People v. Fugit ( 2023 )

Filed 2/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A163497
v.
JASON KALUNA FUGIT, (Lake County
Super. Ct. No.
Defendant and Appellant.
CR958308)
Jason Kaluna Fugit appeals from a judgment of conviction and
sentence imposed after a jury found him guilty of multiple offenses. He
contends the court erred by instructing the jury that assault by any means of
force likely to produce great bodily injury—“force-likely assault” (Pen. Code,
§ 245, subd. (a)(4))—was a lesser included offense of assault with a deadly
weapon (§ 245, subd. (a)(1)).1 He also contends the case must be remanded
for resentencing in light of amendments to section 1170, former subdivision
(b), and section 654.
We will remand the matter for the trial court to exercise its discretion
under section 654 in selecting the principal term for sentencing purposes. In
all other respects, the judgment will be affirmed. Because the accusatory
pleading alleged that Fugit used a non-inherently deadly “ceramic mug” to
perpetrate his aggravated assault, he had notice the prosecution would try to
prove that the mug was used with force in a manner likely to cause great
1 Unless otherwise indicated, statutory references are to the Penal Code.
1
bodily injury, which would support a conviction for force-likely assault. We
conclude that Fugit has not established a due process violation that would
compel reversal under the facts of this case and thus do not reach the issue of
whether force-likely assault is a lesser included offense under the accusatory
pleading doctrine.
I. FACTS AND PROCEDURAL HISTORY
In August 2020, the Lake County District Attorney filed an information
charging Fugit in five counts: assault with a deadly weapon, “to wit, a
ceramic mug” (§ 245, subd. (a)(1)—count 1); throwing an object at a vehicle
with intent to cause great bodily injury (Veh. Code, § 23110, subd. (b)—count
2); vandalism (§ 594, subd. (a)—count 3); resisting an executive officer
(§ 69—count 4); and resisting, obstructing, or delaying a peace officer (§ 148,
subd. (a)(1)—count 5). Counts 1 through 4 were charged as felonies, and
count 5 was charged as a misdemeanor. The matter proceeded to a jury trial.
A. Evidence at Trial
On July 18, 2020, Jason Parry was driving on Lakeshore Boulevard in
Lakeport. Out of the corner of his eye, he saw a heavy-set male (identified at
trial as Fugit) hurl a coffee mug at his vehicle. The mug shattered the
vehicle’s window and sent glass fragments flying into the passenger
compartment.
Two other motorists, Jason Holm and Ethan Maize, were traveling
behind Parry when the incident occurred. Maize, who was directly behind
Parry, saw Fugit throw a “boulder” or “rock” at Parry’s vehicle, breaking the
passenger window and dislocating the side mirror. Holm, who was driving
directly behind Maize, also saw Fugit throw an object at Parry’s vehicle.
Parry pulled over to the side of the road. Maize swerved to avoid
colliding with Parry’s vehicle and pulled to the shoulder to call 911. Holm
2
drove past Parry and Maize, parked at his nearby residence, and returned to
the scene on foot.
Parry noticed that, in addition to the damage to his vehicle’s passenger
window and side mirror, there was liquid on the passenger door. In a search
for the object Fugit threw, Parry found a ceramic mug across the road, broken
into pieces.
Lake County Sheriff’s Office Deputies James Rhine and Matthew
McCabe each responded to the scene in uniform and in a marked patrol
vehicle. After speaking with Parry, Holm, and Fugit (who had remained at
the scene), Rhine informed Fugit he was under arrest. When Rhine reached
for Fugit’s hand to secure him in handcuffs, Fugit turned away, locked his
hands together, and refused to comply with commands. McCabe attempted
to assist in the arrest by grabbing one of Fugit’s arms, to no avail.
Due to, among other things, the size difference between Deputy Rhine
(five feet seven inches tall and 190 pounds) and Fugit (six feet one inch tall
and 315 pounds) and their precarious location on a narrow shoulder next to
the roadway, Rhine had concerns for his safety. Rhine warned Fugit that he
would be tased if he continued to resist, but Fugit was undeterred. Rhine
deployed his taser, incapacitating Fugit and allowing Rhine and McCabe to
complete the arrest.
B. Jury Instruction at Issue
As to count 1, the court instructed the jury on the charged count of
assault with a deadly weapon (§ 245, subd. (a)(1)), the lesser included offense
of simple assault (§ 240), and, as another lesser included offense and over
defense counsel’s objection, force-likely assault (§ 245, subd. (a)(4)).
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C. Verdict and Motion to Vacate Conviction
In October 2020, the jury acquitted Fugit of assault with a deadly
weapon but convicted him of force-likely assault (§ 245, subd. (a)(4)). The
jury acquitted Fugit of throwing an object at a vehicle with intent to cause
great bodily injury but convicted him of the lesser included offense of
misdemeanor throwing an object at a vehicle (Veh. Code, § 23110, subd. (a)).
The jury also convicted Fugit on the other charged counts.
On November 6, 2020, defense counsel filed a statement in mitigation,
asking the court to reduce the force-likely assault to a misdemeanor. Counsel
argued it was unclear whether force-likely assault was a lesser included
offense of assault with a deadly weapon, noting that CALCRIM No. 875
indicated only simple assault to be a lesser included offense. Counsel stated
there was “either a specific on-the-record objection to instructing on PC
245(a)(4), or at the very least there were objections made in chambers
discussions, and if not objected to on the record, this was clearly ineffective
assistance of counsel.”
At the next hearing, the court stated: “[W]hen I read your statement in
mitigation, I became immediately concerned that I perhaps had not analyzed
and evaluated the jury instruction appropriately. And for what it’s worth,
that caused me to revisit that issue. [¶] The issue being whether or not
assault with force likely . . . is a lesser included offense than assault with a
deadly weapon.” Defense counsel recalled that he had offered concerns about
the instruction but was unsure whether he did so on the record. The
prosecutor stated, “my memory is we didn’t discuss it on the record.” Defense
counsel then suggested that the failure to raise the argument on the record
might give rise to an ineffective-assistance claim, and asked the court to
appoint different counsel to file a new trial motion concerning the jury
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instruction on section 245, subdivision (a)(4). The court appointed attorney
Lorraine Purviance to explore a new trial motion on the issue.
Purviance filed a “motion to vacate conviction for PC 245(a)(4)” on
February 26, 2021. In March 2020, after a hearing, the court denied the
motion. The court acknowledged that the instruction had been given over
counsel’s objection.
D. Initial Sentencing
In August 2021, the court sentenced Fugit to an aggregate term of four
years eight months in state prison, comprised of the upper term of four years
for the force-likely assault conviction (designated the principal term) and
eight months (one-third the midterm) on the conviction for resisting an
executive officer. The court imposed the upper term of three years on the
vandalism conviction, which it stayed pursuant to section 654, and imposed
concurrent 180-day sentences on the remaining two convictions (counts 2 &
5).
E. Appeal and Limited Remand for Resentencing
Fugit appealed. In February 2022, we granted Fugit a limited stay and
remand to seek relief in the trial court based on recent amendments to
section 1170, subdivision (b), under Senate Bill 567.
In March 2022, the trial court reduced Fugit’s sentence on the force-
likely assault from the upper term of four years to the midterm of three
years, resulting in a revised aggregate term of three years eight months in
state prison. The court also reduced the sentence on the vandalism
conviction from the upper term of three years to the midterm of two years,
which remained stayed pursuant to section 654.
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II. DISCUSSION
A. Instruction on Force-Likely Assault as Lesser Included Offense
A jury “may find the defendant guilty of any offense, the commission of
which is necessarily included in that with which he is charged . . . .” (§ 1159.)
As a matter of state constitutional law, courts must instruct on all lesser
offenses necessarily included within the filed charges if there is substantial
evidence of the lesser offense, whether or not the parties request or oppose
the instruction. (People v. Rundle (2008) 43 Cal.4th 76, 142, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) The primary
aim is to give the jury the opportunity to render a verdict no harsher or more
lenient than the evidence merits, thus facilitating the jury’s
“truth-ascertainment function.” (People v. Barton (1995) 12 Cal.4th 186, 196;
People v. Breverman (1998) 19 Cal.4th 142, 155.) “ ‘These policies reflect
concern [not only] for the rights of persons accused of crimes [but also] for the
overall administration of justice.’ ” (Breverman, supra, 19 Cal.4th at p. 155.)
Whether a defendant charged with one crime may be convicted of a
lesser uncharged crime depends, therefore, on whether the uncharged crime
is necessarily included in the charged crime. (People v. Reed (2006) 38
Cal.4th 1224, 1227 (Reed).) Here, Fugit contends that force-likely assault is
not a lesser included offense of assault with a deadly weapon, so the court’s
instruction on force-likely assault violated due process and his conviction for
that offense must be reversed.2
2 Although no objection to the jury instruction appears in the appellate
record, the record does contain ample indication that defense counsel had
objected in statements not captured by the court reporter. Respondent agrees
that Fugit did not waive or forfeit his challenge.
6
In determining whether an uncharged offense is necessarily included in
a charged offense, our Supreme Court has applied two tests: the elements
test and the accusatory pleading test. (Reed, supra, 38 Cal.4th at p. 1227.)
1. Elements Test
“ ‘Under the elements test, a court determines whether, as a matter of
law, the statutory definition of the greater offense necessarily includes the
lesser offense.’ [Citation.] This test is satisfied if ‘ “all legal elements of the
lesser offense are also elements of the greater.” ’ ” (People v. Alvarez (2019)
32 Cal.App.5th 781, 786; see Reed, supra, 38 Cal.4th at p. 1227.) If a court
can identify even one circumstance in which a person could violate one
provision without also violating the other, the latter provision is not a
necessarily included offense of the former. (Reed, supra, 38 Cal.4th at
p. 1227.)
Fugit and respondent agree, as do we, that the elements test is not met
here. (In re L.J. (2021) 72 Cal.App.5th 37, 50.) As one of its elements,
assault with a deadly weapon may be perpetrated by (1) using an inherently
deadly weapon (i.e., one that is deadly or dangerous in its ordinary use, such
as a dirk or a dagger), or by (2) using a non-inherently deadly weapon such
that it is capable of and likely to cause death or great bodily injury.
(CALCRIM No. 875.) Force-likely assault, by contrast, always requires that
the defendant did an act that by its nature would directly and probably result
in the application of force to a person and the force used was likely to produce
great bodily injury. (CALCRIM No. 875.) Because this element of force-likely
assault does not have to be proved for assault with a deadly weapon if the
weapon is inherently deadly, there is a circumstance in which a defendant
could perpetrate assault with a deadly weapon without perpetrating force-
7
likely assault; force-likely assault is therefore not a lesser included offense
under the elements test.3
2. Accusatory Pleading Test
The accusatory pleading test looks to the facts alleged in the
information. “ ‘[I]f the facts actually alleged in the accusatory pleading
include all of the elements of the lesser offense, the latter is necessarily
included in the former.’ ” (People v. Munoz (2019) 31 Cal.App.5th 143, 153;
see Reed, supra, 38 Cal.4th at pp. 1227–1228.)
The purpose of the accusatory pleading test is to “ensure that
defendants receive notice before they can be convicted of an uncharged
crime.” (Reed, supra, 38 Cal.4th at p. 1229.) “ ‘As to a lesser included
offense, the required notice is given when the specific language of the
accusatory pleading adequately warns the defendant that the People will
seek to prove the elements of the lesser offense.’ ” (Ibid.)
As relevant here, the information alleged that Fugit committed assault
with a deadly weapon under section 245, subdivision (a)(1) in that he “did
willfully and unlawfully commit an assault upon JASON PARRY with a
deadly weapon, to wit, a ceramic mug.” (Italics added.) The question is
whether these alleged facts included all the elements of the purported lesser
3 In their appellate briefs, the parties discussed a court of appeal decision
then on review by our Supreme Court, which was later reversed in People v.
Aguayo (2022) 13 Cal.5th 974 (Aguayo). Aguayo held that force-likely assault
and assault with a deadly weapon are “ ‘different statements of the same
offense’ ” for purposes of section 954 (forbidding multiple convictions for one
offense), so a defendant cannot be convicted of both types of aggravated
assault based on the same act or course of conduct. (Id. at p. 996.) Aguayo
does not decide the question at issue here—whether an uncharged crime of
force-likely assault is a lesser included offense of the charged crime of assault
with a deadly weapon. (Id. at p. 993, fn. 7.)
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offense of force-likely assault. (See People v. Pack (Feb. 7, 2023, A161564)
2023 Cal.App. LEXIS 88 at *9 (Pack) [under the accusatory pleading test, a
lesser offense is included within a greater if the charging allegations include
language describing the offense in such a way that if committed as specified
the lesser offense is necessarily committed].)
CALCRIM No. 875 sets forth the elements of both assault with a deadly
weapon and force-likely assault. As mentioned, the crimes differ as to one
element. Force-likely assault requires proof that the “defendant did an act
that by its nature would directly and probably result in the application of
force to a person” and the force was “likely to produce great bodily injury.”
(CALCRIM No. 875, italics added.) Assault with a deadly weapon requires
proof that the “defendant did an act with [a deadly weapon other than a
firearm] that by its nature would directly and probably result in the
application of force to a person.” (CALCRIM No. 875, italics added; see
Aguayo, supra, 13 Cal.5th at pp. 984–985 & fn. 4.)
However, as a matter of law, the “deadly weapon” element is satisfied
by proof of “any object, instrument, or weapon []that is inherently deadly or
one[]that is used in such a way that it is capable of causing and likely to
cause death or great bodily injury.” (CALCRIM No. 875, italics added.) Here,
the weapon alleged in the accusatory pleading – a “ceramic mug” – is not an
inherently deadly weapon because its ordinary use is not to inflict harm on
another person (CALCRIM No. 875; see People v. Aguilar (1997) 16 Cal.4th
1023, 1029), so to prove the charged offense under section 245, subdivision
(a)(1), as a matter of law the People had to prove that Fugit used the mug “in
such a way that it is capable of causing and likely to cause death or great
bodily injury.” (CALCRIM No. 875, italics added.) Thus, by specifically
alleging the weapon to be a “ceramic mug,” the accusatory pleading
9
necessarily put Fugit on notice of the prosecution’s intent to prove that he
used the mug in a manner likely to cause great bodily injury, which,
respondent argues, would suffice for force-likely assault as well as assault
with a deadly weapon.
We note the slight difference in language: doing an act that “by its
nature would directly and probably result in the application of force” with
“any object . . . that is used in such a way that it is capable of causing and
likely to cause death or great bodily injury” for assault with a deadly weapon;
and doing an “act that by its nature would directly and probably result in the
application of force. . . likely to produce great bodily injury” for force-likely
assault. (CALCRIM No. 875.) But neither party to this appeal offers any
conceivable scenario in which a ceramic mug could be used in “such a way
that it is capable of causing and likely to cause death or great bodily injury”
(for assault with a deadly weapon) that would not involve “force . . . likely to
produce great bodily injury” (as required for force-likely assault). Simply put,
it has not been shown that, without application of force, a ceramic mug could
cause great bodily injury.
The facts alleged in the accusatory pleading therefore include all the
elements of force-likely assault, such that “the greater cannot be committed
without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108,
117.) As a matter of law and considered in the abstract, the crime of assault
with a deadly weapon with a ceramic mug, as alleged, cannot be committed
without necessarily committing force-likely assault. (People v. Steele (2000)
83 Cal.App.4th 212, 218.) The allegations in the information thus gave Fugit
adequate notice that the People would seek to prove facts establishing the
elements of force-likely assault.
10
Our conclusion is consistent with this appellate district’s decision
earlier this month in Pack, supra, 2023 Cal.App. LEXIS 88. There, the
defendant was alleged to have committed assault with a deadly weapon using
a “ ‘stabbing weapon.’ ” (Id. at *10.) The court concluded that, because a
“ ‘stabbing weapon’ ” is an inherently dangerous weapon under the law, and
the language of the information did not indicate whether Pack used the
weapon in a manner likely to produce great bodily injury, force-likely assault
was not a lesser included offense under the accusatory pleading test. (Id. at
*10–11.) As to that conclusion, we agree: proof of assault with a deadly
weapon with an inherently deadly weapon does not require proof that the
object was used “in such a way that it is capable of causing and likely to
cause death or great bodily injury” (CALCRIM No. 875), so the accusatory
pleading in Pack did not give notice of a prosecutorial intention to prove the
facts that would be necessary for force-likely assault. Pack is distinguishable
from the matter at hand, however, because the accusatory pleading in this
case did not allege assault with a deadly weapon with an inherently deadly
weapon, but with a mug for which the prosecution would be obligated to
demonstrate use in a manner likely to cause death or great bodily injury.
We also find Fugit’s arguments on these points unpersuasive. In his
reply brief, Fugit argues that “the People clearly did not prove that he used
the ceramic mug in a manner likely to cause death or great bodily injury, as
the jury acquitted appellant of ADW.” The issue under the accusatory
pleading test, however, is not whether the prosecutor ultimately proved that
Fugit used the mug in that manner, but whether the pleading gave Fugit
notice that the prosecutor would undertake to prove it.
Fugit further suggests that force-likely assault cannot be a lesser
included offense of assault with a deadly weapon because a note in the
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discussion under CALCRIM No. 875 lists only simple assault as a lesser
included offense. We disagree. Beside the fact that we are not bound by the
use notes of a pattern jury instruction, CALCRIM No. 875 instructs on both
assault with a deadly weapon and force-likely assault; its reference to simple
assault as a lesser included offense means that simple assault is a lesser
included offense of both assault with a deadly weapon and force-likely
assault, not that force-likely assault can never be a lesser included offense of
assault with a deadly weapon.
Finally, Fugit speculates that the court’s description of force-likely
assault as a “lesser included offense” misled the jury into believing that a
conviction for that count would be less harsh, or more lenient, than a
conviction for assault with a deadly weapon. His argument misses the mark
for multiple reasons.
First, although the court referred to force-likely assault as a “lesser
included offense” and a “lesser crime,” it did not tell the jury that a force-
likely assault conviction would lead to less punishment. And even if that had
been the jury’s assumption, the court instructed the jury: “You must reach
your verdict without any consideration of punishment.” We presume the jury
followed the instruction. (People v. Zarazua (2022) 85 Cal.App.5th 639, 645.)
Second, to the extent any juror did think a conviction for force-likely
assault was less harsh, the juror was not misled: although the two statutory
subdivisions provide for the same term of sentence, assault with a deadly
weapon is classified as a serious felony (§ 1192.7, subd. (c)(31)) while force-
likely assault is not (see People v. Winters (2001) 93 Cal.App.4th 273, 277).
Third, the accusatory pleading test turns on whether the pleading gave
the defendant sufficient notice to make an instruction proper, not on how the
jury might have thereafter deliberated and chosen its verdict. Whether an
12
offense is “lesser included” turns on the elements of the crime, not the
punishment.4 The relative punishment, and speculation as to the jury’s
assumptions about the punishment, do not affect the conclusion that the
pleading gave notice of alleged facts that would be sufficient to convict Fugit
of force-likely assault.
If anything, Fugit’s arguments suggest that the force-likely instruction
in this case was consonant with the purpose behind instructing on lesser
included offenses and the aim of the accusatory pleading doctrine. The
primary purpose of instructing on lesser included offenses is to enable the
jury to reach a verdict no harsher or more lenient than warranted by the
evidence. (People v. Barton, supra, 12 Cal.4th at p. 196; People v. Breverman,
supra, 19 Cal.4th at p. 155.) The purpose of the accusatory pleading test is to
“ensure that defendants receive notice before they can be convicted of an
uncharged crime.” (Reed, supra, 38 Cal.4th at p. 1229.) Fugit does not
demonstrate that he received a verdict harsher (or more lenient) than the
evidence merited or that he failed to receive sufficient notice.
That said, there arises a slightly different concern. While it is true
that, under the facts alleged here, the crime of assault with a deadly weapon
(with a ceramic mug) cannot be committed without necessarily committing
force-likely assault – thus making it an “included” offense and arguably
satisfying the accusatory pleading test – the converse is also true: force-
4 Fugit states: “The United States Supreme Court has indicated that
‘lesser’ in this context means lesser in terms of magnitude of punishment.
(Carter v. United States (2000) 530 U.S. 255, 260, fn. 2.)” Not so. Carter
stated that a “lesser offense” had been referred to as one that carried less
punishment, but a “lesser included offense” – which we deal with here –
turns on the elements test. (Ibid.) While it may be that a lesser included
offense usually carries a lesser penalty, under California law the
determination turns on the elements.
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likely assault could not be committed under the alleged facts without
necessarily committing assault with a deadly weapon. Can it still be said
that the uncharged force-likely assault is a “lesser included” offense of the
charged assault with a deadly weapon? Are the two crimes, in this context,
more akin to alternative offenses than to a lesser offense and a greater
offense, and, if so, does that make a difference? While their equality in
punishment does not dictate whether the accusatory pleading test is met,
should it affect whether instruction on the uncharged offense is justified (or
compelled) as a lesser included offense? Or, to put it another way, where
there are two species of aggravated assault that our Supreme Court has
deemed to be “ ‘different statements of the same offense’ ” for purposes of
section 954 (Aguayo, supra, 13 Cal.5th at p. 996), can either of them be
categorized as a “lesser included” offense of the other?5 We think that result
to be unlikely.
However, we need not (and do not) answer these questions to resolve
this appeal. The crux of the matter here is simply whether the trial judge
committed prejudicial error by instructing the jury on force-likely assault
when the crime was not explicitly charged in the accusatory pleading. As has
long been recognized, a trial court may permit amendment of the information
“ ‘at any stage of the proceeding, up to and including the close of trial,’ ” if the
5 We also note that a trial court is not obligated to instruct the jury on a
lesser included offense unless there is substantial evidence that the
defendant committed the lesser crime without committing the greater. (E.g.,
People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Smith (2013) 57
Cal.4th 232, 245.) The question here, however, is not whether the court erred
in failing to give a lesser included instruction, but whether it erred in giving
it. The parties do not address the issue of substantial evidence, and Fugit
does not contend that giving the force-likely instruction was improper on this
ground.
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defendant’s substantial rights are not violated (unless the new offense is not
supported by evidence at the preliminary hearing). (People v. Fernandez
(2013) 216 Cal.App.4th 540, 554; § 1009.) Moreover, there is “no difference in
principle between adding a new offense at trial by amending the information
and adding the same charge by verdict forms and jury instructions.” (People
v. Toro (1989) 47 Cal.3d 966, 976 [requiring the defense to object in either
situation], disapproved on another ground in People v. Guiuan (1998) 18
Cal.4th 558, 568, fn. 3.)
Fugit has not established prejudicial error in adding the force-likely
assault charge by verdict form and jury instruction. The record does not
reveal any ground for the trial court to have denied a motion to amend the
accusatory pleading if such a motion had been made, or any meaningful
difference in this case in the People moving to amend the pleading (and then
requesting the force-likely instruction) rather than just requesting the
force-likely instruction. As discussed, the information notified Fugit of the
prosecutor’s intent to prove facts that would establish force-likely assault as
well as assault with a deadly weapon. Fugit made no claim in the trial court,
and makes no claim here, that he was unable to defend against a force-likely
charge due to it being added at the time of the jury instruction conference.
Further, there was substantial evidence to support a conviction for
force-likely assault, and Fugit faced no harsher sentence if convicted of
force-likely assault than he would for assault with a deadly weapon. The two
charges are, at least for section 954 purposes, “ ‘different statements of the
same offense.’ ” (Aguayo, supra, 13 Cal.5th at pp. 993, 996; People v. Brunton
(2018) 23 Cal.App.5th 1097, 1107 [“when based on a defendant’s single act of
using a noninherently dangerous object in a manner likely to produce great
bodily injury, section 245, (a)(1) and (4) are merely different statements of the
15
same offense”].) Because Fugit had a reasonable opportunity to prepare and
present a defense to force-likely assault and could not have been taken by
surprise by the evidence at trial, there is no due process violation. (People v.
Jones (1990) 51 Cal.3d 294, 317.)
Because there was no due process error as claimed here by Fugit, he
cannot prevail in his appeal. There is, therefore, no cause to speculate on
what the jury would have done if the instruction had not been given. We do
note, on the other hand, the overwhelming evidence that supported the
conviction for force-likely assault: Fugit launched a mug with such force that
it broke off the mirror of an occupied motor vehicle, shattered the vehicle’s
window, and sent shards of glass flying into the passenger compartment.6
For the foregoing reasons, including especially the absence of any due
process violation, Fugit fails to establish that the court’s instruction on
force-likely assault is reversible error.7
6 The jury acquitted Fugit of Vehicle Code section 23110, subdivision (b),
which requires proof of a defendant’s “intent to do great bodily injury,”
convicting him instead of Vehicle Code section 23110, subdivision (a), which
has no such intent requirement. Like Vehicle Code section 23110,
subdivision (a), force-likely assault does not require proof of intent to cause
great bodily injury. Instead, it requires merely that the act (of throwing the
mug) was willful and that the defendant was aware of facts that would lead a
“reasonable person to realize” that the “act by its nature would directly and
probably result in the application of force to someone.” (CALCRIM No. 875.)
7 We emphasize the narrowness of our holding. We are concerned in this
appeal with whether the court’s instructing the jury on force-likely assault, in
addition to (and as a purported lesser-included offense of) assault with a
deadly weapon, constituted reversible error where the accusatory pleading
alleged that assault with a deadly weapon was perpetrated with a
non-inherently deadly weapon (the ceramic mug). We do not address
whether it might have been reversible error if, for example, the court in this
case had declined to instruct the jury on force-likely assault, which would
raise the issue of whether the court was obligated to give the instruction.
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B. Remand for Resentencing
1. SB 567
Effective January 1, 2022, Senate Bill 567 (SB 567) altered the
determinate sentencing law by amending section 1170, former subdivision
(b), to make the midterm the presumptive sentence in the absence of specified
circumstances. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2);
People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)
Fugit contends in his opening brief that the case should be remanded
under SB 567 for the upper term originally imposed on his vandalism
conviction to be reduced to the middle term. As respondent points out and
Fugit acknowledges in his reply brief, it already has been: after the limited
stay and remand we granted, the trial court reduced Fugit’s sentence on the
vandalism conviction from the upper term of three years to the midterm of
two years.
2. AB 518
Effective January 1, 2022, Assembly Bill 518 (AB 518) amended section
654 by removing the requirement that a defendant be punished under the
provision providing for the longest term of imprisonment, and granting the
trial court discretion to impose punishment under any applicable provision.
(Stats. 2021, ch. 441, § 1.)
Fugit seeks remand under AB 518 for the trial court to exercise its new
discretion to select a different principal term and impose a shorter
punishment. Respondent agrees that Fugit is entitled to the retroactive
benefit of AB 518. (People v. Jones (2022) 79 Cal.App.5th 37, 45; People v.
Mani (2022) 74 Cal.App.5th 343, 379.) Because the record does not show that
the trial court considered its discretion under AB 518 during the prior limited
remand for resentencing under SB 567, we will remand for that purpose.
17
III. DISPOSITION
The matter is remanded for the trial court to exercise its discretion
under Penal Code section 654, as amended, in the selection of the principal
term for sentencing purposes. In all other respects, the judgment is affirmed.
18
_________________________
Wiseman, J. *
We concur:
_________________________
Simons, Acting P.J.
_________________________
Burns, J.
People v. Fugit / A163497
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
19
A163497 / People v. Fugit
Trial Court: Lake County Superior Court
Trial Judge: Hon. Michael S. Lunas
Counsel: Joy A. Maulitz; By Appointment of the First District Court of
Appeal under the First District Appellate Project, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D.
Share, Supervising Deputy Attorney General, and Kelly A. Styger, Deputy
Attorney General, for Respondent.
20