People v. Driskell CA3 ( 2021 )

Filed 11/30/21 P. v. Driskell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C092490
Plaintiff and Respondent, (Super. Ct. No. 19F7023)
v.
JASON SCOTT DRISKELL,
Defendant and Appellant.
A jury found defendant Jason Scott Driskell guilty of a single count of assault with
a deadly weapon after he hit the victim with a hammer. On appeal, defendant contends
the trial court erred when it failed to instruct the jury on the lesser included offense of
simple assault. He also argues the court incorrectly calculated his presentence custody
credits and imposed an indefinite no-contact order as part of his sentence without any
legal authority. We conclude the trial court did not err in not instructing the jury on
simple assault, but modify the judgment to correct the credits and strike the no-contact
order. As modified, the judgment is affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with two counts of assault with a deadly
weapon. (Pen. Code, § 245, subd. (a)(1).)1 The prosecution also alleged defendant had a
prior strike conviction for assault with a deadly weapon (§ 1170.12) and had a prior
serious felony conviction (§ 667, subd. (a)(1)). The first count alleged an assault against
T.M. and the second count alleged an assault against D.B.
At trial, D.B. testified she was near the library when she saw defendant and T.M.
arguing. Defendant had a “drywall hammer” in his hand. 2 When D.B. walked up to
defendant, defendant drew his arm back to swing the hammer at T.M. 3 D.B. then reached
up and “put his hand down” with a “swatting motion,” stopping defendant. D.B.
described defendant’s swing as “at shoulder level or under shoulder level,” and said
defendant “swung like a girl,” with a “[w]ide swing.”
Defendant then hit D.B. in the head with the hammer, knocking her glasses off.
D.B. said she “saw stars” and sat down because she was afraid she might have a
concussion. Bystanders detained defendant, and D.B. thought they “were going to beat
[defendant] up.” Afterwards, D.B. had a “great big black eye for a long time,” and the
injury left a “permanent mark” under her eye. She also had a swollen wrist contusion.
Shortly after the incident, she told police officers defendant had swung the hammer at her
three times. The first time, he swung at her head, and she blocked the strike with her
wrist. The second time, she deflected the blow, and the third time, he struck her above
the eye. One police officer testified that he believed D.B. had been hit with the blunt end
1 Undesignated statutory references are to the Penal Code.
2 Witnesses variously described the hammer as a “drywall hammer,” “roofing hammer,”
or “hatchet.”
3 T.M. did not testify at trial.
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of the hammer, based on her injuries. The officer noted D.B. appeared to be “dazed,” or
“sort of confused,” although she did not appear to be under the influence of anything.
Defendant testified in his own defense, saying he offered to share a joint with D.B.
and T.M. They said something “very dismissive” to him, and he called D.B. a “fucking
bitch.” D.B. then told one of her friends to “[c]all the police. Tell them [defendant] hit
me with the hammer.” She told defendant he would “get a lot of time for this.”
Defendant explained D.B.’s injuries were sustained when she and one of her friends
attempted to take the hammer away from defendant. D.B.’s friend and D.B. tried to grab
the hammer, D.B.’s wrist came into contact with the bladed side of the hammer, and her
friend’s head collided with her face. D.B.’s friend punched defendant in the face.
Defendant then fell to the ground and covered his head, and someone kicked him.
Defendant denied swinging the hammer at anyone.
On cross-examination, defendant agreed the hammer could be used as a weapon
that could “do a lot of damage” or kill someone. In rebuttal, the prosecution recalled the
police officers who had testified earlier, and one opined that D.B.’s wrist injury was not
consistent with a strike from the bladed end of the hammer.
Before instructing the jury, the trial court determined it would provide an
instruction on the lesser included offense of simple assault (§ 240) for count 1, but not for
count 2. The court explained the evidence could support the lesser included offense as to
the assault against T.M. because D.B. testified defendant used “a relatively we[a]k swing
towards” T.M. that was easily deflected by D.B., suggesting a jury could find the hammer
had not been wielded in a way that would make it a “dangerous or . . . deadly weapon.”
In the assault against D.B., however, “the hammer was wielded in a very different way,”
such that the lesser included offense instruction was not warranted. Neither counsel
requested the lesser included instruction for count 2. The court instructed the jury in
conformance with its ruling.
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The jury found defendant not guilty on count 1, but guilty on count 2. Defendant
admitted the prior strike and serious felony conviction allegations. At sentencing, the
court awarded 264 days of actual custody credit and 264 days of local conduct credit, for
a total of 528 days of presentence custody credit. The court also ordered defendant to
have “no contact with [D.B.]” The court did not specify the duration of the no-contact
order or the legal authority under which the no-contact order was issued.
DISCUSSION
I
Lesser Included Offense
Defendant contends the trial court erred because it should have instructed the jury
on simple assault (§ 240) as a lesser included offense of assault with a deadly weapon
(§ 245, subd. (a)(1)) with respect to count 2. Defendant argues the court’s failure to do so
violated his rights under the state and federal Constitutions. Defendant’s contentions are
without merit.
A trial court must provide jury instructions on a lesser included offense “ ‘when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “Thus, ‘a trial court
errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which
find substantial support in the evidence. On the other hand, the court is not obliged to
instruct on theories that have no such evidentiary support.’ ” (People v. Smith (2013)
57 Cal.4th 232, 240.) “We apply the independent or de novo standard of review to the
failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]”
(People v. Cole (2004) 33 Cal.4th 1158, 1218.)
The parties agree simple assault is a lesser included offense of assault with a
deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.) “Section 240
defines the crime of simple assault as ‘an unlawful attempt, coupled with a present
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ability, to commit a violent injury on the person of another.’ . . . No actual touching is
necessary, but the defendant must do an act likely to result in a touching, however slight,
of another in a harmful or offensive manner.” (People v. Wyatt (2012) 55 Cal.4th 694,
702.) In contrast, assault with a deadly weapon requires the use of a “ ‘deadly weapon,’ ”
which is “ ‘any object, instrument, or weapon which is used in such a manner as to be
capable of producing and likely to produce, death or great bodily injury.’ ” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) “Great bodily injury, as used in section
245, means significant or substantial injury. [Citation.] Because the statute speaks to the
capability of inflicting significant injury, neither physical contact nor actual injury is
required to support a conviction. [Citation.] However, if injuries do result, the nature of
such injuries and their location are relevant facts for consideration in determining
whether an object was used in a manner capable of producing and likely to produce great
bodily injury.” (People v. Brown (2012) 210 Cal.App.4th 1, 7.)
“Thus, the question posed by defendant’s claim is whether a reasonable jury could
have found that defendant committed only a simple assault and not an assault with a
deadly or dangerous weapon or force likely to produce great bodily injury.” (People v.
McDaniel, supra, 159 Cal.App.4th at p. 748.) No evidence at trial supported the
conclusion that defendant did attack D.B. but only with force that was not likely or
capable of producing great bodily injury. D.B. testified defendant struck her in the head,
knocking her glasses off and inflicting a “great big black eye,” which would eventually
leave a permanent mark on her face. She stated that she “saw stars,” and a responding
officer noted she appeared dazed or confused. She told the officer defendant attempted to
hit her three times, striking her wrist and causing a contusion before striking her near her
eye. Although defendant did not use the bladed end of the hammer to strike D.B., he did
try to hit her in the head, and ultimately inflicted serious injury on her.
As the trial court correctly noted, defendant’s attack on D.B. was factually
distinguishable from his attack on T.M., both because the attack against T.M. was
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comparatively weak and because no injury resulted. Contrary to defendant’s assertion,
this conclusion does not require any “weighing” of the evidence. There was no evidence
that defendant committed only a simple assault against D.B., while there was at least
some evidence that defendant made only a token assault on T.M. Thus, the trial court
had no obligation to instruct the jury as to simple assault with respect to defendant’s
assault on D.B.4 (People v. Breverman, supra, 19 Cal.4th at p. 154.)
II
Presentence Credits
Defendant asserts the trial court miscounted the number of days of presentencing
credit he received. The People agree, saying defendant was entitled to a total of 628
presentence custody credits. We agree with the parties.
Credit for time served before sentencing is calculated by the sentencing court at
the time of sentencing, with the total number of days recorded in the abstract of
judgment. (Cal. Rules of Court, rule 4.310; People v. Duff (2010) 50 Cal.4th 787, 793,
citing § 2900.5, subd. (d).) Police arrested defendant on September 11, 2019, and the
trial court sentenced him on July 20, 2020. The court made an apparent mathematical
error and determined that this period of time amounted to 264 days of actual custody
credit. It is actually 314 days. Defendant was also entitled to 314 days of local conduct
credit, for a total of 628 days of presentence custody credit. (People v. Whitaker (2015)
238 Cal.App.4th 1354, 1358.) We will order the judgment modified.
III
No-contact Order
Defendant argues the trial court lacked the authority to issue a sentencing order
precluding defendant from any contact with D.B. The People agree the order “should be
4 Because we find no violation of state law, we also conclude there was no constitutional
violation. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
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stricken,” finding no statutory authority that would authorize the order. We agree with
the parties.
Several statutes permit entry of a protective order under certain circumstances in a
criminal case. For example, section 136.2, subdivision (a) authorizes issuance of a
protective order during the duration of criminal proceedings. Yet, this statute does not
authorize issuance of a protective order against a defendant who has been sentenced to
prison unless the defendant has been convicted of domestic violence. Section 1203.1,
subdivision (i)(2), which authorizes a no-contact order in some sex offense cases, only
applies where the defendant is granted probation. Section 1201.3, subdivision (a)
authorizes a no-contact order for a period of up to 10 years but only when the defendant
was convicted of a sexual offense involving a minor victim. (See People v. Robertson
(2012) 208 Cal.App.4th 965, 996.)
Here, the trial court did not specify the statutory authority authorizing it to issue
the no-contact order, and the prosecutor did not make any offer of proof or otherwise
justify the need for a no-contact order. Nor was defendant convicted of a crime
enumerated in sections 136.2 or 1201.3, or placed on probation under section 1203.1.
We conclude the no-contact order must be stricken.
DISPOSITION
The judgment is modified to strike the no-contact order and award defendant 628
days of presentence custody credit. The trial court is directed to prepare an amended
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abstract of judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
RENNER, J.
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