People v. Rogers, C087803

CourtCalifornia Court of Appeals
Writing for the CourtRENNER, J.
Decision Date07 February 2020
PartiesTHE PEOPLE, Plaintiff and Respondent, v. THOMAS ANTHONY ROGERS, Defendant and Appellant.
Docket NumberC087803

THE PEOPLE, Plaintiff and Respondent,
THOMAS ANTHONY ROGERS, Defendant and Appellant.



February 7, 2020


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 18FE001730)

Defendant Thomas Anthony Rogers was chronically homeless for at least a decade leading up to this case. He has a lengthy history of alcohol abuse and unsuccessful stints on informal probation for various nonviolent misdemeanors. Although defendant denied he had a mental illness, he has been diagnosed with bipolar disorder and has experienced auditory hallucinations, insomnia, and anxiety. In recognition of defendant's substantial needs and the costs to the county associated with meeting them, defendant was at one point identified for participation in a county program that would have assigned him a caseworker for life and provided assistance in securing and maintaining housing.

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However, rather than participating in this program, he was sentenced to state prison in this matter following his jury conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and felony vandalism (§ 594, subd. (a)) arising from a rock throwing incident occurring near his homeless encampment.

Defendant now appeals contending: (1) the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of simple assault requiring reversal of his assault with a deadly weapon conviction; (2) section 1001.36 should be applied retroactively to afford him the opportunity to participate in mental health diversion; and (3) the court must remand the matter for an ability-to-pay hearing in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We find the trial court committed prejudicial instructional error requiring reversal of his assault with a deadly weapon conviction. Finally, we determine that section 1001.36 should be applied retroactively to allow defendant the opportunity to establish his eligibility for mental health diversion for both the reversed assault count and affirmed felony vandalism conviction. We will therefore reverse defendant's conviction for assault with a deadly weapon and conditionally reverse his felony vandalism conviction with provision for reinstatement as explained herein. The judgment is otherwise affirmed.


Whether defendant committed assault with a deadly weapon and felony vandalism when he threw rocks at a regional transit worker was tried to a jury.

The victim testified to being a maintenance worker for a local regional transit company, responsible for fixing fencing, among other things. In January 2018, he stopped to assess a hole in the fencing in his assigned area. While assessing that fence,

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the victim noticed defendant, who was on the other side of the fence looking for something. Defendant was nearing the railroad tracks. The victim told defendant he was trespassing. Defendant, who appeared intoxicated and angry, yelled obscenities back at him and kicked the fence. The victim backed up, retreating towards his truck. Defendant picked up a large river rock, approximately six to seven inches around, and held it over his head. The victim warned defendant not to throw the rock. In response, defendant threw the rock at the victim when he was approximately 14 to 15 feet away from the fence. The rock had to travel over the fence, which was five to six feet tall.2 The victim blocked the rock with his arm at approximately chest height and then retreated to his truck. Defendant threw several more rocks at 15-to 20-second intervals with the victim approximately 15 to 20 feet away from the fence. Two of these rocks hit the victim's truck, one on the door and one on the windshield. After three or four rocks had been thrown, the victim picked up a rock and thought about throwing it at defendant to get him to stop, but then decided not to and discarded it. Defendant threw approximately eight rocks and all landed within a few feet of the victim's physical location.

K.J. testified to witnessing the altercation from the same parking lot. The initial exchange between the victim and defendant was cordial, but as the victim continued to insist that defendant leave, defendant became angry and started throwing rocks. She saw defendant throw rocks over a dumpster and a six-to seven-foot fence to reach the victim.3 His first rock hit the windshield of the victim's truck and the second rock hit his arm. Defendant threw about four rocks and did so with great effort, groaning and grunting like he was "chuck[ing]" them. After K.J. complained that defendant should watch where he

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was throwing the rocks, defendant apologized, indicating he was trying to hit the victim and not her.

Defendant called responding Officer Matt Suehowicz in his defense. Officer Suehowicz testified that he responded to the scene of a report of assault with rocks and observed the victim's arm, which had slight swelling. Defendant also called Sergeant Joshua Kirtlan, who testified to visiting the area earlier in the day and then returning after learning of the reported assault. Sergeant Kirtlan encountered defendant, who attempted to run and asked the sergeant to shoot him. Sergeant Kirtlan told defendant he did not want to shoot him, and defendant remarked that defendant should have punched him.

Neither defendant nor the People requested lesser included instructions, and the jury was instructed only on the theory of assault with a deadly weapon and not simple assault. Nonetheless, the closing arguments did not question whether defendant was the individual who had thrown the rocks, just whether the People had established the elements necessary for the crimes charged. In fact, defendant's counsel argued at length that he had committed assault, but not assault with a deadly weapon because the rocks were not used in a way likely to cause significant or substantial injury.

The jury convicted defendant on both counts, and the court denied defendant's request for probation instead sentencing him to state prison. The court identified the assault conviction as the principle term and imposed the mid-term of three years. The court then sentenced defendant to an additional eight months consecutive for the felony vandalism.4 The court also imposed the minimum fines and fees: a $300 restitution fine

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(§ 1202.4), a $300 suspended parole revocation fine (§ 1202.45), two $30 court facility fees (Gov. Code, § 70373), and two $40 court operations fees (§ 1465.8, subd. (a)(1)). The court elected not to impose the main jail booking fee, main jail classification fee, the presentence and investigation costs, and the criminal impact fee. Defendant timely appealed.


A. The Trial Court Erred in Failing to Sua Sponte Instruct on Simple Assault

Defendant argues the trial court prejudicially erred in failing to sua sponte instruct the jury on the lesser included offense of simple assault (§ 240). We concur.

As our high court explained in People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar): "Section 245, subdivision (a)(1), punishes assaults committed by the following means: 'with a deadly weapon or instrument other than a firearm,' or by 'any means of force likely to produce great bodily injury.' One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] . . . [¶] As used in section 245, subdivision (a)(1), a 'deadly weapon' 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.' [Citation.] 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. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. 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. [Citations.]" (Id. at pp. 1028-1029.) Of paramount importance is

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whether the object was actually used in a manner likely to produce death or great bodily injury. (In re B.M. (2018) 6 Cal.5th 528, 532-535.)

It is undisputed that simple assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747; §§ 240, 245.) Further, it is fundamental that a trial court has a duty to sua sponte instruct the jury on any lesser included offense for which there is substantial evidence that the lesser, but not the greater offense occurred. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) We review trial court failure to instruct on an alleged lesser included offense de novo. (Ibid.) Such failure has prejudiced defendant, requiring reversal if there is a reasonable probability that the error affected the outcome under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman).)

Here, the People proceeded on the theory that defendant used the rocks thrown at the victim as deadly weapons. Thus, we must determine whether the jury could have determined defendant committed only simple assault and did not use the rocks as deadly weapons. In order for the rock to be a deadly weapon for the purposes of this...

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