People v. Canedos CA2/1

Filed 10/21/21 P. v. Canedos CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B307948
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA077847)
v.
RONALD REYES CANEDOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
Randall Conner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant Ronald Reyes Canedos challenges
the sufficiency of the evidence of his conviction for assault with
a deadly weapon. (Pen. Code,1 § 245, subd. (a)(1).) He argues
that we must reduce his conviction to brandishing a deadly
weapon (§ 417, subd. (a)(1)) because the evidence did not show
that he did an act with his knife that by its nature would directly
and probably harm the victim. He also contends that the trial
court erred by failing to instruct the jury on brandishing, which
he claims was a lesser included offense of assault with a deadly
weapon under the expanded accusatory pleading test. We
disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On December 17, 2019, Canedos went to a home in
Palmdale where his wife, O.S., lived with her mother, T.M.
Canedos no longer lived with O.S. They had two young children,
R.C. and H.C., who also lived with O.S., T.M., and T.M.’s young
twin sons.
At around 9:50 p.m. that night, Canedos had an argument
with O.S. T.M. heard noises and went into the bedroom to
intervene. She saw that Canedos had cornered O.S. and was
screaming “say it one more time” at her while holding a large
knife. H.C. told sheriff ’s deputies that night that Canedos told
O.S., “ ‘[C]all me loser one more time and then I’m a chop you
up.’ ” According to H.C., Canedos then told T.M., “ ‘[I]f you don’t
move out of the way so I can leave, I’m gonna end up chopping
everybody up.’ ”
1 Subsequent statutory references are to the Penal Code.
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T.M. yelled for one of her young sons to call 911, and
Canedos said, “[I]f you call the police, I will kill you.” T.M.
tried to intervene to protect O.S., and the two of them, along
with Canedos, made their way out of the bedroom to the hallway.
T.M. went to the kitchen and called 911. A recording of the
call was played to the jury. During the call, a voice identified
as O.S.’s says, “[M]omma stop! He is gonna stab me.” Shortly
afterward, T.M. tells the operator that Canedos “was trying to
stab my daughter.”
Canedos left the scene before police arrived and went to his
mother’s house. Sheriff ’s deputies discovered the Jeep Canedos
was driving at his parents’ residence. They searched the vehicle
and found a large, sharp butcher knife on the driver’s side of the
floorboard.
Canedos testified that he had gone to O.S.’s home
the morning before the incident to sleep off the effects of
methamphetamine that he had used, and that he held a new
fishing knife on his chest while he slept. He denied pointing
the knife at O.S. or threatening her.
An information charged Canedos with one count of assault
with a deadly weapon (§ 245, subd. (a)(1)), two counts of criminal
threats (§ 422, subd. (a)), and one count of dissuading a witness
from reporting a crime (§ 136.1, subd. (b)(1)). The trial court
granted Canedos’s motion for a judgment of acquittal for
insufficient evidence (§ 1118.1) on one of the counts of criminal
threats, and dismissed the other count of criminal threats under
section 1385 because the prosecutor elected not to proceed on
that count. The jury convicted Canedos of assault with a deadly
weapon but acquitted him of dissuading a witness. The court
sentenced Canedos to six years eight months in prison. The court
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imposed the high term of four years for assault with a deadly
weapon, plus four consecutive eight-month terms on a prior case
after the court found him in violation of his probation.
DISCUSSION
A. Sufficiency of the Evidence of Assault with a
Deadly Weapon
Canedos contends that there was insufficient evidence
to support his conviction of assault with a deadly weapon. In
reviewing sufficiency of the evidence, we ask “ ‘whether, on the
entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] . . . [W]e must view
the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ [Citation.]”
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Because the
sufficiency of the evidence is ultimately a legal question, we must
examine the record independently for ‘ “substantial evidence—
that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt.
(People v. Boyce (2014) 59 Cal.4th 672, 691 . . . .)” (People v.
Banks (2015) 61 Cal.4th 788, 804.) The evidence in this case was
sufficient to meet this deferential standard.
A person violates section 245, subdivision (a) if he “commits
an assault upon the person of another with a deadly weapon
or instrument other than a firearm.” The Penal Code defines
assault as “an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.” (§ 240.)
The defendant need not intend to violate the law or to cause a
particular injury. (People v. Colantuono (1994) 7 Cal.4th 206,
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214.) Instead, the prosecution must show only that the defendant
“ ‘willfully committed an act that by its nature will probably and
directly result in injury to another, i.e., a battery.’ ” (People v.
Golde (2008) 163 Cal.App.4th 101, 109.)
Canedos claims that there was insufficient evidence that
he committed such an act. He notes that when they testified
at trial, Canedos’s two children did not remember seeing their
father move the knife up and down in a threatening manner.
T.M. also testified that Canedos kept the knife by his side and
did not point it at O.S. But this testimony contradicted earlier
statements by T.M. and the two children to police. The deputy
sheriff who responded to the scene testified that Canedos’s son
R.C. told him that night that “[h]e saw [Canedos] waving the
knife up and down towards . . . [O.S.] approximately six inches
away from her.” When reminded of the statements she made to
sheriff ’s deputies immediately after the event, T.M. confirmed
that she saw Canedos move the knife up and down in a
threatening manner toward O.S. She also testified that she
heard Canedos tell O.S. that he was going to kill her.
In reviewing the sufficiency of the evidence, we do not
reweigh the evidence. (People v. Collom (2020) 52 Cal.App.5th
35, 41.) Instead, we consider only whether a reasonable jury
could have convicted the defendant on the basis of the evidence
presented. (Ibid.) In this case, a reasonable jury could have
concluded that the statements from T.M. and R.C. to police
regarding the night of the incident were credible, and that in
their initial trial testimony they either did not remember the
details of the event or were trying to protect Canedos.
Canedos also contends that even if there was evidence that
he moved the knife up and down near O.S.’s face, this was not
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sufficient for assault with a deadly weapon because it would not
“directly and probably result in the application of force to a
person” (CALCRIM No. 875) unless O.S. herself moved toward
the knife. But under longstanding precedent, “it [is] not
necessary that the prosecution introduce evidence to show that
the appellant actually made an attempt to strike or use the knife
upon the person of the” victim in order to convict a defendant of
assault with a deadly weapon. (People v. McCoy (1944) 25 Cal.2d
177, 189, italics omitted.) In McCoy, the defendant held a knife
suspended above the victim’s face and said, “ ‘Don’t make any
noise or I’ll use this knife.’ ” (Id. at p. 182.) The victim was
able to free herself, and the defendant never made a stabbing
motion at her, but the Supreme Court upheld his conviction of
assault with a deadly weapon. (Id. at pp. 190–191.) In People v.
McMakin (1857) 8 Cal. 547, the defendant pointed a gun at
the ground in front of the victim and threatened to shoot him
if he did not leave disputed land. (Id. at p. 547.) The victim
rode away on horseback, and the defendant did not attempt to
pursue the victim or carry out his threat, but the Supreme Court
nevertheless affirmed the conviction of assault with a deadly
weapon. The court reasoned that, “when the party draws the
weapon, although he does not directly point it at the other, but
holds it in such a position as enables him to use it before the
other party could defend himself, at the same time declaring
his determination to use it against the other, the jury are fully
warranted in finding that such was his intention.” (Id. at
p. 549, italics omitted.) The fact that the defendant’s threat
was conditional on the victim’s refusal to leave the land was
immaterial, so long as the defendant was willing to carry out
the threat if the victim refused to comply. (Id. at pp. 548–549.)
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These cases remain good law despite their age.2 (See
1 Witkin, Cal. Criminal Law (4th ed. 2021) Crimes Against the
Person, § 45; People v. Lipscomb (1993) 17 Cal.App.4th 564, 570.)
A reasonable jury could have concluded that Canedos, by drawing
the knife and holding it within striking distance of O.S., and
threatening to stab her if she did not comply with his demands,
took sufficient action to be guilty of assault with a deadly
weapon.
B. Brandishing Is Not a Lesser Included Offense
Canedos contends that the trial court erred by failing to
instruct the jury on brandishing a weapon (§ 417, subd. (a)(1)),
which he alleges is a lesser included offense of assault with a
deadly weapon. We disagree.
“[A] lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or
the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser.” (People v. Birks
2 The Supreme Court’s decision in In re B.M. (2018)
6 Cal.5th 528, which Canedos cites in his reply brief, does not
call these cases into question. In B.M., the court reversed the
judgment of assault with a deadly weapon because the manner
in which the juvenile defendant used a butter knife against the
victim was not likely to cause death or great bodily injury. (Id.
at pp. 536–537.) There the defendant “used the butter knife
only in the area of [the victim’s] legs, which were covered with
a blanket.” (Id. at p. 535.) This is not relevant to the current
case, where the butcher knife Canedos used against O.S. was
much more likely to cause serious injury than a butter knife,
and where there was evidence that he threatened to stab O.S.
in or near her face.
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(1998) 19 Cal.4th 108, 117.) “[E]ven absent a request, and even
over the parties’ objections, the trial court must instruct on a
lesser offense necessarily included in the charged offense if there
is substantial evidence the defendant is guilty only of the lesser.”
(Id. at p. 118.) If a crime does not fit the definition of a lesser
included offense, and is merely a lesser-related offense, the
defendant is not entitled to an instruction on the offense. (Id. at
p. 136.)
Brandishing is not a lesser included offense of assault with
a deadly weapon under the elements test. As the court explained
in People v. Steele (2000) 83 Cal.App.4th 212, although a
defendant will ordinarily brandish a weapon before using it to
assault the victim, “it is theoretically possible to assault someone
with a firearm without exhibiting the firearm in a rude, angry or
threatening manner, e.g., firing or pointing it from concealment,
or behind the victim’s back.” (Id. at p. 218.) The same is true
of assaults with deadly weapons other than firearms, such as
knives, and we see no reason to depart from the court’s reasoning
in Steele.
Nor is brandishing a lesser included offense in this case
under the accusatory pleading test. The accusatory pleading—
in this case, the information—alleged that Canedos “did willfully
and unlawfully commit an assault upon [O.S.] with a deadly
weapon, to wit, knife.” Other than specifying the weapon, this
pleading “does little more than repeat the statutory definition
of [assault with a deadly weapon] from the Penal Code, and
does not supply the additional elements that would encompass”
brandishing. (People v. Munoz (2019) 31 Cal.App.5th 143, 155
(Munoz).)
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Canedos contends that brandishing is nevertheless a lesser
included offense in this case under the “expanded accusatory
pleading test” that the court applied in People v. Ortega (2015)
240 Cal.App.4th 956, 967. The expanded accusatory pleading
test requires the trial court to consider the facts derived from the
preliminary hearing as part of the accusatory pleading. (See id.at pp. 968–970.) If those facts include all the elements of a lesser
offense, and if there is substantial evidence that the defendant
committed only the lesser offense, then the court must instruct
the jury on the lesser offense. (Id. at pp. 970–971.)
We considered and rejected the expanded accusatory
pleading test in Munoz. In that case, we noted that “many
Supreme Court cases . . . stat[e] that the accusatory pleading
test looks solely to the language of the pleading itself.” (Munoz,
supra, 31 Cal.App.5th at p. 158.) In particular, two Supreme
Court cases, People v. Montoya (2004) 33 Cal.4th 1031, 1036 and
People v. Ortega (1998) 19 Cal.4th 686, 698, disapproved a Court
of Appeal case3 for looking beyond the accusatory pleading itself
to the preliminary hearing evidence to determine whether an
offense was a lesser included offense. “Whatever the merit of
[Canedos’s] arguments, on which we express no opinion, we are
bound by Supreme Court authority (see Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 . . . ), which makes clear
that we are not to look beyond the language of the accusatory
pleading itself in assessing lesser included offenses.” (Munoz,
supra, 31 Cal.App.5th at p. 158.)
3 People v. Rush (1993) 16 Cal.App.4th 20.
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Thus, brandishing is not a lesser included offense of assault
with a deadly weapon, and the trial court did not err by failing to
instruct the jury on it.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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