People v. Carpenter

1

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW STEVEN CARPENTER, Defendant and Appellant.

C098621

California Court of Appeals, Third District, Sacramento

August 2, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 20FE016415)

DUARTE, J.

A jury found defendant Mathew Steven Carpenter guilty of assault with force likely to produce great bodily injury. On appeal defendant contends the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of simple assault. He contends, in the alternative, defense counsel provided ineffective assistance by failing to object to the trial court's failure to give the instruction. Disagreeing, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with one count of assault by means likely to cause great bodily injury (Pen. Code, § 245)^[1] and robbery (§ 211). As to the assault charge, the information alleged a great bodily injury enhancement. (§ 12022.7, subd. (a).) The information further alleged five aggravating circumstances.

The Prosecution Case

The victim, R.S.,^[2] saw defendant dumping concrete from a trailer connected to a pickup truck into an open field area. R.S. pulled her car over directly in front of defendant's truck and began filming him. She intended to get his license plate number and report him for illegal dumping. R.S. noticed defendant did not have a front license plate, so she moved her car to the side of the road and waited for defendant to leave the area so she could get his license information from the rear plate. Defendant and R.S. made eye contact and defendant continued dumping concrete. When defendant finished, he "flipped off" R.S. before getting in his truck and leaving. R.S. followed defendant in her car writing down defendant's license plate information.

After traveling a "[c]ouple hundred yards" defendant blocked the road with his truck and trailer so that R.S could not pass. Defendant then "got out of his truck grabbed a trailer hitch," and asked R.S., "Do you want to fuck with me?" He approached the driver's side of R.S.'s car and again asked, "[d]o you want to fuck with me?" R.S. replied, "no," and explained she was going to report him for illegal dumping.

Defendant walked around R.S.'s car and temporarily disappeared into a ditch before he "popped up" on the passenger side, reached into the car, unlocked the door, got into the car, and attempted to take R.S.'s car keys and phone. While attempting to take the keys from the ignition, defendant grabbed R.S.'s right arm and twisted, which caused her skin to tear. Defendant took the keys out of the ignition, took R.S.'s phone, left the car, and threw the phone inside his trailer.

R.S. got out of her car and jumped into the trailer to get her keys and phone back. Defendant followed R.S. into the trailer and moved toward R.S. "like a bulldog." R.S. backed away from defendant and lay down on her back to use her feet defensively because she was afraid defendant was going to hurt her. Defendant grabbed R.S. by the clothes, raised her to his chest or face level, and threw R.S. out of the trailer with "a move that a wrestler would make." The trailer walls were approximately two feet high. The distance from the top of the trailer walls, from where defendant threw R.S., to the ditch where she landed was approximately six to eight feet. At the time, defendant weighed 230 pounds and was six feet tall, R.S. weighed approximately 150 pounds and was five feet one inch tall.

Two witnesses, B.P. and A.H., saw R.S. and defendant in the trailer. They both saw defendant grab R.S. and throw her like a wrestler, body slamming an opponent. R.S. suffered a collapsed lung as well as cuts on her left arm and face from the fall into the ditch. She was hospitalized for three days and required the insertion of a chest tube to inflate her collapsed lung, which left scarring on her chest.

Defendant's Case

After taking R.S.'s car keys and telephone, defendant threw the car keys on the ground near R.S.'s car, told R.S. to "[s]top following [him]," and walked back to his truck. As defendant began to drive away, he noticed R.S. in the back of the trailer and stopped his truck. Defendant got out and asked R.S., "What are you doing?" She replied, "[Y]ou took my keys." He denied taking her keys.

Defendant climbed onto the tongue of the trailer and told R.S. several times he did not have her phone or keys and told her, "Get out of my trailer, Karen." Defendant testified R.S. threw a chunk of concrete at him, then picked up a trailer hitch, and hit him in the arm.^[3] After being hit, defendant turned away. He heard a thud but was not sure if R.S. fell or jumped out of the trailer.

Defendant then got back into his truck and left the scene. At trial, defendant testified he "never made any physical contact with [R.S.]," when asked by the prosecutor if he "ever hit or otherwise assault[ed]" R.S. Defendant specifically confirmed he did not touch R.S. when she fell out of the trailer and that any witness who testified they saw him throw R.S. out of the trailer was wrong. Although defendant initially denied taking R.S.'s phone, he subsequently testified he found it in the trailer later that day. Defendant took the cell phone from the trailer, got back into his truck, and threw it out of his truck while driving.

Jury Instructions

Near the end of the prosecution's case, the trial court discussed jury instructions with the parties. Initially, the proposed jury instructions contained an instruction on simple assault. The trial court indicated it did not think it had a duty to instruct the jury on the lesser included offense of simple assault, based on the facts of the case, and the prosecution agreed. Defense counsel responded: "I don't believe his testimony is going to encompass removing her [from the trailer]. I think he is going to [say] . . . that she tripped or somehow fell out of the trailer when she was hitting him." The prosecutor confirmed to the trial court it was arguing "the toss over the rail" of the trailer constituted the assault with force likely to cause great bodily injury and specifically stated, "I am not arguing any sort of assault for what happened in the car."

The trial court responded: "In my judgment, if . . . that's all that you're asserting, then there is not a [section] 240 lesser, because if he throws her from . . . the trailer as she said, that strikes me as res ipsa [section] 245. It just is. How do you get from that to a simple [section 240]? I don't know, but I am open to being persuaded if [counsel] feel[s] otherwise." Over the weekend, the trial court sent both counsel the following e-mail: "I do not think a simple assault lesser is warranted on the present record. Please weigh in if you have a different view." Neither counsel responded to the jury instruction issue raised in the trial court's e-mail.

After both parties rested, the trial court again raised the issue of whether the parties wanted to include a jury instruction on the lesser included offense of simple assault, stating, "based on [defendant's] testimony, as well as the remainder of the record, I don't think there is a basis for a lesser as to the [assault with force likely to cause great bodily injury] count." The trial court again confirmed the prosecution only argued an assault occurred in the trailer, not in the car, and declined to give the jury instruction. Neither party objected. The jury was only instructed on the charged offense of assault with force likely to cause great bodily injury. (CALCRIM No. 875.)

Verdict and Sentence

The jury found defendant guilty of assault by means likely to cause great bodily injury and found to be true the allegation defendant inflicted great bodily injury. The jury also found one circumstance in aggravation to be true. The trial court sentenced defendant to the upper term of four years plus three years for the great bodily injury enhancement.

Defendant appealed. DISCUSSION

Defendant claims the trial court erred because it had a duty to sua sponte instruct the jury on simple assault (§ 240) as it is a lesser included offense of assault by means likely to produce great bodily harm (§ 245).^[4] Defendant denies he assaulted R.S. but concedes the assault at issue "involved a single act of [defendant] throwing [R.S.]" out of the trailer. He specifically argues "the amount of force used was not an amount of force likely to cause great bodily harm."^[5] The People argue the trial court did not have a duty to instruct the jury on simple assault because the evidence does not support a conviction for simple assault. We agree with the People.

We review a claim of instructional error de novo, considering the evidence in the light most favorable to the defendant. (People v. Campbell (2020) 51 Cal.App.5th 463, 501.) Simple assault is a lesser included offense of assault by means likely to produce great bodily injury. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)

It is the trial court's duty to instruct the jury on both the charged crime and lesser included offenses, regardless of whether a defendant so requests, when "substantial evidence rais[es] a question as to whether all of the elements of the charged offense are present." (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Halvorsen (2007) 42 Cal.4th 379 414.)"' "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense ...." [Citation.] Rather, substantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense. [Citation.] '" 'Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence...