Filed 1/11/21 P. v. Carrasco CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

 Plaintiff and Respondent,

 v.

RUBEN CARRASCO,

 Defendant and Appellant.

B303248

(Los Angeles County

Super. Ct. No. KA121524)

 APPEAL from a judgment of the Superior Court of 

Los Angeles County, Steven D. Blades, Judge. Affirmed with 

corrections.

 Garen Nazarian, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, and Nima Razfar, Deputy Attorney General, 

for Plaintiff and Respondent.
2

____________________

Ruben Carrasco appeals the trial court’s refusal to instruct 

the jury on simple assault, which is a misdemeanor. We affirm 

because there was no basis for this instruction: the evidence 

showed either aggravated assault or else no assault at all. We 

also correct the abstract of judgment. Statutory references are to 

the Penal Code.

I

Although Carrasco did not testify to the July 2019 incident, 

three eyewitnesses did.

A

Joseph Warren was in a parking lot that day. He heard a 

scream across the street and a woman telling a man to get away 

from her. The man, Carrasco, was pushing the woman’s back. 

Other evidence would show the woman was Carrasco’s wife, 

Estela Rios. 

Warren saw Carrasco push Rios three times. The couple 

kept walking, and Warren went back to his work. 

Warren then saw Rios come around the corner on his side 

of the street. She was crying. Carrasco was following her. 

Rios put down the items she was carrying. Carrasco kicked 

them over. She cried for him to leave her alone. Carrasco 

punched her in the stomach three times or more. The punches 

seemed “pretty strong” to Warren. As Carrasco punched Rios, 

she continued to plead for him to leave her alone. 

Carrasco held a metal “trash picker upper.” He hit her legs 

twice with this stick. Carrasco swung the stick hard. Nothing 

slowed its momentum until the stick hit her leg. 

Warren also saw Carrasco hit the woman on the back of her 

head, above and behind her ear. He could not tell if the blow was 
3

with an open hand or a closed fist. It made her stumble. Warren 

said, “It looked aggressive. It looked pretty aggressive to me 

when he swung with some force behind it. It wasn’t like a 

haymaker like how—just a crazy one, but it hit her in the head, 

and it was pretty strong, it seemed like.” 

Carrasco then grabbed her neck and slammed her against 

the window of an insurance building. Warren heard her hit the 

window. The force was hard enough that people rushed out from 

inside. Warren thought it could have possibly broken the 

window. 

Warren heard the new people from inside the building ask 

“what’s going on?” Carrasco fought one of them. Warren called 

911. Rios was crying and trying to cover herself. 

These events were directly in front of where Warren was 

working. 

B

Abel Lujan testified next. He was working with Warren 

that day. He noticed Carrasco and Rios arguing across the street 

but “wasn’t really focused” on them. 

Lujan later noticed the couple screaming by the insurance 

building. “And then I just seen blows coming out.” Carrasco was 

“throwing blows” at Rios with closed fists. Lujan initially did not 

remember where or how many times Carrasco hit her. After the

prosecutor read Lujan’s preliminary hearing testimony, Lujan 

recalled Carrasco hit the woman in her face. He estimated there 

were one to three blows. 

Lujan initially did not remember Carrasco carrying a stick; 

then he recalled the “thing to pick up cans.” But he did not 

remember Carrasco striking the woman with it. 
4

Lujan acknowledged he may have testified previously 

Carrasco grabbed the woman by the neck and pushed her against 

the wall, but at trial he did not recall those events. The 

prosecutor then read Lujan’s testimony from the preliminary 

hearing, where Lujan said Carrasco was “grabbing her by the 

neck, and then, like, kind of like pushing it, and I think it was up 

against the wall at one point, and then he had like a trash picker 

upper thing, you know, like one of the sticks. I think he was 

hitting her with it.” 

On recross, Lujan conceded he might have been confused 

about who was hitting whom with the stick. 

On redirect, the prosecutor read testimony in which Lujan 

said he saw Carrasco with the stick in his hand when he was 

hitting Rios, but Lujan wasn’t sure whether Carrasco was hitting 

her with the stick or with his fist. Lujan acknowledged his 

memory was better when he testified previously. 

C

Rios testified she was pregnant at the time of the incident. 

Rios had a disagreement with Carrasco about a “personal family 

matter” that day, but it was not physical. He did not get angry or 

yell at her. He did not push or hit her. She was crying because of 

the personal matter, but never screamed. 

Rios recounted how she and Carrasco crossed the street 

and went to a laundromat. Carrasco left to get change and, when 

he did not return after a couple of minutes, she stepped out and 

saw him in an altercation with another man. Rios tried to get 

her husband to leave. Then police came. 

D

There was other evidence too.
5

The officer who detained Carrasco testified. This officer 

tried to get a statement from Rios, but she was argumentative 

and did not want to speak with him. She told the officer nothing 

happened and denied she had been assaulted. The officer asked 

if he could take pictures of her. But Rios “was uncooperative. 

She didn’t want us to help her. She said she was not hurt.” The 

officer saw no signs of injury. 

The prosecution introduced the recording and transcript of 

Warren’s 911 call reporting the incident. In this call, Warren 

states: “I see a guy that’s punching a lady . . . [i]n like the face.” 

Warren then describes the man fighting with workers from the 

insurance building, who “came out because he almost broke a 

window.” He said the man was using a stick to hit them, which 

Warren described as “a green weapon.” 

The prosecution introduced the recording and transcript of 

a call between Carrasco and Rios when Carrasco was in jail for 

the July 2019 incident. In the call, Carrasco appears to be telling 

Rios not to say she knows whom he fought that day or else he’s 

“fucked.” He tells her, “You better not show up to my court.” 

Then he blames her, saying, “All this is because of you.” Rios 

responds, “No because you were hitting me.” Carrasco then 

erupts, saying “Nuh, bitch there you go again motherfucker 

saying that shit on the phone again.” 

The prosecution also introduced evidence of past domestic 

violence by Carrasco against Rios. This evidence included the 

recording and transcript of a 911 call made from a liquor store in 

June 2019. Carrasco uses foul language with Rios: “Give me my 

fucking shit,” “Fuck you ho,” “Shut the fuck up ho,” and “Go get 

me my motherfucking shit right now ho. This ain’t no fucken 

game.” He said, “I’m gonna knock you out ho.” 
6

The 911 call was transferred to the sheriff’s department. 

Rios told the deputy “my boyfriend was hitting me.” She 

identified her boyfriend as “Ruben Carrasco.” She said Carrasco 

punched her “hard in my body.” She also reported he choked her 

the day before and was arrested on Mother’s Day “for doing the 

same thing.” 

E

The prosecution charged Carrasco with felony assault by 

means of force likely to produce great bodily injury (§ 245, subd. 

(a)(4)); contempt of court for violating a protective order and stay 

away order (§ 166, subd. (c)(1)); and resisting a peace officer 

(§ 148, subd. (a)(1)). The latter two counts were misdemeanors. 

After the close of evidence, defense counsel twice requested 

an instruction on simple assault. The first request was a oneliner: counsel presented no argument or logic to support this 

request. 

The court denied Carrasco’s motion, reasoning it was all or 

nothing: if you believed Warren and Lujan, it was aggravated 

assault, but if you believed Rios, there was no assault at all. 

Carrasco did not dispute this analysis in the trial court.

Carrasco later renewed his motion for the simple assault 

instruction, saying that it was “supported by the evidence, at 

least according to the alleged victim in this case.” The trial court 

responded by contrasting Rios’s testimony, which maintained 

there was no physical contact and no threat of it, with the 

account of Warren and Lujan, who did report violent physical 

contact. The court again denied Carrasco’s motion for the simple 

assault instruction. Carrasco’s counsel again did not attempt to 

differ with the trial court’s analysis. 
7

After deliberating for just over an hour, the jury convicted 

Carrasco on all three counts. 

The court sentenced Carrasco to the upper term of four 

years for the felony assault plus 364 days for each of the two 

misdemeanors. The misdemeanor terms were to run 

consecutively. The trial court said “the total sentence is six years

in the state prison.” 

II

A trial court must instruct on a lesser included offense if 

there is substantial evidence the defendant is guilty of the lesser 

offense but not the charged offense. (People v. Breverman (1998) 

19 Cal.4th 142, 162, 177 (Breverman).) Substantial evidence is 

evidence from which reasonable jurors could conclude the 

defendant committed the lesser offense but not the greater. The 

evidence must be substantial in the sense that a reasonable jury 

could find it persuasive. (People v. Valdez (2004) 32 Cal.4th 73, 

116.) It is error to instruct on a lesser included offense where the 

evidence makes clear the defendant, if guilty at all, could be 

guilty of only the greater offense. (People v. Stewart (2000) 77 

Cal.App.4th 785, 795–796.) 

Our review is independent. (People v. Licas (2007) 41 

Cal.4th 362, 366.) In assessing the evidence, we eschew 

credibility determinations. (Breverman, supra, 19 Cal.4th at p. 

162.)

An assault is an unlawful attempt, coupled with a present 

ability, to commit a violent injury on the person of another.

(§ 240.) Simple assault is a lesser included offense of assault by 

means of force likely to produce great bodily injury. (People v. 

Yeats (1977) 66 Cal.App.3d 874, 879.) The difference is the 
8

degree of force the defendant used. (See People v. McDaniel

(2008) 159 Cal.App.4th 736, 748 (McDaniel).) 

Great bodily injury is significant or substantial injury, not 

trivial, insignificant, or moderate injury. (McDaniel, supra, 159 

Cal.App.4th at p. 748; see also CALCRIM No. 875 [great bodily 

injury is an injury greater than minor or moderate harm].) It 

may be committed with hands or fists. (McDaniel, at p. 748.)

One blow to the face can suffice. (In re Nirran W. (1989) 207 

Cal.App.3d 1157, 1161–1162.)

III

The trial court’s ruling was proper. The trial court rightly 

explained this case was either all or nothing. It was either 

assault by means of force likely to produce great bodily injury, as 

Warren and Lujan testified, or no assault, as Rios claimed. 

Between these two versions, there was no middle ground. There 

was no evidence of simple assault. There was no warrant for a 

simple assault instruction.

Warren left no doubt about the high degree of force 

Carrasco used against his then-pregnant wife. Carrasco struck 

her stomach three times or more with “pretty strong” punches. 

He hit her legs with a metal stick twice; he was swinging hard. 

Then he struck the back of her head and made her stumble. Next 

he grabbed her by the neck and slammed her into a window with 

enough force it seemed the window might break. 

We emphasize the stumble. Stumbling after a blow to the 

back of the head creates the risk of a fall. Rios was stumbling on 

hard surfaces: streets and sidewalks. Falling on an outstretched 

hand or on your head can cause a significant injury. These risks 

thus are significant. 
9

This evidence showed a degree of force and risk of injury 

that was not trivial, insignificant, or moderate.

Lujan’s testimony was consistent with Warren’s. Lujan 

observed the conflict less closely than did Warren, true, and 

Lujan’s memory was less detailed than Warren’s. Nevertheless, 

Lujan corroborated Warren.

Carrasco says Lujan and Warren testified inconsistently

about whether Carrasco struck Rios with the trash grabber 

device. But even without this fact, the evidence shows nothing 

short of an assault by means of force likely to produce great 

bodily injury.

The only other eyewitness was Rios herself, who denied 

there was anything beyond a verbal disagreement between her 

and her husband. That is not evidence of simple assault because, 

according to Rios, Carrasco made no attempt to injure her 

violently. 

Carrasco argues Rios reported no physical injury. This 

factor is not decisive. (People v. Aguilar (1997) 16 Cal.4th 1023, 

1028.) What matters is the force used and whether it would be 

likely to cause great bodily injury. (Id. at p. 1036, fn. 9.) The 

issue is risk, not whether the risk came to pass.

Carrasco maintains a fist attack is not per se likely to cause 

great bodily injury. That is so. But the trial court did not 

analyze this case as a per se or categorical matter. It grappled 

with the facts of this case. On the facts of this case, there was no 

evidence of simple assault.

Carrasco cites Breverman, which held a trial court must 

instruct fully on all lesser necessarily included offenses supported 

by the evidence. (Breverman, supra, 19 Cal.4th at pp. 148–149.) 
10

The trial court rightly ruled, however, the evidence did not 

support a charge of simple assault in this case. 

IV

We order corrections to the abstract of judgment.

The report of the sentence is incorrect. Apart from the 

felony assault, Carrasco was convicted of and sentenced for two 

misdemeanors: contempt of court and resisting a peace officer. 

The trial court’s minute order and the reporter’s transcript make 

clear the court imposed consecutive sentences of 364 days for 

each of the two misdemeanors, plus four years for the felony. 

However, the abstract of judgment incorrectly reflects concurrent 

sentences, for a mistaken total term of four years. 

The People ask us to order a correction to the abstract of 

judgment to reflect the trial court’s oral pronouncement of 

Carrasco’s sentences, which governs. We do so, as the abstract is 

erroneous and Carrasco does not dispute the point. (See People v. 

Mitchell (2001) 26 Cal.4th 181, 185, 188 [oral judgment governs; 

if different, abstract of judgment should be corrected].) 

We also order the trial court to correct a two-day 

discrepancy in Carrasco’s favor. The trial court sentenced 

Carrasco to four years on the felony and 364 days on each of the 

two misdemeanors. The trial court referred to these consecutive 

sentences as totaling “six years in the state prison.” This 

abbreviated shorthand of “six years” is inaccurate by two days: 

each misdemeanor sentence is 364 days, not 365 days. 

Nevertheless, the court’s shorthand is clear. We therefore direct 

the trial court to correct the abstract to state Carrasco’s total 

custodial term is four years plus 364 days plus 364 days, which is 

five years and 363 days.
11

We also note the abstract incorrectly states Carrasco’s 

conviction resulted from a plea of guilty rather than from a jury 

verdict. This also must be corrected: a jury convicted Carrasco.

DISPOSITION

The judgment is affirmed. We direct the sentencing court 

to correct the abstract of judgment to reflect three consecutive 

sentences for a total custodial term of five years and 363 days. 

The court also must order the abstract corrected to show a 

conviction by jury verdict. We further direct the court to forward 

a certified copy of the corrected abstract of judgment to the 

Department of Corrections and Rehabilitation.

WILEY, J.

We concur: 

 BIGELOW, P. J. 

 GRIMES, J.