Filed 3/20/18 P. v. Gomez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
AVELINO GOMEZ,
Defendant and Appellant.


A151068

(Solano County
Super. Ct. No. VCR220431)


A jury found Avelino Gomez guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court suspended imposition of sentence and placed Gomez on three years of probation on condition he serve 120 days in county jail.
Gomez appeals. He argues the trial court erred in refusing his request to instruct the jury on the lesser included offense of simple assault. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts relevant to the issue on appeal. The prosecution charged Gomez with one count of assault with a deadly weapon. (§ 245, subd. (a)(1).) The offense was alleged to be a serious felony. (§ 1192.7, subd. (c).)
A. Prosecution Evidence
1. Jose Rosale’s Testimony
On March 15, 2014, Jose Anebo Rosale Trujillo lived with Gomez and his family in Vallejo, California. Rosale rented a room from Gomez, and had known Gomez for about six years. Gomez, his wife, their children, and Gomez’s nephew, also lived in the house.
When Rosale arrived home from work around 8:30 or 9:00 p.m., Gomez, his brother-in-law, and another person were playing poker. Rosale joined the game. While playing, they shared “a 12 pack of beer.” Rosale estimates he drank about four of the beers. They were playing in the living room close to the kitchen.
An argument ensued between Rosale and Gomez regarding whether Rosale owed money to one of the other players. Rosale paid what was owed, but the argument escalated. Gomez grabbed Rosale by his shirt, and pulled Rosale from his chair to the kitchen. Gomez attempted to shove Rosale to the ground, and the two men fell to the floor. While on the ground, Gomez bit Rosale on his left arm, close to the wrist, and Rosale tried to push Gomez away.
When Rosale stood up, Gomez’s brother-in-law grabbed Rosale from behind. Gomez continued his attack on Rosale, who used his feet to keep Gomez away from him. Gomez’s wife arrived and pulled Gomez from the fracas. Gomez’s brother-in-law let go of Rosale, who left the house.
Rosale was standing at the bottom of a staircase that connects to the kitchen, when Gomez opened the kitchen door and came down the stairs with a big knife. Gomez “launched” at Rosale and stabbed him. The knife penetrated to a depth of about half an inch, above Rosale’s right chest. Rosale told Gomez “you screwed me up,” and Gomez let go of the knife. Rosale took the knife and tossed it under a truck. Gomez went back up the stairs, into the kitchen, and closed the door.
Rosale was bleeding from the knife wound. One of the poker players left the house, and he told Rosale to call the police, but he would not let Rosale borrow his phone. Rosale walked to a nearby liquor store, but the clerk did not call the police. He walked back to the house, and a neighbor called the police. Rosale had difficulty communicating with the police, and he was taken by ambulance to a hospital in Fairfield. Rosale told the police that Gomez stabbed him. He spent three days in the hospital.
Rosale claimed he did not threaten Gomez before Gomez stabbed him. Rosale denied cutting himself with the knife. He did not remember punching Gomez in the nose, and he was not sure if the blood in the kitchen was his or Gomez’s. Rosale denied he was trying to choke Gomez when Gomez bit him. Rosale testified he was defending himself during the fight.
Rosale also denied making comments he desired to become a crime victim so that he could get “papers” to come into the United States. About ten years prior to this incident, Rosale pleaded no contest to a charge of felony assault stemming from a violent incident with a former girlfriend.
2. Rosale’s Medical Treatment
Ryan Murphy was employed as a paramedic with Medic Ambulance, a private company that provides “EMS care” in Solano County. At 1:00 a.m. on March 15, 2014, Murphy was dispatched to a house in Vallejo based on a report of a stabbing. Rosale had a three-centimeter stab wound in his upper right chest and approximately 250 milliliters of dried blood on his skin and shirt. Rosale was given oxygen due to the potential for injury to Rosale’s respiratory tract and lungs, and Murphy transported him to North Bay Medical Center. Rosale appeared surprised but “even tempered.” According to Murphy, Rosale’s wound was “a penetrating injury, not a laceration.”
John P. Zopfi, M.D., a trauma surgeon at North Bay Medical Center, treated Rosale at around 1:36 a.m. on March 15, 2014. After determining there was no injury to Rosale’s lung, Dr. Zopfi treated the wound by cleaning it, putting a sterile dressing on it, and Rosale was given antibiotics. Rosale was admitted to the intensive care unit for observation.
In Dr. Zopfi’s opinion, Rosale did not appear overly intoxicated. Rosale’s blood alcohol level suggested “moderate[] to mild intoxication.” Based on a CT scan, which demonstrated the injury perforated Rosale’s pectoral muscles, Dr. Zopfi diagnosed Rosale with a stab wound, not a laceration.
3. Police Officer Testimony
Officer Amanda Blain, a police officer with the Vallejo Police Department, responded to a reported stabbing on March 15, 2014 around 1:00 a.m. Officer Blain made contact with Rosale to the right of his residence in front of a neighbor’s house. The officer had difficulty speaking with Rosale because Rosale’s primary language is Spanish. Rosale told the officer he was “stabbed with a poker,” and Officer Blain observed Rosale had a chest wound, a cut on his left arm, and he was bleeding “moderately.” Officer Blain took photographs of a knife located between two vehicles in the driveway, and of splatters and droplets of blood in the kitchen.
Officer Jesse Hicks, a police officer with the Vallejo Police Department, also responded to the report of a stabbing. Officer Hicks observed Gomez come to the threshold of the door of his house. Another officer shouted at Gomez to put his hands up, which he did. Then Gomez put his hands back down, and he starting walking back into the residence. The other officer deployed his Taser. The officers had the other occupants of the house step outside before handcuffing Gomez.
Officer Hicks observed blood on the counter, wall, and on some dishes in the kitchen. He observed more blood on the bottom step of the stairs leading from the kitchen, and on the walkway and the sidewalk. Officer Hicks located a knife in the driveway, and he booked it into evidence.
Jerry Sanchez, a police officer employed by the Solano County District Attorney’s Office, spoke Spanish, and he interviewed Rosale on May 12, 2014, almost two months after the incident. Rosale claimed the argument began when Gomez told Rosale he owed $15 to Gomez’s brother-in-law. Rosale stated he paid the money, and he told Gomez he would never loan him money again. Gomez got up, grabbed Rosale around the neck, and forced him to the ground. Gomez bit Rosale above his left wrist. When Rosale got up, Gomez’s brother-in-law tried to put Rosale in a bear hug, but Rosale broke free and ran outside. Gomez came outside, and stabbed him. The stabbing occurred in the driveway.
B. Defense Evidence
1. Gomez’s Testimony
Gomez testified he was 31 years old, and worked in landscaping. Gomez did not know how to read or write in Spanish or English, and he understood very little English. Rosale was living at Gomez’s residence for about five or six months before the incident occurred, although Gomez had known Rosale since about 2005. Rosale would often say he wanted someone to beat him up so that he could get a green card.
On the night of Gomez’s fight with Rosale, Rosale arrived at the house at about 9:00 p.m., with a beer in his hand. Rosale parked his truck next to Gomez’s, and appeared “a little drunk.” Gomez was playing poker with his brother-in-law, and Rosale wanted to play too, but they had no beer, so they all pitched in for a “12 pack,” and Rosale went to the store to purchase it. Gomez estimated he drank about three of the beers, his brother-in-law drank three, and Rosale drank the other six.
Before Rosale left to buy the beer, Rosale was angry because Gomez’s sister parked her car in a way that blocked the driveway. Gomez’s sister and his brother-in-law left because of how Rosale was behaving. Gomez confronted Rosale regarding his behavior, and Rosale said he was “sick and tired” of Gomez. Gomez testified Rosale was angry because he lost money during the poker game, Gomez told Rosale to pay what he owed, and Rosale was mad because Gomez was not defending him.
Gomez went to his room, and, later, on his way back from the bathroom, Gomez bumped into Rosale. When Gomez got to the kitchen, Rosale grabbed him and said he was fed up with him. Rosale shoved Gomez, and punched him a couple of times on the nose. Gomez was afraid. Rosale was also hitting Gomez against the wall and ground.
While Rosale was beating him up, Gomez bit Rosale “so that he would let me go.” Gomez grabbed a kitchen knife and told Rosale to calm down. Then Rosale took the knife away from Gomez and “he cut himself.” They were in the kitchen when Rosale did so. Rosale yelled, and went outside with the knife. Gomez claimed the blood in the kitchen was from Gomez’s bloody nose. Gomez took off his shirt because it was torn and bloody, and he washed his face in the kitchen sink.
Gomez denied putting his hands down before the police shot him with a Taser. Gomez testified he took a step back from the door because it opens inwards. Gomez put his hands up because his nephew told him in Spanish to do so. Gomez denied leaving the house to stab Rosale. Gomez denied getting angry, or grabbing Rosale by the back of the neck. Gomez testified that Rosale was punching his face, and that when Rosale was on top of him, Gomez “pushed him however I could and bit him.” Gomez was afraid of Rosale because Rosale had hurt other people, and Gomez grabbed the knife because he was scared. According to Gomez, Rosale’s testimony that Gomez came outside and stabbed him is “all lies.”
Gomez also testified regarding an incident that occurred a month or two earlier, where Gomez observed Rosale beating up Gomez’s former brother-in-law, Rubin Villasenor, in front of Gomez’s house. Rosale had Villasenor by the throat, Villasenor was bleeding from the nose, and Gomez’s nephew was trying to pull Rosale away from Villasenor. Gomez denied he got into a fight with Villasenor, but admitted arguing with Villasenor.
2. Other Defense Evidence
Edwin Anthony Smith, a forensic toxicologist, opined that based on Rosale’s blood alcohol level, Rosale drank between seven and nine twelve-ounce bottles of beer on the night of the incident.
Gomez’s wife, Cataline Lepe Gutierrez, testified she did not know Rosale very well. He had been living at the house about eight or nine months before the incident with her husband. When Rosale came to her house that night, he looked “tipsy” and he had “a beer pack.” Gutierrez went to the store, and when she came back, she went to her room, where the children were. Later, Gomez came into the bedroom with a torn and bloody shirt, and blood on his face. Gutierrez did not hear any fighting; instead, she heard laughing and yelling. Gutierrez had never seen her husband get into a fight or hit anyone.
Rosale lived with Santiago Casillas Sanchez for about eight months in 2005. Casillas testified regarding an incident during a barbecue in 2014 where Rosale broke a bottle of tequila and hit Casillas, causing Casillas to fall to the ground. Casillas described himself as a friend of Gomez, and he had never known Gomez to be violent. Casillas denied punching or striking Rosale. According to Casillas, Rosale stated on several occasions that he was going to let himself get beaten up “[t]o get his visa.”
Villasenor also testified regarding a violent altercation with Rosale. About two months before the incident with Gomez, Rosale punched Villasenor several times. Villasenor did not go to the doctor or report the incident to the police. Prior to this incident, Rosale told Villasenor “that if you let yourself get beat up, you can . . . get a green card . . . .”
Ayman Hussein worked at the M&M Market in Vallejo on March 15, 2014. A familiar customer walked into the store with a cut on his right chest telling Hussein to call the police. Hussein could not do so because neither his phone nor his coworker’s phone was charged, and the store phone was locked in the office. According to Hussein, Rosale was very intoxicated. Rosale had a deep cut that was dripping blood on the ground. Hussein walked Rosale back to his house, and when the police arrived, Hussein returned to the store.
C. Rebuttal Evidence
According to Rosale, during the 2014 barbecue, it was Casillas who punched Rosale, and Rosale denied hitting Casillas. Rosale also denied hitting Villasenor, claiming instead that Villasenor attacked him first. Guillermina Tejeda testified she dated Rosale for three years between 2012 and 2015, and she never witnessed Rosale being violent toward her or anyone else.
D. Verdict and Sentence
A jury found Gomez guilty of assault with a deadly weapon. (§ 245, subd. (a)(1).) The trial court suspended imposition of sentence and placed Gomez on three years of probation on condition he serve 120 days in county jail, with credits for 60 days served.
DISCUSSION
I.
The Court Did Not Err in Refusing to Instruct the Jury on Simple Assault
Gomez argues it was error for the court to deny his request to instruct the jury on simple assault as a lesser included offense. We disagree.
A. Governing Law and Standard of Review
Trial courts must give “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.” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “[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.] . . . [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.” (Id. at p. 162.)
“We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury . . . on a lesser included offense only if there is substantial evidence, ‘ “that is, evidence that a reasonable jury could find persuasive” ’ [citation], which, if accepted, ‘ “would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Simple assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747–748.) The difference between the greater and lesser crime depends on whether a deadly weapon was used during the assault. (Compare § 240 with § 245, subd. (a)(1).)
B. The Proceedings Below
Defense counsel requested an instruction on simple assault, but, when reviewing the proposed jury instructions, the court declined the request:
“THE COURT: . . . The simple assault as a lesser, are you seeking lesser still here based on the evidence . . . .?
“[Defense Counsel]: Yes.
“THE COURT: People’s position on that?
“[Prosecution]: I think it’s an all or nothing thing. Either he stabbed him with a knife or he didn’t. We’re not focusing in [on] that first incident in the home. People alleged there is an assault that happened there. It’s the single incident where he got stabbed. I think that is going to confuse the jury. I think it’s sort of like a backup plan for them if they believe there is something there but not enough or they don’t want to engage in some sort of meaningful deliberation. I think either he used the knife and stabbed him or he didn’t.
“THE COURT: Any further comments on that . . .?
“[Defense]: Submitted. I still like it though.
“THE COURT: I’m not going to give the lesser here. I recognize it’s a lesser included, and we need to give lesser includeds where substantial evidence supports it; however, there is no substantial evidence to support that this would only be a simple assault. The testimony any way you look at it was there was an injury with a knife which would be a deadly weapon. Any way you look at it would be a 245 (a)(1) if there is one but not a simple assault. There is no evidence to support that . . . .”
The court instructed the jury on the crime of assault with a deadly weapon other than a firearm (CALCRIM No. 875, § 245, subd. (a)(1)), and self-defense as a defense to the charge (CALCRIM No. 3470).
C. No Substantial Evidence of Simple Assault
We conclude the court did not err in declining to instruct the jury on simple assault because there was no substantial evidence to support this instruction. The evidence in this case hinged on the conflicting testimony of Rosale and Gomez, the only witnesses to the events that resulted in Rosale’s chest injury. Rosale testified that he defended himself against an attack by Gomez, and that Gomez came outside of the house and stabbed him with a knife. Gomez testified he defended himself against an attack by Rosale, and, in the course of doing so, Gomez bit Rosale and grabbed a knife, but Rosale took the knife away from Gomez, and “cut himself” in the kitchen.
If the jury believed Gomez’s account of what occurred, it could not have convicted him of simple assault because he claimed to act in self-defense when he bit Rosale and grabbed a knife. In other words, there was no substantial evidence which, if accepted by the jury, would have absolved Gomez of assault with a deadly weapon, and which would instead have supported a conviction for simple assault. (People v. Cole, supra, 33 Cal.4th at p. 1218.)
In arguing otherwise, Gomez contends the jury could have believed “that a combination of both scenarios is what actually occurred.” He argues the evidence “supported a finding that during the struggle Rosale was either inadvertently stabbed, purposefully stabbed by [Gomez], or purposefully stabbed by Rosale himself.” Gomez also contends the evidence supported a finding Gomez “tried to stab Rosale but failed when Rosale took the knife from [Gomez] and cut himself.”
We have reviewed the evidence presented at trial, and it does not support Gomez’s contentions. Gomez did not testify he accidentally stabbed Rosale, or that he tried and failed to stab Rosale. Instead, Gomez testified he was afraid of Rosale, he bit Rosale “so that he would let me go,” he grabbed the knife to calm Rosale down, and Rosale took the knife and cut himself. Based on this evidence, no reasonable jury could conclude Gomez was guilty of assaulting Rosale, but not guilty of assault with a deadly weapon.
This case is similar to People v. Groce (1971) 18 Cal.App.3d 292, where the court correctly refused to instruct on simple assault because appellant’s defense “consisted entirely of a denial of any kind of attack” on his former girlfriend, and “the gist of the prosecution testimony was the employment of a knife during the attack.” (Id. at p. 295.) Similarly here, Gomez testified he acted in self-defense. The court’s decision not to instruct the jury on the lesser included offense of simple assault was correct because there was no substantial evidence to support it.
Because there was no error, we do not address Gomez’s contention he suffered prejudice as a result of the failure to instruct the jury on the lesser included offense of simple assault.
DISPOSITION
The judgment is affirmed.





_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.