Filed 6/12/15 P. v. Canady CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES CANADY,

Defendant and Appellant.

F068093

(Super. Ct. No. F13903804)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Denise R. 

Whitehead, Judge.

C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. 

Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOooA Fresno County jury found Charles Canady guilty of multiple felony offenses 

including attempted burglary, burglary, making criminal threats, and assault with a 
2.

deadly weapon. Canady appeals the conviction of assault with a deadly weapon on 

grounds that the trial court failed to provide a sua sponte instruction on the lesser 

included offense of misdemeanor assault. He further contends that other jury instructions 

were potentially misleading. Finally, he alleges that while a single act of burglary may 

have occurred, the evidence does not support a separate conviction for attempted 

burglary. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Canady was charged by amended information with attempted first degree 

residential burglary (Count 1; Pen. Code, §§ 664, 459, 460, subd. (a); all further statutory 

references are to this code), making criminal threats (Counts 2 & 3; § 422), first degree 

residential burglary (Count 4; §§ 459, 460, subd. (a)), assault with a deadly weapon 

(Count 5; § 245, subd. (a)(1)), and misdemeanor vandalism (Count 6; § 594, subd. 

(a)(2)). An enhancement allegation was attached to Count 5 for infliction of great bodily 

injury (§ 12022.7, subd. (a)). It was also alleged that Canady had suffered a prior strike 

and serious felony conviction (§§ 667; 1170.12), and served a prior prison term within 

the meaning of section 667.5, subdivision (b). The case went to trial in July 2013.

Prosecution Case

On April 27, 2013, Canady made an unscheduled visit to the home of his ex-wife, 

Tia Marshall. Ms. Marshall had custody of their two minor children, and Canady had 

apparently intended to surprise the kids with some gifts. His knock at the front door of 

the home was answered by Ms. Marshall’s boyfriend, Robert Booker. Separated by a 

security screen, the two men had a brief conversation during which Canady demanded to 

see his children. Mr. Booker refused to open the door. 

After being denied admission to the home, Canady walked over to a window that 

looked into Ms. Marshall’s kitchen and smashed it with a tire iron.1 He attempted to 

 

1 Both parties use the term “tire iron” in their briefs, which is how the item was 

described by police officers who provided foundational testimony for its admission into 
3.

climb through the opening, but fell backwards onto the ground. In the midst of this 

activity, Canady told Ms. Marshall, “I’m going to come in. I’m going to kill you. I’m 

going to beat your ass, bitch.” She called 911 for help.

While Ms. Marshall was speaking to a 911 dispatcher, Canady entered her back 

yard and approached a sliding glass door that led into the house from a patio area. Upon 

seeing Canady move to the back patio, Mr. Booker armed himself with a knife and stood 

in front of the sliding glass door. Canady began directing his threats at Mr. Booker, 

screaming, “I’m going to kill you!” He then used the tire iron to break through the door. 

The weapon struck Mr. Booker in the thumb as he raised his hand to protect himself, 

inflicting a wound that required eight stitches to close. Canady entered the house and 

began grappling with Mr. Booker. The victim was eventually able to place Canady in a 

headlock and kept him pinned down until the police arrived. 

Defense Case 

The defendant testified on his own behalf. He described arriving at 

Ms. Marshall’s residence and being turned away without explanation. While trying to 

engage his ex-wife in conversation, he looked through a window and saw his three-yearold daughter standing next to Mr. Booker, who was wearing nothing but a pair of “Hanes 

drawers.” Feeling offended by what he had seen, Canady went out to his car and 

retrieved the tire iron. 

In Canady’s version of events, he “busted the first window” with the tire iron but 

made no attempt to climb through it. Rather than threatening Ms. Marshall with harm, he 

had said, “Bitch, you bought the house in my name, I can break any window I want.” 

Next, he “went around to the back to break the back window,” but turned to run away as 

 

evidence. The metal object was estimated to weigh approximately five to six pounds. 

Based on the testimony of several witnesses, it appears the item was actually a 

component of a jack that is used to lift a vehicle off the ground in order to facilitate the 

changing of a tire, or possibly the jack itself. For ease of reference, we will adopt the 

terminology used by the parties.
4.

soon as the glass shattered. As he was trying to leave, Mr. Booker exited the home and 

attacked him with a knife. Canady denied entering the house or having any intent to do 

so. He also denied attempting to strike, or actually striking, Mr. Booker with the tire 

iron. 

Verdict and Sentencing

Canady was convicted as charged on all counts. The great bodily injury 

enhancement alleged in connection with Count 5 was found not to be true. A bifurcated 

bench trial resulted in true findings on the remaining enhancement allegations.

On September 26, 2013, Canady was sentenced to an aggregate term of 14 years 

and 4 months in prison. The sentence was calculated using Count 4 as the principal 

count, for which he received the aggravated term of six years, doubled to 12 years 

pursuant to section 667, subdivision (e)(1) for the prior strike and further enhanced by a 

consecutive one-year term for the prior prison term. A consecutive term of 16 months 

was imposed for the Count 3 conviction (criminal threats against Tia Marshall), 

representing one-third of the middle term, doubled because of the prior strike. Additional 

prison terms imposed for Counts 1, 2, and 5 were ordered to be served concurrently. A 

notice of appeal was filed on September 27, 2013. 

DISCUSSION

Failure to Instruct on Simple Assault as a Lesser Included Offense

Appellant contends that the trial court had a sua sponte duty to instruct on simple 

assault as a lesser included offense of assault with a deadly weapon as charged in 

Count 5. He construes the court’s failure to provide such an instruction as prejudicial 

error. The claim fails because even if error occurred, it was harmless.

Assault is “an unlawful attempt, coupled with a present ability, to commit a 

violent injury on the person of another.” (§ 240.) A conviction for assault with a deadly 

weapon requires proof of the crime of assault, plus proof that it was accomplished by the 

use of a deadly weapon. (§ 245, subd. (a)(1).) It follows that section 240 is a lesser 
5.

included offense of section 245, subdivision (a)(1). (See People v. Lopez (1998) 19 

Cal.4th 282, 288 [“if a crime cannot be committed without also necessarily committing a 

lesser offense, the latter is a lesser included offense within the former.”].) 

Trial courts have a sua sponte duty to instruct on general principles of law relevant 

to the issues raised by the evidence, which includes giving instructions on lesser included 

offenses. (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The de novo standard of 

review is applied to questions concerning whether a trial court erred by failing to provide 

a required instruction. (People v. Cook (2006) 39 Cal.4th 566, 596.) Where error is 

shown, the reviewing court must determine if there is a reasonable probability that the 

omission affected the jury’s verdict. (People v. Breverman (1998) 19 Cal.4th 142, 177-

178; People v. Watson (1956) 46 Cal.2d 818, 836.)

The duty to instruct on simple assault as a lesser included offense of assault with a 

deadly weapon exists unless, based on the evidence, the jury could only find the 

defendant guilty of the greater offense or not guilty at all. (People v. Page (2004) 123 

Cal.App.4th 1466, 1474.) Stated another way, “the obligation to instruct on a lesser 

included offense does not arise when there is no evidence that the offense was less than 

that charged.” (People v. Wyatt (2012) 55 Cal.4th 694, 702-703.) In this case, the trial 

court found the evidence did not warrant an instruction on simple assault. Canady’s trial 

counsel apparently agreed with this conclusion, since he was the person who requested 

that an instruction on simple assault not be given. 

On appeal, Canady argues that a lesser included offense instruction was required 

because a tire iron does not constitute a deadly weapon as a matter of law. His position is 

stated as follows: “[W]hether or not Mr. Canady used the tire iron in a manner likely to 

cause death or great bodily injury merited consideration by the jury. While there may 

have been evidence sufficient to sustain a deadly weapon finding, a simple assault 

conviction would also have been reasonable and supported by [the] evidence, and it was 

error not to give that determination to the jury.” 
6.

It is true that the nature of the weapon used in the offense was a factual issue for 

the jury to decide. (People v. Fisher (1965) 234 Cal.App.2d 189, 193 [“The character of 

the tire iron and its use, either as a dangerous or as a deadly weapon, is a question of 

fact.”].) However, Canady fails to recognize that the issue was submitted to the jury as 

part of the instructions it received regarding Count 5. The trial court explained that to 

prove the defendant guilty of this crime, the prosecution needed to show: “1. 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....” To assist the jury 

in making its determination, the instruction stated: “As used in the statute defining the 

offense of assault with a deadly weapon, a ‘deadly weapon’ is any object, instrument, or 

weapon that is used in such a manner as to be capable of producing and likely to produce,

death or great bodily injury.” The term “great bodily injury” was defined elsewhere in 

the instruction. Thus, the jury could not have reached the ultimate question of guilt or 

innocence without first deciding whether, under the circumstances of the case, the tire 

iron qualified as a deadly weapon. 

Error in failing to instruct the jury on a lesser included offense is harmless when 

the factual question posed by the omitted instruction is necessarily resolved adversely to 

the defendant through other properly given instructions. (People v. Chatman (2006) 

38 Cal.4th 344, 392; People v. Elliot (2005) 37 Cal.4th 453, 475 (Elliot).) “‘“In such 

cases the issue should not be deemed to have been removed from the jury’s consideration 

since it has been resolved in another context, and there can be no prejudice to the 

defendant since the evidence that would support a finding that only the lesser offense was 

committed has been rejected by the jury.”’” (Elliot, supra, 37 Cal.4th at p. 475.) 

Accordingly, any error in failing to instruct jurors on simple assault as a lesser included 

offense of assault with a deadly weapon was harmless. The alleged error may also be 

deemed harmless in light of Canady’s failure to show there is any likelihood that a 
7.

reasonable juror would have otherwise found the tire iron was not a deadly weapon 

within the context of the trial evidence.

In a related claim, Canady submits that failure to instruct on simple assault as a 

lesser included offense under Count 5 requires reversal of his convictions for attempted 

burglary and burglary under Counts 1 and 4, respectively. As best we understand the 

argument, the jury supposedly believed Canady’s intention upon entering the home was 

to commit misdemeanor assault rather than the target offenses alleged by the prosecution, 

i.e., felonious criminal threats or assault with a deadly weapon. Appellant does not 

explain why, if the jury did not believe he intended to commit one of the specified 

felonies, it did not simply follow the instructions it was given and acquit him on those 

charges. The theory is too attenuated and speculative to establish grounds for reversal. 

For the reasons stated above, we conclude it is not reasonably probable that the outcome 

of the case would have been different but for the trial court’s failure to instruct on simple 

assault as a lesser included offense of assault with a deadly weapon.

Miscellaneous Claims of Instructional Error

Canady presents three additional, interrelated claims of instructional error, all of 

which are raised for the first time on appeal. We agree with the Attorney General that 

these claims should be considered forfeited. Furthermore, none of the alleged errors were 

prejudicial.

The following principles provide the necessary context for appellant’s arguments. 

First, burglary is defined by statute as the entry into a house or other specified structure 

with intent to commit larceny or any felony. (§ 459.) Second, “[i]n a burglary 

prosecution, complete and accurate jury instructions include the definition of each felony 

the defendant is alleged to have intended to commit upon entry into the burglarized 

structure.” (People v. Rathert (2000) 24 Cal.4th 200, 204.) 

The jury was instructed pursuant to CALCRIM No. 1700, which identified the 

elements of burglary and the felonies Canady was alleged to have intended to commit. 
8.

The instruction read, in pertinent part: “A burglary was committed if the defendant 

entered with the intent to commit Criminal Threats or Assault With a Deadly Weapon.” 

It also stated: “To decide whether the defendant intended to commit Criminal Threats or 

Assault With a Deadly Weapon, please refer to the separate instructions that I will give 

you on those crimes.” Separate instructions for the target offenses were provided 

pursuant to CALCRIM Nos. 875 (assault with a deadly weapon) and 1300 (criminal 

threats). 

Canady argues that a clarifying instruction was required to ensure jurors 

understood that alleging criminal threats as a target offense meant that he had to intend to 

make new threats upon gaining entry to the home, as opposed to carrying out threats he 

had already made prior to smashing the window and glass door with his tire iron. Next, 

he claims the wording of a unanimity instruction given pursuant to CALCRIM No. 252 

“reinforced the false impression that the intent Mr. Canady had when he actually made 

criminal threats could be merged with the entry and/or attempted entry that occurred 

moments later.”2 Lastly, Canady complains the CALCRIM No. 1700 instruction 

erroneously stated that he was “charged in Counts One and Four with burglary,” when in 

fact Count 1 alleged attempted burglary. 

Regarding the third contention, Canady argues he was prejudiced by the 

possibility that jurors were misled to believe they could “assess the entire incident 

collectively.” The argument circles back around to his initial hypothesis that the jury 

misunderstood the manner in which the prosecution had alleged criminal threats as a 

 

2 Canady objects to the first paragraph of the instruction, which states: “The 

crimes and other allegation[s] charged in Counts Five and Six require proof of the union, 

or joint operation, of act and wrongful intent.” The instruction goes on to identify the 

required mens rea for all counts and explains the concepts of general intent (Counts 5-6) 

and specific intent (Counts 1-4). According to Canady, the first paragraph of the 

instruction implied “that counts one through four did not require unanimity of action and 

intent.” 
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possible target crime. In appellant’s words, “If the jury did not realize the need to 

differentiate [his] intent at the time of the first attempted burglary from his intent at the 

time of the second completed burglary, it is unlikely the jury differentiated his intent at 

the time he uttered each criminal threat from his intent moments later, when he tried to 

and/or did enter the home.”

We now turn to the issue of forfeiture. “A party may not complain on appeal that 

an instruction correct in law and responsive to the evidence was too general or 

incomplete unless the party has requested appropriate clarifying or amplifying language.” 

(People v. Lang (1989) 49 Cal.3d 991, 1024.) Canady did not object to, or seek 

modification of, any of the instructions he now challenges. His silence resulted in 

forfeiture of those claims. We thus review the alleged instructional errors only to 

determine if his substantial rights were affected (§ 1259), i.e., whether the alleged errors 

resulted in a miscarriage of justice. (People v. Anderson (2007) 152 Cal.App.4th 919, 

927.)

Assuming for the sake of argument that jurors misconstrued the instructions in the 

manner alleged, we find no prejudice. Canady made two criminal threats prior to 

attempting to gain entry to the victims’ home: “I’m going to kill you” and “I’m going to 

beat your ass.” If, as Canady argues, the jury believed his intentions were to carry out 

one or both of these threats, it was entirely permissible for the jury to return guilty 

verdicts on Counts 1 and 4 given the prosecution’s alternative theory that the target 

offense for both crimes was assault with a deadly weapon. We cannot conceive of a 

realistic scenario in which the verdicts on these counts would have been different but for 

the alleged errors.

We likewise conclude that failure to accurately refer to the charge of attempted 

burglary in the CALCRIM No. 1700 instruction did not affect appellant’s substantial 

rights. Canady overlooks the rule that jurors are presumed to be intelligent persons 

“‘“capable of understanding and correlating all jury instructions which are given.”’” 
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(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) A reviewing court must also 

consider the instructions as a whole in order to determine whether prejudicial error has 

occurred. (People v. Owens (1994) 27 Cal.App.4th 1155, 1159; see People v. Lucas

(2014) 60 Cal.4th 153, 287 [“A single instruction is not viewed in isolation”].) Here, the 

jury received other instructions that correctly identified the distinct nature of the crimes 

alleged in Counts 1 and 4, including CALCRIM No. 460 (“Attempt Other Than 

Attempted Murder”), which began by stating, “The defendant is charged in Count One 

with attempted First Degree Residential Burglary.” The trial court also recited the 

language in CALCRIM No. 3515, thus informing the jury that each count charged in the 

case was a separate crime, and that it was required to consider each count separately and 

return a separate verdict for each one. There is nothing in the record to suggest the jury 

did not fully comprehend these instructions and/or appreciate the distinct nature of the 

charges in Counts 1 and 4. In summary, Canady has not shown there was a miscarriage 

of justice caused by incomplete or inaccurate jury instructions.

Sufficiency of the Evidence re: Separate Convictions for Attempted Burglary and 

Burglary

Canady submits that “the attempted burglary conviction in count one must be 

dismissed for insufficient evidence because [he] could not lawfully be convicted of both 

attempting and then completing the same residential burglary.” The crux of his argument 

is that a single act of burglary occurred, beginning when he broke Ms. Marshall’s kitchen 

window and ending upon his entry into the home after he shattered her sliding glass door. 

We are not persuaded.

“In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses evidence that is 

reasonable, credible, and of solid value such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient 
11.

substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 

297, 331.) Evidence is substantial if it “‘“reasonably inspires confidence.”’” (People v. 

Raley (1992) 2 Cal.4th 870, 891.)

As discussed, burglary requires entry into a structure with the intent to commit a 

felony therein. “The gravamen of a charge of burglary is the act of entry itself ....” 

(People v. Failla (1966) 64 Cal.2d 560, 568.) Attempted burglary consists of two 

elements: (1) the intent to commit burglary and (2) “a direct but ineffectual act done 

toward its commission.” (§§ 21a, 459, 664.)

From a strictly procedural standpoint, a person accused of attempting to commit a 

crime may be convicted of such a charge even if the evidence at trial shows the crime 

was completed. (§ 663; People v. Mejia (2012) 211 Cal.App.4th 586, 605.) Respondent 

observes, and we agree, that the evidence could arguably be interpreted as showing a 

burglary occurred the moment Canady broke through the kitchen window. (People v. 

Valencia (2002) 28 Cal.4th 1, 11 [entry occurs within the meaning of burglary if “an 

instrument employed by the intruder” penetrates the outer boundary of the building], 

overruled on a different point in People v. Yarbrough (2012) 54 Cal.4th 889, 894; see 

also, People v. Calderon (2007) 158 Cal.App.4th 137, 144-145 [kicking in the door of a 

home constitutes burglary because the door itself becomes an instrument used to 

penetrate the building].) The dispositive inquiry is whether Canady committed two 

distinct offenses by attempting to enter the home through the window and the sliding 

glass door, and succeeding in at least one of those attempts. 

Canady acknowledges that his position is weakened by the holding in People v. 

Washington (1996) 50 Cal.App.4th 568 (Washington), which concludes that because the 

crime of burglary is complete upon entry with the requisite intent, each unlawful entry 

committed with the required mental state supports a separate conviction. (Id. at pp. 575-

579 [defendant found guilty of two counts of burglary based on unlawful entries into the 

same apartment within a span of approximately 2 hours and 15 minutes].) He tries to 
12.

distinguish Washington on grounds that the present case involved only one successful 

“entry” that occurred within moments of the conduct upon which the attempted burglary 

conviction was based. The argument is unconvincing, as Washington merely illustrates 

the general rule that “a defendant may be convicted of multiple crimes - even if the 

crimes are part of the same impulse, intention or plan - as long as each conviction reflects 

a completed criminal act.” (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518 [citing 

numerous examples of the rule’s applicability to “crimes that do not monetize and 

aggregate harm or damage.”].)

Viewing the record in the light most favorable to the judgment, the evidence 

permitted the jury to find the crime of attempted burglary was committed when Canady 

tried to climb through the kitchen window and fell backwards to the ground. This “direct 

but ineffectual act done towards” the commission of burglary satisfied the final element 

of the offense. (§§ 21a, 459, 664.) Canady could have chosen to leave at that point, but 

instead walked around to a different part of the house and engaged in a new course of 

conduct that resulted in an unlawful entry into the residence. It is also possible that the 

two incidents involved different criminal intentions (e.g. intent to commit felony assault 

against Ms. Marshall and later the intent to commit felony assault against Mr. Booker). 

As so construed, the evidence allowed for separate convictions under Counts 1 and 4. 
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DISPOSITION

The judgment is affirmed. 

_____________________

GOMES, J.

WE CONCUR:

_____________________

HILL, P. J.

_____________________

LEVY, J.