Error and/or relief
The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.
First Holding:
We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.
Authority:
People v. Lueth (2012) 206 Cal.App.4th 189, 195
Second Holding:
In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.
Authority:
People v. Russo (2001) 25 Cal.4th 1124, 1132
People v. Melhado (1998) 60 Cal.App.4th 1529, 1534
People v. Riel (2000) 22 Cal.4th 1153, 1199
Third Holding:
If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.
Authority:
People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455
Fourth Holding:
The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.
Authority:
People v. Avila (2009) 46 Cal.4th 680, 705
Fifth Holding:
We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.
Authority:
People v. Lewis (2001) 25 Cal.4th 610, 645
People v. McDaniel (2008) 159 Cal.App.4th 736, 747
Sixth Holding:
Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.
Authority:
People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029
People v. Montes (1999) 74 Cal.App.4th 1050, 1054
People v. Aledamat (2019) 8 Cal.5th 1, 6
Seventh Holding:
Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.
Authority:
People v. Edwards (1985) 39 Cal.3d 107, 118
Eighth Holding:
Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.
Authority:
People v. Pena (2025) 113 Cal.App.5th 640, 645
Ninth Holding:
Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.
Authority:
PEN 136.2
People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466
People v. Walts (2025) 112 Cal.App.5th 127, 140–144
Tenth Holding:
The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.
Authority:
GOV 70373(a)