Filed 9/14/20 P. v. Castellanos CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300904
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA150408)
v.
ANDREW CASTELLANOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed.
Heather J. Lee Beugen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
I. INTRODUCTION
After a jury trial, defendant and appellant Andrew
Castellanos was convicted of one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)).1 He contends the trial
court committed prejudicial error when it failed to instruct jurors
on the lesser included offense of simple assault. Specifically, he
argues there was substantial evidence that he did not use a
“deadly weapon,” a knife, in a manner likely to cause great bodily
injury or death. We conclude there was insufficient evidence of
simple assault to warrant the jury instruction, and accordingly
affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
On the morning of April 6, 2019, Valentin Guillen was
working at a warehouse in the city of South Gate. Around
4:30 a.m., Guillen was returning from the restroom when he
encountered defendant exiting the warehouse. Guillen did not
recognize defendant, so he went outside and approached
defendant to ask, “ ‘Can I help you?’ ” Guillen was calm and
unarmed when he approached defendant, who stood four or five
feet away. Defendant responded by asking, “ ‘What do you have
up there?’ ” and pointed to the second floor of the warehouse.
Guillen answered that he did not know, and defendant repeated
his question. Guillen again answered he did not know, and
defendant grew agitated and reached for Guillen’s shoulder with
his hand. As Guillen moved backwards, defendant pulled out an
open pocketknife and a bandanna with his other hand.
Defendant then lunged toward Guillen with the knife in his hand
1
Further undesignated statutory references are to the Penal
Code.
2
and made a jabbing motion towards Guillen’s chest. Guillen
caved in his chest, hunched his shoulders, and backed away to
protect himself. Although Guillen “felt something,” he was not
sure it was the knife, and he had no visible marks or bleeding.
After defendant left the scene, Guillen reported the incident to
his supervisor. He subsequently spoke to police officers who
arrived to interview him.
Video surveillance played for the jury showed defendant
holding a shiny object and making a stabbing motion at Guillen,
who held his chest with his hand and walked backwards to the
warehouse.
Police officer Arturo Macias responded to a call from the
warehouse at 5:10 a.m. Macias located defendant sitting across
the street and directed him to raise his hands. As defendant
complied, a folding knife fell to the ground. Macias found a blue
bandanna on defendant during a subsequent search.
B. Defense Evidence
Defendant testified that on the morning of April 6, he was
standing on a street corner across from the warehouse when
Guillen approached him to ask him what he needed. Defendant
said he did not need anything, and Guillen responded by telling
him to “get the fuck out of here.” Defendant got angry and yelled
at Guillen. Then, Guillen approached defendant, so defendant
“approached him back.” As Guillen walked backwards, defendant
pointed and told Guillen to “ ‘just go back to work.’ ” Defendant
then walked away and went across the street. Defendant denied
using a knife during the incident. When police officers arrived to
question him, defendant admitted he had been involved in an
altercation, but he stated it was “finished” and “nothing had
happened.”
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On cross-examination, defendant explained that as he
pointed at Guillen with one hand, he raised his other hand
because his bandanna was bothering him. He again denied
having a knife during the encounter. Instead, he explained, the
shiny object apparent in the video was his watch, which was too
big and slipped off his wrist to his knuckles. Defendant said he
thought Guillen might swing at him, so he took a defensive
stance and was ready to back away, although the video showed
him moving toward Guillen. Defendant did not know if a knife
was recovered at the scene.
C. Rebuttal
Officer Macias testified that defendant was not wearing a
watch when he was arrested.
D. Verdict and Sentencing
The jury found defendant guilty of assault with a deadly
weapon. He was sentenced to the midterm of three years in
prison.
Defendant timely appealed from the judgment.
III. DISCUSSION
Defendant’s sole contention on appeal is that the trial court
prejudicially erred by failing to instruct the jury on simple
assault, a lesser included offense of assault with a deadly
weapon. As we discuss, the contention lacks merit.
A. The Trial Court Properly Declined to Instruct the
Jury on Simple Assault.
1. Additional Facts.
During trial, defense counsel requested jury instructions on
simple assault, a lesser included offense of the charged offense of
assault with a deadly weapon, arguing there was substantial
evidence from which the jury could find defendant committed
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only simple assault. The court concluded the evidence did not
support a simple assault instruction, noting that if the jury
believed Guillen, the crime was assault with a deadly weapon,
and if the jury believed defendant, there was no assault. The
court stated that the “only assaultive behavior was the thrust
against [Guillen’s] chest,” and Guillen was “clear there was a
knife.” Thus, the court denied the request.
2. Applicable Law and Standard of Review.
A criminal defendant has a constitutional right to have the
jury determine every material issue presented by the evidence.
(People v. Huggins (2006) 38 Cal.4th 175, 215 (Huggins).) To
protect this right, “a trial court must instruct on an uncharged
offense that is less serious than, and included in, a charged
greater offense . . . whenever there is substantial evidence raising
a question as to whether all of the elements of the charged
greater offense are present.” (Ibid.) This rule does not require,
however, that the trial court instruct on all possible lesser
included offenses—rather, our Supreme Court has said, such
instructions are required only when the evidence that the
defendant is guilty only of the lesser offense is “ ‘substantial
enough to merit consideration’ ” by the jury. (Ibid., italics added;
see also People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman) [trial court should not instruct on a lesser included
offense “when there is no evidence that the offense was less than
that charged”].)
Thus, a trial court should instruct the jury on a lesser
included offense where there is evidence from which a jury
reasonably could conclude “ ‘ “that the lesser offense, but not the
greater, was committed.” ’ ” (Huggins, supra, 38 Cal. 4th at
p. 215; accord, People v. Cole (2004) 33 Cal.4th 1158, 1218.) As a
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logical corollary, instructions are not required where evidence
supporting them is “ ‘minimal or insubstantial.’ ” (People v.
Rodriguez (1997) 53 Cal.App.4th 1250, 1269; see Breverman,
supra, 19 Cal.4th at p. 162.) A trial court “ ‘may properly refuse
to instruct upon simple assault where the evidence is such as to
make it clear that if the defendant is guilty at all, he is guilty of
the higher offense.’ ” (People v. Yeats (1977) 66 Cal.App.3d 874,
879.)
“On appeal, we independently review whether a trial court
erroneously failed to instruct on a lesser included offense.”
(People v. Trujeque (2015) 61 Cal.4th 227, 271; People v. Avila
(2009) 46 Cal.4th 680, 705.) In reviewing a claim that the trial
court prejudicially erred in failing to give a jury instruction, we
do not weigh the relevant evidence; we simply determine whether
the evidence was legally sufficient to support giving the
instruction. (Breverman, supra, 19 Cal.4th at p. 177.)
3. There Was No Substantial Evidence that
Defendant Committed the Lesser Offense of Simple Assault,
but not the Greater Offense of Assault with a Deadly
Weapon.
Simple assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another.” (§ 240.) To establish simple assault, the prosecution
must prove “ ‘an intentional act and actual knowledge of those
facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force
against another.’ (People v. Williams (2001) 26 Cal.4th 779,
790.)” (People v. Brown (2016) 245 Cal.App.4th 140, 152
(Brown).)
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Simple assault is a lesser included offense of assault “with
a deadly weapon.” (§ 245, subd. (a)(1); People v. McDaniel (2008)
159 Cal.App.4th 736, 747–748.) 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.” ’ ”
(In re B.M. (2018) 6 Cal.5th 528, 532–533, quoting People v.
Aguilar (1997) 16 Cal.4th 1023, 1028–1029.)
Our Supreme Court has held that some objects, such as
dirks and blackjacks, are “deadly weapons” as a matter of law.
(In re B.M., supra, 6 Cal.5th at p. 533.) Other objects, including
knives, are deadly weapons if they are “used in a manner that is
not only ‘capable of producing’ but also ‘ “likely to produce death
or great bodily injury.” ’ ” (Id. at. p. 533.)
Courts have regularly concluded that the application or
attempted application of “a sharp object” to “a vulnerable part of
the body” establishes the use of a deadly weapon. For example,
in People v. Koback (2019) 36 Cal.App.5th 912, 924–926, the court
held that although a car key is not an inherently deadly weapon,
its use supported a conviction of assault with a deadly weapon
where the defendant “charged,” or “came at” the victim, and,
“with force,” “swung,” “swiped,” or “punch[ed]” the key at the
victim’s torso, a “vulnerable part of the body.” Similarly, in
People v. Page (2004) 123 Cal.App.4th 1466, 1472, the court held
that a pencil held to the victim’s neck was a deadly weapon
within the meaning of section 245. And, in In re D.T. (2015)
237 Cal.App.4th 693, 696–697, 699–701, the court held that a
pocketknife was a deadly weapon when it was used to poke the
victim in her back because it “could have caused serious injury to
the helpless victim.” (See also People v. Nguyen (2017)
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12 Cal.App.5th 44, 46, 48–49 (Nguyen) [substantial evidence
supported defendant’s conviction of aggravated assault where
defendant, wielding a large knife, took a step toward police
officers standing 10 to 15 feet away]; but see In re B.M., supra,
6 Cal.5th at pp. 535–536 [butter knife was not a deadly weapon
where it was not pointed at victim’s head, face, neck, or exposed
body part].)
In the present case, there was no substantial evidence from
which a reasonable jury could conclude that defendant committed
the lesser offense of simple assault, but not the greater offense of
assault with a deadly weapon. As we have described, the
prosecution and defense presented conflicting versions of the
encounter between defendant and Guillen. Defendant denied
possessing a knife or attempting to assault Guillen; he testified
that after approaching Guillen, he merely pointed at Guillen and
told Guillen to go back to work. Guillen, on the other hand,
testified that defendant lunged at him and attempted to stab him
in the chest with a knife, and Officer Macias testified to
recovering a folding knife from defendant prior to arresting him.
Thus, the jury essentially was presented with two choices: It
could have credited defendant’s version of events, in which case it
would have acquitted defendant, or it could have credited
Guillen’s version of events, in which case it would have convicted
defendant of assault with a deadly weapon. Nothing in the
record supports the “in between” scenario of a simple assault, in
which defendant attempted to injure Guillen while passively
armed with a non-threatening knife. The trial court thus
properly refused to instruct the jury on simple assault.
Defendant contends that even if the jury found that he took
out a folding knife during the encounter with Guillen, it could
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have concluded that he “did not use that knife in a way which
was likely to cause Guillen bodily injury or death.” For example,
defendant suggests, the jury could have found that defendant
“took [the knife] out to get a confrontive Guillen to leave
[defendant] alone,” but did not “use[]” the knife to assault
Guillen. We do not agree. Had defendant testified that he used
the knife as he now suggests—that is, that he brandished the
knife, but did not thrust it at Guillen—an instruction on simple
assault would have been warranted. However, because
defendant’s defense consisted entirely of denying attacking
Guillen, the trial court was correct in refusing the instruction.
(See People v. Groce (1971) 18 Cal.App.3d 292, 295 [“[Because
appellant’s] defense consisted entirely of a denial of any kind of
attack on [the victim] and since the gist of the prosecution
testimony was the employment of a knife during the attack, the
court was correct in refusing the [simple assault] instruction.”].)
Defendant also contends that the jury could have found
him guilty of a simple assault, rather than assault with a deadly
weapon, because there was no evidence that “a knife held by
[defendant] actually touched Guillen.” In fact, no such contact is
necessary to establish the use of a deadly weapon; as we have
said, a knife, though not deadly as a matter of law, may be a
“deadly weapon” if used in a manner both capable of and likely to
produce great bodily injury or death. (In re B.M., supra, 6
Cal.5th at pp. 532–533.) Thus, courts routinely have affirmed
convictions of assault with a deadly weapon even where, as here,
the weapon never made contact with the victim’s body. (E.g.,
People v. Koback, supra, 36 Cal.App.5th at pp. 923–926
[defendant “ ‘swiped’ ” at victim’s torso with a car key, but “did
not actually strike” him]; Nguyen, supra, 12 Cal.App.5th at
9
pp. 46, 48–49 [defendant wielded large knife and took step
toward police officers standing 10 to 15 feet away].)
Finally, relying on People v. Brown, supra, 245 Cal.App.4th
140, defendant contends there was substantial evidence to
support a simple assault verdict because the jury could have
credited some, but not all, of the testimony of each of the
witnesses. In Brown, the appellate court conditionally reversed
Brown’s conviction for resisting an officer because the trial court
failed to instruct on the lesser included offense of assault. (Id. at
pp. 154–156.) The Brown court concluded that an all-or-nothing
jury instruction was improper because the “[t]ruth may lie . . . at
a point between [the] two extremes” proposed by the parties:
(1) that Brown forcibly resisted police officers, who acted with
reasonable force, or (2) that the officers used excessive force
against Brown, who was unaggressive. (Id. at pp. 153–154.) The
court explained that, based on the evidence, “the jury could also
have concluded that Brown used excessive force or violence to
resist arrest only in response to the officers’ unreasonable force.”
(Id. at p. 154.) Thus, a jury could find that Brown was guilty of
the “intermediate” offense of assault, but not the greater offense
of resisting an officer. (Ibid.)
Brown is distinguishable from the present case. In Brown,
there was evidence that both Brown and police officers had used
excessive force, and thus the jury could have convicted the
defendant of the “intermediate” offense of assault. (People v.
Brown, supra, 245 Cal.App.4th at pp. 146–147, 154.) In contrast,
as we have discussed, there was no evidence in the present case
to support a conviction on the “intermediate” offense of assault
because there simply was no evidence that defendant attacked
Guillen in any way other than thrusting a knife towards Guillen’s
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chest. Stated differently, based on the evidence presented, the
jury could have found either that defendant attempted to stab
Guillen in the chest with a deadly weapon, or that he did not
assault Guillen at all—but it could not reasonably have concluded
that defendant assaulted in some manner that did not involve a
knife or that involved a knife used in a non-aggressive manner.
Accordingly, the trial court did not err in refusing to instruct the
jury on simple assault.2
B. Any Instructional Error Was Harmless.
Even assuming arguendo the trial court erred by not
instructing on simple assault, we nevertheless conclude it is not
reasonably probable defendant would have been convicted of the
lesser offense rather than assault with a deadly weapon.
“Any error in instructions on a lesser included offense in a
noncapital case is subject to the [People v. Watson (1956)
46 Cal.2d 818, 836] standard of review requiring reversal only if
it is reasonably probable that a result more favorable to the
2
For the first time, defendant asserts in his reply brief that
his “testimony . . . provided evidence that he may have acted in
imperfect self-defense, thereby reducing his culpability from
assault with a deadly weapon, to simple assault.” However,
defendant’s trial counsel did not ask for an instruction on
imperfect self-defense. By failing to raise this issue in the trial
court, failing to present this argument in his opening brief, and
failing to provide any supporting legal authority, defendant has
waived this issue on appeal. (In re Aaron B. (1996) 46
Cal.App.4th 843, 846 [party is precluded from arguing on appeal
any point not raised in trial court]; People v. Adams (1990) 216
Cal.App.3d 1431, 1441, fn. 2 [issues raised for first time in reply
brief generally will not be considered on appeal]; Cal. Rules of
Court, rule 8.204(a)(1)(B) [appellate brief must support each
argument if possible by citation to authority].)
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defendant would have been reached in the absence of such error.”
(People v. Stewart (2000) 77 Cal.App.4th 785, 796; People v.
Beltran (2013) 56 Cal.4th 935, 955 (Beltran); Breverman, supra,
19 Cal.4th at pp. 177–178.) The test “ ‘focuses not on what a
reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making
that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is
so relatively strong, and the evidence supporting a different
outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected
the result.’ ” (Beltran, at p. 956, quoting Breverman, at p. 177.)
For the reasons we have discussed, even if the trial court
had instructed the jury on simple assault, it was not reasonably
probable that the jury would have reached a different verdict.
The evidence against defendant was overwhelming. Guillen
testified credibly that defendant attempted to stab him with a
knife during a brief encounter on the sidewalk outside Guillen’s
workplace. Guillen’s testimony was corroborated both by the
video recording of the incident and by the testimony of the
arresting officer, who said that he recovered a knife prior to
arresting defendant. In contrast, defendant’s testimony that he
did not advance towards Guillen and that he was holding a
watch, not a knife, was inconsistent with the video recording—
which showed him advancing towards Guillen—and with the
officer’s testimony that defendant was not wearing a watch when
he was arrested. Therefore, it is not reasonably probable the
verdict would have been more favorable to defendant had a
simple assault instruction been given.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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