Filed 9/30/21 P. v. Sandusky CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C091228
Plaintiff and Respondent, (Super. Ct. No. 18CF04063)
v.
BRYAN FEDERICK SANDUSKY,
Defendant and Appellant.
A jury found defendant Bryan Federick Sandusky guilty of assault with a deadly
weapon and the trial court found true the allegations that defendant committed the
offense while on bail and had served a prior prison term within the meaning of Penal
Code1 section 667.5, subdivision (b). At the sentencing hearing, the trial court sentenced
1 All further section references are to the Penal Code unless otherwise specified.
1
defendant in the assault with a deadly weapon case (case No. 18CF04063) and two other
cases.
In the first of the two other cases, defendant pled no contest to possession of a
controlled substance for sale (case No. 16CF04009). In the second, defendant pled no
contest to a felony count of failure to appear while on bail (case No. 18CF05428). The
trial court sentenced defendant to a total prison term of eight years eight months,
including one year for the prior prison term enhancement in the assault with a deadly
weapon case. The trial court then stayed execution of the sentence and placed defendant
on formal felony probation for five years.
Defendant raises a myriad of arguments on appeal.2 He asserts: (1) the assault
with a deadly weapon verdict is not supported by substantial evidence; (2) the trial court
committed prejudicial instructional error by refusing his requested instruction that the
jury could consider the absence of injury in deciding whether defendant committed
assault with a deadly weapon; (3) the trial court committed prejudicial evidentiary error
by precluding defendant from questioning the victim regarding the termination of his
employment as a result of the incident; (4) the trial court committed prejudicial
instructional error by using the confusing, misleading and argumentative term “simple
assault” in the CALCRIM Nos. 915 and 3517 instructions as to the lesser included
offense of assault; (5) the cumulative prejudicial impact of the trial court’s errors violated
his federal and state constitutional rights to due process and a fair trial; (6) the electronic
search condition is unconstitutionally overbroad and must be stricken; (7) the job search
condition is unconstitutionally vague and must be stricken; (8) the one-year prior prison
term enhancement under section 667.5, subdivision (b) must be stricken pursuant to
Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136); and (9) we should remand
2 This matter was fully briefed following the filing of supplemental briefs on
January 8, 2021. It was ordered to the author’s June 2021 calendar of assignments.
2
for the trial court to reduce the probationary term to two years in accordance with
Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950).
We agree with defendant’s Senate Bill 136 and Assembly Bill 1950 contentions
but otherwise find no merit in defendant’s arguments. We thus affirm the conviction but
reverse the sentence and remand with directions to strike the one-year prior prison term
enhancement and resentence defendant consistent with the amendment to section 1203.1,
as provided in Assembly Bill 1950.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Prosecution’s Case
A
The Victim’s Testimony
On April 28, 2018, the victim was working at a grocery store as a night crew
manager. Around 2:40 a.m., defendant and a companion entered the store. A coworker
told the victim that defendant’s companion had shoplifted. The shoplifter left the store
but defendant remained. When the victim’s coworker asked defendant to leave the store,
defendant turned to the victim and said “you know me. I’ve been here multiple times.
We never had a problem.” Defendant then said, “ ‘Let’s go ahead and let’s figure out
this.’ ” Defendant, the victim, and the victim’s coworker left the store together. Outside,
the shoplifter was standing on the passenger side of defendant’s car. The shoplifter
pulled the stolen item from the backseat of defendant’s car and handed it to another
person on a bicycle, who quickly pedaled away. The shoplifter then got into the front
passenger seat of defendant’s car.
The victim moved to the front of defendant’s car and attempted to take a photo of
the license plate to share with the police. As he did so, the shoplifter jumped out of the
car and approached the victim “in an aggressive way with his fist out” and cussing at the
victim. Fearing for his life, the victim pulled a box cutter from his pocket and told the
3
shoplifter “don’t get any closer because you’re threatening me.” Defendant, who was
then seated in the driver’s seat of the car, yelled at the shoplifter to get in; the shoplifter
complied and closed the door. The victim put the box cutter back in his pocket and
proceeded to take a picture of defendant’s front license plate. As the victim bent down to
the take the picture, defendant put the car in gear and accelerated forward (i.e., “c[ame]
forward”) toward the victim, who was approximately two and one-half feet away. The
victim tried to get out of the away “but he came too fast.” The car made contact with the
victim’s legs, jolting him backward. The victim described the contact with the car as
clipping his knees and bumping him. The victim tried to push off the car to get away
because he thought defendant would stop, but defendant continued to move the car
forward. The victim was scared and “didn’t want to get ran [sic] over in the way of [his]
legs getting trapped underneath the car.” The victim thus fell on top of the hood, pushed
off the driver’s side window with the palms of his hands, and rolled onto his feet, less
than a foot away from the car. The car was moving toward the right, was accelerating
from the time it initially made contact with the victim, and was traveling at
approximately 15 miles per hour by the time the victim rolled off the car. There were no
obstructions or other cars in the vicinity of defendant’s car, except for a cart barn one
parking spot over from the passenger side of defendant’s car. After the victim rolled off
the car, the car stopped approximately 50 yards away. Defendant opened his door and
tauntingly told the victim “he’s going to get [the victim] fired and that [the victim is]
going to lose [his] job and stuff like that.” Defendant then left the parking lot and the
victim called the police.
The victim experienced “a little soreness” in his left knee for approximately a
week but did not seek medical attention or take any medication.
On cross-examination, the victim testified he never told the 911 operator, police
officer, prosecutor’s investigator, or the prosecutor that he was hurt as a result of the
incident and he never reported any soreness to anyone following the incident. He
4
explained he “was so pumped up” at the time of the incident, he did not feel anything.
He testified, however, that his memory “was fresher when it first happened” when asked
whether the jury should believe the version of the events given “to the officer when the
incident just happened” or stated “a year later” after talking “to the Prosecutor four
times.”
The victim further testified on cross-examination that he could not recall what
words he used to describe the contact with defendant’s car when he spoke to the police
officer on the day of the incident, but he would best describe it as “he came forward and
struck me with the car.” The victim also testified he never used the word “accelerated” in
prior interviews to describe defendant’s driving “away from the scene.” After
defendant’s trial counsel played the body camera footage from the victim’s police
interview on the day of the incident, the victim acknowledged he told the officer “[he]
ben[t] down to take the picture of the license, [he was] nudged with the car, [he] backed
up, and then [he] went up on the hood, punched the hood, [he] rolled off the car, and then
hit the window as the car drove off.”
On redirect examination, the prosecutor asked the victim whether he believed
there was a difference between being hurt or injured versus being in pain. The victim
responded in the affirmative, explaining he believed “if you were hurt, you would have to
go to the hospital” versus, “if you had a little bit of pain, it’s not as serious as going to the
hospital for just something.” He further testified he felt the discomfort in his knee
approximately a week after the incident. The prosecutor later asked the victim: “Now,
we spent a good deal of time parsing through the terms I think: ‘Nudge,’ ‘bump,’ ‘clip.’
In your mind, are those . . . just different ways of describing the same contact with the
vehicle?” The victim responded, yes. The prosecutor next asked: “So are you trying to
draw any technical distinctions from one to another?” The victim responded in the
negative, explaining the terms, in his mind, had the same meaning -- describing “the
contact with the vehicle to [his] body.” As to the cross-examination questions pertaining
5
to the victim’s “acceleration” statement, the victim testified he meant the car was coming
toward him at a speed “where [he] couldn’t get out of [the] way.”
B
The Victim’s Coworker’s Testimony
The victim’s coworker observed the incident and testified defendant “drove the car
into” the victim, the victim “flop[ped] onto the hood,” defendant “h[ung] a right to take
off,” and then the victim “slid off the car, landed on his feet, [and] took off.” When
asked whether the victim was thrown up on the hood or jumped on the hood, the victim’s
coworker answered: “Well, the car bumped into him, and then he sort of just went like
that, flopped onto the hood.” The coworker explained, “I guess [the victim] didn’t want
his legs getting run over, so he went like that.”
On cross-examination, the coworker confirmed he used the word nudge in
describing the impact when he spoke to the prosecutor or the prosecutor’s investigator
during an interview. He further explained that defendant “didn’t floor it,” meaning “[h]e
didn’t, like, step on the accelerator and, you know.” To the best of his knowledge, the
victim was not injured during the incident.
II
The Defense’s Case
Chico Police Officer John Nickelson testified he spoke to the victim shortly after
the incident. The interview was recorded by Officer Nickelson’s body camera. The
victim told Officer Nickelson “ ‘that the car came forward and nudged [him].’ ”
DISCUSSION
I
The Verdict Is Supported By Substantial Evidence
Defendant argues the verdict is not supported by substantial evidence because
“[t]he only credible evidence about the contact between [defendant’s] car and [the victim]
showed that, when [defendant] used his car to make contact with [the victim], it was a
6
‘nudge’ that caused no injury to [the victim].” Thus, in defendant’s view, no reasonable
jury could have found beyond a reasonable doubt that defendant used his car as a deadly
weapon, i.e., in a manner likely to produce death or great bodily injury. We disagree.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence -- evidence that is
reasonable, credible and of solid value -- such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “ ‘Although we must
ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if
the verdict is supported by substantial evidence, we must accord due deference to the trier
of fact and not substitute our evaluation of a witness’s credibility for that of the fact
finder.’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“[A] ‘deadly weapon’ under section 245, subdivision (a)(1) 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.
[Citation.] Other objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great bodily injury.’ ” (People v.
Perez (2018) 4 Cal.5th 1055, 1065.) A motor vehicle does not qualify as an inherently
deadly weapon because it is an object commonly used for nonviolent purposes. (People
v. Marsh (2019) 37 Cal.App.5th 474, 489.) “ ‘In determining whether an object not
inherently deadly or dangerous is used as such, the trier of fact may consider the nature of
7
the object, the manner in which it is used, and all other facts relevant to the issue.’ ”
(Perez, at p. 1065.) Our Supreme Court recently clarified the scope of the deadly weapon
inquiry.
“First, the object alleged to be a deadly weapon must be used in a manner that is
not only ‘capable of producing’ but also ‘ “likely to produce death or great bodily
injury.” ’ ” (In re B.M. (2018) 6 Cal.5th 528, 533.) Second, “the determination . . . must
rest on evidence of how the defendant actually ‘used’ the object” rather than “conjecture
as to how the object could have been used.” (Id. at p. 534.) The court explained: “[I]t is
appropriate in the deadly weapon inquiry to consider what harm could have resulted from
the way the object was actually used. Analysis of whether the defendant’s manner of
using the object was likely to produce death or great bodily injury necessarily calls for an
assessment of potential harm in light of the evidence. As noted, a mere possibility of
serious injury is not enough. But the evidence may show that serious injury was likely,
even if it did not come to pass.” (Id. at p. 535.) Third, “the extent of actual injury or lack
of injury is also relevant” because it “may suggest that the nature of the object or the way
it was used was not capable of producing or likely to produce death or serious harm.”
(Ibid.) In that regard, “an aggressor should not receive the benefit of a potential victim
fortuitously taking a defensive measure . . . once an assault is already underway.” (Id. at
p. 537.)
At the outset, we note “nudge” was not the only word the victim and his coworker
used to describe the incident. In addition to nudge, the victim described the impact of
defendant’s car as clipping his knees, bumping him, and striking him. The victim
explained he used the terms interchangeably to describe the contact between the car and
his body. The victim’s coworker similarly used the terms nudge, bumped into, and drove
into to describe the impact. The jury was thus entitled to believe the victim’s and his
coworker’s use of the word “nudge” connotated a greater impact than defendant’s
interpretation of the word.
8
More importantly, defendant’s focus on the victim’s use of the word “nudge” as
suggesting a relatively minor impact or degree of force with which he struck the victim
ignores other relevant testimony and facts that showed his conduct was likely to cause the
victim serious harm. The fact is the victim testified defendant drove the vehicle toward
him, even though there were no obstructions or other cars in the vicinity of defendant’s
car, hit the victim’s legs with his car and, even after the victim was jolted back by the
impact, continued to accelerate toward the victim, reaching approximately 15 miles per
hour by the time the victim rolled off the car. The victim testified he was scared and fell
on the hood because he was fearful his legs would get trapped underneath the car. The
victim’s coworker similarly believed, based on his observation of the incident, that the
victim likely “flopped onto the hood” because he “didn’t want his legs getting run over.”
This testimony constitutes substantial evidence from which the jury could conclude the
manner in which defendant used the car was likely to produce great bodily injury, i.e.,
pinning defendant’s legs under the car. It was the circumstances under which defendant
assaulted the victim, and not merely the force with which he struck the victim, that made
his conduct dangerous.
The victim’s lack of injury also does not negate the dangerousness of defendant’s
conduct. As our Supreme Court explained, the degree of damage actually inflicted is
relevant but not dispositive because “the evidence may show that serious injury was
likely, even if it did not come to pass.” (In re B.M., supra, 6 Cal.5th at p. 535.) That is
the case here. Defendant does not receive the benefit of the victim fortuitously taking the
defensive measure of falling on the hood to avoid great bodily injury. (Id. at p. 537.)
In sum, the victim’s and his coworker’s testimony constituted substantial evidence
to support the jury’s verdict that defendant used the car in a manner likely to produce
great bodily injury.
9
II
The Trial Court Did Not Commit Evidentiary Error
Defendant argues the trial court committed evidentiary error under Evidence Code
section 352 by precluding defendant “from asking [the victim] one ‘simple’ question to
elicit the fact that the incident resulted in him getting fired.” Defendant posits “[t]he fact
that [the victim] was fired from [the grocery store] is highly relevant exculpatory
evidence that weighs on his credibility and gives him a motive to lie, fabricate and/or
exaggerate” and one question would not have wasted time or confused the issues.
Evidence Code section 352 provides: “ ‘The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.’ We review a
challenge to a trial court’s choice to admit or exclude evidence under [Evidence Code]
section 352 for abuse of discretion.” (People v. Branch (2001) 91 Cal.App.4th 274, 281-
282.) We conclude the trial court did not abuse its discretion.
A
Relevant Factual Background3
Prior to trial, the prosecution moved in limine to preclude defendant from eliciting
testimony regarding the victim’s employment status, as follows: “As a result of the
incident in question, the victim lost his job. Apparently his actions in confronting the
shoplifter(s) violated [the grocery store’s] policy. The People request that the defense be
barred from raising this issue before the jury. Subsequent actions by the victim’s
employer are not relevant to the issue(s) at trial, would tend to confuse the jury, and
3 Both parties’ briefs omit substantial portions of the relevant colloquy in the record
on this issue.
10
would likely be offered to raise the specter that the victim was doing something wrong or
improper before he was struck by the Defendant.”
Defendant’s motions in limine included a category pertaining to the victim’s
employment records, stating: “[The victim] informed [the prosecutor] . . . that ‘he got in
trouble for this’ and was ‘laid off’. [The victim] also informed [the prosecutor] that he
‘did not’ pull out the box cutter from this [sic] pocket during the incident which is
inconsistent with his statement to Officer Nickleson [sic] at the time of the incident. The
defense intends to subpoena [the victim’s] employment records involving disciplinary
actions taken against [him] due to his actions on the date of the incident as it may contain
potentially exculpatory evidence and is potentially impeachment evidence. Such
evidence is relevant and material and it also provides [the victim] motive to lie [sic].”
At the pretrial hearing, the trial court asked defense counsel whether she wanted to
be heard on a motion to continue. Defense counsel explained that her investigator was
“en route to serve the subpoena” on the grocery store to obtain the victim’s employment
and disciplinary records. Defense counsel believed she would have enough time to
review the records to cross-examine the victim given the assigned trial dates in the
matter. The prosecution objected, noting, among other things, Code of Civil Procedure
section 1985.6 allows an employee whose employment records are sought pursuant to a
subpoena duces tecum an opportunity to file a motion to quash. The trial court reviewed
the statute and advised defense counsel that, given the time frames and procedures
outlined therein, there would be insufficient time to obtain the records prior to trial and
“there was time previously to pursue the record.”
The trial court next invited the parties to discuss the defense’s intent to cross-
examine the victim as to whether he “was disciplined or suspended based on his action.”
The prosecution argued the line of questioning was irrelevant because “[t]he [grocery
store’s] interpretation of whether or not [the victim] followed a store policy in following
a shoplifter out of the store is not relevant to the charge here before the Court.”
11
Defense counsel countered that the information pertained to the victim’s
credibility, “[i]t gives him motive to lie.” Counsel explained: “If he did brandish a
weapon in the course of his duties and was then disciplined for that, then that’s important
information because that’s the defense in our case. That he brandished a weapon, and
[defendant] left in a panic.” The trial court tried to clarify: “I’m not understanding. So
say the witness is on the stand, and you would like to ask the witness after this incident
took place outside the store in the parking lot, were you subsequently disciplined by your
employer?” Defense counsel responded: “Or did you lose your job? Or did you get in
trouble? Yes; correct.”
The trial court next asked defense counsel: “So what’s the relevance of
subsequently being disciplined by the employer?” Defense counsel answered: “It will --
goes to show if -- if he was honest, and he told them that, ‘Yes, I pulled out the box cutter
and brandished it.’ Is that the reason why you were let go, or were you let go because
you followed them into the parking lot? [¶] He’s denying now -- twice now in the last
four days -- that he pulled out the box cutter and so that’s important. So then why were
you let go from your job or suspended from your job or laid off, whatever his words are,
just because he followed a potential alleged shoplifter out to the parking lot or was there
more to it? [¶] I think that’s where it goes to his motive. It goes to his credibility, and
it’s impeachment evidence. And again, it’s premature because we’re not sure how [the
victim] is going to testify on direct, so we’re, of course, you know . . . .”
The trial court responded: “So at this stage then the Court is going to preclude the
line of inquiry under [Evidence Code section] 352 that there will be an undue
consumption of time, and it’s likely to confuse the jury. To the Court, the relevance is
not clear enough, and it would cause further lines of inquiry that cannot be followed up
with evidence that you know to be true to impeach the witness. [¶] Again, if the Court is
incorrect, and the [Code of Civil Procedure] requirements do not apply in a criminal case,
the Court can revisit the [Evidence Code section] 352 [issue]. Also, if there are answers
12
by the witness during trial on direct, [defense counsel], that you think the Court should
revisit the Court’s ruling, you can raise that issue after direct is complete. [¶] But with
what we know now, if nothing changes, the Court is not inclined to allow that line of
inquiry on cross-examination. It’s very far [a]field, and it’s such a complex issue that’s
based on a lot of speculation and unknown information, where in the Court’s perspective
there was time to pursue those issues. Here, there’s no more time as far as pursuing them
and stay in compliance with the code.”
In response, defense counsel argued a different theory: “So, your Honor, again the
evidence will show that as [defendant] was leaving the scene in the car; after [the victim]
was bumped, [defendant] said, ‘You’re going to lose your job for this.’ It was after that
that [the victim] decided to call the police. [¶] So that goes to show the motive for him
to call the police. He had all this time. He had a phone in his hand. He never called the
cops, but he sure did right after he realized, oh, I can lose my job. It goes to motive.
That’s important in [defendant’s] defense of this case. [¶] As to the undue consumption
of time, I’m not asking to go into his entire employment history or the disciplinary action.
Simply did you get in trouble for your actions the night of the incident?”
The trial court said, “you’re free to argue the point to the jury about the timing the
way you just explained it here [if defendant’s threat to the victim is elicited on direct
examination], but I don’t think that necessitates then going into whether the witness did
lose [his] job because we go back to there’s a myriad of issues that could be completely
unrelated to the conduct out in the parking lot, and it could be completely unrelated as to
why there was disciplinary action.”
Defense counsel then again reiterated her concerns regarding the victim’s
inconsistent statements pertaining to the box cutter and argued: “I think it would be
important to know what did he tell his employer when he went through that employment
action. Did he say, ‘I pulled out the box cutter. I was wrong.’ Or did he say, ‘I didn’t
pull out the box cutter’? This whole case rests on why [defendant] did what he did, and
13
his reaction was to [the victim’s reaction], which is brandishing the box cutter, which is
at dispute right now.” After the prosecution responded to her argument, defense counsel
continued: “Your Honor, I don’t think I’m focusing on what discipline he received. It
was what did he say during those proceedings about the box cutter, which he has now
made two separate statements. So what -- so we need know what did he tell his
employer? Did he say, ‘I didn’t have the box cutter’? . . . [¶] So now what is his third
statement? It’s -- [¶] . . . [¶] . . . It’s like a tiebreaker. Did he tell his employer ‘I did
have a box cutter’? Or did he say, ‘I didn’t have a box cutter’? I don’t know.”
The trial court responded: “Well, from the Court’s perspective, it can’t be a
tiebreaker. As [the prosecutor] pointed out, we don’t know that there was a statement at
all.” Defense counsel agreed: “We don’t know, yes.” The court continued: “The time
to investigate that is past, and [defense counsel], [defendant] is vested with the ability to
impeach the witness by the conflicting statements that already exist. [¶] As you had
pointed out, at one time there was a statement, yes box cutter; another time, no box cutter.
So you have that impeachment available to you for the trial. And any additional pursuit
just -- you can see from the time we’ve taken on this one issue in the motion, would
really consume so much time for the jury simply to get to the point of impeachment,
which is evidence that you already have. [¶] And so the Court is going to deny the
request for a continuance for the reasons stated.” The trial court added: “Then turning to
other [sic], and I’ve ruled on admissibility of the issue of discipline that that will be
excluded as a line of inquiry.”
Defense counsel asked whether the ruling was subject to review and the court
responded: “As I said, that if after the direct evidence, if you have testimony that you
think should cause the Court to revisit the issue, then we would take that up outside the
presence of the jury prior to cross-examination.”
The trial court later reiterated: “The Court has granted [the prosecution’s] motion
that loss of employment with [the grocery store] is an issue that’s precluded from being
14
raised. And I’ll ask counsel to not ask questions that would cause the witness to respond
with that information. If the witness volunteers that, then we’ll try to isolate the response
and then just move on. [¶] . . . [¶] . . . It’s the expectation of the Court that counsel
would not ask questions that would elicit a response about loss of employment with [the
grocery store].”
B
The Trial Court Did Not Abuse Its Discretion
Defendant asserts the victim’s employment termination in connection with the
incident was “highly probative impeachment evidence” because the victim “had every
reason to be angry with [defendant] for ‘getting him fired,’ and had every reason to see to
it that [defendant] would be criminally punished for the incident.” Defendant did not
raise this argument in the trial court. Defendant instead argued the testimony was
relevant because: (1) it went to the victim’s credibility and potential impeachment
pertaining to the victim’s use of the box cutter, which was important to defendant’s
defense; and (2) defendant’s threat to the victim regarding his employment during the
incident “goes to show the motive for him to call the police.” Defendant does not argue
that the trial court abused its discretion in finding irrelevant the bases asserted at the
hearing.
Further, defendant cherry-picks a small portion of the colloquy for his repeated
assertion that he sought to ask only one “ ‘simple’ ” question of the victim -- “ ‘did you
get in trouble for your actions the night of the incident?’ ” Defendant fails to set forth the
full factual background on the issue and ignores the context within which the statement
was made. It is clear from the full recitation of the record ante, that defendant was not
seeking to ask only one question with a yes or no response. Defendant instead wanted to
elicit information from the victim pertaining to what he told his employer regarding the
box cutter and the reason for his termination. Defendant’s theory was that the victim was
disciplined for brandishing a weapon during the incident.
15
Even assuming, however, that defendant wanted to ask only that one question for
the purpose of establishing the victim’s motive for ensuring defendant would be
criminally punished, the trial court did not abuse its discretion in excluding it. An answer
to the question would have produced speculative inferences as to the employer’s reasons
for disciplining or terminating the victim as a result of the incident. The “ ‘exclusion of
evidence that produces only speculative inferences is not an abuse of discretion.’ ”
(People v. Cornwell (2005) 37 Cal.4th 50, 81.)
III
The Instructional Error Claims
A
The “Lack Of Injury” Instruction Request
Defendant asserts the trial court erred “by refusing to include the new law on ‘lack
of injury,’ as pronounced by the Supreme Court in In re B.M.[, supra,] 6 Cal.5th [at p.]
528, in the section 245(a)(1) instruction.” He also asserts the trial court was required to
include the language in the instruction because of “the overwhelming evidence that [the
victim] was uninjured.” Defendant believes the error was prejudicial and must be
reviewed under the federal harmlessness standard set forth in Chapman. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [“before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt”].)
The People assert the trial court appropriately declined to instruct the jury further
on lack of injury because it would have been duplicative and argumentative, and, even if
error occurred, the error was harmless when applying the state harmlessness standard set
forth in Watson. (People v. Watson (1956) 46 Cal.2d 818, 836 [“a ‘miscarriage of
justice’ should be declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result
16
more favorable to the appealing party would have been reached in the absence of the
error”].)
We note it is unclear whether defendant is arguing that CALCRIM No. 875 is
incomplete and incorrect in light of In re B.M. or the trial court erred in declining to give
a pinpoint instruction given lack of injury was the crux of defendant’s case. In either
event, we do not address the merits of defendant’s instructional error contention or the
parties’ dispute as to whether the Chapman or Watson standard applies because we
conclude that, assuming but not deciding error occurred, such error was harmless under
both the Chapman and Watson standards. (See People v. Wright (1988) 45 Cal.3d 1126,
1144 [instructional error requires reversal only if the court concludes, after an
examination of the entire cause, including the evidence, that the defendant was
prejudiced].)
1
Additional Factual Background
The trial court instructed the jury with CALCRIM No. 875, providing that, to find
defendant guilty of assault with a deadly weapon, the prosecution had to prove the
following elements:
“1. The defendant did an act with a deadly weapon other than a firearm that by its
nature would directly and probably result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that would lead a reasonable
person to realize that his act by its nature would directly and probably result in the
application of force to someone;
“[AND]
“4. When the defendant acted, he had the present ability to apply force with a
deadly weapon other than a firearm to a person;
“5. The defendant did not act in self-defense or in defense of someone else.”
17
The instruction further provided: “The terms of application of force and apply
force mean to touch in a harmful or offensive manner. The slightest touching can be
enough if it is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. [¶] The touching does not have to cause
pain or injury of any kind. [¶] The touching can be done indirectly by causing an object
to touch the other person. [¶] The People are not required to prove that the defendant
actually touched someone. [¶] The People are not required to prove that the defendant
actually intended to use force against someone when he acted. [¶] No one needs to
actually have been injured by defendant’s act. But if someone was injured, you may
consider that fact, along with all the other evidence, in deciding whether the defendant
committed an assault, and if so, what kind of assault it was. [¶] A deadly weapon other
than a firearm is any object or instrument that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury[.] [¶] Great bodily injury means
significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.”
The jury was also instructed: “In deciding whether the People have proved their
case beyond a reasonable doubt, you must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must
find him not guilty.” (Italics added.)
Prior to the court instructing the jury, defense counsel twice requested a pinpoint
jury instruction or modification of CALCRIM No. 875, arguing our Supreme Court
established new law in In re B.M. that the jury could consider lack of injury to decide
whether the object used was capable of producing or likely to produce great bodily
injury. (In re B.M., supra, 6 Cal.5th at p. 528.) Specifically, defendant wanted to modify
the language to state the jury could consider the extent of actual injury or lack of injury,
18
along with all the other evidence, in deciding whether he committed an assault, and if so,
what kind of assault it was. The trial court denied both requests.
In the trial court’s view, In re B.M. did not establish new law or change existing
law such that the instruction needed to be modified. Rather, it read the case to merely
clarify that the fact finder may (not must) consider lack of injury and gave direction “on
the parameters” as to the argument counsel may present in that area. The trial court
explained: “[I]t seems to this Court that the California Supreme Court was re-enforcing
principles long decided and well-vested in the jury instruction and spending some time in
particular areas that were specific to the facts of that case. . . . [¶] So it’s certainly an
area for argument to the jury that you may consider absence of injury, but that’s always
been the law.”
During closing argument, the prosecution addressed the issue of injury, explaining
the crime did not require a touching that caused pain or injury. “[The victim] told you, ‘I
was not hurt. I was not injured.’ But he did suffer pain. We went back and forth on that
a little bit.” The prosecutor further argued: “Given it’s great mass, the human body
simply cannot withstand even a low-speed impact with an automobile. For [the victim],
that means up and over or down and under. When the car hits him, he’s either hopped up
on the hood or rolls off or he has to go under. That’s physics. [¶] These were his
choices. And although [the victim] was not injured, he said he was sore for a week.
These statements by him are not inconsistent.”
Defense counsel countered: “The question was the car driven by -- the car that
was driven by [defendant], was that driven in a manner that would likely to [sic] cause
great bodily injury or death? And I submit to you that it was not. Now, there has to be
no actual injury but what you have to as jurors decide [is] whether in totality of the
circumstances and everything taken together, was the car driven in a way that it could
have -- it had the potential to cause great bodily injury or death? [¶] The law also says
that while there -- we don’t have to have an injury, but if someone was injured, you may
19
consider that fact along with other evidence whether the defendant committed assault.
Ladies and gentlemen, here the car actually did bump [the victim], and there was no
injury. No injury. Then how can this car be driven in a manner to produce great bodily
injury or death, when it actually did hit and cause no injury? And that is really the crux
of this case.” Defense counsel further asserted the testimony reflected the car was driven
at “such a low speed that [the victim] had enough time to punch the hood, punch the
window, and he didn’t even fall to the ground.”
2
Even If The Trial Court Erred, Defendant Suffered No Prejudice
Defendant believes he was prejudiced by the trial court’s refusal to include the
“lack of injury” language in the CALCRIM No. 875 instruction because his “theory of
the case was that [he], who merely ‘nudged’ [the victim] and caused him no injuries,
could not have possibly have [sic] used his car as a ‘deadly weapon.’ ” We disagree.
We evaluate the issue of prejudice arising from an instruction presumed to be
erroneous by reviewing the instructions as a whole, the entire record of trial, and the
arguments of counsel. (People v. Owens (1994) 27 Cal.App.4th 1155, 1159; People v.
Dieguez (2001) 89 Cal.App.4th 266, 276.) Our consideration of the entire cause leads us
to conclude that, had the requested instruction been given, the jury would have
nonetheless reached the same verdict beyond a reasonable doubt.
The jury was instructed to consider all evidence. “Jurors are presumed to
understand and follow the court’s instructions.” (People v. Holt (1997) 15 Cal.4th 619,
662.) That is “ ‘[t]he crucial assumption underlying our constitutional system of trial by
jury.’ ” (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Defendant had the opportunity to and did vehemently argue in closing that the jury
should consider the victim’s lack of injury in deciding whether the car was driven in a
manner likely to produce great bodily injury or death. Indeed, defense counsel argued the
car was driven at a low speed and the victim’s lack of injury proved the car was not used
20
as a deadly weapon. The prosecution did not dispute that the victim suffered no injury, it
only noted that the victim had some pain after the incident.
The lack of injury from the bump, as defendant puts it, was not the only evidence
before the jury. As explained ante, in the substantial evidence analysis, the
circumstances of the crime were not isolated to the initial contact between the car and the
victim. The victim testified defendant hit the victim’s legs with his car and, even after
the victim was jolted back by the impact, defendant continued to accelerate toward the
victim, reaching approximately 15 miles per hour by the time the victim rolled off the
car. The victim was scared and fell on the hood because he was fearful his legs would
get trapped underneath the car. The victim’s coworker similarly believed, based on his
observation of the incident, that the victim likely “flopped onto the hood” because he
“didn’t want his legs getting run over.”
The jury was appropriately instructed that a deadly weapon is an object used in
such a way that it is capable of causing and likely to cause death or great bodily injury,
with great bodily injury being “greater than minor or moderate harm.” The jury was also
appropriately instructed that it was not necessary for the victim to have suffered an injury
to convict defendant of assault with a deadly weapon. The jury clearly credited the
victim’s and his coworker’s testimony in reaching the verdict. The uncontradicted
testimony of these witnesses established beyond a reasonable doubt that, under the
totality of the circumstances, the car, as driven by defendant, was capable of and likely to
cause great bodily injury to the victim’s legs. (See People v. Russell (2005) 129
Cal.App.4th 776, 782 [“The law makes clear a person who operates or drives a vehicle in
an attempt to injure another person has committed assault with a deadly weapon, to wit, a
car”].) A car, weighing several thousand pounds, certainly has a great potential to cause
injury when intentionally propelled, even at a low rate of speed, at a person or object.
21
When we take the instructions, evidence, and closing arguments into account, we
conclude that, even if the trial court erred, defendant suffered no prejudice under either
Watson or Chapman.
B
The Term “Simple Assault” Was Not Confusing, Misleading, Or Argumentative
Defendant asserts the trial court erred by using “the confusing, misleading and
argumentative term ‘simple assault’ in two instances (CALCRIM Nos. 915 and 3517)”
and the error was prejudicial under the Chapman standard. (Chapman v. California,
supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) The error, defendant posits,
“minimize[d] the lesser offense of assault under section 240 and steered the jury towards
the greater offense of assault with a deadly weapon under section 245(a)(1).”
Anticipating the People’s forfeiture argument, defendant asserts the claim is not forfeited
because, even though he failed to object to the instructions at trial, the trial court has a
sua sponte duty to give correct and complete instructions on lesser included offenses. He
further asserts his counsel’s failure to object to the trial court’s modification of
CALCRIM No. 915 did not constitute invited error. If the instructional error claim is
deemed forfeited, however, defendant asserts his trial counsel was ineffective for failing
to object to the instructions.
The People argue the claim is forfeited and, if not forfeited, it has no merit
because defendant reads the single phrase out of context and he cannot establish
prejudice under Watson. (People v. Watson, supra, 46 Cal.2d at p. 836.) If the claim is
forfeited, the People further assert defendant’s trial counsel was not ineffective for failing
to object.
We review the merits of the instructional error claim to determine whether the
instructions were correct statements of the law or affected defendant’s substantial rights.
(People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [failure to request clarifying and
amplifying instructional language does not preclude appellate review to determine
22
whether an instruction was a correct statement of law]; People v. Ramos (2008) 163
Cal.App.4th 1082, 1087 [“we may review any instruction which affects the defendant’s
‘substantial rights,’ with or without a trial objection.”].) We accordingly do not address
the forfeiture and ineffective assistance of counsel arguments.
The problem with defendant’s argument is that, “in determining the correctness of
jury instructions, we consider the instructions as a whole.” (People v. Friend (2009) 47
Cal.4th 1, 49, italics added.) Defendant does not argue that the instructions contained an
incorrect statement of the law. He instead takes issue with the inclusion of the term
“simple assault” in identifying the lesser included offense of assault under section 240.
Indeed, the language complained of in the CALCRIM No. 915 instruction is located in
the title of the instruction -- i.e., “915. Simple Assault (Pen. Code, § 240)” -- and in one
sentence stating, “[s]imple assault is a lesser included offense of assault with a deadly
weapon.” In the CALCRIM No. 3517 instruction, the term is used only once: “Simple
assault is a lesser included crime of assault with a deadly weapon.” We fail to see how
the use of the term “steered the jury towards the greater offense of assault with a deadly
weapon” or rendered “the jury instructions, as a whole, confusing and misleading,” as
defendant asserts.
We find no basis for concluding the language was confusing, misleading, or
argumentative, and defendant provides no credible argument in that regard. That
attorneys have long understood the term to refer to assault under section 240 but “jurors
are generally not familiar with the concept of ‘simple assault’ ” does not assist in the
analysis. Neither does the fact that the term is not used in section 240 and CALCRIM
No. 915. Defendant’s speculation that “a juror who sees the term ‘simple assault’ may be
distracted by the term ‘simple’ and associate assault under section 240 with an
insignificant scuffle, such as minor pushing and shoving” in the absence of a definition is
just that -- speculation. As for defendant’s assertion that the trial court “violated the
recommendation of rule 2.1050(d) of the California Rules of Court because it deviated
23
from the pattern jury instructions without ‘find[ing]’ that the term ‘simple assault’ ‘would
more accurately state the law and be understood by jurors,’ ” we note the rule provides a
recommendation, not a requirement, to use the standard Judicial Council instructions.
And, finally, we do not understand the point defendant tries to convey in arguing the trial
court’s use of the term in two different instructions renders the instructions
argumentative. We simply do not understand defendant’s reasoning and thus find no
merit in it.
In sum, defendant fails to explain how the use of “simple assault” in the few
instances at issue here constituted instructional error. We thus conclude no instructional
error occurred.
IV
There Was No Cumulative Error
Defendant argues the cumulative effect of the errors in this case deprived him of
due process and a fair trial in violation of his federal and state constitutional rights.
“Under the ‘cumulative error’ doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th
694, 772, fn. 32.) Because we have concluded defendant has failed to show any error
occurred, except for the presumed but undecided error regarding the lack of injury
instruction deemed unprejudicial, there was no cumulative error.
V
The Probation Condition Contentions
Defendant raises constitutional challenges to the electronic search and job search
probation conditions. Defendant asserts the electronic search condition is
unconstitutionally overbroad and the job search condition unconstitutionally vague. The
People assert the contentions are forfeited because defendant failed to raise them in the
trial court and, in any event, the contentions have no merit. Defendant counters his
claims are not forfeited because he raises pure questions of law.
24
Challenges to probation conditions ordinarily must be raised in the trial court; if
they are not, appellate review of those conditions will be deemed forfeited both as to
reasonableness and any claim concerning its constitutionality as applied to him or her.
(People v. Welch (1993) 5 Cal.4th 228, 234-235; In re Sheena K. (2007) 40 Cal.4th 875,
882, 889.) However, a defendant who did not object to a probation condition at
sentencing may raise a challenge to that condition on appeal if that claim “amount[s] to a
‘facial challenge’ ” (In re Sheena K., at p. 885) because it presents a “ ‘ “pure question[]
of law that can be resolved without reference to the particular sentencing record
developed in the trial court” ’ ” (id. at p. 889). Such a claim “does not require scrutiny of
individual facts and circumstances but instead requires the review of abstract and
generalized legal concepts -- a task that is well suited to the role of an appellate court.”
(Id. at p. 885.)
A
The Electronic Search Condition Is Not Facially Overbroad
The electronic search condition provides: “The defendant provides specific
consent within the meaning of P. C. § 1546 to any law enforcement agency seeking
information provided by the California Electronic Communication Protection Act. This
includes consent to seize and examine call logs, texts and voicemail messages,
photographs and emails, contained on any device or cloud or internet connected storage
owned, operated, or controlled by the defendant, including but not limited to cell phones,
computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets,
storage media devices, thumb drives, Micro SD cards, external hard drives, or any other
electronic storage devices, by whatever law enforcement agency is seeking the
information. The defendant shall also disclose any and all passwords, passcodes,
password patterns, fingerprints, or other information required to gain access into any of
the aforementioned devices.”
25
Defendant analyzes and relies upon four cases to argue: “Nothing in the record
indicates that any of the three cases here involved [defendant] having unlawful items on
his computer, cell phone, or any recordable media, or using them in committing a crime.
And nothing in the record indicates that [defendant] has any sort of criminal history
related to the same. Thus, there is no nexus between the government’s interests in
[defendant’s] rehabilitation or the protection of the public and [defendant] granting the
government unfettered access to his electronic devices and media by way of this Fourth
Amendment waiver condition.” (Citing and discussing In re Ricardo P. (2019) 7 Cal.5th
1113; People v. Appleton (2016) 245 Cal.App.4th 717; In re J.B. (2015) 242 Cal.App.4th
749; In re Stevens (2004) 119 Cal.App.4th 1228.) The problem is that defendant presents
an as-applied challenge. As explained ante, because defendant did not object to the
condition at sentencing, we consider only whether the search condition permitting
searches of a probationer’s computers, recordable media and/or other electronic devices,
in the abstract, and not as applied to defendant, is not sufficiently narrowly tailored to the
state’s legitimate interest in reformation and rehabilitation of probationers in all possible
applications. (In re Sheena K., supra, 40 Cal.4th at p. 885.) The answer is to that
question is “no.”
Electronic search conditions are not categorically invalid. (In re Ricardo P.,
supra, 7 Cal.5th at p. 1128 [“Our holding does not categorically invalidate electronics
search conditions”].) Thus, although application of this search condition could be
constitutionally overbroad as applied to certain probationers, in other circumstances it
may be entirely appropriate and constitutional. The criminal offense or a defendant’s
personal history may provide a sufficient basis on which to conclude the condition is a
proportional means of deterring future criminality. (Id. at pp. 1128-1129.) In those
cases, the imposition of such probation conditions would be constitutional. Because there
could be circumstances in which such a condition is appropriate, we reject the claim that
the electronic search condition is facially overbroad.
26
B
The Job Search Condition Is Not Facially Vague
The job search condition provides: “Unless participating in a job training
program, working full-time earning income, are incarcerated or in court ordered
residential treatment, you are to perform a job search and submit proof of at least 7 job
searches each week to your probation officer or to the Court as directed.”4
Defendant asserts the phrase “submit proof of at least 7 job searches each week” is
vague because “it is wholly unclear to any person of ordinary intelligence what is even
meant by ‘7 job searches.’ ” “It is well established that a ‘probation condition “must be
sufficiently precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated,” if it is to withstand a
[constitutional] challenge on the ground of vagueness. . . .’ [Citation.] [¶] If the
vagueness of a probation condition may be corrected ‘without reference to the particular
sentencing record developed in the trial court’ [citation], an issue of law arises subject to
de novo review on appeal.” (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.)
That is the case here; the argument is thus not forfeited.
“The underlying concern of the vagueness doctrine is the core due process
requirement of adequate notice.” (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
The vagueness doctrine bars enforcement of a probation condition “ ‘ “which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.” [Citation.]’
[Citation.] A vague law ‘not only fails to provide adequate notice to those who must
observe its strictures, but also “impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the
4 This is probation condition 57; defendant erroneously refers to the probation
condition as 67.
27
attendant dangers of arbitrary and discriminatory application.” ’ ” (In re Sheena
K., supra, 40 Cal.4th at p. 890.) For a probation condition “to withstand a challenge on
the ground of vagueness,” it “ ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated.’ ” (Ibid.)
Defendant attempts to illustrate his point by rattling off various questions as to
whether a probationer must apply to seven different jobs, or contact seven different
potential employers, or must submit printouts from a common job search website, or may
use identical search parameters, or complies with the condition by receiving automatic
daily email updates. First, we note the condition does not require a probationer to apply
for a specific number of jobs or to submit proof that he or she did so. Second, the
condition does not address search parameters or impose any requirements in that regard.
Third, a reasonable common sense reading of the whole (instead of partial) condition
requires a probationer to perform searches (i.e., take an action to try and find something
by looking) for a job every week and to submit proof he or she did so seven times each
week. The requirement is sufficiently precise for a probationer to know what is required
of him or her and for a court to determine whether the condition has been willfully
violated. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 [a probation
condition must be reasonably specific]; People v. Hall (2017) 2 Cal.5th 494, 501
[California case law establishes “a general presumption that a violation of a probation
condition must be willful”].)
As a practical matter, a job search may be done in several different ways and thus
it seems reasonable not to impose specific requirements as to how it should be done.
That the condition does not specify precisely how a job search should be conducted does
not render the condition vague. Due process does not require that a probationer receive
detailed or precise direction as to each condition -- it guards against him or her being held
liable for noncompliance with an unclear probation condition. We conclude the job
28
search condition is sufficiently clear to avoid such a due process violation and is thus not
unconstitutionally vague.
VI
The One-Year Prior Prison Term Enhancement Must Be Stricken
Defendant asserts Senate Bill 136 applies retroactively to him and requires us to
strike the one-year prior prison term enhancement imposed under prior section 667.5,
subdivision (b). The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667, subdivision (b) to
limit application of prior prison term enhancements to only prior prison terms that were
served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) That amendment applies
retroactively to all cases not yet final on Senate Bill 136’s effective date. (People v.
Lopez (2019) 42 Cal.App.5th 337, 341, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed the one-year section 667.5, subdivision (b) prior
prison term enhancement for a felony that was not a sexually violent offense as defined
in Welfare and Institutions Code section 6600, subdivision (b). Defendant’s case is not
yet final. Therefore, as the parties agree, and we concur, defendant is entitled to the
benefit of Senate Bill 136’s amendment to section 667.5, subdivision (b) and the prior
prison term enhancement must be stricken.
VII
Assembly Bill 1950
In supplemental briefing, defendant asserts we should remand for the trial court to
reduce defendant’s probation term to two years in accordance with Assembly Bill 1950,
which modified section 1203.1, effective January 1, 2021. (Stats. 2020, ch. 328, § 2.)
Defendant asserts the statute applies retroactively to him. The People agree, as do we.
This court recently concluded Assembly Bill 1950 applies retroactively under In
re Estrada. (People v. Lord (2021) 64 Cal.App.5th 241, 244-245.) Other California
29
appellate districts have concluded the same. (See also People v. Stewart (2021) 62
Cal.App.5th 1065; People v. Sims (2021) 59 Cal.App.5th 943.) Because defendant’s case
is not yet final, defendant is entitled to resentencing to reduce his term of probation.
DISPOSITION
The judgment is affirmed as to defendant’s conviction. The sentence is reversed,
and the matter remanded for resentencing consistent with the amendment to
section 1203.1 and to strike the one-year prior prison term enhancement.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Renner, J.
30