This is a very good -- and common sense -- disposition by Justice Smith. I'm glad the Court of Appeal decided to publish it.
A prisoner who's in wrist restraint cuffs (or at least partially in wrist restraint cuffs) allegedly assaults a prison guard. He's charged with assault by an inmate with a deadly weapon, but the trial court does not give instructions about the lesser included offense of simple assault. He appeals his conviction by the jury on the greater (deadly weapon) charge.
Everyone (including the People) admits that assault is a lesser included offense. But the People say an instruction on that lesser offense wasn't required because the jury couldn't have found him guilty of it.
Yet Justice Smith's response is spot on:
"We agree with Rodriguez’s view that the lesser included offense instruction was
required here. The jury could reasonably find, based on the evidence, that Rodriguez
assaulted Stephens and Dall, but did not use the chains or anything else as a deadly
weapon. Some items, such as dirks and blackjacks, are deadly weapons as a matter of
law; but most objects are not inherently deadly and can be found to be deadly weapons
only if used in a manner and under circumstances likely to produce death or great bodily
injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) The evidence would have
supported a finding that Rodriguez assaulted Stephens and Dall, but that there was a
reasonable doubt regarding whether he used the chains as a deadly weapon, or used them
at all, in doing so. The jurors could reasonably have believed Rodriguez was
exaggerating the innocence of his intentions when he indicated he merely collided with
Stephens by accident, while at the same time finding he was not employing the chains as
a weapon. They could reasonably have believed Rodriguez’s testimony that the chains
were always secured around his waist during the incident. The video would be consistent
with these findings, as would the absence of medical evidence and Stephens’s concession
that the photograph of his head showed no injury. Jurors could reasonably find that
Rodriguez was just using his hands with the cuffs on his wrists, and that even if
Rodriguez caused the chains to make contact with Stephens (and caused them to swing
toward Dall), there was a reasonable doubt he used them in a manner likely to produce
great bodily injury.
The error was not harmless. Failure to give a required instruction warrants
reversal when there is a reasonable probability that the defendant would have obtained a
more favorable outcome if it had been given. (Breverman, supra, 19 Cal.4th at p. 178.)
Under the instructions given, the jury was forced to choose between assault with a deadly
weapon and no assault at all. In light of the video and the other evidence, it is fair to say
no assault at all is the less likely of the two, even though both are reconcilable with the
evidence. There is a reasonable probability that the jury chose assault with a deadly weapon just to avoid the more implausible alternative, and would have found simple
assault if that had been an option.
The People contend that the evidence was insufficient to support a finding of
simple assault because Rodriguez in his testimony and defense counsel in his closing
argument both maintained that there was no assault at all; consequently, the jury’s choice
was between believing the prosecution witnesses and finding assault with a deadly
weapon and believing Rodriguez and acquitting him on these counts. It is not true,
however, that the jury was limited to choosing between the competing theories of the
case proposed by the attorneys, or between the conflicting accounts given by the two
sides’ witnesses. It is well established that the jury is entitled to form its own theory of
the case, if supported by the evidence, and to pick and choose the parts of each witness’s
testimony that it finds credible, provided there is substantial evidence in support of the
view it decides to take. (Breverman, supra, 19 Cal.4th at pp. 157, 159-160, 162-163;
People v. Chestra (2017) 9 Cal.App.5th 1116, 1121.) As we have said, the jury in this
case could reasonably do all of the following: (1) believe the prosecution witnesses’
testimony that Rodriguez attacked them; (2) reject the prosecution witnesses’ testimony
that Rodriguez wrapped the chains around his fists and used them to deliver, and try to
deliver, forceful punches; (3) believe Rodriguez’s testimony that the chains were secured
around his waist and he never used them as a weapon; (4) reject Rodriguez’s testimony
that he never meant to make contact with anyone. In short, a finding that all the eyewitnesses were exaggerating or minimizing the facts would have been consistent with
the evidence. There are, of course, cases in which a lesser included offense instruction is
not required because there is nothing in the defense case (or otherwise) that would have
supported a guilty verdict on the lesser offense but not the greater. But this is not such a
case."
Seems exactly, exactly right to me.
Plus, I liked that Justice Smith drops a footnote that explains in concrete terms why all this matters (wholly beyond the legal requirement that the jury be instructed on lesser offenses). Here, it's a very big deal:
"The difference between simple assault and assault with a deadly weapon by a
prisoner was a matter of grave significance to Rodriguez. For a second striker, the
maximum prison sentence for assault with a deadly weapon by a prisoner is the sentence
Rodriguez received: Twelve years. Simple assault is a misdemeanor with a maximum
jail term of six months. (§ 240.) Simple assault on a peace officer is also a
misdemeanor, with a maximum jail term of one year. (§ 241.) The impact on
punishment is, of course, not a factor in the analysis of whether a lesser included offense
instruction was required, but it would have been an important consideration had it been
necessary to analyze the effectiveness of trial counsel."
You can see why a jury might have wanted to convict Rodriguez of something since it was fairly clear he hit the guard. But you can also see why forcing the jury to choose between a very huge offense or nothing would be a suboptimal decision tree when in fact there's something in the middle that might describe (and set a punishment for) what actually transpired.
Plus, as an aside, you gotta love footnote four. Where Judge Smith invents a lengthy hypothetical closing argument of the defense counsel that improperly vouches for his own client, and does so in order to demonstrate the impropriety of vouching based upon facts outside the record. Rarely have I seen a justice channel his or her inner defense attorney in such a manner. Maybe never. Classic.
