Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 08CM7186 of Kings County. James T. LaPorte, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Juan Carlos Bravo and Carlos Miguel Iraheta are inmates at Corcoran state prison (the prison) who are serving life sentences. In 2008, they attacked another inmate in an exercise yard. After a joint jury trial, Bravo and Iraheta were found guilty of maliciously assaulting an inmate with a deadly weapon or by any means of force likely to produce great bodily injury while serving a life sentence in prison (count one). They were found not guilty of assault with a deadly weapon or by any means of force likely to produce great bodily injury while imprisoned (count two). Bravo was found guilty of possessing a sharp instrument while confined (count three). (Pen. Code, §§ 4500, 4501, 4502, subd. (a).) Bravo admitted two prior strike allegations. He was sentenced on count one to 27 years to life to be served consecutive to the sentence he was already serving; a term of 25 years to life was imposed and stayed on count three.
Unless otherwise specified all statutory references are to the Penal Code.
Bravo argues the trial court prejudicially erred by failing to instruct sua sponte on the lesser included offense of simple assault. We are not convinced and will affirm.
FACTS
On February 18, 2008, correctional officer Armando Guerra was on duty at an elevated post inside the prison observing yard 4A4R. Guerra was familiar with the inmates who were assigned to this yard. About 17 or 18 inmates were in the yard. Around 9:48 a.m., Guerra “saw one inmate being attacked by two [inmates].” The two perpetrators approached the victim, Louis Gonzalez. The first perpetrator attacked the victim from behind and hit him on the right side of the head. The victim raised his hands and stepped to the side and back. The second perpetrator attacked the victim from the side. Both perpetrators delivered multiple blows with closed fists to the victim’s upper head and torso area. One of the perpetrators was holding a brown colored object with a rounded shape.
Guerra ordered all the inmates in the yard to assume a prone position on the ground. Everyone except the three inmates involved in the altercation lay face down on the ground. The two perpetrators continued to swing at the victim. Guerra ordered them to stop fighting three more times. They refused to comply. Guerra fired a nonlethal impact round at the second perpetrator. The three inmates assumed a prone position on the ground. Guerra recognized the perpetrators: Bravo was the first perpetrator and he held the brown object; Iraheta was the second perpetrator. The victim was removed from the yard. Bravo pushed himself up to a standing position. A brown inmate-manufactured, stabbing-type weapon with a rounded shape was lying on the ground where Bravo’s chest had been.
A correctional officer took custody of the weapon and the T-shirt and boxer shorts that Bravo had been wearing at the time of the attack. A T-shirt that had been left on the yard was retrieved. Both of the T-shirts appeared to have blood stains on them.
Sheryl Balbina is a licensed vocational nurse who was on duty at the prison when the attack occurred. She examined the victim and treated him for some cuts. The victim had been cut or stabbed under the right eye in the area of the lower lashes; there was swelling and bleeding under the eye and the eyeball was red. The victim was transported to the hospital for treatment. When he returned from the hospital, she gave him some narcotic medication. She also examined Bravo and Iraheta; neither of them had any observable injuries.
The exercise yard was monitored by a surveillance camera, which captured images of the attack (the surveillance video). A DVD of the surveillance video was admitted at trial and shown to the jury.
On our own motion, we hereby augment the appellate record to include the surveillance video (People’s Exhibit 8A).
Bravo called inmate Jeremy Perras as a defense witness. Perras testified he was having a conversation with Bravo on the yard when a commotion occurred. A group of people came toward them and they stepped aside. When a guard ordered them to get down, Bravo and he assumed a prone position next to each other. Perras did not see anyone fighting.
Iraheta did not call any defense witnesses.
DISCUSSION
The court did not have a sua sponte duty to instruct on simple assault.
Bravo argues the court had a sua sponte obligation to instruct on simple assault as a lesser included offense of count one. We are not convinced.
Instruction on a lesser included offense must be given sua sponte where “‘the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) “To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174.) “[I]f there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
In this case, we conclude the court did not have a sua sponte obligation to instruct on the lesser included offense of simple assault because the evidence in this case proved that if Bravo was guilty at all, it was of the charged offense and not a lesser crime. Perras testified that Bravo was talking to him when a commotion occurred and they were ordered to lie down on the ground. During closing arguments, Bravo’s counsel argued Bravo had been misidentified and had not participated in the attack on the victim. If the jury believed the defense presented at trial, it would have found Bravo not guilty of any charge related to the attack on the victim because Bravo was conversing with Perras when the attack occurred.
Bravo’s claim that the jury could have found him guilty of simple assault because the weapon was only a few inches long and the victim did not sustain serious injury fails because the prosecution was not required to prove that the victim actually suffered great bodily injury. The People were required to prove either use of a deadly weapon or force likely to produce great bodily injury. In this case, the People amply proved both use of a deadly weapon and force likely to produce great bodily injury. The surveillance video corroborated Guerra’s testimony that the perpetrators attacked the unsuspecting victim. The first perpetrator attacked the unsuspecting victim from behind and the second perpetrator joined in the attack from the victim’s side. Both perpetrators landed multiple blows to vital areas of the victim’s body -- his head and chest. They refused to halt the attack even after Guerra issued multiple orders to stop fighting. Guerra identified the perpetrators as Bravo and Iraheta. Guerra saw a brown object in Bravo’s hand during the attack. A brown inmate-manufactured weapon was found on the ground where Bravo had been lying. The victim sustained a cut under the right eye and was sent to the hospital for treatment. A reasonable jury could not have concluded from this evidence that Bravo attacked the victim but he did not use a deadly weapon and did not use force likely to produce great bodily injury. Therefore, the evidence did not support instruction on the lesser included crime of simple assault.
Bravo’s reliance on People v. Sheldon (1989) 48 Cal.3d 935, 961-962 (Sheldon) and People v. Rupert (1971) 20 Cal.App.3d 961, 968-969 (Rupert) is misplaced. Both Sheldon and Rupert are factually distinguishable. In Sheldon, the defendant approached the victims with a shotgun but did not fire the weapon or strike the victims. In Rupert, the defendant struck the victim with his fists and might have hit her with a coffee pot but did not brandish or use a weapon. Here, Bravo not only repeatedly struck the victim in a coordinated attack with another inmate but he possessed a weapon and stabbed the victim at least one time, narrowly missing the victim’s eye.
In any event, the instructional omission was harmless. In a noncapital case, the failure of a trial court to instruct sua sponte on a lesser included offense is evaluated under the prejudice standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Breverman (1998) 19 Cal.4th 142, 176-178 (Breverman.) Under this standard, a conviction will be reversed only if it appears reasonably probable that the defendant would have obtained a more favorable outcome had the error had not occurred. (Id. at p. 178.)
As explained above, the evidence overwhelmingly proved Bravo was guilty of maliciously attacking the victim with force likely to produce great bodily injury and that he used a deadly weapon during the attack. The surveillance video depicted a vicious, coordinated attack by two inmates on the unsuspecting victim. Guerra identified these inmates as Bravo and Iraheta. The People produced overwhelming evidence that Bravo was armed and that he delivered multiple blows to vital areas of the victim’s body. Bravo stabbed the victim at least one time. The victim was cut under the right eye, supporting an inference that Bravo intended to stab the victim in the eye. Malice was further shown by Bravo’s refusal to comply with the guard’s orders to stop fighting. If the jury had believed Perras’s testimony providing Bravo with an alibi, it would have found Bravo not guilty of any crime related to the attack on the victim. It is not reasonably probable that the jury would have found Bravo guilty of simple assault if it had been instructed on this lesser offense. Therefore, we conclude Bravo was not prejudiced by the absence of instruction on simple assault.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J., Dawson, J.