People v. Sumler CA2/8 ( 2020 )

Filed 12/21/20 P. v. Sumler CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303176
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA457994)
v.
ELAJAH SUMLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Ronald S. Coen, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Elajah Sumler appeals from his
conviction by jury of assault on a peace officer and resisting
arrest. He contends his assault conviction is not supported by
substantial evidence and the trial court erred in failing to
instruct on the lesser included charge of simple assault, in
denying his motion for mistrial and in denying his request for a
waiver of fees and fines.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with one felony count of assaulting
a peace officer (Pen. Code, § 245, subd. (c); count 1) and
four misdemeanor counts of resisting or obstructing a peace
officer or emergency medical technician (§ 148, subd. (a)(1);
counts 2–5). It was also alleged defendant had suffered
three prior convictions within the meaning of section 667.5,
subdivision (b). The prison priors were struck by the court in
light of the passage of Senate Bill 136 (2019–2020 Reg. Sess.).
The case was tried to a jury in November 2019. The
testimony at trial established the following material facts.
In the early morning hours of June 3, 2017, Officer Adam
Deckel of the Los Angeles Police Department was on patrol in
Hollywood with his partner, Officer Ruben Vasquez. They
periodically got out of their patrol car and patrolled on foot. After
getting out of the car near the intersection of Las Palmas and
Hollywood Boulevard, Officer Deckel noticed defendant nearby on
the sidewalk, holding a cane. Officer Deckel recognized
defendant, having seen him in the area at least twice before.
Defendant, who was about five to eight feet away,
immediately looked at Officer Deckel with an angry, aggressive
demeanor. He spit at Officer Deckel and said “Fuck you.” Officer
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Deckel felt “somewhat threatened,” took a step back and told
defendant he was not looking for a fight, trying to de-escalate the
situation.
Defendant raised his cane over his head, took a step or two
in Officer Deckel’s direction, and began swinging the cane over
his head and sometimes at shoulder level. The cane appeared to
be metal, brown or tan in color and about four feet long.
Defendant got to within about four feet of Officer Deckel.
Fearing for his safety, Officer Deckel drew his weapon, but kept
it pointing toward the ground, and called for backup.
Officer Vasquez noticed defendant was keenly focused on
Officer Deckel, “sneering” at him. He saw defendant take a
couple of steps in Officer Deckel’s direction while swinging a
metal cane, sometimes over his head, and sometimes in front of
him like a baseball bat. Officer Vasquez was concerned about the
situation escalating further, so he retrieved his shotgun that fired
bean bag rounds.
At the sound of sirens approaching, defendant took off
running down Hollywood Boulevard. Officer Deckel ran after
him, as did Officer Vasquez. (Officer Vasquez believed defendant
started running at the sound of him “racking” the bean bag
shotgun.) Several additional officers who had arrived on scene
also pursued defendant and assisted in apprehending him. Video
of defendant being grabbed by the officers, falling to the ground
and being handcuffed was played for the jury. Defendant
struggled and kicked for a while before the officers were able to
subdue him. Defendant refused to let go of his cane and it
eventually snapped in half during the struggle. The surveillance
video from a city street pole camera did not show the initial
interaction between defendant and Officer Deckel.
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Defendant testified that on June 3, 2017, he was
performing on Hollywood Boulevard and hanging out with
friends. He denied confronting Officer Deckel, spitting at him,
cursing at him, swinging his cane at him or trying to attack him
in any way. Defendant said he was just dancing down the
sidewalk swinging his cane, which is part of his routine, and then
all of sudden there were a lot of officers around, he “freaked out”
and started running down the street and was eventually tackled
to the ground. Defendant described his cane as a metal walking
cane that was adjustable for the user’s height. He said it was
painted with a “cheetah print.”
At the close of evidence, defendant moved to dismiss all
charges for lack of evidence. The court denied the motion as to
the assault charge (count 1) and two of the misdemeanor charges
(counts 2 & 3) and granted the motion as to the remaining two
misdemeanors (counts 4 & 5).
The jury found defendant guilty on all three counts. The
court sentenced defendant to the midterm of four years on
count 1 and concurrent one-year jail terms on counts 2 and 3.
The court imposed a $90 criminal conviction assessment
(Gov. Code, § 70373), a $120 court operations assessment (Pen.
Code, § 1465.8), and a $300 restitution fine (Pen. Code, § 1202.4,
subd. (b)). The court imposed and stayed a parole revocation fine.
Defense counsel, citing defendant’s indigency, lack of history of
employment and mental health issues, requested the court waive
court fees and fines. The court denied the request. Defendant
was credited with 1,499 days of presentence custody credits and
ordered released.
This appeal followed.
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DISCUSSION
1. Assault on a Peace Officer
Defendant contends the evidence is insufficient to support a
violation of Penal Code section 245, subdivision (c). We review
the evidence according to the familiar standard. (People v.
Rodriguez (1999) 20 Cal. 4th 1, 11 [“In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review
the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.”].)
Defendant argues the cane he wielded was lightweight
aluminum and not reasonably characterized as a deadly weapon
or capable of inflicting great bodily injury. Defendant also argues
he was not using it in a manner likely to cause death or serious
injury as he was only swinging it over his head.
Officer Deckel testified he was not sure what type of metal
the cane was made of and did not recall how heavy it felt—he
only recalled touching it after defendant was detained and the
cane was broken in half. Officer Vasquez testified the cane
appeared to be “aluminum-ish,” not super heavy like wrought
iron, but a standard walking cane. There is no evidence the cane
was “lightweight”; it was sturdy enough to support the weight of
an adult using it for its intended purpose.
Moreover, defendant, a grown man, was swinging it back
and forth above his head and at shoulder height directly at and
within a few feet of Officer Deckel. The most likely place any
blow would have landed was around Officer Deckel’s head and
face. Defendant did not strike Officer Deckel because his attack
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was aborted when he stopped suddenly and fled, either at the
sound of approaching sirens or the sound of Officer Vasquez
racking the bean bag shotgun. The evidence is sufficient to
support the conclusion that if the cane had struck Officer Deckel
in the head or face, it would have caused serious injury.
In re B.M. (2018) 6 Cal. 5th 528, 535 is instructive.
“Although it is inappropriate to consider how the object could
have been used as opposed to how it was actually used, it is
appropriate in the deadly weapon inquiry to consider what harm
could have resulted from the way the object was actually used.
Analysis of whether the defendant’s manner of using the object
was likely to produce death or great bodily injury necessarily
calls for an assessment of potential harm in light of the evidence.
As noted, a mere possibility of serious injury is not enough. But
the evidence may show that serious injury was likely, even if it
did not come to pass.”
Objects, like the cane at issue here, that are not considered
“deadly per se, may be used, under certain circumstances, in a
manner likely to produce death or great bodily injury. In
determining whether an object not inherently deadly or
dangerous is used as such, the trier of fact may consider the
nature of the object, the manner in which it is used, and all other
facts relevant to the issue.” (People v. Aguilar (1997) 16 Cal. 4th
1023, 1029.) The jury here concluded defendant used the cane in
a manner that could have caused Officer Deckel serious injury
and substantial evidence supports that conclusion.
2. Instruction on Lesser Included Charge
Defendant contends the trial court erred in denying his
request to instruct the jury on simple assault. We disagree.
(People v. Avila (2009) 46 Cal. 4th 680, 705 [“ ‘we review
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independently the question whether the trial court failed to
instruct on a lesser included offense’ ”].)
“It is error for a trial court not to instruct on a lesser
included offense when the evidence raises a question whether all
of the elements of the charged offense were present, and the
question is substantial enough to merit consideration by the jury.
[Citation.] When there is no evidence the offense committed was
less than that charged, the trial court is not required to instruct
on the lesser included offense.” (People v. Booker (2011)
51 Cal. 4th 141, 181; People v. McDaniel (2008) 159 Cal. App. 4th
736, 747 [“Absent substantial evidence” a court need not give
lesser included instructions even if requested.].)
As explained in part 1 above, there was substantial
evidence of an assault on Officer Deckel with a cane used in a
manner likely to produce serious injury. There is no evidence of a
simple assault.
Defendant denied having any confrontation with Officer
Deckel or of behaving in any way consistent with an assault.
Defendant steadfastly maintained on direct and cross-
examination he did not swing his cane at the Officer, spit or curse
at him, or otherwise attack him. Without evidence that
defendant engaged in a simple assault, there was no basis for a
simple assault instruction. (People v. Trimble (1993)
16 Cal. App. 4th 1255, 1260 [where defendant denies complicity in
charged offense, no error in not instructing on lesser included
offenses].)
3. Motion for Mistrial
Defendant argues the court prejudicially erred in failing to
grant a mistrial because of Officer Deckel’s testimony about a
prior arrest of defendant.
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Shortly after the start of his testimony, Officer Deckel said,
“In the past, I had arrested [defendant], and there was a use of
force involving officers.” Defense counsel immediately objected
and requested a sidebar. Outside the presence of the jury, the
prosecutor confirmed she had advised her witnesses not to
mention the prior arrest. Defense counsel requested a mistrial
for Officer Deckel’s violation of the court’s order precluding
reference to the prior arrest. The court denied the request for a
mistrial. When the jurors returned, the court admonished them,
explaining the reference to the prior arrest was stricken and they
were not to consider it for any purpose.
Defendant argues the testimony, however brief, was unduly
prejudicial and that its impact on the jury could not be cured by
an instruction. We are not persuaded the court abused its
discretion. (People v. Harris (2013) 57 Cal. 4th 804, 848 (Harris);
People v. Navarrete (2010) 181 Cal. App. 4th 828, 834 [appellate
court reviews for abuse a trial court’s reliance on a curative
instruction in denying request for mistrial].)
“ ‘ “ ‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial
is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions. . . .’
[Citation.] A motion for a mistrial should be granted when
‘ “ ‘a [defendant’s] chances of receiving a fair trial have been
irreparably damaged.’ ” ’ ” [Citation.]’ ” (Harris, supra,
57 Cal.4th at p. 848.)
The trial court acted within its broad discretion in striking
the statement by Officer Deckel and giving a curative instruction
to the jury not to consider it. We are not convinced the brief
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statement was so prejudicial that it irreparably damaged
defendant’s ability to have a fair trial.
4. Fees and Fines
At the sentencing hearing, defendant requested the court
waive or stay imposition of statutory fines and fees, citing People
v. Dueñas (2019) 30 Cal. App. 5th 1157 (Dueñas). The court
denied the request. We find no error.
Defendant asked to go forward with sentencing without
expressly requesting an ability-to-pay hearing, no doubt because
he was receiving a time served sentence. He simply submitted
his request that the fees be waived on the evidence in the record.
The evidence in the record was equivocal on whether defendant
had the ability to pay. The amount imposed was $510. On one
hand, defendant had been diagnosed in the past with severe
mental illness. On the other, he was 27 years old and physically
able-bodied, as he testified at trial he used the cane not only
because his leg hurt, but also in his street performances. The
record was silent on defendant’s education, skills, and other work
experience. Had defendant asked for a hearing, the People would
have presented whatever evidence it had in support of its request
that fines and fees be imposed.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.
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