The People v. Menjivar CA4/2

DISCUSSION

A. Failure to Instruct on Simple Assault

Defendant claims that the trial court erred in denying his request to instruct the

jury on simple assault as a lesser included offense of assault by means to produce great

bodily injury. He argues that a rational jury could have found that when he kicked the

victim, he did not employ force likely to produce great bodily injury. He notes evidence

2The victim testified that “most” of the assailants were African American, and “maybe three to four of them were Hispanic.”

Defendant was wearing tennis shoes.

3 that he was wearing tennis shoes when he kicked the victim and that the victim “only”

suffered “redness to the area.”

A defendant has a constitutional right to have the jury determine every material

issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The

trial court must instruct on general principles of law that are commonly or closely and

openly connected to the facts before the court and necessary for the jury’s understanding

of the case, including lesser included offenses supported by the evidence. (People v.

Breverman (1998) 19 Cal.4th 142, 148-149, 162; People v. Heard…