P. v. Lewandowski

Filed 4/30/07 P. v. Lewandowski CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Reversed and remanded.

I.

INTRODUCTION

Defendant Jacek Lewandowski appeals from his conviction and sentence for assault with a deadly weapon. Lewandowski, who was angry because his car had been towed from the parking lot at Scripps Clinic, entered the facility and charged toward the receptionist's desk. During the course of this outburst, Lewandowski threw or "swept" a ceramic flowerpot in the direction of the receptionist who was sitting behind the counter on which the ceramic pot was located. A jury convicted Lewandowski of assault with a deadly weapon, the deadly weapon being the flowerpot.

Lewandowski contends that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault. He further maintains that there was insufficient evidence to support his conviction on the charge of assault with a deadly weapon. In the alternative, Lewandowski contends that the trial court abused its discretion in denying his motion to modify the verdict to a conviction on a lesser included offense, pursuant to Penal Code^[1]section 1181, circumstance 6.

We conclude that under the circumstances of this case, the trial court should have instructed the jury on the lesser included offense of simple assault, a misdemeanor. We further conclude that the court's error prejudiced Lewandowski. The judgment must therefore be reversed and the matter remanded for retrial.

We also conclude that there was substantial evidence to support the jury's verdict on the charge of assault with a deadly weapon. We reject Lewandowski's alternative argument that the trial court applied an improper standard in reviewing the evidence on his section 1181, circumstance 6 motion, and thus abused its discretion in denying his motion.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Statement of the case

On June 20, 2005, the San Diego County District Attorney filed an information charging Lewandowski with the personal use of and assault with a deadly weapon, specifically, a "glass flowerpot" ( 245, subd. (a)(1), 1192.7, subd. (c)(23) (count 1)),^[2]and making a criminal threat ( 422 (count 2)).^[3]

A jury was sworn on August 23, 2005 and began deliberating on August 25. On August 26, the jury convicted Lewandowski of assault with a deadly weapon, finding that he personally used a "glass flowerpot" in the commission of the crime. The jury acquitted Lewandowski of the charge of making a criminal threat.

Lewandowski filed a motion for a new trial and a request that the court reduce the conviction to a misdemeanor. The trial court denied the motions on November 4. On January 24, 2006, the trial court sentenced Lewandowski to two years in state prison.

Lewandowski filed a timely notice of appeal.

B. Factual background

On June 2, 2005, Lewandowski's car broke down near the Scripps Clinic on Genesee Avenue. Lewandowski was able to drive the car into the parking lot of the clinic. Margaret Carpenter, administrative director of the clinic, spoke with Lewandowski in the parking lot after several patients had complained that Lewandowski had asked them for money. Carpenter told Lewandowski that he would have to move his car or she would call to have it towed. Lewandowski told Carpenter that he was trying to get money for oil to repair the car, and that if she had the car towed, he would have to kill himself.^[4] Carpenter then called the police.

San Diego Police Officer Randall Henrizi responded. He tried to help Lewandowski get his car started, but they were unable to start the car. Officer Henrizi asked Carpenter to give Lewandowski until the next day to try to repair the car before calling to have it towed.

The following morning Lewandowski's car was still in the Scripps Clinic parking lot when Carpenter arrived at work. Carpenter contacted a towing company to have the car removed. Lewandowski was not present when his car was towed. When he returned to find that his car was gone, he became irate. Lewandowski entered the lobby of the clinic, yelling and screaming. He headed toward the receptionist's desk.

Joyce Spawton, a receptionist in the main lobby of the Scripps Clinic facility, heard Lewandowski yelling. She heard something slam against the entry doors to the building. When the doors opened automatically, she saw Lewandowski running up the stairs toward her. Spawton's testimony regarding exactly what Lewandowski did next was inconsistent. At one point, she said that Lewandowski picked up one of two potted plants that were in "heavy, ceramic containers" on the counter and "rushed" toward Spawton yelling, "I'm going to kill you." Spawton was sitting in a chair with wheels. She pushed herself away from Lewandowski. She then felt "the whoosh of the planter" and felt small pebbles that had been inside the container hit her in the face. The pot hit the wall and broke. Spawton believed that if she had not moved when she did, the container would have hit her directly in the face. While Spawton originally told officers that Lewandowski "threw" the pot at her, she testified that she believed she had later corrected her statement to describe Lewandowski's motion as a "sweeping motion."

Spawton continued to back away from Lewandowski and yelled to her coworkers to close their doors. She then retreated behind the door of the PBX switchboard office. Spawton closed the door to the PBX office, but the door did not have a lock, so Spawton leaned against the door to keep it closed. After she was inside the smaller office, Lewandowski threw the second pot, which broke against a wall. Lewandowski then began pushing and hitting the door to the PBX office, yelling, "Open the f'ing door. I'm going to kill you." Spawton said that Lewandowski threatened to kill her three times, and that she believed he was going to carry out the threat.

Pat Evans, a switchboard operator who worked in the PBX office, called 911 during the incident, and was put on hold. While Evans was on hold and Spawton was leaning against the door to keep it closed, they both heard more "crashes" from the outer office. A wooden sign and a chair in the lobby had been knocked over or thrown,^[5]and the items on Spawton's desk had been pushed off of it.

Spawton heard Lewandowski's voice trailing off and believed he was leaving the clinic. Spawton then took over the call to 911 and spoke with a 911 operator.

San Diego Police Officer Michael Miranda responded to the 911 call. When he arrived, he saw Lewandowski lying down in the parking lot. Lewandowski told Officer Miranda that he was upset with the people at the clinic because his vehicle had been

towed. Another officer stayed with Lewandowski outside while Officer Miranda went inside to speak with witnesses.

Officer Miranda took statements from Spawton, Evans and another employee, Sheila Gaines. He also examined Spawton's desk. Officer Miranda saw that one pot was broken and that there were several shards of glass around the receptionist's desk area. The other pot had suffered some damage, but was intact.

On June 6, Detective Erbe conducted follow-up telephone interviews with Spawton, Evans, and Gaines. Based on these interviews, Detective Erbe concluded that none of the witnesses' statements required revising.

2. The defense

Gaines heard Lewandowski repeating "Where's my car?" but did not hear him threaten Spawton. Gaines saw Lewandowski throw one pot, but described the other pot as having been "swept" off of the counter. Gaines testified that Lewandowski "swept the counter," but he did not direct the items at anyone when he did this. Gaines believed that the sign was pushed over as "part of the whole knocking . . . stuff over."

Gaines testified that after one officer appeared to downplay the incident while talking with the witnesses, "the whole thing went left," and things "got thrown all the way out of proportion," with people "saying stuff that they hadn't said before."

III.

DISCUSSION

A. The trial court erred infailing to instruct the jury sua sponte on the lesser

included offense of simple assault

1. Background

At the close of evidence, the trial court discussed with counsel the issue of jury instructions. During those discussions, the court indicated that it did not intend to instruct the jury with CALJIC Nos. 17.10^[6]or 9.00^[7]because the defense's theory was that

Spawton had left her desk and had moved out of range by the time Lewandowski swept or threw the flowerpot, and thus, there had been no assault at all. Defense counsel did not object to the court's suggestion that these instructions not be given. The court told counsel that it would listen to closing arguments to determine whether the arguments raised issues requiring additional jury instructions, stating, "I indicated to counsel that I would listen carefully, of course, to the summations. And if, based on what I heard, I thought we needed to revisit the matter of jury instructions, that I would do so on my own or I'd be responsive of [sic] any to do so."

During closing arguments, defense counsel said, "And what about the flowerpot? Say you completely believe Ms. Spawton's testimony. What about this flowerpot? Do you know how much it weighs? Could it really cause seriously [sic] bodily injury?"

The trial court did not instruct the jury with CALJIC No. 17.10 or CALJIC No. 9.00. During a hearing on Lewandowski's motion for a new trial, the trial court indicated that it did not believe that the court had a sua sponte duty to instruct on the lesser included offense:

"The record I think will correctly reflect that we did discuss whether there was a request for an L.I.O. And you specifically did not want that because that was inconsistent with the I mean one theory for giving the L.I.O. it seems to me would have been that the object involved does not constitute a dangerous or deadly weapon. So they could find he committed assault, but the element that makes it a felony, that is, the deadly or dangerous weapon, was not present. [] That wasn't the defense'[s] theory as I understood it. The defense'[s] theory was there was no assault at all. So I don't think I had a sua sponte duty to instruct on the L.I.O. And you specifically did not want me to instruct on the L.I.O."

2. Analysis

a. The trial court erred in failing to instruct on the lesser included offense

Lewandowski contends that the trial court had a sua sponte duty to instruct the jury on the lesser included offense of simple assault because the evidence warranted the instruction. Lewandowski challenges the trial court's conclusion that it had no duty to instruct on a lesser included offense because the defense did not present that as a defense theory of the case. We conclude that the trial court had a sua sponte duty to instruct the jury on the lesser included offense of simple assault, despite the fact that the defense's theory at trial was that no assault occurred.

"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citation.]" (Id. at p. 745.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial─that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (Ibid.) In other words, "'[s]ubstantial 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.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.)

"'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 it 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.]" (People v. Barton (1995) 12 Cal.4th 186, 195.)

In this case, regardless of whether the defense objected to instructing the jury on the lesser included offense of simple assault, the trial court had a duty to instruct the jury as to the lesser offense because a reasonable jury could have concluded that Lewandowski committed simple assault, but that he did not commit assault with a deadly weapon. Penal Code section 245, subdivision (a)(1) penalizes the commission of an assault "'with a deadly weapon or instrument other than a firearm' or by 'any means of force likely to produce great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).) "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." (Ibid.)

"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.]" (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) "Great bodily injury is significant or substantial injury. [Citation.] Permanent or protracted impairment, disfigurement, or loss of function, however, is not required. [Citation.]" (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087 (Beasley).)

There is a distinction "between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular occasion in question: '"There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such."' [Citations.]" (People v. Simons (1996) 42 Cal.App.4th 1100, 1106-1107.) "[Some] 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." (Aguilar, supra, 16 Cal.4th at p. 1029.) "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.)

"Objects which are not inherently dangerous but which have been found to be a deadly weapon include 'a pillow . . . ; an automobile . . . ; a large rock . . . ; a razor blade . . . ; [and] a fingernail file.' [Citation.] Even an apple may constitute a deadly weapon if it contains a foreign object which is likely to produce great bodily injury when the apple is eaten. [Citation.]" (People v. Montes (1993) 74 Cal.App.4th 1050, 1054, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 276, fn. 3 and 273-277.)

A flowerpot is not an inherently deadly weapon. It was thus for the jury to decide, based on the nature of the object, the manner in which it was used, and other facts relevant to the issue, whether Lewandowski used the flowerpot as a deadly weapon.

The People argue that Lewandowski presented an "all or nothing defense which alleged that the victim was exaggerating what happened" and that the prosecutor had proved the case beyond a reasonable doubt. Regardless of the defense presented, the relevant inquiry is whether the evidence required that the court instruct the jury as to the lesser included offense. In their brief on appeal, the People barely comment on the state of the evidence, other than to say that the evidence established that the flowerpot "was a 'heavy' ceramic pot that was thrown at [Spawton's] face," and that Lewandowski threw the pot using both hands, from about two feet away from Spawton. However, there was conflicting testimony as to how the flowerpot was used. Under these circumstances, it is not clear that testimony that the flowerpot was "heavy" would necessitate a finding that it was used as a deadly or dangerous weapon.

Although Spawton testified at trial that Lewandowski threw the pot at her, a recording of her conversation with a 911 operator during the incident established that when she was asked whether anyone had been attacked or assaulted, she said, "I don't know" and did not otherwise indicate that she had been assaulted. Further, during her testimony, she described Lewandowski's action with respect to the flowerpot in a number of different ways. She stated variously that Lewandowski "swept [the flowerpot] aside"; "picked [the flowerpot] up and just threw it at a fullat a motion" [sic]; and that he made "like a sweeping motion this way." She also testified with regard to her statements to the police detective, "I told him [that Lewandowski threw the flowerpot], but then I had indicated that he hadI don't recall sayingI might have possibly said 'thrown,' but I remember correcting and sayingand showing him the sweeping motion." Gaines testified that Lewandowski "swept the counter, but he wasn't directing it really at anybody." She said, "I know he swept a couple plants. One of the plants came over, but it wasn'tI mean, it wasn't a throw." The evidence was thus conflicting as to the manner in which Lewandowski used the flowerpot.

Further, the evidence as to the "nature" of the pot was Spawton's belief that if she had not moved, the pot would have hit her in the face and "seriously hurt [her] or killed [her]." However, there was no testimony as to the size or weight of the flowerpot. The jury saw only photographs of the pot. Thus, the jury was presented with little evidence as to whether, even if the flowerpot had been used in the manner asserted by the prosecution, it could fairly be characterized as an object used as a deadly or dangerous weapon. The state of the evidence as to the nature of the flowerpot was such that the jury could have concluded that the pot was not a deadly or dangerous weapon.

As we discuss in part III.B., post, although there was substantial evidence to support the conviction for assault with a deadly weapon based on the nature of the flowerpot and the manner of its use, the state of the evidence did not require such a finding as a matter of law. Because there was evidence from which the jury could have concluded that Lewandowski committed a simple assault, but not assault with a deadly weapon, the court should have instructed the jury on the crime of simple assault.

b. The trial court's failure to instruct on the lesser included offense of simple assault prejudiced Lewandowski

"The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-837 . . . . Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 867-868 (Rogers), internal fn. omitted.)^[8]

Based on this record, we conclude that it is reasonably probable that the jury would have convicted Lewandowski of simply assault, and not assault with a deadly weapon, if it had been given that option. The prosecution's case was not overwhelming. Although Spawton testified at trial that she was in fear for her life, in the 911 recording she stated that she did not know whether anyone had been attacked. Additionally, Spawton provided a number of different descriptions of Lewandowski's handling of the flowerpot, including that he "swept" it off the counter, as opposed to having thrown it at her. This, combined with Gaines's very different description of the events that transpired that morning, might have led the jury to find, if it had been given the option, that Lewandowski assaulted Spawton, but that he did not use the flowerpot as a deadly weapon and/or that he did not commit the assault by means of force likely to produce great bodily injury.

The conclusion that Lewandowski was prejudiced by the court's failure to instruct the jury as to the lesser included offense is supported by the fact that the jury sent out a note during its deliberation that stated:

"We the jury are confused by the language of Penal Code section 1192.7(c)(23). The statute says: 'The term "personally used a deadly weapon," as used in this instruction, means that the defendant must have . . . intentionally used it . . . .' [] We do not understand the implications of the word 'used' in this context."

This note suggests that the jury was concerned with the manner in which Lewandowski used the flowerpot, one of the factors to be considered when determining whether an object was used as a deadly weapon. Based on this record and the circumstances surrounding Lewandowski's conviction, we conclude that the trial court's failure to instruct the jury on simple assault as a lesser included offense of the charge of assault with a deadly weapon was prejudicial. Lewandowski's conviction for assault with a deadly weapon must therefore be reversed.

B. Substantial evidence supports the jury's verdict that Lewandowski used a

deadly weapon

Lewandowski contends that there is insufficient evidence to support the jury's finding that he used a deadly weapon. According to Lewandowski, the only evidence presented to support the prosecution's assertion that the flowerpot was a deadly weapon was Spawton's testimony and photographs. He argues that there was no testimony describing the size or weight of the pot, and that Spawton's testimony that Lewandowski "merely 'swept' the pot off the counter" was inconsistent with the characterization of the pot as a deadly weapon. We disagree with Lewandowski's depiction of the evidence, and conclude that although there was evidence that would have supported a finding of guilt on the lesser charge of simple assault, there was also substantial evidence to support the conviction on the charge of assault with a deadly weapon.

"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]'" (Ibid.)

Although a ceramic flowerpot is not inherently deadly, if thrown with sufficient force from a very short distance at a victim's face, it could well result in great bodily injury. Spawton testified at one point that Lewandowski "picked . . . up" one of "two potted plants, heavy ceramic containers" and from "about two feet away from [Spawton's] face" he "swept it aside." She "felt the whoosh of the planter" as it went by, and "small pebbles that were in the container" hit her on the side of the face. According to Spawton's trial testimony, Lewandowski "picked [the pot] up and just threw it at a fullat a motion." She felt "very threatened," and if she hadn't moved her head and pushed her chair back, the pot "would have hit [her] straight in the center of [her] face." Gaines testified that one of the potted plants "hit [the wall] and broke up." When Officer Miranda arrived at the scene, he found pieces of a broken pot lying on the ground near Spawton's desk area. He described one pot as being "completely shattered." While Spawton also testified that Lewandowski had "swept" the flowerpot in her direction, the jury was free to believe Spawton's testimony that Lewandowski threw the pot right at her and that the pot was "heavy." The jury also could infer from the fact that the pot broke upon hitting the wall that it was thrown with significant force and could have caused great bodily injury. Based on this evidence, and the reasonable inferences that may be drawn from this evidence, a reasonable trier of fact could find Lewandowski guilty of assault with a deadly weapon beyond a reasonable doubt.^[9]

C. The trial court did not abuse its discretion in denying Lewandowski's

motion for a new trial or his request to reduce his sentence under

section 1181, circumstance 6

After the jury rendered its verdict, defense counsel moved for a new trial on the ground of instructional error under section 1181, circumstance 5, or in the alternative, for the court to reduce Lewandowski's conviction to a misdemeanor, under section 1181, circumstance 6.^[10] The trial court declined to grant a new trial or to reduce Lewandowski's conviction to a misdemeanor. Lewandowski argues on appeal that the trial court failed to apply the appropriate standard of review of the evidence and that the court should have reduced his conviction to a misdemeanor because the jury's verdict was contrary to the evidence presented at trial.

"[T]he trial court has not only the power to reduce the penalty but the duty to review the evidence and to determine whether in its judgment the weight of the evidence supports the jury's verdict. [Citation.] In performing that duty the trial court must '" . . . judge the credibility of the witnesses, determine the probative force of the testimony and weigh the evidence. . . ."' [Citation.]" (People v. Love (1961) 56 Cal.2d 720, 728, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649.) "In passing upon a motion for new trial, the trial court has very broad discretion and is not bound by conflicts in the evidence. [Citation.] A trial court can grant a motion for new trial where the evidence is legally sufficient and even where the only evidence is that of the prosecution [citation]. The granting of a motion for new trial, where the trial court has independently weighed the evidence, cannot be equated with the granting of a motion for judgment of acquittal, where the trial court must apply the same test applied by an appellate court in reviewing a conviction." (Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 730-731.)

We conclude that the trial court applied the appropriate standard for reviewing the evidence in ruling on Lewandowski's motion for a new trial/to reduce his conviction. The trial court stated,

"Well, mindful of my obligation under 1181, under 1181(6) in terms of granting a new trial because the verdict is contrary to the law or the evidence, I have independently weighed the evidence. I am, as I indicated, mindful of the language in cases that refer to the court sitting as the, quote, thirteenth juror, close quote, but again, I am mindful of language in other cases that suggest that might have been [sic] unfortunate or misleading choice of language. I do think that there is sufficient credible evidence and the weight of that evidence does support the jury's verdict. So I don't think the evidence is contrary to theor the verdict is contrary to the evidence under 1181(6)." (Italics added.)

Lewandowski cites to the court's earlier statements that it believed the standard for reviewing the evidence on a motion for a new trial "is closer to I think the standard for a judgment of acquittal and the application of the appellate standard." According to Lewandowski, because the trial court made this statement, this court cannot infer that the court actually did "independently weigh[] the evidence," despite the fact that the court stated that it had done so. We disagree. Although the trial court's earlier statement that a review of the evidence should be similar to that applied by an appellate court, the court's later statement indicates that the trial court's main concern was the potential for a court to completely ignore the jury's verdict. Wary of doing so here, the trial court indicated that it had weighed the evidence and that it believed the weight of the evidence supported the jury's verdict. There is no reason to disbelieve the trial court's statement that it had independently weighed the evidence before concluding that the verdict was not contrary to the evidence.

We also disagree with Lewandowski's contention that if the court had used the appropriate standard of review, it would have reduced his conviction to simple assault. The court applied the correct standard for reviewing the evidence and made an independent determination that the evidence was not contrary to the jury's verdict. The trial court did not abuse its discretion in denying Lewandowski's request to grant a new trial or to reduce his conviction.

IV.

DISPOSITION

The judgment and sentence are reversed and the matter is remanded for retrial.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] Subdivision (a)(1) of section 245 provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."

Under section 1192.7, the Legislature prohibits the district attorney from engaging in plea bargaining in certain circumstances. Section 1192.7 subdivision (a) prohibits plea bargaining in cases in which the information charges, among other things, a "serious felony." A "serious felony" includes "any felony in which the defendant personally used a dangerous or deadly weapon . . . ." ( 1192.7, subd. (c)(23).)

^[3] Section 422 provides in pertinent part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

^[4] Lewandowski's car was filled with his belongings. It appeared that he was living in the car.

^[5] Spawton apparently failed to mention during an interview with Detective Edward Erbe that Lewandowski threw a sign and chair.

^[6] CALJIC No. 17.10 provides in pertinent part: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime."

^[7] CALJIC No. 9.00 provides in pertinent part: "Every person who commits an assault upon another person is guilty of a violation of Penal Code section 240, a [misdemeanor] [crime].]

"In order to prove an assault, each of the following elements must be proved:

"1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person;

"2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and

"3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.

"The word 'willfully' means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.

"To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault].

"[A willful application of physical force upon the person of another is not unlawful when done in lawful [self-defense] [or] [defense of others]. The People have the burden to prove that the application of physical force was not in lawful [self-defense] [defense of others]. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.]"

^[8] A different standard of review for prejudice may apply in circumstances when "the failure to instruct on a lesser included offense rises to the level of a federal constitutional violation because it renders the capital verdict unreliable under the Eighth Amendment." (Rogers, supra, 39 Cal.4th at p. 868, fn. 16.)

^[9] Our conclusion that the evidence was sufficient to support a conviction for assault with a deadly weapon does not render harmless the trial court's error in failing to instruct the jury as to the lesser included offense of simple assault. As the Supreme Court noted in People v. Breverman (1998) 19 Cal.4th 142, the purpose of the requirement that the trial court instruct, sua sponte, on a lesser included offense if there is evidence in the record to support it "is to allow the jurors to convict of either the greater or the lesser offense where the evidence might support either. That the jury chose the greater over acquittal, and that the evidence technically permits conviction of the greater, does not resolve the question whether, 'after an examination of the entire cause, including the evidence' (Cal.Const., art. VI,  13), it appears reasonably probable the jury would nonetheless have elected the lesser if given that choice.  Depending on the circumstances of an individual case, such an examination may reveal a reasonable probability that the error affected the outcome in this way." (Id. at p. 178, fn. 25.)

^[10] Section 1181 provides in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [] . . . [] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; [] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed . . . ."