otherwise noted.
STATEMENT OF FACTS
On the night of May 16, 2019, Juan Rodriguez and Alex
Menjivar went to a fast food restaurant in Panorama City.2 They
ordered at the window as appellant stood in line behind them,
then sat down and waited for their food. While they were
waiting, appellant argued with a restaurant employee and
repeatedly said “give me my fucking milkshake.” David Essex,
who was in line behind appellant, testified that appellant had “a
look in his eyes” that led Essex to believe “he was looking for
trouble.”
When Rodriguez’s number was called he got up, walked
past appellant, and said, “Excuse me.” Appellant replied “what
the fuck, I was here first.” After Rodriguez got his food, appellant
tried to grab it from him. Appellant blew in Rodriguez’s face,
called him a “little ass kid” and a “faggot,” asked him if he
thought he was “tough,” and told him to “hit” him. Appellant got
his food and threw some of his french fries at Rodriguez.
Rodriguez responded by throwing some of his own fries back at
appellant.
Appellant punched Rodriguez in the face several times and
grabbed his arm. Appellant tried to pull Rodriguez to the ground
and continued punching him. Rodriguez started punching
appellant, who was physically much larger than Rodriguez, and
tried to place appellant in a chokehold in an effort to subdue him.
Rodriguez called for Menjivar’s help. Menjivar and Essex
grabbed appellant and pulled him off of Rodriguez.
As Rodriguez was walking away, appellant pulled out a
lanyard with a box cutter attached to it and swung it at Menjivar.
2A video of the incident, which was recorded on the
restaurant’s video surveillance cameras, was played at trial.
2
After Menjivar ran away, appellant grabbed Rodriguez by his
legs, pulled him to the ground, and began punching him again.
Rodriguez put up his hands to protect his face and saw that his
thumb was bleeding. Rodriguez was also bleeding from a cut
near his right knee. As appellant was attempting to stab
Rodriguez with the box cutter he repeatedly said, “It’s a beautiful
day to die.” Appellant also repeatedly said “[y]ou’re going to die
today. I’m going to kill you.” When Menjivar saw appellant raise
the blade of the box cutter to Rodriguez’s neck, he grabbed
appellant’s arm and began punching him. Appellant bit
Menjivar’s arm as he continued trying to raise the blade to
Rodriguez’s neck.
Essex thought appellant was going to kill Rodriguez, so he
and his girlfriend helped Menjivar pull appellant off Rodriguez.
Following a brief struggle, Essex wrested the box cutter from
appellant’s hand. Appellant told Essex “it was two against one,
that he was just defending himself.”
The police arrived and arrested appellant, who was
transported to the hospital for treatment of cuts on his right fist.
Appellant told the police “[y]ou guys took so long to respond, I
almost killed that kid. I almost killed a kid for no good reason.”
Rodriguez also went to the hospital, where he received stitches
for a three-quarter-inch cut to his thumb and a two-and-a-half-
inch cut to his leg.
DISCUSSION
Failure to Instruct on Simple Assault
Appellant contends the trial court violated its sua sponte
duty to instruct the jury on the lesser included offense of simple
assault (§ 240). We are not persuaded.
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“A trial court must instruct on a lesser included offense
‘“‘whenever evidence that the defendant is guilty only of the
lesser offense is “substantial enough to merit consideration” by
the jury.’”’ [Citation.] Substantial evidence in this context is
evidence from which reasonable jurors could conclude that the
lesser offense, but not the greater, was committed. [Citation.]
When evaluating whether a lesser included offense instruction
should have been given, we view the evidence in the manner most
favorable to the defendant and apply an independent review
standard.” (People v. Mullendore (2014) 230 Cal.App.4th 848,
856.)
Simple assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another.” (§ 240.) Simple assault is necessarily included in the
offense of assault with a deadly weapon. (People v. McDaniel
(2008) 159 Cal.App.4th 736, 747-748.)
The jury was instructed pursuant to CALCRIM No. 875
that appellant was guilty of assault with a deadly weapon in
violation of section 245, subdivision (a)(1) if the People proved
beyond a reasonable doubt that (1) he “did an act with a deadly
weapon other than a firearm;” (2) he “did that act willfully;” (3)
when appellant committed the act, “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;” (4) when appellant so acted “he had the
present ability to apply force with a deadly weapon other than a
firearm[;]” and (5) he “did not act in self-defense.” The jury was
further instructed that “[a] deadly weapon other than a firearm is
any object, instrument, or weapon that is inherently deadly or
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one that is used in such a way that it is capable [of] causing and
likely to cause death or great bodily injury.” (Italics omitted.)
The trial court had no duty to instruct on simple assault
because the evidence did not support a finding that appellant was
guilty of that offense but not the greater offense of assault with a
deadly weapon. The assault was captured on video, and the video
was played for the jury at trial and admitted as an exhibit.
Although appellant did not request that this evidence be
transmitted to this court, we have obtained and reviewed the
video. The recording shows appellant initiating a fight with
Rodriguez and punching him several times. After appellant was
pulled off Rodriguez and Rodriguez began to walk away,
appellant pulled out a box cutter and attacked Rodriguez again.
Appellant cut Rodriguez’s knee and thumb with the box cutter
and attempted to reach Rodriguez’s neck with the blade as he
repeatedly said, “you’re going to die today. I’m going to kill you.”
Because the evidence unequivocally establishes that appellant
attempted to apply “a sharp object” to “[a] vulnerable part of
[Rodriguez’s] body” (In re B.M. (2018) 6 Cal.5th 528, 538), no
reasonable juror would have found that appellant was merely
guilty of committing a simple assault rather than an assault with
a deadly weapon.
In arguing to the contrary, appellant notes that the jury
was not properly instructed on the definition of a deadly weapon.
Although the court instructed that a deadly weapon includes “any
object, instrument, or weapon that is inherently deadly or one
that is used in such a way that it is capable of causing and likely
to cause death or great bodily injury,” it did not include the
additional optional language in CALCRIM No. 875 that defines
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an inherently deadly weapon as one that “is deadly or dangerous
in the ordinary use for which it was designed.”
In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), in
which the defendant was also convicted of a using a box cutter to
commit an assault with a deadly weapon, our Supreme Court
held it was error to instruct the jury pursuant to CALCRIM No.
875 that a weapon could be either inherently deadly or deadly in
the way it had been used when the weapon could not be found to
be inherently deadly. The court explained that although certain
objects such as dirks and blackjacks are inherently deadly, a box
cutter is a “‘type of knife’” that is “‘designed to cut things and not
people’” and thus “‘cannot be an inherently deadly weapon “as a
matter of law.””’ (Id. at pp. 6, 8.) Because the error was legal
rather than factual, it was subject to the harmless-beyond-a-
reasonable-doubt standard established in Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) In concluding beyond a
reasonable doubt that the error did not contribute to the verdict
in that case, the court reasoned that “if used to assault someone,
i.e., used as a weapon, a box cutter is potentially deadly even if
not designed for that purpose.” (Aledamat, at p. 14, italics
omitted.)
Here, it also clear beyond a reasonable doubt that the error
in instructing the jury that a box cutter can be considered an
inherently deadly weapon did not contribute to the verdict. Any
reasonable juror would have found that appellant “used” the box
cutter “in such a way that it [was] capable of causing and likely to
cause death or great bodily injury.” (CALCRIM No. 875.) The
defendant in Aledamat pulled out a box cutter, extended the
blade, and thrust it at the victim at waist level from three to four
feet away while saying, “‘I’ll kill you.’” (Aledamat, supra, 8
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Cal.5th at p. 4.) Appellant initiated physical contact with
Rodriguez, repeatedly punched him, cut his knee and thumb with
the box cutter, and attempted to cut his neck as he repeatedly
said “I’m going to kill you.” Moreover, appellant did not expressly
dispute at trial that he had used the box cutter as a deadly
weapon; rather, he claimed that he had used the weapon in self-
defense. Under the circumstances, the error in instructing the
jury on the definition of a deadly weapon provides no basis for
reversal of appellant’s conviction. Contrary to appellant’s claim,
this conclusion is not undermined by the jury’s “not true” finding
on the allegation that appellant inflicted great bodily injury in
committing the assault.
For the first time in his reply brief, appellant alternatively
claims that “[t]he facts of this case required a simple assault
instruction because [appellant’s] self defense claim was that the
simple assault fight escalated into a more serious self-defense
situation.” Because this claim was not raised in the opening
brief, it is forfeited. (People v. Rangel (2016) 62 Cal.4th 1192,
1218-1219.)
In any event, the claim lacks merit. Appellant was plainly
the initial aggressor and threw the first punch. As the jury was
instructed pursuant to CALCRIM No. 3471, appellant thus had a
right to subsequently act in self-defense only if (1) “[h]e actually
and in good faith tried to stop fighting;” (2) “[h]e indicated by
word or by conduct, to his opponent, in a way that a reasonable
person would understand, that he wanted to stop fighting and
that []he had stopped fighting;” and (3) “[h]e gave his opponent a
chance to stop fighting.” The jury was further instructed that “[a]
person does not have the right to self-defense if he or she
provokes a fight or quarrel with the intent to create an excuse to
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use force.” (CALCRIM No. 3472) In light of the evidence, as
reflected in the video of the incident and the testimony of the
victims and eyewitnesses, no reasonable juror would have found
that appellant had a right to act in self-defense and was thus
merely guilty of committing a simple assault at the outset of the
encounter. His claim of instructional error thus fails.
Denial of Probation
Appellant also contends the court erred in denying
probation. We disagree.
Because appellant was convicted of assault with a deadly
weapon, he was presumptively ineligible for probation. (§ 1203,
subd. (e)(2).) Under section 1203, however, a court may grant
probation in “unusual cases in which the interests of justice
would best be served if the person is granted probation.” (Id.,
subd. (e).)
“The standard for reviewing a trial court’s finding that a
case may or may not be unusual is abuse of discretion.
[Citations.] The standard is the same for review of an order
granting [or denying] probation. ‘Probation is an act of clemency
which rests within the discretion of the trial court, whose order
granting or denying probation will not be disturbed on appeal
unless there has been an abuse of discretion.’ [Citation.]” (People
v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) “Our
function is to determine whether the [trial] court’s order is
arbitrary or capricious, or ‘“exceeds the bounds of reason, all of
the circumstances being considered.”’ [Citation.] The burden is
on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
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discretionary determination to impose a particular sentence will
not be set aside on review. [Citations.]” (Ibid.)
Rule 4.413 of the California Rules of Court3 sets forth the
criteria for the trial court to consider in determining whether
probation should be granted when a defendant is presumptively
ineligible. The criteria are divided into two categories: (1) facts
relating to the limitation on probation; and (2) facts limiting the
defendant’s culpability. (Rule 4.413(c)(1).) The first criteria
include the following considerations: “(A) The factor or
circumstance giving rise to the limitation on probation is, in this
case, substantially less serious than the circumstances typically
present in other cases involving the same probation limitation,
and the defendant has no recent record of committing similar
crimes or crimes of violence; and [¶] (B) The current offense is
less serious than a prior felony conviction that is the cause of the
limitation on probation, and the defendant has been free from
incarceration and serious violation of the law for a substantial
time before the current offense.” (Ibid.)
The second criteria include: “(A) The defendant
participated in the crime under circumstances of great
provocation, coercion, or duress not amounting to a defense, and
the defendant has no recent record of committing crimes of
violence; [¶] (B) The crime was committed because of a mental
condition not amounting to a defense, and there is a high
likelihood that the defendant would respond favorably to mental
health care and treatment that would be required as a condition
of probation; and [¶] (C) The defendant is youthful or aged, and
3 All further rule references are to the California Rules of
Court.
9
has no significant record of prior criminal offenses.” (Rule
4.413(c)(2).)
Appellant’s probation report set forth six circumstances in
aggravation and no factors in mitigation. The circumstances in
aggravation included that appellant had engaged in violent
conduct indicating a danger to society (rule 4.421(b)(1)), his prior
convictions are numerous and of increasing seriousness (rule
4.421(b)(2)), and his prior performance on probation was
unsatisfactory (rule 4.421(b)(5)). The report makes no reference
to appellant suffering from any mental disorder. At the
sentencing hearing, defense counsel asked the court to grant
probation based on appellant’s “mental health issues” and
presented unsworn testimony from a friend of appellant’s
regarding his mental state.
In concluding that appellant had not overcome the
statutory presumption that he was ineligible for probation, the
court stated: “I think [defense counsel] recognizes it’s a hard ask
to say that probation would be an appropriate outcome here,
given the factors that are in aggravation in the case and his prior
record. I just don’t find this to be an unusual case for that. If
this case stood alone, you have a 50-year-old man with untreated
mental illness, it would still be a hard ask, given the nature of
the injuries in this case. I know the jury did not find great bodily
injury, like life-threatening injury; but there was significant,
serious injury, no doubt, and with the weapon that he was
carrying at the time. So I don’t find this to be the unusual case.
And even if [he] was not presumptively ineligible for probation, if
that were the case, just looking at the criminal history it would
be, in my view, irresponsible to do this. So I just cannot grant
probation in this case.”
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After further discussing the circumstances of the crimes
and appellant’s lengthy criminal history, the court added that
“for me to think of probation, as much as I would like to see
people get mental health treatment, [it] is just completely
outweighed by the dangers that he poses once he’s out [of
custody]. And so I’m going to deny the request for probation at
this time.”
The court did not abuse its discretion. The only criteria
that arguably may have supported a finding of unusual
circumstances to overcome appellant’s presumptive ineligibility
for probation was that “[t]he crime was committed because of a
mental condition not amounting to a defense, and there is a high
likelihood that the defendant would respond favorably to mental
health care and treatment that would be required as a condition
of probation.” (Rule 4.413(c)(2)(B).) But there was no showing
that appellant committed the assault due to a mental condition.
As defense counsel conceded, appellant may also have substance
abuse issues. Moreover, the record amply supports the finding
that appellant presents a serious danger to society, and there was
no showing that appellant would respond favorably to mental
health care and treatment that would have been required as a
condition of probation.
Contrary to appellant’s claim, the court did not treat his
prior failure to seek mental health treatment as a circumstance
in aggravation. We also reject appellant’s claim that the court
“substituted its own erroneous judgment for that of the jury on
the [great bodily injury] finding.” The court merely recognized
that notwithstanding the jury’s finding that Rodriguez had not
suffered great bodily injury, appellant had succeeded in inflicting
injuries that required stitches. To the extent appellant purports
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to invoke the protections of the Americans With Disabilities Act
(ADA) (42 U.S.C.S. § 12132), he did not raise the claim below so it
is forfeited. In any event, appellant offers no evidence that he
had been diagnosed with a disability that would qualify him for
such protection. Because appellant fails to meet his burden of
showing that the court’s decision to deny probation was irrational
or arbitrary, his claim that the court’s order amounts to an abuse
of discretion also fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Daniel B. Feldstern, Judge
Superior Court County of Los Angeles
______________________________
Benjamin P. Lechman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
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