IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FELIPE JOSE RAMIREZ, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Raye , Acting P.J.
P. v. Ramirez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 house. He stopped defendant there until the police arrived and arrested defendant.
Firefighter Kenneth Campbell of the Chico City Fire Department responded to the scene at the gas station and saw glass spread around about 20 to 30 feet from the gas pumps. Campbell also found Joe with a cut over his left eye. Joe said he had been hit over the head with a bottle. Campbell helped to treat Joe, then cleaned the blood spatter and glass from the ground, throwing the broken glass into a trash can.
Chico City Police Officer Peter Durfee arrived at the scene after Campbell. Officer Durfee retrieved the broken glass from the trash can and confirmed that it had been a bottle of brandy before it was broken. Officer Durfee also spoke with Joe at the hospital. He noted that Joe had a cut approximately two to three inches long next to his left eye. He also observed that Joe was slurring his words, repeating himself, glassy-eyed, and loud. In Officer Durfee's opinion, Joe was still drunk. Officer Durfee showed Joe a photographic line up and Joe picked defendant as the person who assaulted him.
Defendant testified at trial and provided his own version of events at the gas station on February 14, 2009. He said that he had been friends with Joe and Lalita for years and knew Nathaniel and his family. He testified that Nathaniel was Kathy's "estranged husband," but said he and Kathy had been dating for over two years. In fact, on that night, defendant was driving Kathy to Paradise to propose to her.
During their trip to Paradise, defendant and Kathy stopped at a gas station where defendant said they first saw Nathaniel and the Rayfords. According to defendant, the two groups then agreed to meet at a dead end street near the Holiday Inn where, with the exception of Nathaniel, they all shared several drinks from the bottle of brandy. Defendant described the meeting as emotional, but said it ended well -- their issues had been "ironed out."
By happenstance, the two groups met up again at a second gas station, where defendant stopped so Kathy could use the restroom. Kathy got out of the car to use the restroom and defendant approached Nathaniel's car to get another drink of brandy. Lalita gave defendant the bottle. According to defendant, as he drank from the bottle, Joe began to argue with him. Defendant said he was trying to give the bottle back to Lalita when Joe jumped out of the car and hit him in the ear. Defendant remembered stumbling backward, with the bottle still in his hand when Joe struck him twice more in the eyes. Defendant then testified, "I would imagine I grabbed the bottle and struck back in defense. . . . [¶] . . . [¶] I'm not even sure I actually hit him with the bottle. . . ."
Defendant did not remember the bottle breaking, but "guess[ed]" it "must have slipped out of [his] hands" at some point. He did remember Joe falling to the ground and Nathaniel intervening. At that point, defendant believed he was in danger, so he left the gas station.
At trial, defendant was asked upon whose door he was knocking when Thomas Grace found him. Defendant initially said it was "just somebody that I know." Upon further questioning, however, defendant admitted he did not know the person who lived in that house.
After defendant's arrest, Chico City Police Officer Billy Aldridge transported defendant to the police station. During the ride, defendant asked Officer Aldridge if he could help defendant out if defendant gave him "some information." When Officer Aldridge said he could not, defendant replied: "Well, then fuck it. The nigger got what he deserved from me." Officer Aldridge also noted that defendant was drunk and vomited several times during their ride to the police station.
Once at the police station, defendant told Officer Durfee he had been at his aunt's house drinking beer that day. He said the next thing he remembered, he was being arrested. Officer Durfee again asked defendant what happened and defendant said, "three" "niggers got in his face." Defendant then asked Officer Durfee, "What would you do if three niggers got in your face?" During the interview with Officer Durfee, defendant continued to vomit.
In closing argument, defendant argued he acted in self-defense that night.
Defendant appeals his conviction.
A trial court has a duty to instruct the jury on any offense "'necessarily included'" in the charged offense if substantial evidence lends support for the lesser crime's commission. (People v. Birks (1998) 19 Cal.4th 108, 112.) As the California Supreme Court has explained, "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Id. at p. 117.) "This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." (Id. at p. 112.)
Even in the absence of a request for an instruction on the lesser included offense, the trial court must give the instruction if a reasonable jury might find the evidence of the lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) However, "the court 'has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.'" (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
In assessing a claim of failure to instruct on a lesser included offense, "we review independently the question whether the trial court failed to instruct on a lesser included offense." (People v. Cole, supra, 33 Cal.4th at p. 1215.)
Defendant contends there was substantial evidence to support a conviction for simple assault. In support of his contention, defendant relies on his own testimony wherein he stated he was not sure he hit Joe with the bottle when he swung at him. Defendant also argues that, according to the Graces' testimony, the injuries suffered by Joe may have actually been caused by defendant's fist, not the bottle. Defendant's claim has no merit.
All of the witnesses who testified at trial regarding the assault said defendant hit Joe with the bottle at least once. Even defendant's testimony was equivocal on the issue, saying he may have hit Joe with the bottle, though if he did, it was in self-defense. Indeed, the only defense presented at trial was that defendant hit Joe in self-defense. No argument was made and no evidence admitted to support a claim that defendant did not hit Joe with the bottle. We therefore find no error.
Defendant also argues he received ineffective assistance of counsel at trial because counsel failed to ask for an instruction on simple assault. "A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696, [80 L.Ed.2d 674, 693-699].)
As discussed above, the evidence admitted at trial did not support a conviction for simple assault. Accordingly, it is not ineffective assistance of counsel to fail to request an instruction on simple assault.
The judgment is affirmed.