(Super. Ct. No. 10F05523)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Robert Sengphinith guilty of assaulting his mother with a deadly weapon -- a meat cleaver (count 2; Pen. Code,*fn1 § 245, subd. (a)(1)). The jury found defendant not guilty of first degree robbery (count 1; § 211) and making criminal threats (count 3; § 422). In a bifurcated proceeding, the trial court found true an allegation defendant had a prior serious felony conviction within the meaning of section 667, subdivision (a), that also qualified as strike under section 667, subdivisions (b)-(i), and section 1170.12. Defendant was sentenced to an aggregate term of 11 years in state prison, consisting of the middle term of 3 years, doubled for the prior strike, plus 5 years pursuant to section 667, subdivision (a).
Defendant appeals, contending there is insufficient evidence to support his assault conviction, and the trial court prejudicially erred in failing to instruct the jury on brandishing a deadly weapon as a lesser included offense of "robbery and [making] criminal threats with the use of a deadly weapon." Finding no error, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND*fn2
Defendant often slept in his car outside his parents' apartment. On the morning in question, he entered the apartment to get something to eat. His mother did not want him in the apartment; she was afraid of him. When she asked him to leave, he told her he would do so if she returned the $140 he previously had given her to help with rent and other expenses. When he first requested the money, he did not have anything in his hands. Later, however, he emerged from the kitchen with a meat cleaver, grabbed his mother, forced her down on the couch, and threatened to kill her. He swung the cleaver at her about three times "just to scare" her.*fn3 She gave him all the money she had -- $100 -- because she was afraid that he was going to strike her with the cleaver. Once she gave him the money, he left, and she called the police.
Sacramento police received a call from defendant's mother "indicat[ing] that her son was threatening to kill her." Defendant's mother told police that defendant had repeatedly threatened to kill her that day.
Police were unable to locate defendant until the following day. They found him asleep in his car, which was parked outside his parents' apartment. Defendant is bigger and appeared stronger than his mother.
I Sufficient Evidence Supports Defendant's Conviction for Assault with a Deadly Weapon
Defendant claims there is no substantial evidence to support his assault with a deadly weapon conviction because "no reasonable juror could conclude that [he] did an act that would directly and probably result in the ...