P. v. Cook

Filed 4/25/06 P. v. Cook CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Bryan Scott Cook was charged with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury, based on two separate assaults allegedly committed upon Richard Roy. Roy was heavily impeached with his prior inconsistent statements about the two assaults, his purposeful evasion of the prosecution's subpoena because of outstanding arrest warrants, and his admission that he lied to the investigating officers. Appellant was convicted of one count and found not guilty of the second count and placed on probation.

On appeal, appellant asserts the trial court had a sua sponte duty to instruct the jury with simple assault as a lesser included offense to the charged count, that his motion to discharge his deputy public defender should have been granted, and the court improperly excluded evidence that Richard Roy was released from custody on a no-bail warrant immediately after testifying for the prosecution in this case.

We will conclude the court should have instructed the jury on simple assault as a lesser included offense to count I. Given the entirety of the record, the error is prejudicial and reversal is required. For such reasons, we need not address the remaining issues.

STATEMENT OF THE CASE

On November 17, 2004, an amended information was filed in the Superior Court of Tuolumne County charging appellant Bryan Scott Cook with counts I and II, assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code,^[1] § 245, subd. (a)(1)), and count III, battery with serious bodily injury (§ 243, subd. (d)). Appellant pleaded not guilty.

On December 15, 2004, the court heard and denied appellant's motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

On January 19, 2005, appellant's jury trial began. On January 20, 2005, the court granted the prosecution's motion to dismiss count III. Thereafter, appellant was found guilty of count I and not guilty of count II.

On February 16, 2005, the court placed appellant on formal probation for five years on various terms and conditions, including serving one year in county jail and to stay away from the victim.

On April 15, 2005, appellant filed a timely notice of appeal.

FACTS

In the summer of 2004, James "Jamie" Hansen (Hansen) and his girlfriend, Kim "Clyde" Carter (Carter), lived in a house in the community of Long Barn, in Tuolumne County. Richard Roy (Roy) lived a few blocks away from them. Roy was good friends with Hansen and Carter and frequently visited them.

Hansen's house was in the middle of a national forest, and Hansen testified that appellant lived "out in the woods" near his house. Roy, however, testified that appellant lived with Hansen and Carter. Roy testified he did not get along with appellant when he visited Hansen and Carter, because appellant "was always in my truck stealing my cigarettes and my beer" without permission. Roy frequently complained to Hansen about appellant, and said he would not visit anymore because appellant took things from him. Hansen was aware of the bad feelings between appellant and Roy, they were "talking back and forth bad about each other," and they had been "agitated" at each other for weeks.

Count I

On the morning of August 27, 2004, Roy went fishing and drank beer on his boat on Cherry Lake. Roy was sure that he went fishing with someone, but at the time of trial, he could not remember if his guest was Carter or his girlfriend, Patricia Most (Most).^[2] Roy recalled that at some point that day, he spoke to Carter and said he was going to throw away the fish he caught because he did not want to clean them. Carter said that she would take the fish and clean them.

Later that afternoon, Roy went to Hansen's house to drop off the fish. Most drove Roy there in her car and parked on the street, at the top of Hansen's sloping driveway. Most stayed in the car while Roy walked down the driveway with the fish. Roy testified that Most drove him there because he did not have a driver's license. Roy admitted, however, he had been drinking that day, and he had enough so that an officer could have smelled alcohol on him.

Roy testified that appellant, Hansen, and Carter were in the driveway, working on Carter's truck. Roy testified appellant was not "in the best of moods" because they had been working on the truck for several hours. Roy handed the fish to Carter. Appellant asked Roy why he did not clean the fish, because "'[t]hey always clean them when they give them to you.'" Roy replied that he did not want to clean the fish. According to Roy, appellant said, "'Next time if you don't clean them, I'll just steal your boat.'" Roy replied, "'I'd like to see you try.'"

Roy testified that appellant came around the side of the truck, grabbed a mallet with his right hand, pushed Roy against another vehicle, and hit the top of Roy's head with the mallet. Roy testified that appellant "grabbed me by the throat and had a mallet in his hand and he pushed me ... up against another pickup truck and Jamie was screaming, 'Let go of the mallet,' and he hit me in the head with a mallet."

Roy testified appellant's hands were "all greasy" as he grabbed Roy's throat, raised the mallet, and pushed him against the other truck. Roy did not struggle or fight with appellant, but admitted he got grease on his own arm from holding it up when appellant hit him with the mallet. Roy explained that he decided not to swing at appellant because he had the mallet, so there was "really not much I could do." Roy did not say anything to appellant because he did not want to "aggravate him any more than he was from working on this truck all day, I guess." Roy testified appellant "had his hand over my face and my throat, so I didn't really say anything." Appellant "didn't hit me really hard with it but hard enough to get four or five staples in my head."

Roy testified that appellant put down the mallet after he hit Roy's head. Roy told appellant "he better get the hell out of there because I was calling the cops." Roy testified that as a result, "everybody left the house" because "they had warrants."

James Hansen testified they were in the driveway, working on the truck, when Roy appeared and said he was going to put the fish in the freezer. Hansen told Roy to make sure the fish were cleaned. Roy said the fish were not cleaned, and Hansen said he could not put rotten fish in the freezer. Hansen testified that appellant went up to Roy and told him not to put the fish in the freezer. Thereafter, appellant went around the truck and started wrestling with Roy. Hansen was still working on the truck and thought they were just joking around, "Kids are kids."

Hansen testified he was behind the truck and did not see appellant hit Roy in the head. Hansen gave conflicting testimony as to whether he saw appellant holding anything. Hansen initially testified that he saw appellant holding a wooden handle as he wrestled with Roy. However, Hansen also testified that he saw a wooden handle on the ground and not in appellant's hand.

Hansen testified he heard appellant and Roy screaming, and told them to knock it off. Roy ran back to his car, and appellant ran in the opposite direction and disappeared into the woods. Hansen thought appellant and Roy were just agitated at each other and did not think the altercation was serious; otherwise, he would have broken it up himself.

Patricia Most testified that she waited in the car at the top of the driveway and did not see the altercation because "there was a tree in the way." She just saw "an arm swinging" and an arm "just go across," but she did not know whose arm or if the person was holding anything. When Roy returned to the car, he was bleeding from the head. Most wanted to take him to the hospital, but Roy refused and they went to his mother's house instead. His mother cleaned the wound and then they called the police.

Tuolumne County Sheriff's Deputy John Warnock responded to Roy's residence, and determined Roy suffered a gash to the back of his head. The wound was about an inch and a half long; there was some depth to it and it had been bleeding, but Roy said they had cleaned the wound. There were grease marks on Roy's arm and neck. Deputy Warnock smelled the strong odor of alcohol on Roy's breath and his eyes were "kind of watery," but Roy did not display any balance problems, slurred speech, or other signs of being intoxicated. Warnock conceded that Roy's eyes could have been watery from the effect of being hit on the head. Roy subsequently went to the hospital, and needed four or five staples to close the head wound.

Deputies Warnock and Phillips went to James Hansen's residence. There were several vehicles in the front yard but no one was home. The deputies found a hammer on the ground, in front of a pickup truck which appeared to be in the middle of engine repair. The top part of the hammer's handle was covered with grease, and the bottom part was relatively clean. There was a lot of dust on the ground, the deputies could not tell if there was any blood on the hammer, and the hammer was never tested for the presence of blood. The deputies determined one of the vehicles was registered to appellant.

Deputy Phillips took the hammer back to Roy's house for identification, but Roy had already left for the hospital to get stitches in his head wound. Deputy Phillips spoke to Roy on the telephone, and Roy said that he saw James Hansen's car parked at a nearby motel. Phillips instructed Roy to wait at the hospital while he tried to locate Hansen.

Deputy Phillips contacted Hansen at the motel and took a statement about the incident. Hansen said appellant seemed very agitated at Roy, Roy just laughed at appellant, appellant became even more agitated, and "that's what started the whole event." Hansen said appellant started to walk toward Roy as if he was joking around. Hansen thought they were joking around until he saw appellant "hit Mr. Roy in the head" with what appeared to be a stick.

At trial, Roy identified the hammer recovered by the deputies as the weapon which appellant used to hit him on the head.

Based on this incident, appellant was charged with count I, assault with a deadly weapon, a three pound splitting mall, or by means likely to produce great bodily injury.

Counts II and III

Richard Roy testified that on the evening of September 7, 2004, he was driving with Patricia Most when they returned to Most's house to pick up something. Roy testified that he was driving, he parked the car outside her house, and he waited in the driver's seat while Most went inside. Roy testified that appellant suddenly appeared and opened the car door. Roy testified appellant hit him one time in the nose with something, broke his nose, and took off. "It might have just been his fist, I couldn't see, it just happened so fast." Roy testified Most was inside the house when appellant hit him. Roy called the police and was treated for his injuries.

On direct examination, Roy admitted that he told Patricia Most to say that she was driving the car that day, because he did not want to get a ticket from the police for driving without a license. On cross-examination, defense counsel further pursued this issue:

"Q. So we know you're willing to lie to the police officers, correct?

"A. About driving without a license?

"Q. About anything?

"A. No.

"Q. Once a liar, always a liar, right?

"A. No.

"Q. Okay. So you didn't lie to the police officers about driving the vehicle?

"A. Probably. They still got me for it.

"Q. ... I'm talking about the day that you're saying that you were hit in the nose?

"A. Uh-huh.

"Q. You told the officers that day that Pat [Most] was driving, correct?

"A. I don't recall. I haven't had a chance to even see the police reports."

Patricia Most testified that she was out with Roy on the evening of September 7, 2004, and she was driving her car when they returned to Most's house because she forgot her cigarettes. Most testified that she went into the house, but she allowed Roy to drive the car and go on an errand somewhere, and she warned him to be careful. Most testified Roy drove back to her house within five minutes, and he had a bloody nose. Most testified she was not present when Roy received the bloody nose. Most subsequently drove Roy to the hospital for treatment.

Most admitted that when she spoke to an officer that night, she falsely said that she was sitting in the driver's seat when appellant opened the passenger door and punched Roy in the face. Most admitted she never saw the assault and she lied to the officer at Roy's direction. Most claimed she later told the officer that her account of the incident was not true.

Deputy Rich Champlain interviewed Roy about this incident, and observed a cut on the bridge of Roy's nose and dried blood on his nose and cheek, consistent with a bloody nose. Roy told the deputy that he was assaulted in front of Most's house, he was sitting in the passenger side of Most's car while she went into her house to get something, Most had just returned to the driver's side when someone opened the passenger door, and appellant hit Roy in the face with either his fist or something in his hand.

Deputy Champlain testified he later spoke to Most at the hospital, and Most stated that Roy was assaulted in front of her house, that she was in the driver's seat while Roy was in the passenger's side, the passenger door opened, and appellant used a rock to hit Roy in the face. Most further stated that she immediately put the car in reverse and sped away from the area. Most never told Champlain that this story was not true. Champlain testified that Most's account coincided with Roy's version of the incident.

Based on this incident, appellant was charged with count II, assault with a deadly weapon, a rock, and count III, battery with serious bodily injury.

Additional Trial Evidence

On cross-examination, Roy admitted that up until the day before trial, he was "hiding" from the district attorney's office to avoid service of a subpoena. Defense counsel extensively questioned Roy about his efforts to avoid the subpoena:

"Q. One of the reasons for that is you had some warrants out for your arrest, correct?

"A. That's not the reason.

"Q. Okay. Well, that wasn't one of the reasons?

"A. Not at all.

"Q. Did you know that you had a no bail bench warrant out for you?

"A. Sure did.

"Q. Okay.

"A. And two others.

"Q. And when you came into the District Attorney's Office yesterday, were you told that you'd have to go to jail?

"A. I knew I did.

"Q. Okay. And when do you expect to get out of jail?

"A. Forty days, probably 25.

"Q. You don't expect to get out today?

"A. No.

"Q. Did anybody tell you they'd probably cite and release you?

"A. Before the nonbail warrant, I heard they might.

"Q. By cite and release, what we mean is you turn yourself into the jail on the warrant?

"A. Correct.

"Q. Then you get released right away and get a new court date to come back to court, correct?

"A. Correct.

"Q. Okay. And you say that somebody told you that they might be willing to cite and release you?

"A. Yeah, but not on the 40 days, just on the driving on suspended and the other thing. They said I'd probably have to do the 40 days and then I might get cited and released.

"Q. So you're not expected to get out of jail today?

"A. No.

"Q. Nobody told you you'd get out of jail today probably?

"A. No.

"Q. What about the investigator from the District Attorney's Office, did they tell you that?

"A. He said that a week ago before the nonbail warrant came out and even then, [the investigator] told me that – it was [the investigator] that told me, [y]ou'd probably get cited and released but once you get down to the jail, they'll probably make you do the 40 days first before you get out of jail.

"Q. Okay. So in other words, you had 40 days you were supposed to do that you skipped out on, is that –

"A. Right.

"Q. You're saying –

"A. I was doing that so I could hide from the subpoena.

"Q. And yesterday nobody told you on the phone that you would probably be released from jail today?

"A. No.

"Q. [The investigator] didn't tell you that?

"A. No.

"Q. Did [the prosecutor] tell you that?

"A. No. [¶]…[¶]

"Q. Nobody told you that they thought that you'd be released from jail today?

"A. No." (Italics added.)

On redirect examination, Roy again admitted he had been hiding from the district attorney's office, but testified that he had been in telephone contact with the office since the assault incidents. Roy just did not want to be served with a subpoena "because I didn't want to testify" and serve his jail time.

"… It wasn't about me doing the 40 days in jail, I just didn't want to get subpoenaed because I had been threatened a few times up on the hill and I didn't want to have to testify."

Roy testified that "several people" had said things to him, that he should not testify, but he refused to reveal their names. "[L]et's just say [appellant's] got a lot of friends." Roy knew appellant was in custody in county jail, and that was why he did not want to serve his time. He was concerned it would "get out to another tank that I was a snitch or something and I would have rather waited until he got out and then turned myself in."

Roy admitted he turned himself in to the district attorney's investigator on the day before trial.

"I've been thinking about it and I'm tired of people bugging me and saying I wouldn't file charges and all this stuff and when I do go in front of the judge, I don't want the district attorney mad at me for not turning myself in and everything else, so I decided, or my mom kind of helped me decide just to get it over with ...."

Roy thought there were two outstanding warrants, for driving on a suspended license without insurance, and drunk driving. He also knew the district attorney's office issued a no-bail warrant on December 2, 2004, because he failed to turn himself in to serve 40 days. Roy explained he did not want to serve time while appellant was also in jail.

Appellant did not testify and did not present any defense evidence. In closing argument, defense counsel attacked the credibility of Roy and Most, that they admitted they lied to the deputies, and that Roy was willing to "cook evidence" about the second incident to get appellant in trouble. Counsel also noted that Roy could not remember most of the details of the day of the alleged hammer incident, but Roy "will lie and will frame people" that he strongly disliked. "One of the secrets to successful lying is not give any details." Roy claimed he was threatened by appellant's friends, but failed to give any details about the alleged threats. "[T]he bottom line" was that the prosecution's case was built on lies.

Just before the case went to the jury, the court granted the prosecution's motion to dismiss count III, battery with serious bodily injury, because there was no evidence that Roy suffered a broken or fractured nose.

The matter went to the jury on counts I and II, assault with a deadly weapon or by means of force likely to commit great bodily injury. Appellant was convicted of count I, based on the hammer incident, and found not guilty of count II, based on the bloody nose incident. Appellant was placed on probation for five years, on condition of serving one year in jail and subject to a stay-away order from Roy.

DISCUSSION

INSTRUCTIONS ON LESSER INCLUDED OFFENSE

Appellant contends the court had a sua sponte duty to instruct on simple assault as a lesser included offense of assault with a deadly weapon or by force likely to produce great bodily injury.

"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]' [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)

"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could ... conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, as we have noted, the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Breverman, supra, 19 Cal.4th at pp. 162-163, italics in original, fn. omitted.)

"'[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.'" (People v. Kaurish (1990) 52 Cal.3d 648, 696, italics in original.) The mere speculation the crime was less than that charged is insufficient to trigger the duty to instruct. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1.)

In a noncapital case, the court's failure to sua sponte instruct on all lesser included offenses which are supported by the evidence must be evaluated for prejudice solely under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Breverman, supra, 19 Cal.4th at p. 178.) Under that standard, "[a] conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836)." (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)

"… Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117-118.) A lesser offense is necessarily included in the charged offense only if it meets either the "'elements test'" or the "'accusatory pleading' test." (People v. Lopez (1998) 19 Cal.4th 282, 288.) The "elements test" is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The "accusatory pleading test" is satisfied "'"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]'" (Id. at pp. 288-289.)

Appellant herein was tried for a violation of section 245, subdivision (a), assault with a deadly weapon or by means of force likely to produce great bodily injury. "'To prove a violation of Penal Code section 245, subdivision (a), the prosecution must establish that a person was assaulted and that the assault was committed by the use of a deadly weapon or instrument or by means of force likely to produce great bodily injury. Assault with a deadly weapon is a general criminal intent crime [citation] and requires proof only of an attempt to commit a violent injury upon the person of another. It does not require proof that an injury occurred. [Citation.] The requisite intent for the commission of an assault with a deadly weapon is the intent to commit a battery. [Citation.] Moreover, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the intent to commit a battery is presumed. [Citation.]' [Citation.]" (People v. Griggs (1989) 216 Cal.App.3d 734, 739-740, italics in original.) "… One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997)16 Cal.4th 1023, 1028 (Aguilar).)

"As used in section 245, subdivision (a)(1), 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.] 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. [Citations.] 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 as such, 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.]" (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) "[T]he term 'weapon,' as used in the statute, implies an object extrinsic to the body." (Id. at p. 1027.) A hammer has been found to be a deadly weapon when used in a way likely to produce death or great bodily injury. (See People v. Seaton (2001) 26 Cal.4th 598, 665.) "Bare hands or feet" cannot be deadly weapons (Aguilar, supra, 16 Cal.4th at p. 1034), but "the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' .... [Citations.]" (Id. at p. 1028.)

A simple assault under section 240 is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." An assault is an attempted battery (People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2), that is a general intent offense (People v. Williams (2001) 26 Cal.4th 779, 784), which can be committed without physical contact (Aguilar, supra, 16 Cal.4th at p. 1028). Simple assault is a lesser included offense of assault with a deadly weapon (People v. Jones (1981) 119 Cal.App.3d 749, 754) and assault by means of force likely to produce great bodily injury. (People v. Buice (1964) 230 Cal.App.2d 324, 345-346; People v. Yeats (1977) 66 Cal.App.3d 874, 879.)

In the instant case, the amended information alleged in count I that on August 27, 2004, appellant violated section 245, subdivision (a)(1), in that he "did willfully and unlawfully commit an assault" upon the victim "with a deadly weapon, to wit, 3 POUND SPLITTING MALL, and by means of force likely to produce great bodily injury." Simple assault is a lesser included offense of both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. Consequently, the trial court herein was required to instruct sua sponte on simple assault as a lesser included offense of assault with a deadly weapon or by means of force likely to produce great bodily injury, unless the evidence clearly indicated that if the accused was guilty at all, he was guilty of the greater offense. (People v. McCoy (1944) 25 Cal.2d 177, 187-188; see also People v. Birch (1969) 3 Cal.App.3d 167, 176.) "There is no middle ground. It was not error for the trial court to fail, of its own motion, to instruct on the lesser offense, where, under the evidence, there was no middle ground to support such an instruction. [Citations.]" (People v. Birch, supra, at p. 176.)

Respondent argues the trial court herein did not have a sua sponte duty to instruct on simple assault as a lesser included offense of count I because a hammer has been found to be a deadly weapon, and there was no evidence the crime was less than charged. "[T]he evidence showed that after appellant became irritated with Roy, he struck him in the head with a mallet, hammer or maul. The blow caused a wound which required several staples to close. There was no evidence to the contrary." Respondent further argues that while appellant did not testify, "the evidence was nevertheless undisputed that he struck the victim in the head with a hammer, mallet or maul."

As noted ante, a hammer has been found to be a deadly weapon when used in a way likely to produce death or great bodily injury. (People v. Seaton, supra, 26 Cal.4th at p. 665.) But respondent erroneously declares the evidence was "undisputed" as to the circumstances of the August 27, 2004, incident. Richard Roy testified that appellant came around the side of the truck, grabbed a mallet with his right hand, pushed Roy against another vehicle, and hit the top of Roy's head with the mallet. Appellant "didn't hit me really hard with it but hard enough to get four or five staples in my head."

Patricia Most testified she remained in her car, at the top of the sloping driveway, and did not see the altercation because "there was a tree in the way." She just saw "an arm swinging" and an arm "just go across," but she did not know whose arm or if the person was holding anything.

James Hansen testified he was working on the truck with appellant when Roy arrived with the fish. Hansen testified that appellant and Roy exchanged words and started wrestling, but he thought they were just joking around. On direct examination, Hansen testified he was behind the truck and did not see appellant hit Roy in the head.

"Q. Did you [see] something in his hand?

"A. I saw a wood handle and that's all I saw.

"Q. You saw a wooden handle in [appellant's] hand?

"A. Yeah, when they were wrestling around."

On cross-examination, Hansen again testified he did not see appellant hit Roy on the head.

"Q. Okay. Now, you said that you saw a wooden handle in [appellant's] hand; is that correct?

"A. I didn't see--like I said, I was behind the hood of a vehicle. These guys told me that they took a weapon from my house.

"Q. Okay. But you never saw a weapon in [appellant's] hand yourself?

"A. No, I didn't, I was behind the hood of a vehicle working on a car."

Hansen was again asked these questions on redirect examination:

"Q. ... You--did you tell Deputy Phillips that you saw [appellant] hit Mr. Roy in the head with what you thought was a stick, did you tell him that?

"A. No, I didn't, sir.

"Q. You're absolutely positive you didn't tell him that?

"A. I'm positive.

"Q. Okay.

"A. I didn't see anybody get hit with anything, saw him grabbing him by the neck, wrestling, that's it."

On further redirect examination, Hansen again testified that he never saw appellant hit Roy in the head with anything.

"I saw a wood handle on the ground, I did not see it in his hand. I didn't see him--we were working on a car, we were trying to get the harmonic balancer off."

Deputy Phillips, however, testified he interviewed Hansen the same day as the assault, and Hansen said he saw appellant "hit Mr. Roy in the head with a--what he appeared--what it appeared to be to him a stick."

In the instant case, the jury was only instructed on the charged offense of assault with a deadly weapon or by means of force likely to produce great bodily injury. Defense counsel did not ask for any lesser included instructions, and the court did not give any. In closing argument, defense counsel asserted Richard Roy and Patricia Most were liars and Roy made up the story about the hammer because he saw the hammer at Hansen's house, but counsel did not account for the inch and a half gash which the deputies observed on Roy's head.

The question then is whether Hanson's statement to Deputy Phillips--that he saw appellant hit Roy in the head with a stick--would have supported instructions on simple assault as a lesser included offense of assault with a deadly weapon or by means of force likely to produce great bodily injury. As discussed ante, "[i]n determining whether an object not inherently deadly or dangerous is used as such, 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.]" (Aguilar, supra, 16 Cal.4th at p. 1029.)

In People v. Beasley (2003) 105 Cal.App.4th 1078 (Beasley), the defendant was convicted of assault with a deadly weapon based on an incident when he hit the victim with a broomstick, and punched and kicked the victim's head and back. Defendant argued the conviction was not supported by the evidence because the broomstick was not used in a manner capable of producing, or likely to produce, death or great bodily injury. (Id. at pp. 1086, 1087.) Beasley held the matter presented a question of fact for the jury:

"… In determining whether an object not inherently deadly or dangerous was used in the requisite manner, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. [Citation.] Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration. [Citation.]" (Beasley, supra, 105 Cal.App.4th at p. 1086.)

Beasley explained that while hands and feet do not constitute deadly weapons, their use may support a conviction for aggravated assault under the theory of assault by means of force likely to produce great bodily injury. However, the jury in Beasley was instructed only on assault with a deadly weapon, not by means of force likely to produce great bodily injury, and evidence of the defendant's punching and kicking the victim did not support the conviction. (Beasley, supra, 105 Cal.App.4th at p. 1087.) The defendant's conviction was thus based upon striking the victim's arms and shoulders with the broomstick. (Ibid.)

"… It is certainly conceivable that a sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury, e.g., forcefully striking a small child or a frail adult or any person's face or head. [Citation.] [The victim's] testimony, however, was far too cursory to establish that the broomstick, as used by [the defendant], was capable of causing, and likely to cause, great bodily injury or death. [The defendant] did not strike her head or face with the stick, but instead used it only on her arms and shoulders. She did not describe the degree of force [the defendant] used in hitting her with the stick, and neither the stick itself nor photographs of it were introduced in evidence. The record does not indicate whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. Its composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury. The jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [the victim's] body. The evidence showed only that [the defendant] hit her arms and shoulders, caused bruising in those areas. Although extensive, severe bruising, in conjunction with other injuries has been held to constitute great bodily injury [citations], bruises on [the victim's] shoulders and arms are insufficient to show that [the defendant] used the broomstick as a deadly weapon." (Beasley, supra, 105 Cal.App.4th at pp. 1087-1088.)

Beasley thus concluded the defendant's conviction for assault with a deadly weapon was not supported by substantial evidence. Instead of reversing the conviction, however, the court modified the judgment to reflect the defendant was convicted of the lesser included offense of misdemeanor simple assault. (Beasley, supra, 105 Cal.App.4th at p. 1088.)

While Beasley involved a substantial evidence analysis, it clarified that the determination of whether an object is a deadly weapon, or if the assault was by means of force likely to produce great bodily injury, is a question of fact for the jury, and that a wooden stick was not, per se, a deadly weapon. Based on Beasley and the testimony in this case, the court herein should have instructed on simple assault as a lesser included offense to count I. James Hansen was the only other witness to the incident between appellant and Roy, and he told Deputy Phillips that appellant hit Roy in the head with what appeared to be a stick. As for Roy's head injury, Deputy Warnock testified that the wound was about an inch and a half long, there was some depth to it and it had been bleeding, but Roy testified appellant did not hit him "really hard."

Deputy Phillips's testimony as to Hansen's statement would have supported an instruction on simple assault as a lesser included offense of count I. Contrary to respondent's argument, there was evidence from which the jury could have found that the offense was something less than an assault with a deadly weapon or by means of force likely to produce great bodily injury. The jury could have discounted Roy's testimony about this incident given his credibility problems, and believed Hansen's statement to Deputy Phillips, that he saw appellant hit Roy with a stick and inflict the gash on his head.

Defense counsel did not request instructions on any lesser included offenses, and argued that Richard Roy lied about both incidents underlying counts I and II. Counsel may have had a tactial reason for giving the jury an "all or nothing" choice as to the two counts. The California Supreme Court has explained, however, that "the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Breverman, supra, 19 Cal.4th at pp. 162-163, fn. omitted.)

In a noncapital case, the court's failure to sua sponte instruct on all lesser included offenses which are supported by the evidence must be evaluated for prejudice solely under Watson, and a conviction may be reversed only if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Breverman, supra, 19 Cal.4th at p. 178.) It could be argued the court's instructional error was harmless based on the jury's verdicts in this case. The jury found appellant not guilty of count II, based on the alleged assault in Patricia Most's car, most likely because it found Roy and Most lied about all aspects of that incident. It could be argued the jury found appellant guilty of count I because it concluded appellant actually hit Roy with a hammer, and that the jury would have found him not guilty of count I if it found Roy similarly lied about count I.

Given the entirety of the record, however, it cannot be said that the court's failure to sua sponte instruct on simple assault was not prejudicial under the Watson standard. The prosecution's case was anything but overwhelming. Richard Roy and Patricia Most admitted they lied to the investigating officers in this case. Roy further admitted that he repeatedly evaded the prosecution's subpoena to testify because of the outstanding warrants for his arrest. Indeed, the jury herein obviously discounted a substantial portion of Roy's testimony when it found appellant not guilty of count II, based on the alleged incident in front of Most's house. As to count I, Hansen concurred with Roy that appellant and Roy started to argue about the fish, and Hansen further testified the verbal confrontation became a physical altercation. Hansen's testimony was not subject to the same inconsistencies and outright falsehoods as Roy's account. The jury may have found that appellant assaulted Roy in Hansen's garage, but it was not given the option of finding that appellant assaulted Roy with something other than a hammer. Based on evidence that appellant might have used a stick, and Roy's admission that the blow was "not very hard," the jury could have found the assault was not with a deadly weapon, or was not by means of force likely to produce great bodily injury.

We thus conclude the trial court's failure to sua sponte instruct on simple assault as a lesser included offense of count I was prejudicial under the specific facts and circumstances of this case. Appellant's conviction in count I must be reversed.

We thus need not address the other issues raised by appellant.

DISPOSITION

The judgment is reversed.

HARRIS, Acting P.J.

WE CONCUR:

__________

WISEMAN, J.

__________

LEVY, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Apartment Manager Attorneys.

^[1] All further statutory citations are to the Penal Code unless otherwise indicated.

^[2] James Hansen testified that he was not sure if Carter went fishing with Roy that morning and thought she was at home, cleaning the house.