The opinion of the court was delivered by: Raye , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Felipe Jose Ramirez was convicted on one count of assault with a deadly weapon. Finding true the allegations that defendant was previously convicted of a serious felony and served two prior prison terms, the trial court sentenced defendant to an aggregate term of 15 years in state prison. Defendant appeals his conviction claiming the trial court erred in failing to instruct the jury on the lesser included offense of assault. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
On February 14, 2009, Nathaniel Bradford drove his sister, Lalita Rayford, and her husband, Joverly (Joe) Rayford, to Chico to celebrate Valentine's Day. During their trip, the Rayfords bought a bottle of E&J Brandy and drank from it; Nathaniel abstained.
Once they arrived in Chico, Nathaniel stopped the car at a gas station so that Joe could use the restroom. Joe would later describe himself as having a "decent buzz," when they arrived at the gas station, but Lalita described him as intoxicated and herself as feeling "okay." Defendant and his girlfriend Kathy Bradford stopped at the same gas station. Defendant and Kathy knew Joe, Lalita and Nathaniel because Joe and Kathy dated years before. So, when Joe got out of the car to use the restroom, defendant walked up to Nathaniel's car and asked for the bottle of brandy. Lalita handed defendant the bottle through the open car window.
Once he had the bottle, defendant said some angry words to Joe. Joe moved toward defendant, who was standing by the back passenger door of Nathaniel's car, and asked defendant "what's up?" According to Lalita, defendant then lifted the bottle by its neck and struck Joe over the head with it. As Joe was falling to the ground, Lalita saw defendant hit him with the bottle a second time. Nathaniel intervened, knocking the bottle out of defendant's hand as he raised it to hit Joe a third time and sending the bottle crashing to the ground. Defendant fled the scene.
Also at the gas station were Danielle and Thomas Grace, who had stopped at the gas station to get gas. The Graces did not know defendant, the Rayfords, or Nathaniel, nor had they been drinking that day. At trial, their testimony portrayed a slightly different version of events: While she was pumping gas into her car, Danielle heard people arguing. She could see defendant and Joe arguing on the other side of the gas pumps. She remembered Joe was sitting in the passenger seat of a black car and defendant was standing outside the car.
During their argument, Danielle saw Joe stumble out of the car, she noted that Joe had trouble gaining his footing and she believed both men were heavily intoxicated. Once Joe stood up, Danielle saw defendant strike Joe "[s]omewhere above the shoulders" with his fist. Joe dropped to the ground but got back up; when he did, Danielle noticed the brandy bottle in defendant's hand. The two men moved away from the black car and Danielle saw defendant hit Joe a second time with his fist, knocking Joe to the ground again.
As Joe was on the ground, Danielle saw defendant break the brandy bottle over Joe's head. Defendant then began to punch and kick Joe in the torso. Danielle saw a third person intervene and pull defendant off of Joe. Defendant then walked away from the gas station toward a residential area.
Thomas Grace, who had gone to the restroom, returned to his car to see defendant and Joe in a "heated argument." Thomas saw Joe step out of the car when defendant hit Joe with his fist, knocking him to the ground. Joe got back up and defendant hit him with his fist a second time, knocking Joe back to the ground.
Thomas saw defendant was holding a "pretty good size bottle" of alcohol, approximately 12 to 15 inches in height. As Joe attempted to get off the ground, defendant drew back the bottle and hit Joe over the head with it. Defendant hit Joe with such force, the bottle broke on Joe's head. Thomas then saw defendant kicking and punching Joe as Joe was on the ground until someone finally intervened.
Once the assault was ended by a third party, Thomas came to Joe's aid. Joe had been cut near his eye and Thomas tried to stop the bleeding. Thomas quickly realized defendant was getting away, so he left Joe to catch up with defendant. Thomas found defendant knocking on the front door of someone's ...