People v. Lavi CA2/6

Filed 12/12/22 P. v. Lavi CA2/6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306345
(Super. Ct. No. 2019031654)
Plaintiff and Respondent, (Ventura County)
v. OPINION ON TRANSFER
FROM SUPREME COURT
NASSER LAVI,
Defendant and Appellant.
Nasser Lavi appeals from the judgment entered after a jury
had convicted him of assault by means of force likely to produce
great bodily injury (assault GBI – Pen. Code, § 245, subd. (a)(4));1
willfully inflicting physical pain upon an elder (elder abuse –
§ 368, subd. (b)(1)); and making threatening phone calls, a
misdemeanor (§ 653m, subd. (a)). The victim was appellant’s 78-
year-old uncle, J.L. (Uncle). Appellant was sentenced to prison
for three years.
1 All statutory references are to the Penal Code.
Appellant was charged with assault with a deadly weapon
(ADW). (§ 245, subd. (a)(1).) He contends the trial court
prejudicially instructed the jury on what it mistakenly believed to
be the lesser included offense of assault GBI. In addition, he
claims the court failed to instruct the jury sua sponte on self-
defense. Finally, appellant argues that in violation of section
654, the trial court imposed an unstayed concurrent term for the
elder abuse conviction.
In an unpublished opinion filed on June 22, 2021, we
modified the judgment to stay execution of the sentence for the
elder abuse conviction and affirmed the judgment as modified.
On September 1, 2021, the California Supreme Court granted
review (S270089). On November 16, 2022, it transferred the
matter to us “with directions to vacate [our] decision and
reconsider the cause in light of People v. Aguayo (2022) 13
Cal.5th 974 [Aguayo].” In Aguayo the Supreme Court held that
assault GBI and ADW “are ‘different statements of the same
offense.’” (Id. at p. 979.) Thus, assault GBI is not a lesser
included offense of ADW.
We vacate our original decision. After reconsidering the
cause in light of Aguayo and the parties’ supplemental briefs, we
have not changed our original decision’s disposition of the appeal.
We modify the judgment to stay execution of the sentence for the
elder abuse conviction and affirm the judgment as modified.
Facts
Appellant, who was about 55 years old, mistakenly believed
that Uncle owed him millions of dollars. Appellant left numerous
profanity-laced voicemails on Uncle’s phone threatening to
commit acts of violence against him. In one of the voicemails,
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appellant said he was “coming to see” Uncle “[a]nd you better
have a fucking army behind you, bitch. An army!”
A few weeks after the “army” voicemail, Uncle opened his
garage door and saw appellant’s car blocking the driveway. The
car was parked behind Uncle’s vehicle. Appellant asked Uncle
questions requiring a “yes” or “no” answer. When Uncle replied
“no,” appellant “came at [him] full force, throwing some punches.”
At trial Uncle testified that one of the punches had struck him on
the side of his left eye. However, at the preliminary hearing
Uncle had testified, “‘I don’t think he reached [punched] me, I
don’t think he did.’”
Uncle turned to retrieve a machete hanging from a hook on
the wall inside the garage. He intended to use it to defend
himself. When he turned, Uncle “felt something hit [his] face”
and then immediately “heard something hitting the floor.” Blood
gushed “[f]rom [his] forehead down to [his] chin.” Appellant was
standing at least five feet away from Uncle, too far away to hit
Uncle in the face with his fists. Uncle grabbed the machete and
“chase[d] [appellant] back to his car.”
At the spot in the garage where he had been hit in the face
before grabbing the machete, Uncle found a slab of granite on the
floor. He concluded that appellant had thrown the granite at
him, causing the injury to his face. Before appellant parked his
car in Uncle’s driveway, the slab of granite had been on a chair
beside a table. Uncle testified, “I believe that while I was turning
around to pick up the machete [appellant] picked up the . . .
granite . . . .”
The slab of granite was received in evidence. A police
officer estimated that it weighed between 15 and 20 pounds. It
was about two feet long, four inches wide, and two inches deep.
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Appellant did not testify.
Appellant’s Conviction of Assault GBI Is Valid
Despite the Trial Court’s Erroneous Jury Instruction
Count 1 of the information alleged that appellant had
committed “the crime of assault with [a] deadly weapon, in
violation of Penal Code [section] 245(a)(1),” and that the deadly
weapon was a “granite slab.” (Capitalization omitted.) The trial
court erroneously instructed the jury on assault GBI as a lesser
included offense of ADW. (§ 245, subd. (a)(4).) The jury found
appellant not guilty of ADW but guilty of assault GBI, “a lesser
crime to the crime alleged in Count 1 of the Information.”
(Capitalization and bold omitted.)
In his supplemental brief, appellant contends his assault
GBI “conviction must be reversed because it is not and cannot be
a lesser offense of assault with a deadly weapon because they are
‘different statements of the same offense.’ (People v. Aguayo,
supra, 13 Cal.5th 974, 979.)” “A defendant may be convicted of
an uncharged crime if, but only if, the uncharged crime is
necessarily included in the charged crime. [Citations.] The
reason for this rule is settled. ‘“This reasoning rests upon a
constitutional basis: ‘Due process of law requires that an accused
be advised of the charges against him in order that he may have
a reasonable opportunity to prepare and present his defense and
not be taken by surprise by evidence offered at his trial.’
[Citation.]”’ [Citation.] The required notice is provided as to any
charged offense and any lesser offense that is necessarily
committed when the charged offense is committed.” (People v.
Reed (2006) 38 Cal.4th 1224, 1227.)
Appellant was not convicted of an uncharged offense
because ADW and assault GBI are different statements of the
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same offense. Therefore, by expressly alleging that appellant had
used a granite slab to commit ADW, count 1 put appellant on
notice that he could be convicted of the same offense based on the
theory that he had used the granite slab to commit assault GBI.
Appellant acknowledges that, pursuant to Aguayo, “force likely
assault [assault GBI] by using the granite slab in a manner likely
to cause death or great bodily injury is the same offense as
assault with a deadly weapon where the weapon is [a] granite
slab . . . .”
Moreover, appellant had notice of the assault GBI theory
because to prove that he had used the granite slab as a deadly
weapon, the People were required to show that he had committed
assault GBI. A granite slab is not inherently dangerous. “‘Some
few objects, such as dirks and blackjacks, have been held to be
deadly weapons as a matter of law; the ordinary use for which
they are designed establishes their character as such. . . .’”
(People v. Aledamat (2019) 8 Cal.5th 1, 6.) “[D]eadly weapons or
instruments not inherently deadly are defined by their use in a
manner capable of producing great bodily injury.” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1030.) Thus, a noninherently
dangerous granite slab qualifies as a deadly weapon only if it is
used “in a manner likely to produce death or great bodily injury.”
(Id. at p. 1029.)
Appellant claims that the trial court’s jury instruction on
assault GBI as a lesser included offense of ADW “led the jury to
convict [him] of [assault GBI] under the theory that [he]
pummeled Uncle’s face with his fists.” (Bold and capitalization
omitted.) Appellant argues that his “conviction for [assault GBI]
cannot stand because [it] was based on an act (punching his
Uncle) upon which [he] received absolutely no notice.”
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We disagree. The jury instructions made clear that assault
GBI was based on appellant’s act of throwing the granite slab at
Uncle. The trial court instructed that assault GBI “is a lesser
included offense of Assault with a Deadly Weapon Other than a
Firearm as charged in Count One.” (Italics added.) Count One
was based on appellant’s use of the granite slab, not his fists, in
assaulting Uncle. Therefore, the assault GBI conviction must
have been based on appellant’s use of the granite slab.
If the jury had concluded that appellant had assaulted
Uncle only with his fists, it would have acquitted him of assault
GBI and instead found him guilty of simple assault. The jury
was instructed on simple assault as “a lesser included offense of
Assault with Force Likely to Produce Great Bodily Injury.”
No Duty to Instruct Sua Sponte on Self-Defense
Appellant claims that the trial court had a duty to instruct
the jury sua sponte on self-defense. “A trial court is required to
instruct sua sponte on any defense, including self-defense, only
when there is substantial evidence supporting the defense, and
the defendant is either relying on the defense or the defense is
not inconsistent with the defendant’s theory of the case. . . .
[¶] . . . In determining whether substantial evidence supports a
defense, the trial court must leave issues of witness credibility to
the jury.” (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
“‘To justify an act of self-defense for [an assault charge
under Penal Code section 245], the defendant must have an
honest and reasonable belief that bodily injury is about to be
inflicted on him. [Citation.]’ [Citation.] The threat of bodily
injury must be imminent [citation], and ‘. . . any right of self-
defense is limited to the use of such force as is reasonable under
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the circumstances. . . .’” (People v. Minifie (1996) 13 Cal.4th
1055, 1064-1065 (Minifie), first brackets in original.)
Substantial evidence does not support the theory that
appellant was acting in self-defense when he assaulted Uncle.
Appellant punched Uncle and threw the slab of granite before he
had reasonable grounds to believe that “‘bodily injury [was] about
to be inflicted on him.’” (Minifie, supra, 13 Cal.4th at p. 1064.)
Uncle did not grab the machete until after he had been hit in the
face by the granite.
In any event, appellant cannot invoke self-defense because
he initiated a physical attack against Uncle. “It is well
established that the ordinary self-defense doctrine—applicable
when a defendant reasonably believes that his safety is
endangered—may not be invoked by a defendant who, through
his own wrongful conduct (e.g., the initiation of a physical assault
. . .), has created circumstances under which his adversary’s
attack or pursuit is legally justified.” (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1.)
Accordingly, the trial court had no duty to instruct sua
sponte on self-defense.
Sentence for Elder Abuse Must be Stayed
For the elder abuse conviction on count 2, the trial court
sentenced appellant to prison for three years. The court ordered
that the sentence run concurrently with the three-year prison
term imposed on count 1 for assault GBI. Appellant claims, and
the People concede, that section 654 prohibits punishment for
both offenses because they arose from the same act or course of
conduct – appellant’s assault against Uncle. We agree. Section
654 provides, “[I]n no case shall [an] act or omission be punished
under more than one provision.”
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“[R]ather than . . . imposing concurrent sentences, when a
court determines that a conviction falls within the meaning
of section 654, it is necessary to impose sentence but to stay
the execution of the duplicative sentence . . . . The sentencing
court should stay execution of sentence pending completion of
service of sentence upon the greater offense, with the stay to
become permanent upon completion of that sentence.” (People v.
Duff (2010) 50 Cal.4th 787, 796.)
Disposition
Our original decision (People v. Lavi (June 22, 2021,
B306345) [nonpub. opn.]) is vacated. The judgment is modified
to stay execution of the three-year concurrent sentence imposed
on count 2, elder abuse. (§ 368, subd. (b)(1).) The stay shall
remain in effect pending completion of service of the three-year
sentence imposed on count 1, assault GBI. (§ 245, subd. (a)(4).)
The stay shall become permanent upon completion of that
sentence. As modified, the judgment is affirmed. The trial court
shall prepare an amended abstract of judgment and send a
certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Ben Coats, Judge
Superior Court County of Ventura
______________________________
Adrian Dresel-Velazquez, 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, Senior
Assistant Attorney General, Roberta L. Davis, William H. Shin,
Seth P. McCutcheon, Lindsay Boyd, Deputy Attorneys General,
for Plaintiff and Respondent.