People v. FugitPeople v. Fugit
We will remand the matter for the trial court to exercise its discretion under
I. FACTS AND PROCEDURAL HISTORY
In August 2020, the Lake County District Attorney filed an information charging Fugit in five counts: assault with a deadly weapon, “to wit, a ceramic mug” (
A. Evidence at Trial
On July 18, 2020, Jason Parry was driving on Lakeshore Boulevard in Lakeport. Out of the corner of his eye, he saw a heavy-set male (identified at trial as Fugit) hurl a coffee mug at his vehicle. The mug shattered the vehicle‘s window and sent glass fragments flying into the passenger compartment.
Two other motorists, Jason Holm and Ethan Maize, were traveling behind Parry when the incident occurred. Maize, who was directly behind Parry, saw Fugit throw a “boulder” or “rock” at Parry‘s vehicle, breaking the passenger window and dislocating the side mirror. Holm, who was driving directly behind Maize, also saw Fugit throw an object at Parry‘s vehicle.
Parry pulled over to the side of the road. Maize swerved to avoid colliding with Parry‘s vehicle and pulled to the shoulder to call 911. Holm
Parry noticed that, in addition to the damage to his vehicle‘s passenger window and side mirror, there was liquid on the passenger door. In a search for the object Fugit threw, Parry found a ceramic mug across the road, broken into pieces.
Lake County Sheriff‘s Office Deputies James Rhine and Matthew McCabe each responded to the scene in uniform and in a marked patrol vehicle. After speaking with Parry, Holm, and Fugit (who had remained at the scene), Rhine informed Fugit he was under arrest. When Rhine reached for Fugit‘s hand to secure him in handcuffs, Fugit turned away, locked his hands together, and refused to comply with commands. McCabe attempted to assist in the arrest by grabbing one of Fugit‘s arms, to no avail.
Due to, among other things, the size difference between Deputy Rhine (five feet seven inches tall and 190 pounds) and Fugit (six feet one inch tall and 315 pounds) and their precarious location on a narrow shoulder next to the roadway, Rhine had concerns for his safety. Rhine warned Fugit that he would be tased if he continued to resist, but Fugit was undeterred. Rhine deployed his taser, incapacitating Fugit and allowing Rhine and McCabe to complete the arrest.
B. Jury Instruction at Issue
As to count 1, the court instructed the jury on the charged count of assault with a deadly weapon (
C. Verdict and Motion to Vacate Conviction
In October 2020, the jury acquitted Fugit of assault with a deadly weapon but convicted him of force-likely assault (
On November 6, 2020, defense counsel filed a statement in mitigation, asking the court to reduce the force-likely assault to a misdemeanor. Counsel argued it was unclear whether force-likely assault was a lesser included offense of assault with a deadly weapon, noting that CALCRIM No. 875 indicated only simple assault to be a lesser included offense. Counsel stated there was “either a specific on-the-record objection to instructing on
At the next hearing, the court stated: “[W]hen I read your statement in mitigation, I became immediately concerned that I perhaps had not analyzed and evaluated the jury instruction appropriately. And for what it‘s worth, that caused me to revisit that issue. [¶] The issue being whether or not assault with force likely . . . is a lesser included offense than assault with a deadly weapon.” Defense counsel recalled that he had offered concerns about the instruction but was unsure whether he did so on the record. The prosecutor stated, “my memory is we didn‘t discuss it on the record.” Defense counsel then suggested that the failure to raise the argument on the record might give rise to an ineffective-assistance claim, and asked the court to appoint different counsel to file a new trial motion concerning the jury
Purviance filed a “motion to vacate conviction for
D. Initial Sentencing
In August 2021, the court sentenced Fugit to an aggregate term of four years eight months in state prison, comprised of the upper term of four years for the force-likely assault conviction (designated the principal term) and eight months (one-third the midterm) on the conviction for resisting an executive officer. The court imposed the upper term of three years on the vandalism conviction, which it stayed pursuant to
E. Appeal and Limited Remand for Resentencing
Fugit appealed. In February 2022, we granted Fugit a limited stay and remand to seek relief in the trial court based on recent amendments to
In March 2022, the trial court reduced Fugit‘s sentence on the force-likely assault from the upper term of four years to the midterm of three years, resulting in a revised aggregate term of three years eight months in state prison. The court also reduced the sentence on the vandalism conviction from the upper term of three years to the midterm of two years, which remained stayed pursuant to
II. DISCUSSION
A. Instruction on Force-Likely Assault as Lesser Included Offense
A jury “may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged . . . .” (
Whether a defendant charged with one crime may be convicted of a lesser uncharged crime depends, therefore, on whether the uncharged crime is necessarily included in the charged crime. (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).) Here, Fugit contends that force-likely assault is not a lesser included offense of assault with a deadly weapon, so the court‘s instruction on force-likely assault violated due process and his conviction for that offense must be reversed.2
1. Elements Test
” ‘Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense.’ [Citation.] This test is satisfied if ’ “all legal elements of the lesser offense are also elements of the greater.” ’ ” (People v. Alvarez (2019) 32 Cal.App.5th 781, 786; see Reed, supra, 38 Cal.4th at p. 1227.) If a court can identify even one circumstance in which a person could violate one provision without also violating the other, the latter provision is not a necessarily included offense of the former. (Reed, supra, 38 Cal.4th at p. 1227.)
Fugit and respondent agree, as do we, that the elements test is not met here. (In re L.J. (2021) 72 Cal.App.5th 37, 50.) As one of its elements, assault with a deadly weapon may be perpetrated by (1) using an inherently deadly weapon (i.e., one that is deadly or dangerous in its ordinary use, such as a dirk or a dagger), or by (2) using a non-inherently deadly weapon such that it is capable of and likely to cause death or great bodily injury. (CALCRIM No. 875.) Force-likely assault, by contrast, always requires that the defendant did an act that by its nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury. (CALCRIM No. 875.) Because this element of force-likely assault does not have to be proved for assault with a deadly weapon if the weapon is inherently deadly, there is a circumstance in which a defendant could perpetrate assault with a deadly weapon without perpetrating force-
2. Accusatory Pleading Test
The accusatory pleading test looks to the facts alleged in the information. ” ‘[I]f the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.’ ” (People v. Munoz (2019) 31 Cal.App.5th 143, 153; see Reed, supra, 38 Cal.4th at pp. 1227–1228.)
The purpose of the accusatory pleading test is to “ensure that defendants receive notice before they can be convicted of an uncharged crime.” (Reed, supra, 38 Cal.4th at p. 1229.) ” ‘As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.’ ” (Ibid.)
As relevant here, the information alleged that Fugit committed assault with a deadly weapon under
CALCRIM No. 875 sets forth the elements of both assault with a deadly weapon and force-likely assault. As mentioned, the crimes differ as to one element. Force-likely assault requires proof that the “defendant did an act that by its nature would directly and probably result in the application of force to a person” and the force was ”likely to produce great bodily injury.” (CALCRIM No. 875, italics added.) Assault with a deadly weapon requires proof that the “defendant did an act with [a deadly weapon other than a firearm] that by its nature would directly and probably result in the application of force to a person.” (CALCRIM No. 875, italics added; see Aguayo, supra, 13 Cal.5th at pp. 984–985 & fn. 4.)
However, as a matter of law, the “deadly weapon” element is satisfied by proof of “any object, instrument, or weapon []that is inherently deadly or one[]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, italics added.) Here, the weapon alleged in the accusatory pleading – a “ceramic mug” – is not an inherently deadly weapon because its ordinary use is not to inflict harm on another person (CALCRIM No. 875; see People v. Aguilar (1997) 16 Cal.4th 1023, 1029), so to prove the charged offense under
We note the slight difference in language: doing an act that “by its nature would directly and probably result in the application of force” with “any object . . . that is used in such a way that it is capable of causing and likely to cause death or great bodily injury” for assault with a deadly weapon; and doing an “act that by its nature would directly and probably result in the application of force. . . likely to produce great bodily injury” for force-likely assault. (CALCRIM No. 875.) But neither party to this appeal offers any conceivable scenario in which a ceramic mug could be used in “such a way that it is capable of causing and likely to cause death or great bodily injury” (for assault with a deadly weapon) that would not involve “force . . . likely to produce great bodily injury” (as required for force-likely assault). Simply put, it has not been shown that, without application of force, a ceramic mug could cause great bodily injury.
The facts alleged in the accusatory pleading therefore include all the elements of force-likely assault, such that “the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) As a matter of law and considered in the abstract, the crime of assault with a deadly weapon with a ceramic mug, as alleged, cannot be committed without necessarily committing force-likely assault. (People v. Steele (2000) 83 Cal.App.4th 212, 218.) The allegations in the information thus gave Fugit adequate notice that the People would seek to prove facts establishing the elements of force-likely assault.
Our conclusion is consistent with this appellate district‘s decision earlier this month in Pack, supra, 2023 Cal.App. LEXIS 88. There, the defendant was alleged to have committed assault with a deadly weapon using a ” ‘stabbing weapon.’ ” (Id. at *10.) The court concluded that, because a ” ‘stabbing weapon’ ” is an inherently dangerous weapon under the law, and the language of the information did not indicate whether Pack used the weapon in a manner likely to produce great bodily injury, force-likely assault was not a lesser included offense under the accusatory pleading test. (Id. at *10–11.) As to that conclusion, we agree: proof of assault with a deadly weapon with an inherently deadly weapon does not require proof that the object was used “in such a way that it is capable of causing and likely to cause death or great bodily injury” (CALCRIM No. 875), so the accusatory pleading in Pack did not give notice of a prosecutorial intention to prove the facts that would be necessary for force-likely assault. Pack is distinguishable from the matter at hand, however, because the accusatory pleading in this case did not allege assault with a deadly weapon with an inherently deadly weapon, but with a mug for which the prosecution would be obligated to demonstrate use in a manner likely to cause death or great bodily injury.
We also find Fugit‘s arguments on these points unpersuasive. In his reply brief, Fugit argues that “the People clearly did not prove that he used the ceramic mug in a manner likely to cause death or great bodily injury, as the jury acquitted appellant of ADW.” The issue under the accusatory pleading test, however, is not whether the prosecutor ultimately proved that Fugit used the mug in that manner, but whether the pleading gave Fugit notice that the prosecutor would undertake to prove it.
Fugit further suggests that force-likely assault cannot be a lesser included offense of assault with a deadly weapon because a note in the
Finally, Fugit speculates that the court‘s description of force-likely assault as a “lesser included offense” misled the jury into believing that a conviction for that count would be less harsh, or more lenient, than a conviction for assault with a deadly weapon. His argument misses the mark for multiple reasons.
First, although the court referred to force-likely assault as a “lesser included offense” and a “lesser crime,” it did not tell the jury that a force-likely assault conviction would lead to less punishment. And even if that had been the jury‘s assumption, the court instructed the jury: “You must reach your verdict without any consideration of punishment.” We presume the jury followed the instruction. (People v. Zarazua (2022) 85 Cal.App.5th 639, 645.)
Second, to the extent any juror did think a conviction for force-likely assault was less harsh, the juror was not misled: although the two statutory subdivisions provide for the same term of sentence, assault with a deadly weapon is classified as a serious felony (
Third, the accusatory pleading test turns on whether the pleading gave the defendant sufficient notice to make an instruction proper, not on how the jury might have thereafter deliberated and chosen its verdict. Whether an
If anything, Fugit‘s arguments suggest that the force-likely instruction in this case was consonant with the purpose behind instructing on lesser included offenses and the aim of the accusatory pleading doctrine. The primary purpose of instructing on lesser included offenses is to enable the jury to reach a verdict no harsher or more lenient than warranted by the evidence. (People v. Barton, supra, 12 Cal.4th at p. 196; People v. Breverman, supra, 19 Cal.4th at p. 155.) The purpose of the accusatory pleading test is to “ensure that defendants receive notice before they can be convicted of an uncharged crime.” (Reed, supra, 38 Cal.4th at p. 1229.) Fugit does not demonstrate that he received a verdict harsher (or more lenient) than the evidence merited or that he failed to receive sufficient notice.
That said, there arises a slightly different concern. While it is true that, under the facts alleged here, the crime of assault with a deadly weapon (with a ceramic mug) cannot be committed without necessarily committing force-likely assault – thus making it an “included” offense and arguably satisfying the accusatory pleading test – the converse is also true: force-
However, we need not (and do not) answer these questions to resolve this appeal. The crux of the matter here is simply whether the trial judge committed prejudicial error by instructing the jury on force-likely assault when the crime was not explicitly charged in the accusatory pleading. As has long been recognized, a trial court may permit amendment of the information ” ‘at any stage of the proceeding, up to and including the close of trial,’ ” if the
Fugit has not established prejudicial error in adding the force-likely assault charge by verdict form and jury instruction. The record does not reveal any ground for the trial court to have denied a motion to amend the accusatory pleading if such a motion had been made, or any meaningful difference in this case in the People moving to amend the pleading (and then requesting the force-likely instruction) rather than just requesting the force-likely instruction. As discussed, the information notified Fugit of the prosecutor‘s intent to prove facts that would establish force-likely assault as well as assault with a deadly weapon. Fugit made no claim in the trial court, and makes no claim here, that he was unable to defend against a force-likely charge due to it being added at the time of the jury instruction conference. Further, there was substantial evidence to support a conviction for force-likely assault, and Fugit faced no harsher sentence if convicted of force-likely assault than he would for assault with a deadly weapon. The two charges are, at least for
Because there was no due process error as claimed here by Fugit, he cannot prevail in his appeal. There is, therefore, no cause to speculate on what the jury would have done if the instruction had not been given. We do note, on the other hand, the overwhelming evidence that supported the conviction for force-likely assault: Fugit launched a mug with such force that it broke off the mirror of an occupied motor vehicle, shattered the vehicle‘s window, and sent shards of glass flying into the passenger compartment.6
For the foregoing reasons, including especially the absence of any due process violation, Fugit fails to establish that the court‘s instruction on force-likely assault is reversible error.7
1. SB 567
Effective January 1, 2022, Senate Bill 567 (SB 567) altered the determinate sentencing law by amending
Fugit contends in his opening brief that the case should be remanded under SB 567 for the upper term originally imposed on his vandalism conviction to be reduced to the middle term. As respondent points out and Fugit acknowledges in his reply brief, it already has been: after the limited stay and remand we granted, the trial court reduced Fugit‘s sentence on the vandalism conviction from the upper term of three years to the midterm of two years.
2. AB 518
Effective January 1, 2022, Assembly Bill 518 (AB 518) amended
Fugit seeks remand under AB 518 for the trial court to exercise its new discretion to select a different principal term and impose a shorter punishment. Respondent agrees that Fugit is entitled to the retroactive benefit of AB 518. (People v. Jones (2022) 79 Cal.App.5th 37, 45; People v. Mani (2022) 74 Cal.App.5th 343, 379.) Because the record does not show that the trial court considered its discretion under AB 518 during the prior limited remand for resentencing under SB 567, we will remand for that purpose.
III. DISPOSITION
The matter is remanded for the trial court to exercise its discretion under
Wiseman, J. *
We concur:
Simons, Acting P.J.
Burns, J.