People v. Labeaud CA2/3

Filed 6/18/21 P. v. Labeaud CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B305310

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA151453
v.

RONALD PATRICK LABEAUD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed.

Pensanti & Associates and Louisa Pensanti for Defendant
and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury convicted Ronald Patrick Labeaud of assault with
a deadly weapon causing great bodily injury, and Labeaud
admitted to three prior felony convictions. The court sentenced
him to 25 years to life plus three years. Labeaud appeals,
and we affirm.
BACKGROUND
An amended information charged Labeaud with assault
on Charles Tavolino with a deadly weapon (a cane), causing
great bodily injury. (Pen. Code,1 §§ 245, subd. (a)(1), 12022.7,
subd. (a).) The information also alleged Labeaud had three prior
serious felony convictions. (§§ 667, subds. (a)(1), (d); 1170.12,
subd. (b).)
At trial, Flenard Jefferson testified he was a Marine Corps
veteran. In August 2019, he lived with Labeaud and Tavolino in
a residence for homeless veterans in Bellflower. Labeaud always
carried a cane to help him walk.
At around 4:15 p.m. on August 11, 2019, Tavolino was
in the back yard “probably drinking because that’s what he does
a lot.” Labeaud knocked on the door to Jefferson’s room and
asked to see him. When Jefferson opened the door, Labeaud said:
“ ‘I had to bust him upside his head. He called my mother a bitch
and she ain’t been long . . . dead.’ ” Labeaud went back to the
kitchen, where he was cooking.
Jefferson went out to the back yard. Tavolino was sitting
in a hammock chair talking on his phone. His head was bleeding
and there was a puddle of blood. Tavolino yelled into the phone:
“ ‘I want him arrested,’ ” and handed the phone to Jefferson.

1 All statutory references are to the Penal Code unless
otherwise indicated.

2
 In the transcript of the 911 call, Tavolino told the
dispatcher: “My roommate just busted my head open and I need
a cop. . . . I’m bleeding. I’m gushing blood from my head. . . .
I want this dude arrested.” He didn’t know what Labeaud
hit him with, but “[h]e hit me so hard on my head, my ears
are ringing, bruh. He came out and just . . . . I was doing
my tire. My head is just . . . . My ears are ringing. I couldn’t
see nothing. . . . He hit me with something. Not just his fist.”
Paramedics arrived and treated Tavolino in the front yard.
Labeaud came out with his cane, eating a hot dog.
Tavolino would drink beer or liquor every day starting
around 3:00 p.m. “One minute he’d be cool, and next minute
he’d be talking smack or crap or whatever” and acting erratically.
Jefferson stayed out of his way after once intervening when he
heard Tavolino and Labeaud in each other’s face and exchanging
insults. Tavolino often carried a pocket knife, but Jefferson never
saw him use it in a threatening manner.
Tavolino testified he also was a Marine Corps veteran.
When Labeaud moved in, he asked Tavolino if he ever slept with
men, because “ ‘I’m high as fuck and horny as hell.’ ” Tavolino
told Labeaud to take care of that himself, but Labeaud kept
propositioning Tavolino.
On August 11, 2019, Labeaud came home after being
gone for a few days and complained he was out of food stamps.
Labeaud always was out of money and asking for food, money,
and cigarettes, so Tavolino gave him $2.00 and a pack of hot dogs
and told Labeaud to stay away from him. Labeaud went into
the kitchen to cook, yelling through the open window that
Tavolino was “a fucking faggot” and a bitch. Tavolino was sitting
in the back yard, changing the inner tube on his bike tire. He

3
told Labeaud to leave him alone, and said, “ ‘Your mama’s a
bitch.’ ” Labeaud asked him what he said and Tavolino repeated:
“ ‘Your mama’s a bitch.’ ” He did not know Labeaud’s mother had
died recently.
Within two seconds, Tavolino saw Labeaud’s sneakers in
his peripheral vision. Before he could lift his head up, he was
“smashed over the head.” His sight went temporarily black and
his ears rang. Tavolino could feel the blood running down his
face and saw it pooling under the chair; he thought he was dying.
Tavolino asked: “ ‘What the fuck did you hit me with, dude? . . . .
That wasn’t your fist.’ ” Labeaud responded with “some gay
remark again.” Tavolino picked up his phone, told Labeaud
he was going to jail, and called 911.
Jefferson came out, took Tavolino’s phone, and talked
to the 911 operator. Jefferson told him to go to the front of
the house to meet the ambulance, but Tavolino said he was not
moving until the police got there and saw the puddle of blood:
“ ‘I seen too much TV.’ ”
The police arrived at the back of the house, and after they
saw the scene, Tavolino agreed to move to the front. They took
photos and Jefferson talked to the police and paramedics. The
police asked who did it and Tavolino pointed to Labeaud, who
came outside eating hot dogs and acting as if he had no idea
what had happened. The police arrested Labeaud.
Tavolino went to the hospital. After a CAT scan, they gave
him six stitches. They did another CAT scan because he had
bleeding on the brain. He stayed two nights, taking morphine
for the pain. Later, he had headaches and tremors and went
back for a third CAT scan. He had a permanent scar and a
dent in his head.

4
 Tavolino recognized Labeaud’s brown cane in a photograph.
He denied owning a pocket knife, pulling a knife on anyone,
or being violent toward Labeaud. Tavolino had obsessive-
compulsive disorder and post-traumatic stress disorder since
just before he left the Marines 30 years ago. He had stopped
drinking for 12 years, but started drinking again after the attack.
He had the shakes and nonstop headaches.
A deputy sheriff responding to the scene saw paramedics
helping Tavolino down the driveway towards the sidewalk.
Tavolino said his attacker was inside the house. Just then,
Labeaud came out of the front door, and Tavolino yelled: “ ‘That’s
that motherfucker, right there.’ ” Labeaud, upset and agitated,
said he didn’t do anything. The deputies arrested him and took
the cane he had in his hand.
The emergency room doctor who treated Tavolino testified
the CT scan showed bleeding in his brain. Tavolino told her
he was working on something when his roommate hit him
on the head with a cane.
A Los Angeles Police Department officer testified that
on June 1, 2014, he and his partner were working in downtown
Los Angeles when he heard someone yelling for help. Labeaud
was holding a metal cane over his head, about to strike another
man. The officers pulled up to the curb and took Labeaud into
custody. The victim was bleeding profusely from the back of his
head, and Labeaud’s metal cane was slightly bent. Labeaud told
the officers he asked the victim for a cigarette, felt threatened,
and hit him over the head with the cane to defend himself. The
victim refused medical care although he had an inch and a half
laceration on the back of his head, with swelling and redness.
The defense presented no evidence.

5
 The jury found Labeaud guilty of assault with a deadly
weapon and found true that he inflicted great bodily injury.
The court denied Labeaud’s motion for new trial. Labeaud
admitted his prior convictions. The court sentenced him to
25 years to life and added three years for great bodily injury.
Labeaud filed a timely appeal.
DISCUSSION
1. The court did not abuse its discretion when it denied
defense counsel’s request for a continuance
After speaking to his public defender at the start of his
August 27, 2019 preliminary hearing, Labeaud stated he wanted
to represent himself, agreed he had refused to waive time, and
stated he was prepared to proceed. After advising Labeaud of his
constitutional rights and the consequences of self-representation,
the court granted his request.
At a hearing on September 10, 2019, Labeaud stated he
wanted Louisa Pensanti to represent him. The court revoked his
pro per privileges and stated Pensanti was his attorney of record.
On October 18, 2019, Pensanti asked: “[C]an we make November
20th a 0 of whatever the court wants?” The court agreed to
put the matter over to November 20 for 0 of 30. The prosecutor
advised Labeaud: “[Y]ou have the right to have a trial in this
matter within 32 days of today’s date. Do you waive and give up
that right and agree to go over to November 20th, 2019, to have
your trial within 30 days of that date?” After an unreported
bench conference, the court explained Pensanti “cannot be
prepared for the next court date because she has to go into
a serious trial on Monday. She can only do one trial at a time.”
Labeaud said he understood. The court explained Pensanti
needed to be fully prepared for trial and was asking only for

6
a waiver until November 20 for 30 days. Labeaud complained
he had been in jail for three months, and Pensanti did not need
to prepare because he was “falsely incarcerated.”
The court told Labeaud he was being difficult, and
was pushing Pensanti to go forward without time to prepare.
“Because when you go to trial and should you get convicted, this
will not be an appellate issue because you have decided not to
waive time and let your counsel prepare. I want to make that
very clear for the record, sir.” Labeaud again refused to waive
time. The court continued: “You won’t answer the questions
because you’re intent on simply putting your case over for trial,
irrespective of whether your counsel, who has just told the Court
[she] has to start a serious and violent felony on Monday in
another department. And you don’t care, and I understand
that because . . . .” Labeaud interrupted: “I plead the Fifth
Amendment.” The court continued: “The record should reflect
that Mr. Labeaud refuses to allow counsel to get ready and
will not waive time. And I understand that because it’s your
constitutional right. But understand that when you get to trial,
you will get to trial, and when you ask for a continuance then
it may not be granted. You have to understand that, sir. This
is not a game. This is your case.” Labeaud complained the court
would not let him talk, and the court continued: “You do not
need to talk to me. You need to understand what I’m telling you.
I am trying to look out for you, but you are not looking out for
you.” When Labeaud rejoined the court was “[t]rying to look out
for me by not letting me speak,” the court reminded him he had
chosen to be represented by counsel: “You made that choice.”
The court turned to Pensanti: “He refuses to waive time.
What date are we going to? Do you want to go straight to trial,

7
Miss Pensanti?” She answered “no,” and agreed to return on
November 4 (45 of 60).
Pensanti appeared telephonically on November 4 because
she was engaged in a trial in Lancaster. The court found good
cause to continue the case for 10 days. The court told Labeaud
that immediately after the Lancaster case, Pensanti had a
trial in Compton, and the court might have to put his case
over another 10 days. It was unlikely that trial could begin
in November, and the court offered the Monday after the
first week of December “if you want to put it over to that date.”
Labeaud answered he did not, and asked for a “mercy hearing.”
When the court declined, he repeated he would not waive time:
“I’m ready. I could go back pro per and defend myself.” The court
explained: “You don’t get to go back and forth.” Over Labeaud’s
continued objection, the court continued the case to November 12,
and “that is to go, Counsel, to go.”
On November 12, the court stated “[w]e are here for trial.”
Pensanti explained she had struggled to explain to Labeaud
that she needed to be prepared to be effective, and she had just
finished a four-week trial in Lancaster: “It would be absolutely
ridiculous to start a trial today without even seeing the multitude
of discovery” sent to her by the prosecutor.2 “[M]y client has
something about a speedy trial right that he seems to feel
that it’s the most important thing in the world, but he does not
understand that he needs to have an attorney who is prepared.”
The court told Labeaud his attorney had just made a record

2 The prosecutor explained the discovery included the 2014
incident in downtown Los Angeles when Labeaud hit another
man in the head with his cane. Pensanti had represented
Labeaud in that case.

8
why she was not prepared for trial that day, and “[i]t would be
most wise and appropriate to let your counsel be prepared for
your trial.” The court pointed out this was a third strike case,
and “so you’re looking at 25 to life minimum.” “It’s because
you’re rushing her that you’re putting yourself at that risk. [¶]
And I am saying this to you so that the appellate court will then
see, well, he was told very clearly she’s asking for time, and it’s
a reasonable request, but it’s up to you. She’s correct, and you’re
correct. You have your right to a speedy trial. But that speedy
trial right could sometimes be pushed back so that your lawyer
can get properly prepared for your case.” The court explained
it would not continue the trial if he refused to waive time:
“If you choose to push her, I will start trial today.” Labeaud
repeated he would not waive time.
Pensanti asked to be relieved as Labeaud’s counsel and
expressed “doubt as to his ability to understand what’s going on.”
The court said Labeaud had been very clear, and refused to
relieve Pensanti. The court offered two trial dates a few weeks
later, but after initially seeming to agree, Labeaud said: “I
don’t want to waive time at all. Let’s just go to trial right now.”
The court began jury selection.3
Labeaud characterizes the trial court’s action as a refusal
to grant a limited continuance, which was an abuse of discretion
and prejudiced him. But the court made clear it believed a
continuance was in Labeaud’s best interest, counsel’s request
was reasonable, and if Labeaud did not waive time the court

3 At the prosecutor’s suggestion, the court questioned
Labeaud about his ability to assist counsel and his understanding
of the proceedings, and reaffirmed it did not doubt Labeaud’s
ability to proceed.

9
would not continue the trial. What the court did not do is
override Labeaud’s refusal to agree to a continuance under
section 1382. That was not an abuse of the court’s discretion.
Section 1382, intended to amplify the fundamental
constitutional guarantee of a speedy trial,4 requires the court
to dismiss the action if a defendant is not brought to trial within
60 days after the filing of the information “unless good cause
to the contrary is shown.” (§ 1382, subd. (a)(2); People v. Lomax
(2010) 49 Cal.4th 530, 552-553.)
At Pensanti’s request the court agreed to continue the case
to November 20, 2019, with the statutory clock reset to “0 of 30,”
but made clear it would not grant a continuance if Labeaud
objected. On November 12, Labeaud refused to accept the court’s
offer (which would have postponed the start of trial to after the
first week of December) and insisted he did not want to waive
time. The court began trial after explaining the severe penalty
and the risk Pensanti would not be adequately prepared to
defend him.
If the court had forced the continuance on Labeaud over
his objection, on appeal we might face his contention that the
continuance violated his rights under section 1382. But here,
the trial court denied the continuance at Labeaud’s request.
He has waived any claim of error. A defendant “ ‘may not juggle
his constitutional rights in an attempt to evade prosecution.
He may not demand a speedy trial and demand adequate
representation, and, by the simple expedient of refusing to
cooperate with his attorney, force a trial court to choose between
the two demands, in the hope that a reviewing court will find

4 Labeaud’s opening brief states “there are no constitutional
speedy trial issues in this case,” and we take him at his word.

10
that the trial court has made the wrong choice.’ ” (People v.
Lomax, supra, 49 Cal.4th at p. 556.)
And Labeaud has not shown the required prejudice.
(People v. Doolin (2009) 45 Cal.4th 390, 450-451.) The trial
evidence was strong, including Jefferson’s and Tavolino’s
testimony and the recording of Tavolino’s 911 call. Labeaud’s
reply brief argues we should not focus on the evidence that
was presented, but on the discovery counsel received while
in trial in Lancaster and “on the evidence that might have
been presented if counsel had been given the time to adequately
prepare.” (Italics added.) This “generalized statement[ ]
[is] insufficient to demonstrate prejudice” (People v. Verdugo
(2010) 50 Cal.4th 263, 282), especially as appellate counsel
was Labeaud’s trial counsel.
2. Labeaud has waived the issue of the exclusion of
evidence of Tavolino’s propensity for violence
After Jefferson testified that he had defused an earlier
confrontation between Labeaud and his victim Tavolino, defense
counsel asked Jefferson if Tavolino ever threatened Jefferson
or continued to behave “that way” toward him after Labeaud’s
attack on Tavolino. The court sustained the prosecutor’s
objections and interposed its own objections. Counsel requested
a sidebar and confirmed she wanted Jefferson to testify about
interactions he had with Tavolino, to show Tavolino’s pattern
of violence and threats toward Labeaud: “It’s a question of self-
defense.” The court found interactions between Tavolino and
Jefferson after Labeaud attacked Tavolino were irrelevant, and
it would not “permit the questioning of anything that’s happened
between [Tavolino] and anyone else after the date of this
incident.” When questioning resumed, defense counsel asked

11
Jefferson if he had been threatened before the incident and he
said no. On redirect, the prosecutor asked Jefferson if he ever
saw Tavolino raise his pocketknife at Jefferson or anyone else
“in any kind of threatening manner,” and Jefferson answered no.
On recross-examination, defense counsel asked if Jefferson
ever saw Tavolino cut himself with his pocketknife. Jefferson
answered yes, and when asked when, replied it was after
the incident. Counsel asked whether Tavolino was drunk
at the time, and the court sustained the prosecutor’s objection.
At sidebar, the prosecutor objected that any questions
about interactions between Jefferson and Tavolino after the
incident were irrelevant. Defense counsel responded it went
to Tavolino’s violence, and Jefferson had received threats after
the incident. The court replied: “[I]f you’re going to be making
that as a defense in this case, you’re entitled to do that after the
case in chief has been put on.” But at this point, the questions
were irrelevant because Jefferson’s testimony about the attack on
Tavolino was very clear, and nothing showed any kind of violence
by Tavolino. “[Y]ou’re entitled to present your defense, but it
has to be presented appropriately. . . . I am not saying you can’t
have your defense. It’s just it has to be placed in appropriate
timing with regard to the evidence that we’ve already received.”
Counsel responded: “That makes sense,” and the court sustained
the prosecutor’s objection.
Labeaud argues the court abused its discretion. We
disagree. First, the court allowed counsel to ask Jefferson
about any threats or violence by Tavolino before the August 2019
incident, and Jefferson testified he saw none. Tavolino’s behavior
before Labeaud attacked him was relevant to any claim that
Labeaud acted in self-defense, and the defense tried but failed

12
to elicit such testimony. Second, the court explained defense
counsel could present evidence about post-incident threats
or violence by Tavolino when it put on its case, and counsel
agreed that made sense. Counsel did not present any evidence
or testimony after the prosecution rested. She may not now
complain that the court abused its discretion when it invited
her to present the evidence at what she agreed was the
appropriate time.
3. The court did not abuse its discretion when
it admitted the 2014 incident
Defense counsel objected to the admission into evidence
of the 2014 incident when police arrested Labeaud after they
saw him holding his cane over his head, poised to hit a man who
had already been struck in the back of the head. Counsel argued
the evidence was prejudicial to Labeaud. The court agreed, but
admitted the evidence: “That’s the whole purpose of that type
of evidence, to be prejudicial . . . . If it is just to show propensity,
it is not allowable. But if it is to show a common plan or intent,
then similar to here, then it is permissible because then it would
be more probative than prejudicial.”
The court correctly stated the law. Evidence Code
section 1101, subdivision (a) prohibits the admission of evidence
of a person’s character or traits to show his or her conduct on
a specified occasion. But subdivision (b) allows the admission
of evidence that a person committed another crime if relevant
to prove a common design or plan. (People v. Kipp (1998) 18
Cal.4th 349, 369.) The other crime must be similar enough to
the charged conduct to support a rational inference that both
were committed with a common plan: “ ‘[T]he common features
must indicate the existence of a plan rather than a series of

13
similar spontaneous acts, but the plan thus revealed need not be
distinctive or unusual.’ ” (Id. at p. 371.) Because the question is
essentially one of relevance, we review the trial court’s admission
of the evidence for an abuse of discretion. (Id. at p. 369.)
In 2014, Labeaud struck a man over the head with his
cane, causing the man to bleed profusely from a wound on the
back of his head. In 2019, Labeaud struck Tavolino over the head
with his cane as Tavolino’s head was bent over his bike repair,
causing Tavolino to bleed profusely from a wound on his head.
The incidents are similar enough to support the rational
inference that Labeaud acted with a common plan to use his cane
to hit in the head men he thought threatened him or with whom
he had argued.
The probative value of the 2014 offense was substantial,
and was not outweighed by the probability that its admission
would create a serious danger of undue prejudice, of confusing
the issues, or of misleading the jury. (Evid. Code, § 352; People
v. Kipp, supra, 18 Cal.4th at p. 371.) The 2014 and 2019 crimes
shared distinctive features (a blow to the head with Labeaud’s
cane) probative of a common plan. Evidence of the two crimes
came from different sources. (Kipp, at p. 371.) And although
the danger of undue prejudice is always present when other
crimes evidence is admitted, the prejudicial effect was
not unusually serious. The 2014 assault was not significantly
more inflammatory than the 2019 assault, compelling evidence
showed Labeaud committed both crimes, and the court correctly
instructed the jury that it could not consider the 2014 crime
to show that Labeaud had a bad character or was predisposed
to commit crimes. (Id. at p. 372.) The trial court did not abuse
its discretion.

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4. The trial court did not commit instructional error
Labeaud argues the trial court erred when it refused to give
instructions on imperfect self-defense and the lesser-included
offense of simple assault.
a. Imperfect self-defense
After the prosecution rested its case, defense counsel
requested an instruction on imperfect self-defense, because
“if Mr. Labeaud did the act, he did it in self-defense after what
Mr. Tavolino described as a heated exchange and fighting words
[‘ “your mama’s a bitch” ’],” and Tavolino might have had his
knife with him at the time of the exchange, although he had
testified to the contrary. The prosecutor said there was no
substantial evidence to support a self-defense instruction, and
no evidence Tavolino had the knife. The court agreed there was
no evidence of self-defense. Labeaud was inside and Tavolino
was outside in the back yard, words were exchanged, and then
Labeaud left the house, walked over to Tavolino, and hit him
on the head. Defense counsel argued Tavolino had threatened
other people before and after the incident, “and I was not allowed
to have that in. . . . Everyone was threatened by Mr. Tavolino.”
The court repeated there was no evidence of threats against
others and such evidence would be irrelevant. The defense
rested.
A trial court has the duty to instruct on general principles
necessary for the jury’s understanding of the case. (People v.
Montoya (1994) 7 Cal.4th 1027, 1047.) We review de novo the
trial court’s decision not to instruct on imperfect self-defense.
(People v. Simon (2016) 1 Cal.5th 98, 133.) “[I]mperfect
self-defense occurs when a defendant acts in the actual but
unreasonable belief that he or she is in imminent danger of

15
great bodily injury or death,” thus making a killing without
malice aforethought, and not murder but manslaughter. (Id.
at p. 132.) It is not an affirmative defense, but “a shorthand
way of describing one form of voluntary manslaughter.” (Ibid.;
People v. Trujeque (2015) 61 Cal.4th 227, 271.) “This doctrine is
limited to the negation of the malice element of murder.” (People
v. Rodarte (2014) 223 Cal.App.4th 1158, 1168; People v. Iraheta
(2014) 227 Cal.App.4th 611, 623-624.) Where the jury is not
asked to find the defendant harbored the “malice aforethought”
required for murder, an instruction on imperfect self-defense
is inappropriate. (Iraheta, at p. 624.) An imperfect self-defense
instruction would have been inappropriate here.
Further, even if the doctrine applied, no substantial
evidence supported the contention that Labeaud had an actual
belief in the need for self-defense and feared immediate harm
that required an immediate response. (People v. Beck (2019)
8 Cal.5th 548, 648-649.) There was no evidence that Tavolino
attacked Labeaud. Instead, testimony by Jefferson and Tavolino
showed that Labeaud came out of the kitchen and “executed a
surprise attack” on an unsuspecting Tavolino, who was sitting in
the back yard changing the tube in his bike tire. (Id. at p. 649.)
b. Simple assault
A trial court has the duty to instruct on lesser included
offenses where there is substantial evidence from which a
rational jury could conclude the defendant committed the lesser
offense, but not the greater, charged offense. (People v. Whalen
(2013) 56 Cal.4th 1, 68.) Simple assault is a lesser included
offense to assault with a deadly weapon. (People v. McDaniel
(2008) 159 Cal.App.4th 736, 747-748.) It is for the court to decide
whether the evidence supports the instruction, and we review

16
independently whether the trial court erred. (People v. Trujeque
(2015) 61 Cal.4th 227, 271.)
Simple assault is an unlawful attempt, combined with
the present ability, to commit a violent injury on another.
(§ 240.) Simple assault does not require the specific intent
to cause injury, or the subjective awareness that an injury
might occur, but only “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.) As the jury was instructed, assault with a deadly weapon
requires the defendant to use “any object, instrument, or weapon
that is . . . capable of causing and likely to cause death or
great bodily injury,” which in turn is “significant or substantial
physical injury. It is an injury that is greater than minor or
moderate harm.” (See People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029.)
We see no substantial evidence from which a rational jury
could conclude that Labeaud committed an assault without a
deadly weapon. All the evidence showed that he hit Tavolino
in the head with his cane, which certainly was capable of causing
significant physical injury. We reject Labeaud’s argument there
was no “actual proof” that he was in the yard or wielded the cane.
The question is whether there was substantial evidence that he
did not use an object likely to cause more than minor or moderate
harm. Given the extent of Tavolino’s injuries—copious blood,
bleeding on the brain, a permanent scar and dent—the only
rational verdict the jury could reach was an assault with
a deadly weapon.

17
5. Sufficient evidence supports the verdict
Labeaud argues the evidence was insufficient to support
his conviction, as there was “little evidence” he committed the
assault, Tavolino did not lose consciousness and declined medical
treatment, the large amount of blood was not a sign of serious
injury but of the “high concentration of blood vessels in the head,”
the doctor testified that Tavolino did not suffer a brain bleed,
and he suffered no lasting damage. First, almost all those
contentions are directly contrary to the trial testimony
as described above, and those that are not contradicted
are speculation. Second, Labeaud misapprehends the
substantial evidence standard. We view the evidence in the
light most favorable to the jury’s findings, and we will reverse
for insufficient evidence only if it appears that upon no
hypothesis whatever is there substantial evidence to support
the verdict. (People v. Hoffman (2021) 61 Cal.App.5th 976, 978.)
Substantial evidence supports the verdict.
6. The trial court did not abuse its discretion when
it refused to strike Labeaud’s prior convictions
At sentencing, the court stated: “Defendant has been
convicted of 16 inclusive cases starting 1988 to current. In 2014
alone there are two cases of [§] 245, one very similar to this case
factually, and the other was a [§] 245(a)(4) where he strikes
someone with . . . the cane.” The court looked for mitigating
factors and noted Labeaud was a veteran who had been in
residential drug treatment and “substantial mental health
treatment” for military veterans. All Labeaud’s past sentences
had taken into consideration his mental health and his status
as a veteran: “[T]hey’ve given him every ample opportunity
to try to benefit from the services that were offered to him.

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He simply didn’t. He simply chose a different path. [¶] So
the mitigating factor is ostensibly he’s a veteran. He served
his country. But after that he had many options, and he did
not comply.” The court wanted to make clear it had taken his
service into account, but “[e]verything else is aggravating.” The
court outlined the sentencing options, including a Three Strikes
sentence of 25 years to life with 3 years for great bodily injury,
and with one strike, a determinate sentence of 16 years.
Labeaud’s counsel did not submit a sentencing brief.
She argued Labeaud had “other mitigating qualities,” including
a clear mental illness, and “should be in a mental health facility
rather than putting somebody in custody for a long period of
time. . . . I guess I would request if the court is thinking of the
16-year determinate sentence, that at least the five-year strike
prior be not used.” The prosecutor asked the court not to strike
all three of the prior strikes.
The court stated it had taken everything into consideration
and had a clear picture of Labeaud’s history. The judicial system
was not the mental health system, and Labeaud’s past counsel
had raised mental health concerns in the two prior cases: “[H]e
was given all sorts of services. [¶] We can only do so much, and
the statement is you can only lead a horse to water. We know
what addiction is. We know what mental health issues are. We
get trained and educated on all of this.” Here, the judicial system
did what it could “and the defendant didn’t follow through. And
that lies on the defendant. . . . [¶] The defendant was given ample
opportunity. I am not inclined to Romero the strikes because
the purpose of three strikes in the state of California was for this.
You were given chance after chance after chance. I only pulled
two cases. Chance after chance after chance, and you didn’t

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figure it out.” Labeaud was an “exemplar of what [the three
strikes] legislation wants to stop, and my job is to make sure
it does. [¶] The Court is going to adopt the Three Strikes
sentencing, which is 25 [years] to life, as the base term with
three years for GBI. That’s 28 years.”
First, Labeaud has forfeited his federal constitutional
claim that his sentence is cruel and unusual punishment
violating the Eighth Amendment. A claim that a sentence
is cruel or unusual “requires a ‘fact-specific’ inquiry and
is forfeited if not raised below.” (People v. Baker (2018) 20
Cal.App.5th 711, 720; People v. Rodriguez (2019) 40 Cal.App.5th
194, 203-204.) “[T]he onus was on [defendant’s] counsel to object
on that basis.” (Baker, at p. 720.) Defense counsel did not do so.
Second, the court did not abuse its discretion when it did
not exercise its power to strike Labeaud’s prior strike convictions
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
530.
The purpose of the Three Strikes law is to punish
recidivists more harshly, but the court has the power to strike or
dismiss a prior conviction in furtherance of justice if a recidivist
defendant does not fall within the spirit of the law. (§ 1385,
subd. (a); People v. Avila (2020) 57 Cal.App.5th 1134, 1140.)
The court considers “whether, in light of the nature and
circumstances of the defendant’s present felonies and prior
serious and/or violent felony convictions, and the particulars
of the defendant’s background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole
or in part, and hence should be treated as though the defendant
had not previously been convicted of one or more serious and/or
violent felonies.” (Avila, at p. 1140.) We review for an abuse of

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discretion, and Labeaud has the burden to show the sentencing
decision was “irrational or arbitrary.” (Ibid.) As only
extraordinary circumstances justify a finding that a career
criminal is outside the Three Strikes law, “ ‘the circumstances
where no reasonable people could disagree that the criminal
falls outside the spirit of the three strikes scheme must be
even more extraordinary.’ ” (Ibid.)
Labeaud has not met his burden to show the trial court
acted irrationally or arbitrarily. The trial court properly
considered factors relevant to the nature and circumstances of
Labeaud’s prior strikes. Given the number of prior offenses (16),
the details of prior convictions of assault with a deadly weapon,
and the multiple opportunities he had to address his addiction
and mental health issues, Labeaud’s military service did not
take him out of the law’s spirit. This is not an extraordinary
case, and the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P.J. LAVIN, J.

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