People v. Chavez CA2/2 ( 2023 )

Filed 5/22/23 P. v. Chavez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B322454
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA129793)
v.
JOSE MANUEL CHAVEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Victor D. Martinez, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Jose Manuel Chavez appeals the judgment entered
following a jury trial in which he was convicted as charged on one
count of assault with a deadly weapon in violation of Penal Code1
section 245, subdivision (a)(1). Appellant admitted a prior strike
conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and the
trial court sentenced him to two years, doubled to four years for
the strike.
Appellant contends the trial court’s refusal to instruct the
jury on the lesser included offense of simple assault requires
reversal. We disagree and affirm.
FACTUAL BACKGROUND
Around 3:00 p.m. on February 15, 2022, appellant entered
a CVS store in Pomona and began walking through the aisles
removing items from the shelves. Jessar Lanuza, a CVS store
manager, had seen appellant in the store on more than 10 prior
occasions. Appellant was often aggressive and sometimes
engaged in shoplifting; Lanuza described him as “a presence in
the store” whose loitering made the “staff and customers
uncomfortable.” Lanuza had previously asked appellant to leave
and made it clear that he was not welcome in the store.
Upon learning that appellant was in the store on this
occasion, Lanuza approached him and said, “ ‘Hey, what are you
doing here?’ ” Appellant aggressively replied, “ ‘Leave me alone.
Get away.’ ” Feeling it was not safe to be around appellant,
Lanuza went to the office to call the police.
Carlos Alvarado was a shift supervisor at CVS. He had
seen appellant in the store a “handful of times.” Appellant
1 Undesignated statutory references are to the Penal Code.
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generally caused trouble, and Alvarado had asked him to leave
the store “[a]lmost on every single encounter” he had with him.
When Alvarado saw appellant in the store on February 15
around 3:00 p.m., he immediately informed Lanuza. Alvarado
went back to work, watching as Lanuza interacted with
appellant. Alvarado heard Lanuza asking appellant to leave.
Eventually Lanuza returned to the office. Appellant continued
wandering around the store. Another store employee, Russell,
approached appellant, and he also asked appellant to leave.
Alvarado told Russell the situation was already being handled
and to just leave appellant alone. Then Alvarado again told
appellant to leave.
By this time appellant was in the household wares aisle.
He was carrying toothpaste, some toothbrushes, and other items
in his hands. As he “meander[ed] around,” appellant picked up a
saucepan, which Alvarado thought he was going to use to carry
the merchandise he was holding. Instead, appellant told
Alvarado to leave him alone and raised the pot in his right hand
behind his shoulder in a threatening manner. Alvarado lifted his
left arm toward the pot as appellant lunged at him. Appellant
swung the pot at Alvarado’s head, striking his glasses and
causing them to fall off. Appellant then swung the pot again, this
time striking Alvarado full force in the head on his left eyebrow
near the temple.
The blow was very painful, causing Alvarado temporarily to
lose some vision in his left eye. Alvarado went to the office to get
an ice pack for his face, which had started to “swell[ ] up pretty
bad.” Lanuza testified that when Alvarado came to the office his
face was flushed and “already starting to swell up”; it was “very
apparent” he had been struck in the face. Lanuza called the
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paramedics, who arrived and treated Alvarado’s face. In addition
to the initial swelling, Alvarado developed “a very . . . prominent
purple eye,” which lasted for a week after the assault.
Photographs of Alvarado’s injury were shown to the jury.
CVS has a strict hands-off policy, which prohibits
employees from interacting physically with customers. A
violation of the policy may result in an employee’s termination.
According to Lanuza and Alvarado, on February 15, 2022, no
CVS employee put hands on or otherwise touched appellant at
any time before or after appellant struck Alvarado in the face
with the saucepan.
Appellant testified that he often visited the CVS where the
incident took place, and he shoplifted every time he went because
he had a heroin addiction. CVS employees had repeatedly told
him not to come to the store.
On the day of the incident, appellant had gone to the CVS
to take some hygiene products as well as “buy some stuff.”
Appellant believed he had an arrangement with Lanuza that he
would pick up cans and trash in the parking lot, and Lanuza
would not call the police when he came into the store to “help
[him]self” to what he needed.2 Because of the supposed
agreement, appellant was confused when Lanuza confronted him
and told him to leave, and told Lanuza he did not want any
problems.
Appellant continued shopping. The next thing he knew,
Alvarado started chasing him. Twice appellant said he did not
want any problems and backed up. He felt like he was being
2Lanuza denied the existence of any such arrangement
with appellant.
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cornered by Alvarado and another employee. Appellant was
afraid they were going to pin him down. At that point, appellant
no longer cared about the items he had picked up; he just wanted
to leave the store. When one of the men approached appellant
with a raised fist, appellant “chucked the stuff” he was holding.
Appellant also testified that he “[threw] stuff at the aisle” or
dropped the items.
Appellant denied picking up a saucepan and striking
Alvarado in the face. But he also admitted he was “high out of
[his] mind” at the time and did not recall whether he picked up
the pot or struck Alvarado with it. When specifically asked if he
assaulted Alvarado, appellant replied simply that he did not
“recall that part.”
DISCUSSION
The Trial Court Correctly Declined to Instruct
the Jury on Simple Assault Because Substantial
Evidence Did Not Support Any Instruction on a
Lesser Included Offense
Appellant contends the trial court prejudicially erred in
failing sua sponte to instruct the jury on simple assault (§ 240) as
a lesser included offense of assault with a deadly weapon (§ 245,
subd. (a)(1)). Arguing that it is reasonably probable that had the
jury been instructed with the lesser included offense, it would
have returned a different verdict, appellant asserts reversal is
required. (See People v. Watson (1956) 46 Cal.2d 818, 836–837
(Watson).) We disagree.
1. Proceedings below
The trial court raised the issue of instruction on lesser
included offenses with the parties before closing arguments but
after the court had instructed the jury. While acknowledging
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that simple assault is a lesser included offense of assault with a
deadly weapon, the court found on the facts of this case there was
no substantial evidence that only a simple assault had occurred.
The court explained, “If anything, there was evidence that it was
a battery; but battery is not a lesser included offense of assault
with a deadly weapon. As a result, I did not include any lessers.
[¶] Does either counsel wish to be heard?” Defense counsel
submitted without argument.
2. Legal principles
A simple assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another.” (§ 240.) The only difference between simple assault
and assault with a deadly weapon (§ 245, subd. (a)(1)) is that the
latter requires proof of the additional element that in committing
the assault, the defendant used a deadly weapon or instrument
other than a firearm. (People v. McDaniel (2008) 159 Cal.App.4th
736, 748 (McDaniel).) Because an assault with a deadly weapon
cannot be committed without necessarily committing a simple
assault, simple assault is a lesser included offense of assault with
a deadly weapon. (McDaniel, at pp. 747–748; People v. Lopez
(1998) 19 Cal.4th 282, 288 [“if a crime cannot be committed
without also necessarily committing a lesser offense, the latter is
a lesser included offense within the former”].)
A “trial court has an independent obligation to instruct the
jury on all lesser included offenses the evidence warrants, even
against the defense’s wishes. Such instructions are required
when, but only when, a jury could reasonably conclude that the
defendant committed the lesser offense but not the greater one.”
(People v. Hardy (2018) 5 Cal.5th 56, 98; People v. Westerfield
(2019) 6 Cal.5th 632, 718; People v. Duff (2014) 58 Cal.4th 527,
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561; People v. Breverman (1998) 19 Cal.4th 142, 161–162.)
However, “[n]o instruction on lesser included offenses is required
if there is no evidence that there was any offense less than that
charged.” (People v. Vargas (2020) 9 Cal.5th 793, 827.) Further,
instructions on a lesser included offense are not justified based on
“the existence of ‘any evidence, no matter how weak,’ ”
(Breverman, at p. 162; People v. Whalen (2013) 56 Cal.4th 1, 68),
and mere “ ‘[s]peculation is an insufficient basis upon which to
require the giving of an instruction on a lesser offense’ ”
(Westerfield, at p. 718).
We review independently the question of whether a trial
court erroneously failed to instruct on a lesser included offense.
(People v. Nieves (2021) 11 Cal.5th 404, 463.) If error is found,
that error is subject to the harmless error standard of review
under Watson, supra, 46 Cal.2d at pages 836–837. (People v.
Gonzalez (2018) 5 Cal.5th 186, 196 [“The failure to instruct on
lesser included offenses supported by substantial evidence was
state law error”].) Under that standard, “[r]eversal is required
only if it is reasonably probable the jury would have returned a
different verdict absent the error or errors complained of.”
(People v. Prince (2007) 40 Cal.4th 1179, 1267.)
3. There was no substantial evidence to support instruction on
the lesser included offense of simple assault.
Appellant’s testimony did not amount to substantial
evidence that he committed only the lesser offense of simple
assault but not the greater one of assault with a deadly weapon.
Appellant testified that as Alvarado approached him, he “chucked
the stuff,” “[threw] stuff at the aisle,” or simply dropped the items
he was holding in his hands. He never said he threw “the stuff”
at anyone, and he did not see any of the items strike anyone.
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Indeed, the only mention of throwing anything at a person came
from a question by defense counsel, which appellant did not
answer.3 Thus, according to appellant’s own version of events,
there was no evidence of any assault at all: He denied striking
Alvarado with a saucepan, and the items he was carrying fell
harmlessly to the floor when he chucked them away. (See People
v. Campbell (2020) 51 Cal.App.5th 463, 503 [“An instruction on a
lesser included offense is not required ‘when the evidence shows
that the defendant is either guilty of the crime charged or not
guilty of any crime’ ”].)
Even if appellant’s testimony were sufficient to establish a
simple assault based on throwing the items at Alvarado, any
error in failing to instruct on simple assault was harmless
because the evidence of simple assault did not contradict the
overwhelming evidence in support of the conclusion that
appellant committed the greater crime of assault with a deadly
weapon by hitting Alvarado in the face with a pot. Appellant’s
denial that he struck Alvarado on the head⎯which was the only
evidence supporting his innocence⎯was itself highly equivocal:
Appellant confessed he was “high out of [his] mind” at the time
and had no recollection whether he even picked up the saucepan
or whether he struck Alvarado with it.
Moreover, the injury to Alvarado’s face was undisputed.
Immediately after he was hit with the pot, Alvarado’s face turned
red and “swelled up pretty bad.” Alvarado lost vision in his left
3 Appellant’s answer to defense counsel’s question⎯“So
you’re saying that you physically just, like, threw the items at the
⎯at the person’s, like, torso area?”⎯was completely
nonresponsive.
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eye for a moment after being struck, and he had a “prominent”
black eye for a week afterward. According to Lanuza, it was
“very apparent” Alvarado had been struck in the face. There was
no evidence whatsoever to even suggest that someone other than
appellant could have been the perpetrator.
In short, the evidence that appellant stuck Alvarado in the
face with a heavy object was overwhelming and supported
conviction of one crime only: assault with a deadly weapon.
(McDaniel, supra, 159 Cal.App.4th at p. 749 [based on extent of
victim’s injuries, there was no substantial evidence of a simple
assault rather than an assault by means likely to produce great
bodily injury].) Indeed, and as we also conclude, given the
paucity of evidence to support a simple assault in this case, the
trial court did not err in declining to instruct the jury on simple
assault as a lesser included offense of assault with a deadly
weapon. (People v. McCoy (1944) 25 Cal.2d 177, 187 [“The law is
well settled in this state that the trial court may properly refuse
to instruct upon simple assault where the evidence is such as to
make it clear that if the defendant is guilty at all, he is guilty of
the higher offense”]; People v. Lesnick (1987) 189 Cal.App.3d 637,
643 [a trial court has no duty to instruct on simple assault as a
lesser included offense of assault with a deadly weapon where the
evidence of the use of a deadly weapon is uncontroverted]; see
also People v. Wyatt (2012) 55 Cal.4th 694, 704.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KWAN, J.*
We concur:
ASHMANN-GERST, Acting P. J.
HOFFSTADT, J.
*Judge of the Superior Court of Los Angeles County
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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