People v. Hernandez CA2/8 ( 2021 )

Filed 4/13/21 P. v. Hernandez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302251
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088098)
v.
FIDENCIO HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Thomas Rubinson, Judge. Affirmed.
Jenny M. Brandt, 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, David E. Madeo and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
For no reason, Fidencio Hernandez kicked an unattended
motorcycle parked in front of an apartment complex undergoing
renovations. The motorcycle’s owner confronted him in front of a
liquor store 0.2 miles away, and a fight ensued. Several minutes
after the fight, Hernandez returned to the apartment complex
and embarked on a rampage of assault and vandalism.
After representing himself at trial, Hernandez was found
guilty of a series of crimes stemming from this rampage. On
appeal, he claims the trial court should have granted his
1
Marsden motion to replace his attorney. Because that motion
was denied, he argues the court should not have taken his
2
Faretta waiver to represent himself and should have granted his
request for advisory counsel. He also challenges the sufficiency of
the evidence underlying the assault with a deadly weapon and
vandalism counts. Finally, he claims the trial court should have
given simple assault, self-defense, and defense of property
instructions. We find no merit to his contentions. We affirm.
BACKGROUND
Sequence of Events
On March 8, 2018, Jason Gonzalez, Luis Vizcarra, and
Edwin Romero were doing renovation work at an apartment
complex in Los Angeles. Gonzalez had parked his undamaged
motorcycle on the street. Vizcarra heard and saw Hernandez
kick Gonzalez’s bike, then walk away. Hernandez was carrying a
backpack at the time.
1
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
Faretta v. California (1975) 422 U.S. 806 (Faretta).
2
Checking his bike, Gonzalez found a “broken undertail
fairing” and bent and broken clips. Some pieces were on the
ground.
Gonzalez shouted at Hernandez, asking why he had kicked
his bike. Hernandez responded that he “didn’t give a fuck” and
kept walking. He appeared drunk.
Gonzalez, Vizcarra, and Romero drove around to find
Hernandez, eventually spotting him walking out of a liquor store
carrying a 40-ounce beer and his backpack. The liquor store was
approximately 1,000 feet, or 0.2 miles, from the apartment
complex where they were working.
Gonzalez confronted Hernandez alone, and a mutual
fistfight ensued. Romero broke it up. The three drove away as
Hernandez called Gonzalez names and threatened him. Gonzalez
thought Hernandez was intoxicated; Romero thought he “re[e]ked
of alcohol.” Hernandez was not charged with any crimes arising
out of this initial fight.
Gonzalez, Vizcarra, and Romero returned to the apartment
complex. Gonzalez left on his motorcycle, which was operable.
Romero left the complex as well.
Five to eight minutes after the fight in front of the liquor
store, Hernandez showed up at the apartment complex. He was
carrying a tree branch, a metal painter’s pole, and a two-by-four
piece of wood.
Hernandez used the two-by-four to beat on the door to an
apartment where Vizcarra was working, demanding Vizcarra and
his friends come out.
He then used the painter’s pole to shatter the rear window
of a nearby truck.
3
He reentered the apartment complex with the tree branch.
While inside, he encountered maintenance worker Arnulfo
O’Campo. Although O’Campo had nothing to do with the liquor
store confrontation, Hernandez accused O’Campo that his friends
had hit him. Hernandez punched O’Campo in the eye, and
O’Campo punched him back. Hernandez ran away, stopping to
pick up a battery, a charger, and a grinder. O’Campo thought he
was drunk or high.
Hernandez then chased Vizcarra out of the apartment
complex and into the street. Vizcarra hid behind an ice cream
cart as Hernandez beat him with the tree branch “about eight to
ten times, until he hit [him] on the head and knocked [him]
down.” He kept hitting him while he was on the ground covering
his face with his hands. Vizcarra described the blows as “very
hard, very strong, trying to hit me. He wanted to hit me.” The
branch broke in half. According to Vizcarra, the tree branch was
the size of a baseball bat: three to five feet long, and two to three
inches in diameter. The branch itself was not introduced at trial,
but the jury was shown a photograph of a broken branch
consistent with Vizcarra’s description.
Vizcarra got up and was dizzy. After this assault, Vizcarra
had a swollen left hand (the hand he used to protect his head), a
bump on his head, and lower back pain. He couldn’t use his left
hand for about two weeks.
Gabriella Garcia had been parked in front of the apartment
complex with her daughter and niece and saw the events
unfolding. As Hernandez attacked Vizcarra in the street,
Vizcarra’s supervisor used his truck to separate him from
Hernandez, and Garcia drove her SUV near them. Vizcarra got
in, and Garcia drove him a safe distance away.
4
At some point Vizcarra left Garcia’s SUV and entered his
supervisor’s truck. After that, one of the girls in the SUV filmed
Hernandez with her cell phone. From approximately 35 feet
away, Hernandez threw the battery at Garcia’s car, shattering a
window and injuring one of the girl’s arms with glass.
Vizcarra returned to the complex and Hernandez was gone.
He discovered his battery, charger, and grinder were missing.
Property Damage
Photos of Gonzalez’s damaged motorcycle were shown to
the jury. Gonzalez testified a full repair would have cost $700,
which he couldn’t afford. He paid $250 to get it repaired as best
as he could. Photos of the repairs were also shown to the jury.
A bolt remained missing and the lines did not match as nicely as
the undamaged side.
Marcelino Vargas-Flores owned the truck Hernandez
damaged with the painter’s pole. He testified two windows were
shattered and the frames were damaged. The estimated cost for
full repairs was $9,000. At the time of trial, he had paid $1,200
to fix the windows, but had not made full repairs.
Garcia testified she paid $770 to repair the window
Hernandez broke with the battery and fix a dent made in the
frame. The jury was shown photographs of the damage.
Defense
At trial, Hernandez gave a somewhat alternate version of
events. On the day of the incident, he had a beer with his boss.
Afterward, he headed to a marijuana dispensary. As he passed
the apartment complex, he saw five people working and someone
whistled at him, telling him to come over. He kept walking.
He went to the liquor store and bought a beer, then went
toward the dispensary. He placed his backpack on the ground as
5
a blue car approached. Gonzales got out and accused him of
damaging his motorcycle, demanding he pay for it. Hernandez
denied knowing anything about a motorcycle.
Angry, Gonzalez punched him in the face. The fight
ensued. Vizcarra and Romero joined Gonzalez in assaulting
Hernandez. They left.
Bloodied and disoriented, Hernandez could not find his
backpack. He told someone nearby to call the police. He became
angry and started walking down the street. He spotted Gonzalez,
Vizcarra, and Romero, and screamed at them about his backpack.
They didn’t have it. Gonzalez and Romero got into a car and
drove away, while Hernandez and Vizcarra had a verbal
confrontation in the street until a blue truck came between them.
He denied assaulting Vizcarra.
Hernandez was still angry and walked away, making a
“conscious decision” to go back to the apartment complex. He
tried to enter through front and side doors, and O’Campo opened
a door for him. Hernandez asked him where his “friends” were
and said they just assaulted him and took his backpack.
Hernandez bumped into O’Campo but didn’t hit him in the face.
Hernandez made another “conscious decision” to vandalize
the truck, breaking the windows with a “piece of wood.” He
reentered the building because his “concern was [his] backpack.”
Vizcarra punched him in the face, and O’Campo threw tools at
him. Hernandez picked up those tools and walked away.
Hernandez spotted Garcia in her SUV. He asked why they
were following him. Someone put a hand out the SUV’s window,
so Hernandez threw a battery at the SUV. He didn’t “know if it
was their phone, [he] couldn’t really see. [He] got paranoid, so
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[he] threw the battery at the car, trying to, you know, not—
basically [he] felt like [his] life was in danger.”
Hernandez passed out between two buildings. He woke up
with vomit on him. He made a third decision to return to the
apartment complex to look for his backpack. He was arrested.
An officer returned his backpack, which was retrieved from a
worker at the apartment complex.
An emergency room physician assistant who treated
Hernandez testified he had bruises and a swollen eye. She
smelled alcohol on his breath.
A doctor testified as an expert. He reviewed photographs of
Vizcarra’s injuries from Hernandez’s attack with the tree branch.
He saw no injuries to Vizcarra’s face and could not offer any
opinion on whether he suffered head injuries. The doctor noted
swelling on Vizcarra’s hand.
Charges and Conviction
Hernandez was charged with six counts: assault with a
3
deadly weapon on Vizcarra (Pen. Code, § 245, subd. (a)(1)) ; three
counts of vandalism over $400 for the damage to the motorcycle,
the truck, and Garcia’s car (§ 594, subd. (a)); misdemeanor
battery on O’Campo (§§ 242/243, subd. (a)); and misdemeanor
petty theft of the tools (§§ 484, subd. (a), 490.2). He was also
charged with a prior serious felony and strike conviction.
The jury found him guilty of all counts. He was sentenced
to a second-strike term of 13 years.
3
All further undesignated statutory references are to the
Penal Code.
7
DISCUSSION
I. Representation Issues
As noted, Hernandez represented himself at trial. We have
reviewed the record, and he did well for a non-attorney, despite
the verdict against him. Nonetheless, he now raises several
issues related to his representation that he claims violated his
Sixth and Fourteenth Amendment rights to counsel. We find
none meritorious.
A. Background
Hernandez was arrested on April 10, 2018. The public
defender’s office was appointed on April 11, 2018, and defense
counsel first appeared for Hernandez on April 23, 2018. The
preliminary hearing was held on May 16, 2018. He was
arraigned on May 30, 2018.
Less than a month after his arraignment, on June 21, 2018,
he filled out a Faretta waiver form to represent himself. It wasn’t
clear to the court whether he wanted to obtain new counsel or
represent himself, so he clarified he wanted new counsel, but if
that “doesn’t work,” he wanted to “go pro per.” The court held a
Marsden hearing outside the presence of the prosecutor.
Hernandez felt his counsel had not properly represented
4
him because she hadn’t filed “certain motions . . . like Romero[ ],
subpoenas, stuff like that. She hasn’t been complying with stuff
like that. All the time she tells me she’s busy with other cases,
that she can’t talk to me at this time. This is the fifth—fourth
time that I’ve come to court. She hasn’t really listened to me or
tried to understand my case.” He elaborated that his counsel
hadn’t filed “Romeros, subpoenas, dismissals, you know, stuff like
4
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
8
that, discoveries and stuff. And she’s not talking to me. She’s
not talking to me at all. She’s just, ‘Wait to go in court. Wait to
go in court.’ That’s all she tells me. She’s not helping me at all.
She’s not listening to me, anything.”
The court asked if she had done anything he felt she
shouldn’t have done. He said, “Well, she could have done a lot
more investigating for the case, and just—there’s been certain
conversations when I would ask her questions like certain
remarks she made that she just doesn’t care. That’s how I feel,
like she just doesn’t care about my case.” When pressed, he
explained, “She’s not listening to what I’m saying. I’m trying to
speak to her, and what does she give me? Two or three minutes.
And then she leaves. You know, we have no communication
whatsoever.”
Hernandez’s public defender explained she spoke with him
the day before. She said it was “kind of early in the case,” and
she “took some notes about my conversation with him because
once he stopped talking to me I had a sense he was going to ask
for a Marsden hearing.” She “advise[d] the court that yesterday I
read to Mr. Hernandez the investigation report that I received
from the investigator in my office that was assigned to the case.
“Mr. Hernandez is very insistent that a surveillance video
be obtained from a location, not the location where most of these
charges arose, but a location about two blocks away, where Mr.
Hernandez says he was—there was a fight that occurred there,
and that was testified to at the preliminary hearing.
“However, Mr. Hernandez’s contention is that they started
it, and he is very certain that videotape would show that. So my
investigator went to that—it’s a strip mall, canvassed for video
and didn’t find any. So I told that to Mr. Hernandez yesterday.
9
“He asked me whether the investigator interviewed any of
these people as witnesses, and I said, ‘No, I didn’t ask the
investigator to do that.’ And then I told him what the offer is,
and I said, ‘I think the offer is too high.’ He said, ‘The offer is too
high.’ Then he asked me if I would file a Romero motion. I said,
‘Possibly.’ And that was the end of the conversation.
“At that point—oh, I think I said that I thought perhaps I
should have him evaluated for either substance use issues or
maybe psych issues, and at that point Mr. Hernandez told me he
knew the direction he wanted to take the case in and stopped
talking to me.”
The court asked her to respond to the allegations that she
was too busy, didn’t understand the case, or didn’t care about it.
She said, “I can’t respond. I don’t know where—that’s how he
feels. I can’t be held accountable for how he feels. But I don’t feel
I’ve done anything to indicate that.”
Hernandez reiterated: “I don’t feel comfortable with her
representing me. Like she said, it’s a lot of time that they’re
trying to give me, and the reason why is because I know what
happened that day. I remember what happened that day. I tried
to explain it [to] her to the fullest extent from the first time I met
her.
“I’ve been asking her about—she said the video. Obviously
she asked for the video 90 days after we’ve met. They only
videotape 30 days. After 30 days, 60 days, they erase everything.
To me, she didn’t care from the beginning. She could have done
something about it, you know? She just barely wants to file—to
go look for the video. That video was going to be one of the
reasons why I was going to feel a lot more comfortable in this
case.”
10
The court pointed out Hernandez didn’t know whether any
video ever existed, so his position was based on speculation. It
also pointed out the defense investigator looked for security video
and didn’t find any.
On the point that counsel was too busy, the court
explained, “[Y]ou have to understand, sir, when you’re getting a
free attorney, public defender or alternate public defender, you’re
not going to be their only client. They’re going to have a lot of
other cases. That’s just the reality of it, the way it works. You’re
getting this for free. You’re getting a very good attorney for free.
You can’t expect her to work only on your case.”
Hernandez responded, “It’s just a personal choice. I just
don’t feel comfortable with her representing me, sir.”
The court asked whether counsel was “planning on filing
appropriate motions at what you believe would be the
appropriate point—Romero motions, 995, anything like that—if
you feel as an attorney they’re appropriate?” It also asked if she
would “obtain[] all the discovery to which you’re entitled?”
Counsel responded to both questions, “Yes, of course.”
The court denied the motion: “Okay. Mr. Hernandez,
simply not being comfortable with your attorney is not sufficient
for me to grant a Marsden motion. You must show that a failure
to replace her would substantially impair your constitutional
right to assistance of counsel. In order to do that you must show
that she’s not providing adequate representation or that you and
she have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.
“I’m not prepared to find that. Not even close. There are
certain aspects of a case that the defendant has control over and
certain aspects that the attorney has control over, but motions to
11
file is up to the attorney based upon her legal judgment about the
case, and the timing of when to file them is also her decision, not
yours.
“She’s a very experienced attorney. She’s a very good
attorney. I’ve seen her handle many, many cases. She sent out
an investigator at your request. The investigator was not able to
find what you wanted. That’s not her fault. She’s not foreclosing
filing motions, continuing the investigation. She’s going to try to
get a better offer for you. She’s doing all of the things that she
should be doing. [¶] So I’m going to deny your Marsden.”
Hernandez told the court his “best choice” was to represent
himself.
Back in the presence of the prosecutor, the court took
Hernandez’s Faretta waiver. As we will outline, the court frankly
bent over backward to warn Hernandez against representing
himself and to ensure he understood the consequences of his
choice.
The court probed his educational and legal background.
He had never represented himself before, but he had filed
appeals and was “kind of familiar with case laws a little bit, stuff
like that.” He had passed the 11th grade and started working
until he ended up in prison. He said he understood the charges
against him, but couldn’t identify the elements of the crimes.
He also underestimated the maximum sentence he was facing.
The court explained he was “looking at a lot of time.”
The court warned him, “Representing yourself is almost
always a bad decision. You’re going to be totally overmatched
here. You don’t have legal training. You don’t have the
experience of the prosecutor that you’re going to be opposing.”
The prosecutor said he’d been a district attorney for 11 years and
12
tried 100 cases. The court reiterated, “This is not going to be a
fair fight, Mr. Hernandez. He’s a pro. You don’t even know what
the first element of the first charge is. You don’t know how much
time you’re facing. You don’t have any idea what you’re doing.
He’s been doing this for 11 years and done 100 trials.”
Hernandez said he understood.
The court pressed on. It used a soccer analogy: “[T]his is
like you trying to go against a professional in a sport. You could
go out there and kick the ball around with him, and you’d
probably kick it just fine. But try to get competitive? Try to win
or lose? You think you have a chance against that guy? No
chance, right?
“He’s a professional in his world, which is the courtroom.
You’re not. Okay? You can mess around in here and file a
motion or make an argument or something, but a whole jury trial
against a professional? You think that’s going to be a fair fight?
No chance. He knows exactly what he’s doing. You have no idea
what you’re doing.” The court added that it was going to be more
difficult for Hernandez to prepare for the case than for the
prosecutor because he would have limited access to the phone
and library. The court said it wasn’t fair, but “that’s the way it
is, though.”
Hernandez again said he understood. He repeated, “It’s
just a personal choice.”
The court pressed further. It told him he wasn’t getting
special help from the court. He would be expected to know how to
do everything himself. He would have to “investigate the case,
make motions, subpoena witnesses, present evidence, select a
jury, examine witnesses, argue the case. You’re going to be
13
expected to do all of those things. You are going to be the
attorney without any help.”
The court told him he didn’t have a right to co-counsel, but
it would appoint standby counsel. It warned that standby
counsel could be put at a disadvantage if they had to take over
mid-trial.
The court said a request to continue the trial when it’s
ready to start would likely be denied if the request is intended to
delay for no reason. The court said it would remove him for any
disruptive conduct in the courtroom. The court wanted him to
“understand that there are risks and dangers in any criminal
trial that cannot be anticipated and that only a lawyer can
identify, and many times those risks mean the difference between
acquittal and conviction. And, like I told you, if you get convicted
in this case you’re looking at a lot of time.”
Hernandez continually said he understood all of this.
But he still didn’t want his current counsel because she wasn’t
helping him and he didn’t feel comfortable with her.
The court still pressed him, “You think you have a better
chance with her or without her?” He said, “I know I need her.
I know I do.” But he didn’t “feel comfortable with her
representing” him. He said that’s why he made the Marsden
motion—he would “rather have somebody else represent” him.
The court told him there was “not enough legally” to grant the
Marsden motion so his choice was either “her or you yourself.”
He opted to represent himself.
The following exchange followed:
“The Court: You’re making a giant mistake. You know
how many lives you have? One.
14
“The Defendant: I know. How do you think I feel? My
mom’s about to die of cancer.
“The Court: What are you doing? You’re firing a really
good lawyer.
“The Defendant: She’s not doing nothing for me.
“The Court: You think you’re going to do better?
“The Defendant: She hasn’t taken not one minute to
understand my side of the case. All she’s been talking about is
their side of the case, their side of the case. My side of the case
doesn’t matter to her.”
The court concluded: “You want to do this? You can do
this, Mr. Hernandez. You’re making a gigantic mistake. With
your one life, you’re giving it away. That’s your choice. It’s your
constitutional right to do it. You can do it.” Hernandez said, “It’s
all right.”
The court found his waiver “knowing, intelligent,
unequivocal and unconditional. He is doing this with his eyes
wide open. I don’t know why he’s doing it, but he has the right to
do it. [¶] The court is also finding that Mr. Hernandez has the
cognitive and communicative skills necessary to represent
himself. He has a rational and factual understanding of the
proceedings against him. He can understand and use the
relevant information rationally to respond to the charges, and he
can coherently communicate that response to the trier of fact.”
Representation issues continued to pop up during pretrial
and trial proceedings. At the next hearing after Hernandez’s
Faretta request was granted, he changed his mind and requested
a “state-appointed” attorney. The court explained it would
reappoint the public defender’s office and, although it could
possibly assign a new deputy public defender, he would most
15
likely get the same deputy public defender he had before his
Marsden motion. Hernandez repeated some of his complaints
already considered during his Marsden hearing. When the court
told him there was a “probability” his former deputy public
defender would be reappointed, he decided to keep his pro per
status.
At another pretrial hearing, the court denied Hernandez’s
section 995 motion and declined to consider Hernandez’s version
of events because he had not testified at the preliminary hearing.
Hernandez complained that he was willing to testify at the
preliminary hearing, but his deputy public defender didn’t allow
him to.
A week later Hernandez filed a written motion for advisory
counsel. He requested advisory counsel to (1) assist in presenting
visual aids and exhibits through the court’s audio/visual
equipment; (2) give guidance on local customs, practice rules, the
court’s individual practices for voir dire and other parts of trial;
and (3) help prepare expert witnesses. The court denied the
motion, explaining: “[Y]ou’ve chosen to be your own attorney, so
if you’re going to continue as a pro per, then you’re going to be the
attorney. You’re not going to have somebody sitting there with
you. I told you that was the case before I granted your pro per.
You chose to go forward anyway. So that’s the way it’s going to
be.” Hernandez said, “I felt like advisory counsel would help me
out in my case whenever I’m litigating my case.” The court
responded, “I’m not going to provide that. That’s something
which is discretionary with the court, and I’m not inclined to do
that. Either you want to be your lawyer or you don’t.” It offered
to appoint standby counsel.
16
The issue came up again, and the court elaborated: “[I]t’s a
discretionary matter for the court whether to appoint advisory
counsel, and I’m choosing not to do it. I’m respecting your right
to represent yourself, which is what you’ve chosen to do, but
you’re not going to have your cake and eat it, too. Either you’re
going to represent yourself or you’re not.” Hernandez felt the
court was “violating . . . [his] personal rights” and was “real
prejudiced and real biased” against him. The court assured him
it had “nothing against [him] at all,” but his motions were not
based on law. The court said, “The problem is you don’t have a
lawyer, so you think you know what you’re doing, and you don’t.”
The court again offered to appoint standby counsel, but
Hernandez said he wanted advisory counsel. The court again
denied the request.
Nearly three months later, Hernandez filed a renewed
motion for advisory counsel, asserting similar reasons to the ones
he previously raised. The court again offered to appoint standby
counsel and again denied the motion: “[Y]ou’re the attorney here.
So I am not going to have somebody sitting here with you
potentially, which is filling your ear telling you what to do.
You’ve chosen to be pro per. That’s fine. It’s your right. I’ll
appoint somebody to stand by in case you give up your pro per
they’ll be ready to step in. But, you know, not—I’m not obligated
to appoint an advisory counsel for you. I did consult about this
with supervising judges here. And, you know, if you want—like I
said, if you want standby I will appoint standby counsel for you.
That’s as far as I can go on that.” Hernandez argued advisory
counsel could “guarantee [him] a proper trial.” The court
responded, “[Y]ou really want the best of both worlds. You want
to represent yourself, but you also want an attorney here to
17
essentially help you. That’s not the way it works.” Hernandez
argued advisory counsel and standby counsel were the same, but
the court pointed out they were not. Hernandez declined standby
counsel.
Hernandez requested advisory counsel one more time
before trial. The court reiterated it had discretion to appoint
advisory counsel, but again denied the request. It reminded
Hernandez that he had chosen to represent himself, and at the
time he understood he would be his own attorney. The court once
more offered to appoint standby counsel, and Hernandez once
more declined.
Just prior to trial, the prosecutor told the court Hernandez
needed standby counsel because she did not “believe he can do
this trial without a standby counsel, at least, appointed.” She
made the request to preserve any issues on appeal. The court
pointed out Hernandez had already declined appointment of
standby counsel.
Hernandez represented himself throughout trial without
either advisory or standby counsel.
B. The Marsden Request Was Properly Denied
A defendant may have appointed counsel replaced if
counsel is not providing adequate representation or if “ ‘counsel
and defendant have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.’ ”
(People v. Dickey (2005) 35 Cal.4th 884, 917.) Disagreements
over counsel’s tactical decisions do not justify appointing new
counsel. (Id. at p. 922.)
A Marsden hearing “ ‘ “is not a full-blown adversary
proceeding, but an informal hearing in which the court ascertains
the nature of the defendant’s allegations regarding the defects in
18
counsel’s representation and decides whether the allegations
have sufficient substance to warrant counsel’s replacement.”
[Citation.]’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 803
(Gutierrez).) The court must give the defendant “the opportunity
to explain the reasons for desiring a new attorney.” (People v.
Smith (1993) 6 Cal.4th 684, 690 (Smith).) After that,
substitution is a matter of judicial discretion. (Ibid.) “The
decision to substitute counsel is within the discretion of the trial
court; this court will not find an abuse of discretion unless the
trial court’s failure to substitute counsel would ‘ “ ‘substantially
impair’ the defendant’s right to effective assistance of counsel.” ’ ”
(Gutierrez, supra, at p. 803.)
Hernandez concedes the court afforded him an opportunity
to be heard and “made some inquiry of defense counsel.” (Italics
in original.) He nonetheless claims the court’s inquiry was
inadequate. As our detailed recitation of the record should
demonstrate, he is wrong—the court’s inquiry was more than
sufficient to deny his request.
Hernandez’s trial counsel had represented him for only two
months when Hernandez requested to replace her. The court
immediately held the ex parte hearing. It listened to
Hernandez’s complaints and counsel’s responses. It received
assurances from counsel she would file appropriate motions at
the appropriate times and would obtain discovery. While
Hernandez complained his counsel was not spending any time
with him or listening to him, when pressed, he conceded he
simply did not “feel comfortable” with his counsel and his request
was a “personal choice.” The issue was a “credibility question
between defendant and counsel,” and “the court was ‘entitled to
accept counsel’s explanation.’ ” (Smith, supra, 6 Cal.4th at p.
19
696; see People v. Clark (2011) 52 Cal.4th 856, 918 [“After
permitting defendant to fully air his complaints with counsel,
inquiring into those complaints, and evaluating them against
counsel’s explanations and the court’s own observations of
defendant’s in-court communication with his attorneys, the court
reasonably could find defendant’s claimed inability to
communicate was volitional and contrived. A defendant ‘cannot
simply refuse to cooperate with his appointed attorney and
thereby compel the court to remove that attorney.’ ”].)
Hernandez argues the court should have asked more
questions of counsel about her investigation, witness interviews,
and the alleged breakdown in her relationship with him. The
cases he cites are all distinguishable. This is not a case in which
the trial court failed to ask any questions of counsel. (See People
v. Munoz (1974) 41 Cal.App.3d 62, 66; People v. Groce (1971) 18
Cal.App.3d 292, 295.) This is also not a case in which the court
failed to ask about the anticipated testimony from the witnesses
the defendant specifically identified. (See People v. Stewart
(1985) 171 Cal.App.3d 388, 398, disapproved on another ground
in Smith, supra, 6 Cal.4th at p. 696.)
The court asked counsel to explain her side, and she did.
She correctly noted it was “kind of early in the case,” implying
investigation would be ongoing. Hernandez was demanding a
surveillance video from the liquor store area, even though none of
the charges were based on the fight at that location.
Nevertheless, she sent the defense investigator to look for any
video, and the investigator found none. True, counsel said she
had not asked the investigator to interview witnesses, but she
20
5
never said she wouldn’t. Again, it was early in the case, and the
trial court was certainly entitled to assume at that point
interviews would be conducted when counsel thought they were
tactically necessary. The court was familiar with this particular
deputy public defender, and it was entitled to credit her
assurances that she would follow through on these basic aspects
of representation. (Cf. People v. Crandell (1988) 46 Cal.3d 833,
860 (Crandell), overruled on another ground in People v. Crayton
(2002) 28 Cal.4th 346, 364–365 [“Given the early stage of the
proceeding at which defendant rejected [his appointed counsel’s]
assistance, the trial court could reasonably conclude that
defendant had not made sufficient efforts to resolve his
differences with [counsel] or given [counsel] sufficient time to
demonstrate he was worthy of defendant’s trust.”].)
Hernandez faults the trial court for not asking more
questions when he argued, “she asked for the video 90 days after
we’ve met. They only videotape 30 days. After 30 days, 60 days,
they erase everything.” The court rightly viewed this as nothing
more than speculation. Even if Hernandez’s hypothesized
timeline were accurate, he wasn’t arrested, and counsel wasn’t
appointed, until more than 30 days after the incident. The
preliminary hearing wasn’t held until more than 60 days after
the incident. Given the early stage of proceedings and the
relative insignificance of the video from the liquor store to the
actual charges, the court did not need to inquire more thoroughly
into Hernandez’s speculative claim.
5
On appeal, Hernandez identifies seven civilian witnesses.
All of them testified at trial and were subject to cross-
examination.
21
Hernandez claims the trial court also failed to inquire
whether the attorney/client relationship was irreconcilably
damaged because his counsel told him she was “busy” and
wouldn’t talk to him. He relies on People v. Hill (1983) 148
Cal.App.3d 744, but the court in that case found error because
the trial court had held conversations with defense counsel off the
record and outside the defendant’s presence. (Id. at p. 755.) No
such ex parte off-the-record conversations occurred here. The
court specifically asked counsel to respond to Hernandez’s
allegations. She said she “can’t respond” and couldn’t “be held
accountable for how he feels,” but she didn’t “feel [she had] done
anything to indicate that.” This suggests counsel had no conflict
with Hernandez. If a conflict existed, it was created by
Hernandez’s own desire to control the tactical decisions that fell
within counsel’s purview. That was not enough to appoint new
counsel. (See Smith, supra, 6 Cal.4th at p. 696 [“[A] defendant
may not force the substitution of counsel by his own conduct that
manufactures a conflict.”].) It is not clear what further
clarification the trial court needed to reach that conclusion.
Hernandez argues that, even if the trial court’s Marsden
inquiry was adequate, the court abused its discretion in denying
his request. He revisits the issues surrounding the hypothetical
surveillance video, arguing his counsel’s “busy” caseload
interfered with her ability to timely get the video. This is more
speculation. She had the defense investigator working, including
searching for any video. She was also evaluating a possible plea
deal. Again, his counsel was only two months into representing
him. The court acted within its discretion in concluding the
failure to substitute counsel would not “ ‘ “ ‘substantially impair’
22
the defendant’s right to effective assistance of counsel.” ’ ”
(Gutierrez, supra, 45 Cal.4th at p. 803.)
C. The Faretta Request Was Properly Granted
The Sixth Amendment grants a defendant the right to
knowingly and intelligently waive the right to counsel. (People v.
Bradford (1997) 15 Cal.4th 1229, 1363–1364.) The request must
be timely and unequivocal. (People v. Doolin (2009) 45 Cal.4th
390, 453.) On appeal, we “independently examine[] the entire
record to determine whether the defendant knowingly and
6
intelligently invoked his right to self-representation.” (Ibid.)
Hernandez argues his Faretta waiver was equivocal
because he was put to the choice of either keeping his current
counsel after the court denied his Marsden request or
representing himself. This kind of choice does not undermine a
Faretta waiver. “Defendant confuses an ‘equivocal’ request with
a ‘conditional’ request. There is nothing equivocal in a request
that counsel be removed and, if not removed, that the defendant
wants to represent himself. Once the court has decided not to
remove counsel, the defendant has the choice of going ahead with
existing counsel or representing himself. There is nothing
improper about putting the defendant to this choice, so long as
the court did not err in refusing to remove counsel.” (People v.
Michaels (2002) 28 Cal.4th 486, 524 (Michaels); see People v.
Weeks (2008) 165 Cal.App.4th 882, 887 [error to revoke pro per
status when defendant made clear he would rather represent
himself than have public defender reappointed].)
6
Respondent contends Hernandez invited any error because
his request was granted. We need not decide whether any error
was invited because Hernandez’s claim fails on the merits.
23
None of the cases Hernandez cites rebuts this rule.
In People v. Marshall (1997) 15 Cal.4th 1 (Marshall), the high
court affirmed the denial of a Faretta motion because the
defendant made the request when he was upset about having to
give blood and tissue samples. The request was thus “ambivalent
in the context of that hearing and also was made to delay and
disrupt the proceedings.” (Marshall, supra, at p. 25.)
Hernandez’s request was neither ambivalent nor made to disrupt
the proceedings. He opted to represent himself because he didn’t
like his current counsel. The court’s thorough advisements
guaranteed he understood his rights and the dangers of self-
representation. He chose to represent himself anyway. It doesn’t
matter, as he argues, that he repeatedly said he would do better
with an attorney. Of course he would have. He had an attorney;
he just didn’t like her. He wanted an attorney of his choice.
Indeed, he later refused to relinquish his pro per status because
the court would not guarantee a new attorney from the public
defender’s office. As Michaels held, once his Marsden motion was
properly denied, he could unequivocally opt to represent himself
in lieu of having his current counsel continue to represent him.
Hernandez also analogizes to People v. Carlisle (2001) 86
Cal.App.4th 1382 (Carlisle), but the case suggests the trial court
would have committed reversible error if it had not granted his
Faretta request. The facts are similar: the defendant did not
want his appointed deputy public defender, and when the court
denied his Marsden motion to substitute counsel, he repeatedly
requested over the course of four months to represent himself.
The trial court denied every request, treating them as equivocal
because he made them in response to the court’s refusal to
appoint a different attorney. (Carlisle, supra, at pp. 1386–1389.)
24
The Court of Appeal held the failure to grant the Faretta
request in this circumstance was reversible error. It rejected the
attorney general’s reliance on a line of federal law summarized in
Marshall that “ ‘a motion made out of a temporary whim, or out
of annoyance or frustration, is not unequivocal—even if the
defendant has said he or she seeks self-representation.’ ”
(Carlisle, supra, 86 Cal.App.4th at p. 1389.) While the trial
court’s denial of the defendant’s initial Faretta request after the
denial of his Marsden motion was in line with this authority, at
some point over four months his repeated requests should have
been granted. “We cannot equate defendant’s four-month long
repeated requests to proceed in pro se to be a litigation decision
resulting from ‘temporary whim, or out of annoyance or
frustration. . . .’ ” (Carlisle, supra, 86 Cal.App.4th at p. 1390.)
Here, of course, the court granted Hernandez’s initial
request to represent himself, so our record does not reflect
months of requests. What the record does reflect is that
Hernandez’s complaints continued, and he opted to represent
himself rather than face the “probability” that his former deputy
public defender would be reappointed. The record makes clear
that his request—and his reaffirmance of that choice—was made
upon reflection and not on a “ ‘temporary whim, or out of
annoyance or frustration . . . .’ ” (Carlisle, supra, 86 Cal.App.4th
at p. 1390.)
Lastly, Hernandez cites People v. Cruz (1978) 83
Cal.App.3d 308 (Cruz), which held the trial court did not
adequately inquire into the defendant’s Marsden request, so his
request to represent himself was invalid. (Cruz, supra, at p. 318.)
Because we have upheld the denial of Hernandez’s Marsden
25
motion, the trial court did not err in denying Hernandez’s Faretta
request.
D. The Request for Advisory Counsel Was
Properly Denied
A trial court has discretion to appoint advisory counsel to a
self-represented defendant. (People v. Choi (2021) 59 Cal.App.5th
753, 766.) “Factors for the court to consider include the
defendant’s education, familiarity with the criminal justice
system, and demonstrated legal abilities; the defendant’s reasons
for seeking advisory counsel, including evidence of a
manipulative purpose; the seriousness of the charges; and the
complexity of the issues. [Citation.] We review the decision for
abuse of discretion and will only set it aside if it is ‘arbitrary,
capricious, or whimsical.’ ” (Ibid.)
Hernandez contends the trial court abused its discretion
because it failed to consider any of the relevant factors in denying
advisory counsel. His characterization of the record is incorrect,
and even if not, we find no reversible error.
This is not a case in which the court failed to recognize its
discretion; the court repeatedly noted that it had discretion to
grant or deny Hernandez’s requests for advisory counsel. (Cf.
Crandell, supra, 46 Cal.3d at p. 862; People v. Bigelow (1984) 37
Cal.3d 731, 743.) The court repeatedly denied his requests
because it believed Hernandez was attempting to “have your cake
and eat it, too. Either you’re going to represent yourself or you’re
not.” As the court explained, “[Y]ou really want the best of both
worlds. You want to represent yourself, but you also want an
attorney here to essentially help you. That’s not the way it
works.”
26
The court’s comments can be reasonably interpreted to
reflect a belief that Hernandez was attempting to manipulate the
court. His requests came after the court denied his Marsden
motion, during which he made clear he wanted different counsel.
Opting to represent himself and then requesting advisory counsel
could have been a ploy to get the result he was previously denied:
a new attorney. “Where a defendant represented by the public
defender has undertaken self-representation only after seeking
appointment of private counsel and after having failed to
demonstrate proper grounds for appointment of substitute
counsel, a request to have private counsel appointed in an
advisory capacity might evidence a manipulative endeavor to
obtain the appointment of private counsel without showing of
conflict or inadequacy sufficient to remove the public defender in
the first instance. Where the record supports an inference of
such a manipulative purpose, a court might be justified in
denying a request for advisory counsel.” (Crandell, supra, 46
Cal.3d at p. 863.)
In any event, the court’s failure to express additional
reasons to deny advisory counsel was harmless under People v.
Watson (1956) 46 Cal.2d 818, 836. Crandell controls. In that
case, the defendant’s requests for advisory counsel were
summarily denied because the trial court believed “ ‘there is no
such thing’ ” and it “ ‘wouldn’t appoint that kind of counsel
anyway.’ ” No judge had recognized the discretion to grant the
request or had engaged in a reasoned exercise of judgment based
on the circumstances of the case. Our high court held this
“failure to exercise discretion was error.” (Crandell, supra, 46
Cal.3d at 862.)
27
Crandell nonetheless concluded this kind of error is
amenable to harmless error analysis when “a refusal to grant the
request would not have been an abuse of discretion.” (Crandell,
supra, 46 Cal.3d at p. 864.) Examining the defendant’s
background and skill before and during trial, the court held the
trial court would not have abused its discretion in denying
advisory counsel, so any error in failing to exercise that discretion
in the first instance did not result in prejudice. (Id. at pp. 863–
866.)
The same analysis applies here. Hernandez appeared
intelligent and was articulate. He had an 11th grade education
and some experience with the criminal justice system. While he
underestimated the amount of prison time he was facing, the
court clarified it and he was unfazed. He filed numerous motions
containing case citations and reasoned analysis, including a new
trial motion raising issues similar to those raised by his appellate
counsel here. He worked with an investigator to assist in
investigating and subpoenaing witnesses, obtaining discovery,
and searching for video from the incident. He hired an expert
witness.
This was not a complex case. The charges and the facts
surrounding the incident were straightforward. During trial,
Hernandez effectively cross-examined witnesses and testified on
his own behalf, denying the events occurred in the way other
witnesses had described. He called the physician assistant who
treated him for injuries to bolster his testimony that he was
attacked. He called a medical expert to bolster his defense that
Vizcarra had not suffered serious injuries from the tree branch.
We have reviewed the record. Hernandez performed well
as a non-attorney. He certainly could have done better. Perhaps
28
he made the missteps he points out in his briefs on appeal. But
that makes him no different from most non-attorney defendants
who represent themselves. Had the trial court expressly cited
these case-specific factors to deny advisory counsel, it would not
have abused its discretion. Its failure to do so did not prejudice
Hernandez.
II. Sufficiency of the Evidence Challenges
Hernandez argues insufficient evidence supported his
convictions for assault with a deadly weapon and the three
counts of vandalism. We evaluate these claims by reviewing the
entire record to determine whether there is “ ‘substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v.
Edwards (2013) 57 Cal.4th 658, 715.) We do not resolve
credibility issues or conflicts in the evidence. (People v. Young
(2005) 34 Cal.4th 1149, 1181.) “[U]nless the testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.” (Ibid.)
We find sufficient evidence supported these counts.
A. Assault with a Deadly Weapon
For attacking Vizcarra with the tree branch, Hernandez
was convicted of committing “assault . . . with a deadly weapon or
instrument other than a firearm” in violation of section 245,
subdivision (a). Hernandez contends the evidence was
insufficient to demonstrate the tree branch qualified as a deadly
weapon. We disagree.
“ ‘As used in section 245, subdivision (a)(1), a “deadly
weapon” is “any object, instrument, or weapon which is used in
such a manner as to be capable of producing and likely to produce
29
death or great bodily injury.” ’ ” (In re B.M. (2018) 6 Cal.5th 528,
532–533 (B.M.).) The prosecution here did not argue the tree
branch was an inherently deadly weapon, so “ ‘[i]n 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.’ ” (Id. at p. 533.)
B.M. sets out several considerations to guide this analysis.
“First, the object alleged to be a deadly weapon must be used in a
manner that is not only ‘capable of producing’ but also ‘ “likely to
produce death or great bodily injury.” ’ ” (B.M., supra, 6 Cal.5th
at p. 533.) Second, we may not engage in “conjecture as to how
the object could have been used. Rather, the determination of
whether an object is a deadly weapon under section 254(a)(1)
must rest on evidence of how the defendant actually ‘used’ the
object.” (B.M., supra, at p. 534.) Finally, “although it is
appropriate to consider the injury that could have resulted from
the way the object was used, the extent of actual injury or lack of
injury is also relevant. ‘[A] conviction for assault with a deadly
weapon does not require proof of an injury or even physical
contact’ [citation], but limited injury or lack of injury may suggest
that the nature of the object or the way it was used was not
capable of producing or likely to produce death or serious harm.”
(Id. at p. 535.)
Applying those principles to the facts before it, the court in
B.M. held insufficient evidence showed the juvenile’s “use of a
butter knife against her sister’s blanketed legs was ‘ “likely to
produce . . . death or great bodily injury.” ’ ” (B.M., supra, 6
Cal.5th at p. 536.) The knife was not sharp; the juvenile did not
use the knife on the victim’s “head, face, or neck, or on any
30
exposed part of her body”; and the “moderate pressure” the
juvenile used did not penetrate the blanket covering the victim’s
legs. (Id. at p. 536.) There was also no evidence the victim took
defensive actions, although the court took care to note “an
aggressor should not receive the benefit of a potential victim
fortuitously taking a defensive measure or being removed from
harm’s way once an assault is already underway. But the facts
known to the aggressor before the assault, including defensive
measures taken by the victim, are relevant to determining
whether the aggressor used an object in a manner likely to cause
serious injury.” (B.M., supra, 6 Cal.5th at p. 537.)
Here, the jury was presented with the type of evidence
B.M. found missing in that case. The characteristics of the tree
branch leave no question it was capable of and likely to cause
serious injury. It was large and thick—three to five feet long,
and two to three inches in diameter—and described by Vizcarra
as about the size of a baseball bat. The jury saw a photograph of
a broken branch, consistent with that description. (See People v.
Morlock (1956) 46 Cal.2d 141, 146 [fence post four feet 11 inches
long, four inches by four inches square, and weighing 10 pounds
was deadly weapon]; People v. McCullin (1971) 19 Cal.App.3d
795, 801 [“baseball bat can be a deadly weapon because of the
manner in which it is used” for purpose of probation condition];
People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [wooden stick
18 to 20 inch long and one inch in diameter used to strike young
daughters on different parts of body was deadly weapon for
weapon enhancement].)
The way Hernandez used the branch also demonstrated it
was capable of and likely to inflict serious injury. He targeted
Vizcarra’s head and face, and he put serious force behind the
31
repeated blows. He beat Vizcarra “about eight to ten times, until
he hit [him] on the head and knocked [him] down.” Vizcarra
described the blows as “very hard, very strong, trying to hit me.
He wanted to hit me.” True, Vizcarra did not suffer life-
threatening injuries. Yet, when he got up, he was dizzy. He
suffered a bump on the head and lower back pain, and he couldn’t
use his swollen hand for two weeks. Hernandez makes much of
the fact that the branch broke as he hit Vizcarra, suggesting he
used the branch to its maximum tolerance and it did not inflict
serious harm on Vizcarra. He ignores the fact that Vizcarra used
his hands to shield his head and body from the blows. This falls
squarely within B.M.’s caveat that Hernandez “should not receive
the benefit of [Vizcarra] fortuitously taking a defensive measure”
to protect his head from more serious injury. (B.M., supra, 6
Cal.5th at p. 537.)
Hernandez cites People v. Beasley (2003) 105 Cal.App.4th
1078 (Beasley), but the jury in that case had none of the evidence
the jury was presented with here. In that case, the court held
neither a broomstick nor a vacuum cleaner attachment qualified
as a deadly weapon. As for the broomstick, the victim was struck
on her arms and shoulders, causing bruises. She was not struck
in the head or face. She did not describe the degree of force used
or the character or composition of the broomstick. Neither the
broomstick nor any photographs of it were shown to the jury.
(Id. at pp. 1087–1088.) The same was true of the vacuum cleaner
attachment. The victim was struck once on the shoulder and
once on the back, causing bruises. She described the object as
plastic and used to clean the ceiling in the corners. Neither the
attachment nor any photographs of it were shown to the jury.
(Id. at p. 1088.)
32
The record here contains ample evidence to support the
jury’s conclusion the tree branch was a deadly weapon because
Hernandez “ ‘ “used [it] in such a manner as to be capable of
producing and likely to produce death or great bodily injury.” ’ ”
(B.M., supra, 6 Cal.5th at pp. 532–533.)
B. Vandalism Counts
In convicting Hernandez of three counts of felony
vandalism, the jury found each act inflicted more than $400 in
damage. (§ 594, subd. (b).) Hernandez argues the evidence was
insufficient to demonstrate the value of the damages in any of the
counts. We disagree.
Section 594 does not address the proper method of valuing
damage for vandalism charges. We think actual cost of repairs is
a sensible approach. (See § 1202.4, subd. (f)(3)(A) [for purposes of
restitution, value of damaged property “shall be the replacement
cost of like property, or the actual cost of repairing the property
when repair is possible”]; see In re Kyle T. (2017) 9 Cal.App.5th
707, 713 (Kyle T.).)
Vargas-Flores and Garcia each testified they actually paid
more than $400 to repair their vehicles. Vargas-Flores estimated
the cost for full repairs to his truck was $9,000, and he paid
$1,200 to fix the windows. Garcia testified she paid $770 to
repair the SUV window and fix a dent made in the frame. The
jury was shown photographs of the damage. It makes no
difference, as Hernandez contends, that the prosecution did not
introduce actual invoices or bills for the victims’ payments. That
goes to the weight of their testimony, not its sufficiency. While
additional documentation would have bolstered the prosecution’s
case, these victims testified to the costs they actually paid.
Corroborated by the photographs showing the damage to the
33
vehicles, each witness’s testimony was sufficient to prove beyond
a reasonable doubt that the value of damage to their vehicles
exceeded $400.
Gonzalez’s testimony presents a slightly closer question.
He testified he actually paid only $250 to repair his motorcycle,
but he testified the cost of full repairs would have been $700.
Although he could not afford to pay for the full repair, his
testimony was evidence of actual cost. Again, the prosecution did
not need to introduce an invoice showing the $700 cost. The
photos of both the damaged and partially repaired motorcycle
corroborated Gonzalez’s testimony that more repairs were
needed, and the jury could credit his testimony as to what those
additional repairs would cost. That was sufficient to find beyond
a reasonable doubt that the value of the damage exceeded $400.
Although cited by Hernandez, both Kyle T. and In re A.W.
(2019) 39 Cal.App.5th 941 are distinguishable because neither
case involved evidence of actual costs. In Kyle T., the only
evidence of the cost to clean the graffiti caused by the juvenile
was a one-page graffiti removal cost list that did not identify the
actual costs to remove these specific acts of graffiti. (Kyle T.,
supra, 9 Cal.App.5th at p. 714.) In re A.W. similarly involved
evidence of the average costs to remove graffiti, not the actual
costs to remove the graffiti at issue. (In re A.W., supra, 39
Cal.App.5th at p. 949.) Here, by contrast, each owner of each
damaged vehicle testified to how much they either paid or would
have to pay to repair the specific damage. If Hernandez wanted
to attack the persuasive value of that testimony, he had the
34
7
opportunity to do so at trial. Sufficient evidence supported the
vandalism convictions.
III. Instruction on Lesser Offense of Simple Assault
Simple assault is a lesser included offense to assault with a
deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736,
748.) Hernandez claims the trial court erred and violated his
state and federal constitutional rights by not instructing the jury
on the lesser offense of simple assault for his attack on Vizcarra
with the tree branch. He argues the jury could have concluded
the tree branch was not a deadly weapon and convicted him of
simple assault. We disagree.
A trial court must instruct on lesser included offenses only
if substantial evidence would support a jury’s finding that the
lesser offense, but not the greater offense, was committed.
(People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)
“This standard requires instructions on a lesser included offense
whenever ‘ “a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser, but not the greater, offense was
committed. [Citations.] In deciding whether evidence is
‘substantial’ in this context, a court determines only its bare legal
sufficiency, not its weight.” (Ibid.) A court need not instruct on a
lesser offense, however, “where the evidence establishes if the
7
Hernandez suggests these victims’ testimony was hearsay.
He forfeited the issue by not asserting hearsay objections in the
trial court. (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 408.)
35
defendant was guilty at all, he was guilty of the higher offense.”
8
(People v. Ellers (1980) 108 Cal.App.3d 943, 954.)
For the same reasons Hernandez argues insufficient
evidence supported a finding that the tree branch was a deadly
weapon, he argues the jury could have found the tree branch was
not a deadly weapon and convicted him of simple assault. No
reasonable jury could have reached that conclusion on this
record.
Again, the prosecution had to prove the tree branch was
“ ‘ “used in such a manner as to be capable of producing and
likely to produce death or great bodily injury.” ’ ” (B.M., supra, 6
Cal.5th at pp. 532–533.) For all the reasons already explained,
the prosecutor’s evidence overwhelmingly satisfied that
standard—the branch was the size of a baseball bat; Hernandez
hit Vizcarra with it multiple times “very hard,” including in the
head; and Vizcarra suffered lingering injuries. The injuries were
not severe, but that was almost certainly the result of Vizcarra
protecting himself, not due to the manner in which Hernandez
used the branch. Indeed, Hernandez hit him so hard the branch
broke.
8
Respondent argues Hernandez forfeited this argument by
not requesting a simple assault instruction in the trial court.
Long-settled law imposes a sua sponte duty on the trial court to
give instructions on lesser offenses supported by the evidence;
indeed, the court must give them over the defendant’s objections.
(Breverman, supra, 19 Cal.4th at pp. 154–155.) We find no
forfeiture.
36
There was no contrary substantial evidence that could have
supported a finding of simple assault. Hernandez did not testify
to some other version of the assault; he denied he committed the
assault at all. So to convict Hernandez of any assault, the jury
had to accept Vizcarra’s description of the attack. That
description left no question Hernandez used the branch in a
manner that was both capable of and likely to produce great
bodily injury. Hernandez again analogizes to B.M. and Beasley,
but again, the evidence here did not resemble the evidence in
those cases.
Hernandez also focuses on the fact that Vizcarra wasn’t
seriously injured, and the jury was instructed, “No one needs to
actually have been injured by the defendant’s act. But if someone
was injured, you may consider that fact, along with all the other
evidence, in deciding whether the defendant committed an
assault, and if so, what kind of assault it was.” His argument
loses sight of the question the jury faced, which was whether he
used the branch in a way “ ‘ “as to be capable of producing and
likely to produce death or great bodily injury.” ’ ” (B.M., supra, 6
Cal.5th at pp. 532–533.) The extent of the actual injury is
relevant to illuminate the dangerousness of the object and how it
was used. Hence, “limited injury or lack of injury may suggest
that the nature of the object or the way it was used was not
capable of producing or likely to produce death or serious harm.”
(Id. at p. 535.)
Hernandez did not use the branch lightly, or aim for
Hernandez’s torso or legs, or pull back at any point. The only
evidence showed an aggressive, forceful, repeated attack with a
baseball-bat-sized tree branch targeting Vizcarra’s head and face.
Vizcarra only escaped more serious injury because he protected
37
himself with his hands. No reasonable jury could have looked at
the limited extent of Vizcarra’s injuries and concluded Hernandez
did not use the branch in a manner capable of producing and
likely to produce great bodily injury. On this record, if
Hernandez was guilty at all, he was guilty of the greater offense
of assault with a deadly weapon and not the lesser offense of
simple assault. No instruction on simple assault was warranted.
IV. Instruction on Defense of Property
Hernandez argues the court erred and violated his
constitutional rights by not giving an instruction on defense of
property as a defense to the assault with a deadly weapon count.
His theory is that the evidence supported a conclusion he was
justified in assaulting Vizcarra to defend his missing backpack.
An instruction on an affirmative defense is only warranted
when substantial evidence supports it and it is not inconsistent
with the defendant’s theory of the case. (Breverman, supra, 19
Cal.4th at p. 157.) Here, the evidence came nowhere close to
justifying this instruction, and the instruction conflicted with
9
Hernandez’s testimony that he did not assault Vizcarra.
A necessary element of defense of property is imminent
harm. (CALCRIM No. 3467.) Evidence of that element was
entirely missing. Hernandez testified he angrily returned to the
apartment complex because he could not find his backpack. At no
time during his rampage did he know what happened to it. There
9
Hernandez suggests in his reply brief that he was entitled
to this instruction because he was relying on defense of property
as a defense. Even so, the trial court was only obligated to give
the instruction if it was supported by substantial evidence.
(People v. Larsen (2012) 205 Cal.App.4th 810, 823.)
38
was no evidence Vizcarra ever had the backpack, and yet
according to Vizcarra, Hernandez chased him into the street and
viciously beat him with a tree branch. According to Hernandez,
he did not assault Vizcarra at all, which is inconsistent with the
theory that he was compelled to assault Vizcarra to defend his
backpack. In either version, nothing indicated Vizcarra posed
any danger to Hernandez’s missing backpack, let alone danger
that was so imminent that Hernandez had to take defensive
measures. There was no evidence to justify Hernandez chasing
him down and repeatedly beating him in order to protect his
backpack. The court did not err by not giving a defense of
property instruction.
V. Self-Defense Instruction
Hernandez argues the trial court erred and violated his
constitutional rights by refusing to give a self-defense instruction
for the vandalism count based on him throwing the battery at
Garcia’s SUV. We will assume for the sake of our opinion that
self-defense is a defense to vandalism. Again, the instruction was
only warranted if it was supported by substantial evidence.
(Breverman, supra, 19 Cal.4th at p. 157.) Insufficient evidence
10
supported giving it here.
For self-defense to apply, “the defendant must actually and
reasonably believe in the need to defend.” (People v. Humphrey
(1996) 13 Cal.4th 1073, 1082.) Perfect self-defense requires the
defendant’s belief to be objectively reasonable, that is, “[t]he
10
Respondent argues at length that a self-defense instruction
was not warranted for the assault with a deadly weapon count.
Hernandez does not assert that argument on appeal. We will not
address it.
39
circumstances must be sufficient to excite the fears of a
reasonable person . . . .’ ” (Ibid.) In assessing objective
reasonableness, “a jury must consider what ‘would appear to be
necessary to a reasonable person in a similar situation and with
similar knowledge . . . .’ [Citation.] It judges the reasonableness
‘from the point of view of a reasonable person in the position of
defendant . . . .’ [Citation.] To do this, it must consider all the ‘ “
‘facts and circumstances . . . in determining whether the
defendant acted in a manner in which a reasonable man would
act in protecting his own life or bodily safety.’ ” ’ ” (Id. at pp.
1082–1083.)
Further, “the fear must be of imminent harm. ‘Fear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great
bodily injury.’ ” (People v. Humphrey, supra, 13 Cal.4th at p.
1082.)
Hernandez argues a self-defense instruction was warranted
based on his trial testimony about his reaction to Garcia and her
SUV. He testified, “Later on, later on I see somebody put their
hand out the window. I don’t know if it was their phone, I
couldn’t really see. I got paranoid, so I threw the battery at the
car, trying to, you know, not—basically I felt like my life was in
danger. There was a lot of them. There was like five, six of
them. There was only one of me. So I mean, you know, I got
paranoid. I did throw the battery at the car and I continued my
route—I continued—well, I continued to leave.”
40
On cross-examination, he testified he saw the SUV
following him and asked, “Why are you following me?”
He explained: “As I kept walking, I see that the vehicle still
following me, so I turn around and I see something—somebody or
something just kind of stick out their hand or something.” He
added, “I just see somebody put their hand out or put something
up in the air. That got me paranoid.”
He later described throwing the battery as a “natural
reaction for being threatened” and a “simple reaction.” He
admitted, “[I]t’s bad that I threw something like that, but, I
mean, my intention was just—I just spooked out.”
When asked what he meant by getting “paranoid,” he
testified, “Just by the vehicle, just, approaching me and then I
see somebody stick their hand out, you know. Just, I got
paranoid, you know. Might be somebody, another guy, one of
their friends or something trying to attack me or hurt me. That’s
my reaction the whole time when the vehicle approached me.
I felt my life was in danger.”
In closing, Hernandez argued along the same lines that he
“got paranoid,” and throwing the battery was his “natural
reaction” after “being assaulted by three guys.” He argued that
during the entire rampage he was “in that mental state where
everything was a threat to him.”
Assuming Hernandez’s testimony that he was “paranoid”
showed he actually feared imminent danger and believed in the
need to defend himself, the evidence was insufficient to show his
belief was objectively reasonable. By his own account,
Hernandez was the primary aggressor at the apartment complex.
Five to eight minutes had elapsed since the fight in front of the
liquor store. Angry, he walked 0.2 miles back to the apartment
41
complex. Although he denied assaulting Vizcarra, he made the
“conscious decision” to return to the apartment complex and
confront O’Campo, who had nothing to do with incident. He
made another “conscious decision” to vandalize the truck with a
piece of wood. He claimed Vizcarra punched him and O’Campo
threw tools at him, which he then stole. He moved back out into
the street. Only at that point did he see Garcia’s SUV
“approaching” and “following” him. He became so “paranoid” that
he threw the battery at Garcia’s SUV because he saw “somebody
put their hand out or put something up in the air.”
He didn’t testify that the SUV came at him aggressively or
in a way that might have suggested he was in harm’s way. He
didn’t testify he thought the object he saw in Garcia’s SUV was
some kind of weapon, such as a gun. He didn’t know what it was.
We know from other testimony it was a cell phone. No one had
brandished a weapon at any point during the incident, including
any weapon that might have resembled a cell phone (such as a
gun or knife), so there was no reason to assume someone in the
SUV might also have a weapon. No reasonable person in this
situation would have believed throwing a battery at Garcia’s SUV
was necessary to defend against imminent harm. No self-defense
instruction was required.
VI. Cumulative Prejudice
We have found no prejudicial error, so we reject
Hernandez’s argument that cumulative prejudice warrants
reversal of the judgment.
42
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
STRATTON, J.
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