PEOPLE v. BRAGG

No. A145780.

THE PEOPLE, Plaintiff and Respondent, v. LUCAS M. BRAGG, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MILLER, J.

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.1 In the first incident, defendant swung at the victim with an object described as a "stick" or "club" that was "a good two feet" long, which caused the victim's nose to bleed. Defendant then smashed the windshield of the victim's truck and dented the truck's hood. In the second incident, another victim was in the back seat of a car when defendant threw a brick at the car with such force that the brick broke the car's rear window and hit the victim on her back, causing bruises.

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.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Information

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).

Trial

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.2 Defendant lived in a fifth-wheel trailer parked on the property. Defendant's friend, Jedadiah Renda, lived in a motor home (also referred to by witnesses as a trailer) located on the property, and he paid defendant rent.

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."3 Jon Eskra, a Sonoma County resident, was retired but did occasional work doing "property cleanups." Bragg found Eskra through the internet, and hired him to remove trash and board up the building. Bragg traveled to California and arranged to meet Eskra at the property. At that time, Bragg had not seen defendant in five or six years.

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.4

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.5

While she waited in Gibson's car for Renda to return from the bathroom, Biggs saw defendant.6 She testified, "a guy came out of the house, and he was holding a stick and a brick in his hand. And I thought that he was going to go for a walk or something. I had no idea. And, no. He came over to the car and he went, like, to go throw the brick. I'd seen him go like this, so I leaned forward. (Witness indicating.) And he threw the brick through the window and it hit me in the back, shattered the window." If Biggs had not leaned forward, the brick would have hit her in the back of the head. Instead, it hit her on her back or shoulder. There was pain, and her shoulder was "bruised up." Defendant "looked pretty upset." Biggs grabbed the brick and tried to throw it back at him. Defendant just walked back toward his house. Biggs testified she was upset, in shock, and very frightened. Biggs saw Renda. She asked him why he let his friend throw a brick at her. Renda "put his arms up, turned around and walked away."

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).

DISCUSSION

A. 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.7 And the case defendant relies on in arguing the insufficiency of the evidence to support a conviction for assault with a deadly weapon, People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 (Beasley), applied the appropriate standard of review, substantial evidence.

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.

B. Jury Instructions

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.

DISPOSITION

The judgment is affirmed.

Kline, P.J. and Stewart, J., concurs.

FootNotes


1. Further statutory references are to the Penal Code unless otherwise indicated. The jury also found defendant guilty of two counts of vandalism (§ 594) arising from the same two incidents.
2. For clarity, we refer to Michael Bragg as "Bragg." Bragg testified that he bought the Forestville property about 10 years earlier to give defendant a place to "develop his talents, musically and artistically, perhaps business wise." Bragg paid taxes and utilities for the property, and defendant did not pay costs associated with maintaining the property as far as Bragg knew.
3. The building on the property was an old restaurant described as partially burned.
4. Eskra testified that he never got a good look at the attacker's face because the attack was "really quick," and he said he was "just in a panic mode." He said the whole incident "couldn't have taken more than two minutes." Eskra was later shown a photo lineup, and he was unable to identify defendant as his attacker.

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."

5. It appears that the "building" Biggs referred to was the partially burned restaurant, not Renda's trailer.
6. Unlike Eskra, Biggs was able to identify defendant as her assailant.
7. People v. Cromer, supra, 24 Cal.4th at page 892, addressed the appropriate standard of review when an appellate court reviews a trial court's determination that the prosecution made a "good-faith effort" to obtain the presence of a witness at trial to establish the witness is "unavailable" for purposes of the federal and state constitutional rights to confront witnesses.

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