Filed 10/21/21 P. v. Canedos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD REYES CANEDOS,

Defendant and Appellant.

 B307948

 (Los Angeles County

 Super. Ct. No. MA077847)

APPEAL from an order of the Superior Court of 

Los Angeles County, Shannon Knight, Judge. Affirmed.

Randall Conner, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
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Defendant and appellant Ronald Reyes Canedos challenges

the sufficiency of the evidence of his conviction for assault with 

a deadly weapon. (Pen. Code,1 § 245, subd. (a)(1).) He argues 

that we must reduce his conviction to brandishing a deadly 

weapon (§ 417, subd. (a)(1)) because the evidence did not show 

that he did an act with his knife that by its nature would directly 

and probably harm the victim. He also contends that the trial 

court erred by failing to instruct the jury on brandishing, which 

he claims was a lesser included offense of assault with a deadly 

weapon under the expanded accusatory pleading test. We 

disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY

On December 17, 2019, Canedos went to a home in 

Palmdale where his wife, O.S., lived with her mother, T.M. 

Canedos no longer lived with O.S. They had two young children, 

R.C. and H.C., who also lived with O.S., T.M., and T.M.’s young 

twin sons.

At around 9:50 p.m. that night, Canedos had an argument 

with O.S. T.M. heard noises and went into the bedroom to 

intervene. She saw that Canedos had cornered O.S. and was 

screaming “say it one more time” at her while holding a large

knife. H.C. told sheriff’s deputies that night that Canedos told

O.S., “ ‘[C]all me loser one more time and then I’m a chop you 

up.’ ” According to H.C., Canedos then told T.M., “ ‘[I]f you don’t 

move out of the way so I can leave, I’m gonna end up chopping 

everybody up.’ ”

1 Subsequent statutory references are to the Penal Code.
3

T.M. yelled for one of her young sons to call 911, and 

Canedos said, “[I]f you call the police, I will kill you.” T.M. 

tried to intervene to protect O.S., and the two of them, along 

with Canedos, made their way out of the bedroom to the hallway. 

T.M. went to the kitchen and called 911. A recording of the 

call was played to the jury. During the call, a voice identified 

as O.S.’s says, “[M]omma stop! He is gonna stab me.” Shortly 

afterward, T.M. tells the operator that Canedos “was trying to 

stab my daughter.”

Canedos left the scene before police arrived and went to his 

mother’s house. Sheriff’s deputies discovered the Jeep Canedos 

was driving at his parents’ residence. They searched the vehicle 

and found a large, sharp butcher knife on the driver’s side of the 

floorboard.

Canedos testified that he had gone to O.S.’s home 

the morning before the incident to sleep off the effects of 

methamphetamine that he had used, and that he held a new 

fishing knife on his chest while he slept. He denied pointing 

the knife at O.S. or threatening her.

An information charged Canedos with one count of assault 

with a deadly weapon (§ 245, subd. (a)(1)), two counts of criminal 

threats (§ 422, subd. (a)), and one count of dissuading a witness 

from reporting a crime (§ 136.1, subd. (b)(1)). The trial court 

granted Canedos’s motion for a judgment of acquittal for 

insufficient evidence (§ 1118.1) on one of the counts of criminal 

threats, and dismissed the other count of criminal threats under 

section 1385 because the prosecutor elected not to proceed on 

that count. The jury convicted Canedos of assault with a deadly 

weapon but acquitted him of dissuading a witness. The court 

sentenced Canedos to six years eight months in prison. The court 
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imposed the high term of four years for assault with a deadly 

weapon, plus four consecutive eight-month terms on a prior case 

after the court found him in violation of his probation.

DISCUSSION

A. Sufficiency of the Evidence of Assault with a 

Deadly Weapon

Canedos contends that there was insufficient evidence 

to support his conviction of assault with a deadly weapon. In 

reviewing sufficiency of the evidence, we ask “ ‘whether, on the 

entire record, a rational trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citations.] . . . [W]e must view 

the evidence in the light most favorable to the People and must 

presume in support of the judgment the existence of every fact 

the trier could reasonably deduce from the evidence.’ [Citation.]” 

(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Because the 

sufficiency of the evidence is ultimately a legal question, we must 

examine the record independently for ‘ “substantial evidence—

that is, evidence which is reasonable, credible, and of solid 

value” ’ that would support a finding beyond a reasonable doubt. 

(People v. Boyce (2014) 59 Cal.4th 672, 691 . . . .)” (People v. 

Banks (2015) 61 Cal.4th 788, 804.) The evidence in this case was 

sufficient to meet this deferential standard.

A person violates section 245, subdivision (a) if he “commits 

an assault upon the person of another with a deadly weapon 

or instrument other than a firearm.” The Penal Code defines 

assault as “an unlawful attempt, coupled with a present ability, 

to commit a violent injury on the person of another.” (§ 240.) 

The defendant need not intend to violate the law or to cause a 

particular injury. (People v. Colantuono (1994) 7 Cal.4th 206, 
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214.) Instead, the prosecution must show only that the defendant 

“ ‘willfully committed an act that by its nature will probably and 

directly result in injury to another, i.e., a battery.’ ” (People v. 

Golde (2008) 163 Cal.App.4th 101, 109.)

Canedos claims that there was insufficient evidence that 

he committed such an act. He notes that when they testified 

at trial, Canedos’s two children did not remember seeing their 

father move the knife up and down in a threatening manner. 

T.M. also testified that Canedos kept the knife by his side and 

did not point it at O.S. But this testimony contradicted earlier 

statements by T.M. and the two children to police. The deputy 

sheriff who responded to the scene testified that Canedos’s son 

R.C. told him that night that “[h]e saw [Canedos] waving the 

knife up and down towards . . . [O.S.] approximately six inches 

away from her.” When reminded of the statements she made to

sheriff’s deputies immediately after the event, T.M. confirmed 

that she saw Canedos move the knife up and down in a 

threatening manner toward O.S. She also testified that she 

heard Canedos tell O.S. that he was going to kill her.

In reviewing the sufficiency of the evidence, we do not 

reweigh the evidence. (People v. Collom (2020) 52 Cal.App.5th 

35, 41.) Instead, we consider only whether a reasonable jury 

could have convicted the defendant on the basis of the evidence 

presented. (Ibid.) In this case, a reasonable jury could have 

concluded that the statements from T.M. and R.C. to police 

regarding the night of the incident were credible, and that in 

their initial trial testimony they either did not remember the 

details of the event or were trying to protect Canedos.

Canedos also contends that even if there was evidence that 

he moved the knife up and down near O.S.’s face, this was not 
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sufficient for assault with a deadly weapon because it would not 

“directly and probably result in the application of force to a 

person” (CALCRIM No. 875) unless O.S. herself moved toward 

the knife. But under longstanding precedent, “it [is] not 

necessary that the prosecution introduce evidence to show that 

the appellant actually made an attempt to strike or use the knife 

upon the person of the” victim in order to convict a defendant of 

assault with a deadly weapon. (People v. McCoy (1944) 25 Cal.2d 

177, 189, italics omitted.) In McCoy, the defendant held a knife 

suspended above the victim’s face and said, “ ‘Don’t make any 

noise or I’ll use this knife.’ ” (Id. at p. 182.) The victim was 

able to free herself, and the defendant never made a stabbing 

motion at her, but the Supreme Court upheld his conviction of 

assault with a deadly weapon. (Id. at pp. 190–191.) In People v. 

McMakin (1857) 8 Cal. 547, the defendant pointed a gun at 

the ground in front of the victim and threatened to shoot him 

if he did not leave disputed land. (Id. at p. 547.) The victim

rode away on horseback, and the defendant did not attempt to 

pursue the victim or carry out his threat, but the Supreme Court 

nevertheless affirmed the conviction of assault with a deadly 

weapon. The court reasoned that, “when the party draws the 

weapon, although he does not directly point it at the other, but 

holds it in such a position as enables him to use it before the 

other party could defend himself, at the same time declaring 

his determination to use it against the other, the jury are fully 

warranted in finding that such was his intention.” (Id. at 

p. 549, italics omitted.) The fact that the defendant’s threat 

was conditional on the victim’s refusal to leave the land was 

immaterial, so long as the defendant was willing to carry out 

the threat if the victim refused to comply. (Id. at pp. 548–549.)
7

These cases remain good law despite their age.2 (See 

1 Witkin, Cal. Criminal Law (4th ed. 2021) Crimes Against the 

Person, § 45; People v. Lipscomb (1993) 17 Cal.App.4th 564, 570.) 

A reasonable jury could have concluded that Canedos, by drawing 

the knife and holding it within striking distance of O.S., and 

threatening to stab her if she did not comply with his demands, 

took sufficient action to be guilty of assault with a deadly 

weapon.

B. Brandishing Is Not a Lesser Included Offense

Canedos contends that the trial court erred by failing to 

instruct the jury on brandishing a weapon (§ 417, subd. (a)(1)), 

which he alleges is a lesser included offense of assault with a 

deadly weapon. We disagree.

“[A] lesser offense is necessarily included in a greater 

offense if either the statutory elements of the greater offense, or 

the facts actually alleged in the accusatory pleading, include all 

the elements of the lesser offense, such that the greater cannot be 

committed without also committing the lesser.” (People v. Birks

2 The Supreme Court’s decision in In re B.M. (2018) 

6 Cal.5th 528, which Canedos cites in his reply brief, does not 

call these cases into question. In B.M., the court reversed the 

judgment of assault with a deadly weapon because the manner 

in which the juvenile defendant used a butter knife against the 

victim was not likely to cause death or great bodily injury. (Id.

at pp. 536–537.) There the defendant “used the butter knife 

only in the area of [the victim’s] legs, which were covered with 

a blanket.” (Id. at p. 535.) This is not relevant to the current 

case, where the butcher knife Canedos used against O.S. was 

much more likely to cause serious injury than a butter knife, 

and where there was evidence that he threatened to stab O.S.

in or near her face.
8

(1998) 19 Cal.4th 108, 117.) “[E]ven absent a request, and even 

over the parties’ objections, the trial court must instruct on a 

lesser offense necessarily included in the charged offense if there 

is substantial evidence the defendant is guilty only of the lesser.” 

(Id. at p. 118.) If a crime does not fit the definition of a lesser 

included offense, and is merely a lesser-related offense, the 

defendant is not entitled to an instruction on the offense. (Id. at 

p. 136.)

Brandishing is not a lesser included offense of assault with 

a deadly weapon under the elements test. As the court explained 

in People v. Steele (2000) 83 Cal.App.4th 212, although a 

defendant will ordinarily brandish a weapon before using it to 

assault the victim, “it is theoretically possible to assault someone 

with a firearm without exhibiting the firearm in a rude, angry or 

threatening manner, e.g., firing or pointing it from concealment, 

or behind the victim’s back.” (Id. at p. 218.) The same is true 

of assaults with deadly weapons other than firearms, such as 

knives, and we see no reason to depart from the court’s reasoning 

in Steele.

Nor is brandishing a lesser included offense in this case 

under the accusatory pleading test. The accusatory pleading—

in this case, the information—alleged that Canedos “did willfully 

and unlawfully commit an assault upon [O.S.] with a deadly 

weapon, to wit, knife.” Other than specifying the weapon, this 

pleading “does little more than repeat the statutory definition 

of [assault with a deadly weapon] from the Penal Code, and 

does not supply the additional elements that would encompass” 

brandishing. (People v. Munoz (2019) 31 Cal.App.5th 143, 155

(Munoz).)
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Canedos contends that brandishing is nevertheless a lesser 

included offense in this case under the “expanded accusatory 

pleading test” that the court applied in People v. Ortega (2015) 

240 Cal.App.4th 956, 967. The expanded accusatory pleading 

test requires the trial court to consider the facts derived from the 

preliminary hearing as part of the accusatory pleading. (See id.

at pp. 968–970.) If those facts include all the elements of a lesser 

offense, and if there is substantial evidence that the defendant 

committed only the lesser offense, then the court must instruct

the jury on the lesser offense. (Id. at pp. 970–971.) 

We considered and rejected the expanded accusatory 

pleading test in Munoz. In that case, we noted that “many 

Supreme Court cases . . . stat[e] that the accusatory pleading 

test looks solely to the language of the pleading itself.” (Munoz, 

supra, 31 Cal.App.5th at p. 158.) In particular, two Supreme 

Court cases, People v. Montoya (2004) 33 Cal.4th 1031, 1036 and 

People v. Ortega (1998) 19 Cal.4th 686, 698, disapproved a Court 

of Appeal case3 for looking beyond the accusatory pleading itself 

to the preliminary hearing evidence to determine whether an 

offense was a lesser included offense. “Whatever the merit of 

[Canedos’s] arguments, on which we express no opinion, we are 

bound by Supreme Court authority (see Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455 . . . ), which makes clear 

that we are not to look beyond the language of the accusatory 

pleading itself in assessing lesser included offenses.” (Munoz, 

supra, 31 Cal.App.5th at p. 158.)

3 People v. Rush (1993) 16 Cal.App.4th 20.
10

Thus, brandishing is not a lesser included offense of assault 

with a deadly weapon, and the trial court did not err by failing to 

instruct the jury on it.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.