Filed 4/4/17 P. v. Acosta CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO MONTELONGO ACOSTA,

Defendant and Appellant.


G052398

(Super. Ct. No. 15CF0825)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Jennifer B. Truong and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Armando Montelongo Acosta of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(l); all further undesignated statutory references are to the Penal Code; count 1), two counts of resisting arrest (§ 148, subd. (a)(l); counts 2, 3), and possession of burglary tools (§ 466; count 4). The court found Acosta had a prior strike conviction (§§ 667, subds. (d), (e)(l), 1170.12, subds. (b)-(c)(l)) and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced Acosta to six years.
Acosta challenges the sufficiency of the evidence to prove he committed assault with a deadly weapon, and the court’s failure to give instructions on simple assault as a lesser included offense. We find no merit in either contention and affirm the judgment.
FACTS
One morning, two Santa Ana police officers, Matthew Chitjian and Santiago Diaz, responded to a report of a possible car burglary near a Santa Ana apartment complex. They found Acosta at the scene and tried to talk to him. However, Acosta fled from the officers and escaped.
Later that morning, the security guard for the apartment complex, Hector Pinon, saw Acosta and called the police. Chitjian and Diaz returned to the apartment complex. This time, they decided to split up and trap Acosta between them. Diaz saw Acosta reach for something in his waistband. Thinking it might be a weapon, Diaz deployed his Taser. Acosta was momentarily stunned, but he quickly recovered and squeezed through some bushes to freedom.
As Diaz and Chitjian chased Acosta, Acosta ran full speed at Pinon, who was standing about 20 to 30 feet away and holding his bicycle in front of him. Chitjian and Diaz testified Acosta came within seven to 10 feet of Pinon, and pulled an object from his waistband. Chitjian described the object as a “rigid,” “solid” metal rod over two feet long and more than a quarter of an inch thick, which had been bowed into an L-shape. Acosta raised the metal rod over his head and brought it “straight down” towards Pinon’s upper body in a kind of “tennis racket overhand.”
Pinon responded to Acosta’s rapid approach by throwing his bicycle at Acosta’s feet. This forced Acosta to jump over Pinon’s bicycle during his flight. When Chitjian and Diaz finally captured and arrested Acosta, they found the L-shaped, metal rod nearby, and a pair of plyers in his pocket. Chitjian later testified the metal rod was solid and “heavy” when held.
Called by the defense, Pinon testified Acosta came at him from approximately 25 to 30 feet away, and he feared for his life. Initially, Acosta had his arms at his sides, and when Acosta got within about six feet of Pinon, Pinon said he shifted his eyes to Acosta’s feet. Pinon testified he never saw anything in Acosta’s hands.
DISCUSSION
1. Sufficiency of the Evidence
Section 245, subdivision (a)(1), punishes assaults committed “with a deadly weapon or instrument other than a firearm,” or by “any means of force likely to produce great bodily injury.” (Id. subd. (a)(4).) A “‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) When the object is not inherently dangerous, the question becomes whether the defendant used that object in a manner and with sufficient force to endanger the victim’s life or limb. (Id. at p. 1035; see In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.)
Acosta argues he did not use the metal rod in such a manner or with sufficient force to cause death or serious bodily injury. When addressing a challenge to the sufficiency of the evidence, the reviewing court evaluates the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45 Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557, 578.)
We accept any logical inferences the jury could have drawn from the circumstantial evidence because the jury, not the reviewing court, must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) “If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
Here, Acosta wielded an object two officers described as a solid piece of metal, a quarter of an inch thick and over two feet long, and Chitjian testified the rod was heavy when he picked it up. Diaz and Chitjian saw Acosta sprint to within a few feet of Pinon and pull this object from his waistband. Acosta raised the heavy, metal rod over his head, and took a swing at Pinon’s upper body. Pinion said Acosta came at him with such speed he feared for his life. Considering the force behind Acosta running at full speed, and Acosta’s proximity to Pinon when he deliberately tried to strike Pinon with the heavy metal rod, substantial evidence supports the jury’s verdict.
Acosta argues he never got close enough to Pinon to cause great bodily injury or death, pointing to the fact the metal rod was a mere two feet long and he was at least twice that distance away from Pinon. But section 245 “focuses on force likely to produce harm, it is immaterial that the force actually resulted in no harm whatever.” (People v. Wingo (1975) 14 Cal.3d 169, 176.) The crime is complete “upon the attempted use of the force.” (People v. Yeats (1977) 66 Cal.App.3d 874, 878.) The crime was complete when Acosta ran at Pinion and tried to hit Pinion with a heavy metal rod.
Acosta also asserts the metal rod was “pencil thin” and “too small to cause any significant damage unless it is being used to stab at someone, or aimed at the face, head, neck area, and used multiple times.” These statements ignore the record. The prosecution relied on the testimony of the officers who arrested Acosta, and a photograph. Chitjian described the object as heavy, solid metal rod, more than a quarter of an inch thick, and over two feet long. Acosta swung this heavy, metal rod at Pinon’s upper body while he was sprinting directly toward Pinon. Under these fact, Acosta most certainly would have caused Pinon significant injury or death had Pinon not thrown his bicycle at Acosta’s feet. In short, there is substantial evidence Acosta committed an assault with a deadly weapon.
2. Lesser Included Offense Instructions
Although defense counsel did not request simple assault instructions at trial, Acosta asserts the court should have given this instruction on its own. We disagree.
In criminal trials, the court must instruct on the general principles of law raised by the evidence and necessary to the jury’s decision with or without a request, including instructions on any lesser included offenses that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Substantial evidence means evidence “from which a rational jury could conclude that the defendant committed the lesser offense, and that he [or she] is not guilty of the greater offense. [Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 50.)
“Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is however predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733.) Thus, claims of instructional error are therefore reviewed de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) In reviewing the trial court’ ruling, the appellate court considers the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Even considered in the light most favorable to Acosta, no evidence supported giving simple assault instructions. According to Chitjian and Diaz, Acosta was running at top speed and within a few feet of Pinon when he swung a heavy metal rod at Pinon’s upper body. The fact Pinon did not see a weapon in Acosta’s hands does not undermine the officer’s testimony. With no evidence Acosta committed anything less than an assault with a deadly weapon, instructions on assault as a lesser included offense would have been improper. (People v. Breverman, supra, 19 Cal.4th at p. 162.)











DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.