NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury found defendant Lucas Bragg guilty of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) based on two separate incidents against different victims.
On appeal, defendant contends these convictions must be reversed because there was insufficient evidence that the stick and the brick were used in a dangerous or deadly manner. Defendant also argues the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2014, the Sonoma County District Attorney filed a four-count information against defendant. He was charged with assault upon Jon Eskra with a deadly weapon (§ 245, subd. (a)(1); count 1), vandalism of Eskra's truck, causing over $400 in damage to the truck (§ 594, subd. (a); count 2), assault upon Lauren Biggs with a deadly weapon (§ 245, subd. (a)(1); count 3), and misdemeanor vandalism of a car belonging to Aloha Gibson (§ 594, subd. (a); count 4).
A jury trial began in March 2015. At the time of the trial, defendant resided on property in Forestville owned by his father, Michael Bragg, who lived in Colorado.
In 2014, the Sonoma County Permit and Resource Management Department (PRMD) contacted Bragg about the Forestville property. The PRMD wanted trash removed and the building on the property "secured, boarded up."
November 25, 2014 Incident
Around 10:30 in the morning on November 25, 2014, Eskra and Bragg met at the Forestville property. Bragg had asked Eskra to bring material for boarding up the building, and Eskra brought some plywood in his truck. Eskra arrived first, and he observed a structure, a fifth-wheel RV, and a motor home on the property. The RV and motor home appeared to be occupied. Bragg arrived a few minutes later, and Eskra introduced himself. They stood near Bragg's car and discussed the job of removing piles of trash.
While they were talking, Eskra heard a male voice say, "who the [fuck] is this?" Eskra testified, "And then all I caught out of the corner of my eye was this object coming down at me. And so the person walked right around Michael Bragg, was taking a swing at me. I ducked down, hit the ground, [the object] caught my nose, bloodied my nose." Eskra noticed the object that was swung at him when it was about 14 inches above his head. He described the object as brown, "a good two feet" long, and directed at his head. The prosecutor asked whether Eskra thought the object would have struck more than his nose if he had not ducked. Eskra replied, "Most definitely. I might not even be sitting here today." The person who swung at him appeared to have come from where the fifth-wheel RV was parked.
Eskra was scared, and he told Bragg he was leaving. Eskra heard the person who swung at him say, "I don't want no [fucking] contractors on my property." The person walked to Eskra's truck and smashed in his windshield and put a big dent in the hood. Eskra referred to the object swung at him as a "stick." He testified that, after the windshield was smashed, "the person turned around with the stick and said just get out of here." He also described the object used in the attack as a "club coming down on my windshield." The attacker walked back toward the fifth-wheel RV, and Eskra ran to his truck and left.
By that time, Bragg had gotten in his car and was backing out of the driveway. Eskra followed Bragg about a half mile down the road. Bragg pulled over, and Eskra pulled over behind him. They talked about what had just happened, and Bragg called the Sheriff. Eskra later spoke with Sheriff's deputies about the incident. Deputy Robert Dillon met with Eskra, and immediately noticed blood on the side of Eskra's face and the side of his nose. Eskra told Dillon that Bragg had told him (Eskra) that the attacker was his son, defendant. Eskra described the damage to his truck as "almost, like, a two-by-four or something hit it." He obtained an estimate that repairing the dent on his hood would cost $1,640.30, and replacing the windshield would cost $200. Photographs showing Eskra's facial injury and the damage to his truck were shown to the jury. Dillon also talked with Renda at the Forestville property. Renda told Dillon that defendant said he had done something bad and had broken a contractor's windshield.
November 29, 2014 Incident
Lauren Biggs was friends with Renda. On the morning of November 29, 2014, she went to the Forestville property to visit Renda. She was with her younger brother, Dylan Allain, and his girlfriend, Aloha Gibson. Gibson drove, and Biggs sat in the back seat of the car. They parked in a driveway near Renda's trailer. Biggs went to see if Renda was home. He did not answer his door, so she returned to Gibson's car and got in the back seat. Then Renda came out to Gibson's car. He told Biggs he had to go to the bathroom, and he walked toward the building.
While she waited in Gibson's car for Renda to return from the bathroom, Biggs saw defendant.
Biggs, Allain, and Gibson left the property and parked on a main road. Gibson called 911, and Biggs spoke to the dispatcher. Deputy Mike Shanahan responded to their 911 call. He noted that the back window of Gibson's car was shattered and a piece of molding on the rear seating was damaged. He took photographs documenting the damage to Gibson's car and the brick defendant used, and the photos were shown to the jury.
Jury Verdict and Sentence
The jury found defendant guilty of the four counts charged. Defendant was sentenced to four years in prison, composed of the middle term of three years for count 1 (assault with a deadly weapon upon Eskra) and a consecutive one-year term for count 3 (assault with a deadly weapon upon Biggs). The trial court also imposed a concurrent two-year term for count 2 (vandalism).
Sufficiency of the Evidence
Defendant contends the prosecution failed to prove count 1, assault with deadly weapon upon Eskra, because there was no evidence that the stick qualified as a deadly weapon. Similarly, as to count 3, defendant contends the brick "was not proved to be a deadly weapon as used" against Biggs. We are not persuaded.
1. Applicable Law and Standard of Review
Section 245, subdivision (a)(1), punishes assaults committed "upon the person of another with a deadly weapon or instrument other than a firearm." "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." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)" `When a defendant challenges the sufficiency of the evidence, "`[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.] `The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' [Citation.] `Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] `"`If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
At the outset, we reject defendant's argument related to count 1 that the "question about the nature of the object as a deadly or nondeadly weapon is a mixed issue of law and fact, requiring this court to apply a de novo standard of review." The question whether sufficient evidence was presented at trial that a jury could reasonably find that defendant used the object (described as a "stick" or "club") in a manner likely to produce death or great bodily injury is a question of the sufficiency of the evidence, subject to substantial-evidence review. The case defendant cites for his argument that a different standard of review applies, People v. Cromer (2001) 24 Cal.4th 889, did not present the issue whether there was sufficient evidence to support a criminal conviction.
2. Count 1
Defendant characterizes the instrument he swung at Eskra as an "undetermined brownish object" that approached Eskra's head "at some undetermined speed," which caused bleeding but "did not require medical attention." Defendant ignores the following evidence. The object was at least two-feet long and was swung at Eskra's head quickly. Eskra ducked down, but the object caught his nose and caused bleeding from his face. Eskra gave his opinion that, had he not moved to evade defendant's swing, he "might not even be . . . here today," suggesting that the object was swung at him with force and that the object was capable of doing him great harm. Defendant immediately moved to Eskra's truck and swung the object at the windshield and smashed it. Then he swung the object at the truck hood, putting a dent in it. Eskra referred to the object defendant wielded as a "stick" and a "club," and described his truck hood as looking as though a two-by-four had struck it.
From Eskra's description of the swing at his head, the jury reasonably could infer that defendant swung at Eskra with great speed and force. From his description of the object and the damage done to his face and his truck, the jury could further infer that the object itself was rigid and substantial enough to break a windshield and dent a metal truck hood. This was sufficient evidence to support a finding that defendant swung the object at defendant's head in a manner likely to produce death or great bodily injury.
Defendant relies on the fact that Eskra did not seek medical attention after the attack. But the extent of injuries, while relevant, is not determinative. (In re B.M. (2017) 10 Cal.App.5th 1292, 1300.) In In re B.M., for instance, a juvenile attempted to stab her sister with a butter knife, and her sister covered herself in a blanket and kicked her legs. (Id. at pp. 1295-1296.) Concluding that substantial evidence supported the conviction of assault with a deadly weapon, the appellate court observed, "It matters not that the victim was able to fend off great bodily injury with her blanket. This self defense does not negate appellant's assault." (Id. at p. 1299.) Similarly, in this case, the fact that Eskra, fortunately, was able to duck and evade the brunt of defendant's swing does not negate defendant's assault.
Beasley, supra, 105 Cal.App.4th 1078, cited by defendant is distinguishable. In that case, the appellate court concluded there was insufficient evidence that a broomstick and a vacuum cleaner extension were capable of producing, and likely to produce, great bodily injury. (Id. at pp. 1087-1088.) The court noted there was no evidence about "whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic" and "[i]ts composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury." (Ibid.) Here, in contrast, there was evidence about the rigidity of the object defendant used; it was sufficiently rigid and weighty to break a windshield and dent a truck hood. It was reasonable for the jury in this case to find that the object defendant used—which caused so much damage to a truck when swung at it—was likely to cause great bodily injury when swung at a person.
In short, sufficient evidence was presented at trial to support defendant's conviction of count 1, assault with a deadly weapon upon Eskra.
3. Count 3
Defendant argues that he threw a brick not at Biggs, but at a car in which she was seated, and, by the time the brick broke through the rear windshield, "it did not possess enough remaining force to cause Biggs significant damage." He claims, "It seems incredibly unlikely that a brick could have traveled through the windshield of an automobile and cause[d] death or great bodily injury." The jury, however, could reasonably reach a different conclusion. Indeed, it strikes this court as extremely dangerous—and likely to cause great bodily injury—to throw a brick at an occupied vehicle with such force that the rear windshield is shattered. (Cf. People v. White (2015) 241 Cal.App.4th 881, 883-884 [sufficient evidence to support conviction of assault with a deadly weapon where defendant threw a metal showerhead toward a window, breaking a windowpane and spraying glass particles on victim].) Flying broken glass is capable of causing great bodily harm. (E.g., People v. Martinez (1977) 75 Cal.App.3d 859, 861-862 [sufficient evidence of assault with a deadly weapon to survive a section 995 motion where defendant threw a beer bottle at a marked patrol car, and the bottle shattered on the elbow of an officer].) Moreover, Biggs testified that, had she not leaned forward, the brick would have hit her in the back of the head. This was sufficient evidence to support defendant's conviction of count 3, assault with a deadly weapon upon Biggs.
Defendant claims the trial court erred in failing to instruct the jury sua sponte on simple assault, a lesser included offense of assault with a deadly weapon. We review this claim of error de novo. (People v. Souza (2012) 54 Cal.4th 90, 113 (Souza).)
It is well-settled that, even without a request, the trial court in a criminal case must instruct the jury 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."'" (Souza, supra, 54 Cal.4th at p. 114.) However, a claim of failure to instruct on a lesser included offense, "may be waived under the doctrine of invited error if trial counsel both `"intentionally caused the trial court to err"' and clearly did so for tactical reasons. [Citation.] Invited error will be found . . . only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction." (Ibid.)
The Attorney General argues defendant has forfeited his claim because the failure to instruct was invited error. At the conference on proposed jury instructions in this case, the trial court stated it would give CALCRIM No. 875 on assault with a deadly weapon. The court then asked defense counsel, "Are you asking for any lesser offenses . . .?" She responded, "No, Your Honor." There is no indication from this brief colloquy that defense counsel had a tactical reason for inviting error.
Nonetheless, we conclude that any error was harmless. Failure to instruct on a lesser included offense "is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman (1998) 19 Cal.4th 142, 165.) Here, as we have seen, defendant swung at Eskra's head with a "stick" or "club" that was so rigid and substantial that it later shattered his truck's windshield and dented its hood. A few days later, defendant threw a brick at Biggs with such force that it shattered a car's rear window and would have hit Biggs's head had she not leaned forward. In defense counsel's closing argument, she argued no witness identified defendant in respect to the first incident, and a trespasser could have attacked Eskra. As to the second incident, she argued that the testimony of Biggs, Gibson, and Renda was contradictory and unbelievable. At no point, however, did she argue that either incident was less than or other than assault with a deadly weapon. Given the state of the evidence, it is not reasonably likely that the outcome would have been more favorable to defendant had the trial court instructed the jury on simple assault.
The judgment is affirmed.
Kline, P.J. and Stewart, J., concurs.
Regarding the same incident, Bragg testified that he heard yelling, and a man ran by. He described what happened next as "kind of blurry" and "very fast and kind of shocking."