Opinion
B305460
07-21-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EVAN LACOSTE, Defendant and Appellant.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA482033, Frederick N. Wapner, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Michael Evan LaCoste (defendant) appeals from a judgment entered after a jury found defendant guilty of misdemeanor assault (Pen. Code, § 240), felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and felony assault with a deadly weapon (§ 245, subd. (a)(1).) On appeal defendant challenges only his conviction for felony assault with a deadly weapon, arguing that there was insufficient evidence at trial to support the jury's finding that the item used by defendant qualified as a deadly weapon under section 245, subdivision (a)(1).
All further statutory references are to the Penal Code.
We find sufficient evidence was presented at trial to support the jury's finding that the weapon used was a deadly weapon within the meaning of section 245, subdivision (a)(1). Therefore we affirm the judgment.
STATEMENT OF THE CASE
In an amended information filed January 27, 2020, defendant was charged with misdemeanor assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count one); felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count two); and felony assault with a deadly weapon (§ 245, subd. (a)(1)) (count three).
Two prior prison terms were alleged pursuant to section 667.5, former subdivision (b). However by the time of sentencing the statute had been amended by Senate Bill No. 136 (2019-2020 Reg. Sess.) and no longer applied.
On January 27, 2020, defendant pled not guilty and denied all allegations. Thereafter the matter proceeded to trial. The jury was instructed on the lesser included offense of misdemeanor assault as to all three counts. The jury found defendant not guilty on count one, but found him guilty of the lesser charge of assault. The jury found defendant guilty as charged on counts two and three.
Appellant was sentenced to a total of four years in state prison. As to count three the court selected the middle term of three years. As to count two the defendant was ordered to serve a consecutive term of one year (one-third the middle term). Defendant was also sentenced to serve a concurrent term of 180 days in county jail on count one.
On March 6, 2020, defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Prosecution evidence
At approximately 2:30 p.m. on October 18, 2019, Matthew Ramone was working as a security guard for the Dream Hotel on Selma Avenue in Hollywood and was informed that one of the hotel's valets had been punched by a perpetrator who was walking eastbound on Selma Avenue towards Cahuenga Boulevard. Ramone headed in that direction, anticipating that one of the valets might be engaged in an interaction or fight with someone who may have hit him. When Ramone got to the northwest corner of Cahuenga Boulevard and Selma Avenue, he saw a group of valets standing on the sidewalk and defendant standing in the crosswalk looking at them with a clenched fist. Ramone told the defendant to “just go.”
Ramone was standing in front of the valets when defendant approached him. Ramone continued to tell defendant to go and gestured with his hands in an effort to get defendant to leave. Ramone used his cell phone to take a picture of defendant, who then approached Ramone and threw a punch at him. Defendant punched Ramone three times with clenched fists. Ramone put up his hands to protect himself. The defendant's punches landed on the back left side of Ramone's head behind his ear. The second and third blows were slightly mitigated because Ramone raised his shoulder to protect his head and neck. Defendant hit Ramone “pretty hard.” Ramone kept his hands up for protection and backed away. Defendant crossed Cahuenga Boulevard, and Ramone stayed on the other side of the street and called 911.
Defendant walked eastbound on Selma Avenue and Ramone followed him at a distance. As he was exiting a yoga studio on Selma Avenue with his girlfriend, Rushi Gandhi was hit in the face three or four times by defendant. Defendant hit Gandhi with a closed fist, “very hard.” Gandhi bled significantly from his nose, leaving lot of blood on the ground and on his face. He was in pain. At the time of trial Gandhi's nose was still disfigured from the assault. Gandhi and his girlfriend called 911. Ramone, who was still following from a distance, observed the defendant assault Gandhi.
Mario Carvalho was standing on the sidewalk on Selma Avenue with two other men when he saw defendant assault Gandhi. Carvalho and his companions also began to follow defendant at a distance.
As Ramone continued to follow defendant eastbound on Selma Avenue, he observed defendant kick an old man in the chest and knock him down. Defendant then stood over the man, and Ramone was afraid that defendant would stomp on him. Ramone approached and told defendant to stop. Defendant ran southbound across Selma Avenue, picked up a metal chair from an outdoor café and ran toward Ramone. Defendant tried to throw the chair at Ramone, but the chair was so heavy it made defendant stumble and fall down.
Ramone, Carvalho, and the other two men continued to follow defendant at a distance as he continued eastbound on Selma Avenue. When defendant began to run, Carvalho and his two companions ran after him.
Defendant happened upon some window cleaners who were taking a break. They had left cleaning implements leaning against the building. Defendant grabbed a metal extension pole, turned around and began moving towards Carvalho and his companions. The pole was yellow or orange color, about two and a half inches thick, and about 10 feet long. Defendant swung the pole, hitting Carvalho. Defendant was screaming “fuck, fuck, fuck everybody.” Defendant lifted the pole above his head and swung the pole downwards, in a chopping motion. Carvalho observed that the pole seemed “kind of heavy, ” such that defendant had to lean back as he swung the pole. Carvalho blocked one blow with his arm, and the pole hit the back of his right forearm. Another time, the pole hit his right forearm again, and then his right temple area, an inch or two from his right eye. Defendant was swinging the pole hard, and Carvalho felt that if he had not protected himself, he would have sustained serious damage to his head.
Carvalho's first language is not English, and he struggled to express himself at trial, stating, “... I believe if if I hadn't-I haven't pulled my arm to block, I believe it could-I don't know the right word to say, but I believe I could, like, slip, I don't-not pass away, but fall on the floor.” Carvalho then clarified, “I feel that if I wouldn't put my arm, it could cause a big damage on my head.”
Ramone, who observed the scene, noted that during one swing defendant “connected with this guy right in his face. Hard.” Defendant was using “[a]ll of his force” to swing the pole at Carvalho. Ramone described the pole as about five to six feet long, with a diameter of three inches. It was made of aluminum, with possibly some fiberglass on the handle. The pole had a metal portion at one end into which a paint roller or window wiper could be attached.
Ramone, Carvalho, and Carvalho's companions pushed defendant to the ground and held him there until police arrived.
Paramedics examined Ramone at the scene, but he did not go to the hospital. He had some pain behind his left ear for about two days. Carvalho also declined the paramedic's offer to go to the hospital. Carvalho experienced pain in his arm and his eyes that lasted several hours. He took pain medication that night. He had redness and bruising near the outside of his right eye that lasted one or two days.
Defense evidence
Defendant did not testify or offer any witnesses on his behalf.
Additional evidence regarding the weapon
Los Angeles Police Officer Anthony Vasquez responded to the scene where he saw a group of men holding the defendant down on the ground. One of the men directed Officer Vasquez to the pole that the defendant used as a weapon. Officer Vasquez described the pole as yellow in color, “about four to five feet in length, ” with the circumference of a “soda can.” It looked like an extension pole used to reach high places and had paint stains on it from prior use. Officer Vasquez asked one of the workers if he could take the pole, but the worker refused as he needed it. Officer Vasquez did not seize the pole.
The prosecution presented a yellow, four-foot eight-inch pole as demonstrative evidence. The court described the pole as follows:
“And it's a-you said that it's four-feet, eight inches from the bottom to the top which is a metal tip. [¶]... [¶]
“So the label also says it's fiberglass and aluminum. So it's a yellowish orange-ish pole, and if it's four-feet, eight inches in length, the bottom portion of maybe eight inches is black. The top portion, the very top portion is aluminum, and I'm only saying that it's a silver metal, and the label on there says aluminum and fiberglass.
“So it's the yellow portion that's the aluminum. It doesn't say plastic, but clearly there's a black portion that screws and unscrews; and if you unscrew the black portion, as I did when I had it, you can pull out an aluminum pole if it's inside of the yellow pole itself, but it doesn't go all the way back.
“So the tip is now exposed, and it's aluminum.”
The court later commented that Ramone “pretty accurately” described the pole used in the assault as a pole that “matched” that which the prosecution brought in as demonstrative evidence. The court allowed the prosecution to use the pole as demonstrative evidence, but it was not admitted as an exhibit. The jury was not allowed to touch or handle the demonstrative evidence.
When shown the pole Carvalho testified that it looked like the one that the defendant used as a weapon, but the demonstrative pole was shorter. Officer Vasquez also testified that the pole looked like the one that was at the scene, but the demonstrative pole was not as thick as the one the defendant used. Officer Vasquez further testified that the demonstrative pole felt like it was made of wood, while the one the defendant used was metal.
DISCUSSION
I. Applicable law and standard of review
A “deadly weapon” under section 245, subdivision (a)(1) is “‘“any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.”'” (People v. Perez (2018) 4 Cal.5th 1055, 1065.) Two types of objects qualify as deadly weapons under section 245, subdivision (a)(1). The first is an object that is “inherently deadly.” (CALCRIM No. 875.) As to these inherently deadly weapons, “‘the ordinary use for which they are designed establishes their character as such.'” (People v. Perez, supra, at p. 1065.) Other objects, while not inherently deadly, may qualify as deadly weapons if they are used “in a manner likely to produce death or great bodily injury.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029 (Aguilar).)
The determination of whether an object that is not inherently deadly was used as a deadly weapon is a question of fact for the jury. (Aguilar, supra, 16 Cal.4th at p. 1029.) “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (Ibid.) Because the definition of deadly weapon “focuses on potentiality, the People need not prove an actual injury to a victim... in order to substantiate a conviction for assault with a deadly weapon other than a firearm.” (In re D.T. (2015) 237 Cal.App.4th 693, 698.) The jury's decisionmaking process “turns on the nature of the force used.” (Aguilar, supra, at p. 1035.)
In evaluating the jury's factual determination that defendant used a deadly weapon, we use the substantial evidence standard of review. In applying this standard, we must “determine whether the record contains any substantial evidence tending to support the finding of the trier of fact.” (In re Roderick P. (1972) 7 Cal.3d 801, 808.) “[W]e must view this evidence in the light most favorable to the finding.” (Ibid.) Evidence is sufficient to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, original italics; accord, People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.'” (Ochoa, supra, at p. 1206.) Reversal is unwarranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II. Substantial evidence supported the jury's determination that the pole was a deadly weapon under section 245, subdivision (a)(1)
The parties agree that the pole used by the defendant in this matter does not qualify as an inherently deadly weapon. Thus, the jury was instructed that a deadly weapon is “any object, instrument or weapon that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (CALCRIM No. 875.)
Defendant argues that the pole used in this matter cannot qualify as a deadly weapon because it was not actually used in such a way that it was capable of causing and likely to cause death or great bodily injury. (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) Defendant cites People v. Clark (1997) 55 Cal.App.4th 709, 714, for the proposition that “‘[g]reat bodily injury refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm.'” Defendant argues that an instrument is only a deadly weapon if it is used in such a way that there is a high probability of causing a significant or substantial injury.
The evidence in this matter supported the jury's conclusion that defendant used the pole in a manner likely to cause great bodily injury. Defendant was behaving violently at the time-he had already committed a series of assaults by punching, kicking, and throwing a chair. The jury could reasonably infer that when he picked up the pole he intended to do serious damage and in fact used it in such a way that could have caused such damage. Defendant was in a rage, screaming “fuck, fuck, fuck everybody.” He used both hands to swing the pole and attempted to hit Carvalho's head. He swung so hard, that he had to lean back as he raised the pole to swing it. Carvalho testified that if he had not protected himself, he would have sustained serious damage to his head. Ramone also testified that defendant swung the pole hard, using all of his force to bring it down in the area of Carvalho's head. The jury was entitled to credit this testimony.
In analyzing the evidence the jury was permitted to consider not only how the pole was used but “what harm could have resulted from the way the [pole] was actually used.” (In re B.M. (2018) 6 Cal.5th 528, 535 (B.M.).) The testimony at trial suggested that defendant used all of his strength to swing the pole at Carvalho's head area. Thus, “serious injury was likely, even if it did not come to pass.” (Ibid.) Viewing the facts in the light most favorable to the judgment, we conclude that the jury's finding that the defendant used the pole as a deadly weapon is supported by substantial evidence.
Defendant cites In re Brandon T. (2011) 191 Cal.App.4th 1491 (Brandon T.) to support his argument that the jury merely speculated that the item could have caused serious bodily injury, rather than relying on factual proof. Brandon T. is distinguishable. In Brandon T., a minor used a “‘butter knife'” to attempt to cut the victim's cheek and throat. (Id. at p. 1496.) However, while the perpetrator was “‘trying to cut'” the victim, despite his efforts, the knife would not cut. “‘So it was just making... welts.'” (Id. at p. 1497.) Thus, the officer who responded to the scene indicated observing only “‘a small scratch'” on the victim. (Ibid.) While acknowledging that “a conviction for assault with a deadly weapon does not require proof of an injury or even physical contact” (ibid.), the Brandon T. court found that the butter knife, as used, was not capable of producing death or great bodily injury. The court queried whether, had the knife been pressed harder, the perpetrator could have severely injured or killed the victim. The answer was “no. The knife broke.” (Ibid.) The pressure was not enough to cause death or great bodily injury, yet was too much for the knife to bear. Under the circumstances, the knife was not capable of use as a deadly weapon. (Id. at pp. 1497-1498.)
Such is not the case here. Defendant used the pole with all his strength, and the jury could reasonably conclude that death or great bodily injury to Carvalho was avoided only because he was able to defend himself, and he and the other men were able to quickly restrain the defendant.
Other cases cited by defendant are distinguishable as well. In People v. Beasley (2003) 105 Cal.App.4th 1078 (Beasley), the defendant argued that neither a broomstick nor a vacuum cleaner attachment was used in a manner capable of producing death or great bodily injury. (Id. at p. 1086.) As to the broomstick, the court acknowledged that “a sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury.” (Id. at p. 1087.) However, in this case, the victim's testimony was “far too cursory” to establish that the broomstick was capable of causing, and likely to cause, great bodily injury. (Ibid.) The victim did not describe the degree of force used, and neither the stick itself nor photographs of the stick were introduced in evidence. The record did not indicate what the stick was made of, its “composition, weight, and rigidity”-all factors that would “necessarily affect the probability and likelihood that it could cause great bodily injury.” (Id. at pp. 1087-1088.) The jury thus had “no facts” from which it could assess the severity of the impact of the stick. (Id. at p. 1088.) As to the vacuum cleaner attachment, the testimony established that it was plastic, and the court speculated that it “must have been hollow, ” but the record was otherwise “too vague” to establish the object's size and shape. (Ibid.) The court found that striking an adult's shoulder and back with a hollow plastic instrument is “not likely to produce significant or substantial injury.” (Ibid.)
The record before us suffers from no such deficiencies. Three witnesses testified as to the length, composition, and diameter of the pole, and explained how the defendant had to lean back in order to swing it. The witnesses also testified as to the defendant's angry and violent behavior, and the force with which he swung the pole at Carvalho's head. Finally, the prosecution presented a pole to be used as demonstrative evidence, which the court found to be a close match to the pole that the witnesses described. This evidence was far more substantial than the cursory evidence presented in Beasley, and was sufficient to support the jury's finding that the weapon was deadly.
There is no requirement that the prosecution present the actual weapon used. (People v. Brown (2012) 210 Cal.App.4th 1, 8 [“While it certainly would have been good practice for the People to have introduced evidence concerning the nature of the BB gun and its ability to inflict substantial injury [citation], such evidence is not essential to establish the deadly nature of the weapon [citation].”)
Finally, B.M., supra, 6 Cal.5th 528, does not support reversal in this case. In B.M., the juvenile court's finding that the minor used a butter knife as a deadly weapon was not supported by substantial evidence. The question was whether the minor had used the knife in a way that was likely to cause great bodily injury or death. The knife was the type you would use to butter toast, and the minor “used the knife only on [the victim's] legs, which were covered with a blanket.” (Id. at p. 536.) There was “no evidence that B.M. used or attempted to use the knife in the area of [the victim's] head, face, or neck, or on any exposed part of her body.” (Ibid.) Further, “the moderate pressure... applied with the knife was insufficient to pierce the blanket, much less cause serious bodily injury to [the victim].” (Ibid.)
The evidence before the jury in this case was very different. Witnesses testified that defendant repeatedly swung the pole hard at Carvalho's head. Had Carvalho not raised his arm to defend himself, he could have been seriously injured. The witnesses' testimony at trial, combined with the demonstrative evidence shown to the jury, was sufficient to permit the jury to conclude that the pole was a deadly weapon, both capable of and likely to cause great bodily injury.
DISPOSITION
The judgment is affirmed.
We concur: LUI, P. J. HOFFSTADT, J.