People v. Vega CA4/2, E063398

Vega was convicted of assault with a deadly weapon (count 1) and assault by means of force likely to produce great bodily injury (count 2); the information alleged great bodily injury and, for count 2, a personal use of a deadly weapon.
The trial court instructed only on the count 2 offense and did not give instructions on simple assault or battery; the court later sua sponte considered giving simple assault but ultimately did not instruct on those lesser offenses.
Morgan testified to a boxcutter slashing and a punch; Vega testified that he punched Morgan and fell onto a fence, with Morgan allegedly bleeding from the neck; the physical injury was described but the evidentiary record on its severity was limited.
The first jury hung on the deadly weapon issues; a mistrial was declared on those counts while Vega was convicted on count 2.
On appeal, Vega argued the court erred in failing to instruct on simple assault (a lesser included offense) and that such error was prejudicial; the court agreed and reversed to allow reduction to simple assault or retrial under proper instruction.
The disposition directs remand with instructions to allow the People to reduce the conviction to simple assault or retry Vega with proper instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to instruct on simple assault was prejudicial	Vega lacked substantial evidence to support only the greater offense; simple assault should have been instructed.	People contends no lesser offense instruction was warranted given the evidence.	Yes; instructional error prejudicial; reversal and remand for possible reduction or retrial.

People v. Licas, 41 Cal.4th 362 (Cal. 2007) (standard for reviewing failure to instruct on lesser included offenses)
People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (precursors to evaluating prejudice in failure to instruct on lesser offenses)
People v. Rupert, 20 Cal.App.3d 961 (Cal. App. 1971) (evidence may support simple assault; jury could convict on lesser offense)
People v. Clark, 201 Cal.App.4th 235 (Cal. App. 2011) (simple assault as a lesser included offense in similar factual scenario)
People v. Sargent, 19 Cal.4th 1206 (Cal. 1999) (where blows are serious but not conclusively shown, include lesser offense)
People v. Yeats, 66 Cal.App.3d 874 (Cal. App. 1977) (establishes simple assault as lesser included offense)
Beasley v. Clark, 105 Cal.App.4th 1078 (Cal. App. 2003) (injury factors relevant but not dispositive to force assessment)
People v. Aguilar, 16 Cal.4th 1023 (Cal. 1997) (force used may be evaluated for likelihood of great bodily injury)
People v. McDaniel, 159 Cal.App.4th 736 (Cal. App. 2007) (relevance of force and injury to determine outrageousness of assault)
People v. Banks, 59 Cal.4th 1113 (Cal. 2014) (need for lesser included offense instructions in some cases)
People v. Richardson, 23 Cal.App.3d 403 (Cal. App. 1972) (baseline for lesser offense instruction analysis)