California Cases March 28, 2022: People v. Stanley Cheng

Case Description

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NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C2003598

ELIA, ACTING P.J.

A jury convicted defendant Stanley Cheng of three offenses arising out of a single episode of domestic violence against his wife, L. Specifically, jurors convicted defendant of two counts of assault by means of force likely to produce great bodily injury and one count of inflicting corporal injury on a spouse. The jury also found true allegations that, in the commission of each offense, defendant personally committed great bodily injury under circumstances involving domestic violence. The trial court denied probation and sentenced defendant to a two-year state prison term. On appeal, defendant contends the trial court committed instructional error, provided insufficient responses to jury questions, and erroneously concluded that the presumption of ineligibility for probation was not overcome. Finding no prejudicial error, we shall affirm.

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I. Background

A. Factual Summary

Sometime after midnight on January 3, 2020, Kevin S. was awoken by the sound of yelling coming from a neighboring apartment. He heard a man and woman arguing loudly. The yelling was so loud that "it scared [him] because it sounded like it was . . . escalating to a level where something bad could happen." After approximately 30 minutes, Kevin called the apartment complex's security company to look into the situation. Kevin's college-aged daughter and wife also heard the fighting. Kevin's daughter testified that she heard "really loud screams that seemed like someone was in pain" and that she had "never . . . heard any kind of screams like that before, so [she] got scared." She was confident the screams came from a woman. Kevin's wife likewise heard a woman screaming.

At approximately 5:00 a.m. that same morning, John K. and Kevin J. were working out at the gym associated at the apartment complex where Kevin S. and his family lived. A woman dressed in light sleepwear pounded on the gym's glass door. The woman was later identified as defendant's wife, L. The men let her inside. They observed that she was shivering, had no possessions with her, and had bruises on her neck and wrists. She told them she had been fighting with her husband. John called the police.

One of the responding police officers was Nathalie Zavala. Officer Zavala observed "deep red marks" on L.'s neck "as if she had been strangled." A second responding officer, Josh Higgins, testified that he recalled "being kind of surprised at how serious the bruising and injuries to her neck were," calling them "among the worst marks" he had seen in his 12-year career. Officer Higgins testified that L. said her husband had given her the neck injuries.

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Video from Officer Zavala's body-worn camera were played at trial. The video depicts L. telling the responding officers that her husband's "feet step on my head and here," indicating her chest. She stated that where he had stepped on her chest was "very hurt." When Officer Higgins mentioned the severity of the injuries, L. responded by holding her hand up as if grabbing her neck and saying "I cannot breathe." The video also shows L. speaking with paramedics. She told them that her husband "used feet" to "step" on her. She also held her hand around her neck and said "like this, I can't breathe."

According to Officer Higgins, defendant arrived on the scene shortly after police responded. Officer Higgins testified that defendant told him that his penis was injured. However, defendant did not request medical care and the officer did not photograph or otherwise examine defendant's penis for injury.

L. went to the emergency room later on the morning of January 3rd. After she was medically cleared by the emergency room physician, she was examined by Kristine Setterlund, a registered nurse, as part of a domestic violence strangulation examination pilot program. Setterlund interviewed L. During that interview, L. told Setterlund that she had lost consciousness three times during three separate strangulations. L. also reported that defendant stood "with both feet in his sandals on her head."

Setterlund also examined L. Setterlund testified that the marks on L.'s neck were consistent with strangulation and not consistent with open hand strikes. Setterlund described L.'s injuries as "extensive." Those injuries included bruises on both sides of the neck, bruises under the chin, injury to the left ear, an injured lip, bruising on her chest and shoulders, bruises on her forearms, and bruises on the lower legs. Setterlund opined that the ear injuries could have been caused by "a man's weight with sandals, both feet, stomping on somebody's head." Setterlund had no opinion as to what caused the bruising on L.'s chest, but agreed it was possible it could have been caused by feet.

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L. refused to testify at defendant's trial and was ordered to return for a contempt proceeding.

Defendant testified that he and his wife are from Taiwan and moved to the United States in October 2019 for his job. L. was employed by the same Taiwanese employer. According to defendant, the two fought for several hours on the evening of January 2nd and into the early morning hours of January 3rd, 2020. According to defendant, the fight began because L. wanted him to buy her a $20, 000 designer handbag and he declined. He testified that L. reacted by physically kicking him out of their bed, punching him in the head two or three times, and grabbing his private parts. He pushed her in the upper body and grabbed at her arms to get her to stop. After that, they had a long verbal argument that turned physical after L. started throwing things. Defendant testified that when he stopped L. from throwing something at the television, she punched him in the head and grabbed his private parts. He grabbed her arm to make her let go of his private parts and pushed her away. Defendant denied strangling or otherwise intentionally injuring L. He said that eventually he went to bed and expected L. to do the same. However, he heard her leave the apartment. When she did not return for some time, he went to look for her and encountered police. Defendant testified that, at the time of trial, he and L. were still married and living together.

B. Procedural History

The Santa Clara County District Attorney charged defendant by information with two counts of assault with force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(4); counts 1-2) and one count of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); count 3). The information further alleged that defendant had inflicted

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great bodily injury under circumstances involving domestic violence in the commission of each charged offense. (§§ 12022.7, subd. (e) & 1203, subd. (e)(3)).

The case went to a jury trial. Jurors heard testimony over the course of three days and deliberated for approximately five hours before finding defendant guilty on all counts and finding true the great bodily injury enhancement allegations.

At a March 22, 2021 sentencing hearing, the trial court denied probation and sentenced defendant to a two-year state prison term. The court imposed the low term of two years on each count, with counts 2 and 3 to run concurrently with count 1, and struck the punishment associated with the enhancement allegations. Defendant timely appealed.

II. Discussion

A. Jury Unanimity

Defendant contends that the trial court committed two errors that allowed jurors to convict on counts 1 and 2 without unanimously agreeing on the acts constituting the two offenses. First, he maintains the trial court erred by failing to sua sponte give a unanimity instruction. Defendant asserts a unanimity instruction was required because there was evidence of multiple assaultive acts and any election by the prosecutor was insufficient. The Attorney General responds that no such instruction was required because, in closing, the prosecutor elected which act (or continuous course of conduct) constituted each offense. Second, defendant argues that the trial court provided inadequate answers to a series of jury questions touching on the unanimity issue. We conclude that no instructional error was committed and that defendant waived his challenges to the jury question responses.

1. Relevant Facts

Counts 1 and 2 charged defendant with assault by means of force likely to produce great bodily injury. The trial court did not give the jury a unanimity instruction.

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In closing, the prosecutor stated: "Going back just a moment, though, to the instruction for assault with force likely to produce great bodily injury, which is Counts 1 and 2. I want to explain to you what acts or act is covered by each of the counts. Count 1 is for any of these three times that L[.] said she was strangled and lost consciousness. That's Count 1. [¶] Count 2 is the defendant's feet on her head and on her chest that caused the significant bruising, not only behind her ear, but on her chest as well."

During deliberations, jurors asked several questions. In Jury Note No. 2, they asked: "1. Please provide clarity between Count 1 and 2. Regarding 875. [¶] 2. Are we the jury expected to rule on Count 1 and 2 combined or separately?" The court responded: "1. The court is unable to address the question of the juror(s) as it is unclear as to whether there is a Question. [¶] 2. Each count is a separate count (Jury Instruction No. 3515). Counts 1 and 2 are to be considered separately. Jury Instruction 875 applies to Counts 1 and 2 as separate counts." Counsel agreed to the foregoing response.

About 40 minutes later, jurors submitted three additional notes simultaneously. Jury Note No. 3 stated: "1. What is Count 1? [¶] 2. What is Count 2? [¶] The jury is finding it confusing to deliver a verdict on Count 1 and Count 2 separately because they are combined in Instruction 875." Jury Note No. 4 stated: "Is Count 1 strangulation[] of L[.] by [defendant]? [¶] Is Count 2 application of force to the head and chest area of L[.]

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by [defendant]?" Jury Note No. 5 stated: "Please provide the transcripts of the People's closing arguments."

The court responded, with counsel's agreement, as follows:

"Court Response to Juror Question No. 3:

"Count 1 is Assault by Means of Force Likely to Produce Great Bodily Injury

"Count 2 is Assault by Means of Force Likely to Produce Great Bodily Injury

"Instruction 875 applies to Count 1 and Count 2 which are separate charges. The jurors, in analyzing the evidence may consider whether there are separate acts which prove, by a standard beyond a reasonable doubt, two separate counts of Assault by Means of Force Likely to Produce Great Bodily Injury.

"Court Response to Juror Question No. 4:

"The jurors are permitted to consider separate acts as the basis for Count 1 and Count 2; however, the act which is the basis for Count 1 cannot also be used as the basis for Count 2 nor can the act which supports Count 2 also be used as the basis for Count 1.

"Court Response to Juror Question No. 5:

"The comments of counsel are not evidence (Jury Instruction No. 222) and as such, the court cannot provide a transcript of the closing arguments of counsel."

Fifteen minutes after receiving the above responses, the jury returned guilty verdicts as to all counts.

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2. The Trial Court did not Err in Failing to Give a Unanimity Instruction

a. Legal Principles

In a criminal case, a jury verdict must be unanimous, meaning the jury must agree unanimously that the defendant is guilty of a specific crime. ( People v. Russo (2001) 25 Cal.4th 1124, 1132 ( Russo ).) "When a defendant is charged with a criminal offense, but the evidence suggests more than one discrete crime , either the People must elect among the crimes or the trial court must instruct the jurors that they all agree on the same criminal act." ( People v. Sorden (2021) 65 Cal.App.5th 582, 615.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" ( Russo , at p. 1132.) "A unanimity requirement generally applies to acts that could have been charged as separate offenses, and a unanimity instruction must be given' "only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." '" ( People v. Seaton (2001) 26 Cal.4th 598, 671.)

No unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which "applies when (1) 'the acts are so closely connected in time as to form part of one transaction,' (2) 'the defendant tenders the same defense or defenses to each act,' and (3) 'there is no reasonable basis for the jury to distinguish between them. [Citations.]'" ( People v. Lueth (2012) 206 Cal.App.4th 189, 196; see People v. Jennings (2010) 50 Cal.4th 616, 679.)

"Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that . . . is however predominantly legal." ( People v. Waidla (2000) 22 Cal.4th 690, 733.) Accordingly, our review is de novo.

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b. Analysis

Defendant argues that the trial court erred by failing to sua sponte give a unanimity instruction because there was evidence of numerous assaults. He contends that the prosecutor failed to make an effective election because she "lumped multiple discrete acts into each of the counts." The Attorney General counters that the prosecutor properly elected to base counts 1 and 2 on two continuous courses of conduct (the strangulations and the stomping).

The prosecutor made a clear election in her closing argument, electing to base count 1 on the strangulations and count 2 on defendant's acts on stepping on L.'s head and chest. Defendant correctly points out that the prosecutor selected multiple acts for each count. But, under the facts of this case, that did not necessitate a unanimity instruction.

With respect to count 1, the strangulations all occurred during the same incident of domestic violence in the early morning hours of January 3rd. Defendant asserted the same defenses to each strangulation-no strangulation occurred, and any injuries L. sustained were the result of defendant defending himself against her attacks. No evidence was presented to differentiate between the different acts of strangulation. In light of the foregoing, there was no reasonable basis for the jury to distinguish between the three strangulations. Accordingly, given the prosecutor's election, no unanimity instruction was required as to count 1.

With respect to count 2, the stompings likewise occurred during the January 3rd incident. Again, defendant asserted the same defenses to each stomping-he did not step on L., her injuries were the result of his self-defense. L. reported that defendant stepped on her head and chest without further details. She had bruising in both of those areas that, according to Nurse Setterlund, could have resulted from being stepped on. There was no way for the jury to distinguish between the act of stepping on L.'s head and the

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act of stepping on her chest. Therefore, no unanimity instruction was required as to count 2.

3. Defendant Forfeited His Challenge to the Trial Court's Jury Question Responses

a. Legal Principles

" 'When a jury asks a question after retiring for deliberation, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." [Citation.]' [Citation.] 'This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.'" ( People v. Hodges (2013) 213 Cal.App.4th 531, 539, fn. omitted.)

"A defendant may forfeit an objection to the court's response to a jury inquiry through counsel's consent, or invitation or tacit approval of, that response." ( People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) "[C]ounsel's affirmative agreement with the court's reply to a note from the jury forfeits a claim of error" even where "the court's answer was not responsive to the jury's question." ( People v. Salazar (2016) 63 Cal.4th 214, 248 ( Salazar ).)

b. Analysis

The record states that "[o]ff the record, both court and counsel agree to the answers" to all of the jury's questions. That is, defense counsel affirmatively agreed to the responses defendant now claims require reversal. That affirmative agreement forfeited defendant's claim of error. Defendant contends there is no forfeiture because

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the trial court's answers were unresponsive to the jurors' questions. But forfeiture applies regardless. ( Salazar , 63 Cal.4th at p. 248.) Defense counsel's "endorsement of the court's proposal effectively foreclosed further exploration of possible responses to the jury's question. Therefore, [defendant's] claim on this point has not been preserved." ( Id . at p. 249.)

B. Probation Eligibility

Defendant contends the trial court committed legal error in assessing whether he was eligible for probation. Defendant concedes that he was presumptively ineligible for probation as a result of his conviction for crimes involving the willful infliction of great bodily injury. (§ 1203, subd. (e)(3).) But he maintains that the trial court erroneously declined to consider relevant factors in evaluating whether the presumption was overcome and erred in concluding that it was not.

1. Background

L. told the probation department that she wanted defendant to be released from custody as soon as possible because she "is in the United States alone, . . . does not speak English, . . . is suffering from breast cancer," and defendant "is the main financial provider for their household and he helps take care of her." While out on bail in 2020, defendant attended individual counseling and completed an anger management program. Defendant has no known criminal history.

The probation department concluded that defendant is presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3) and that "[a] review of Judicial Council Rule 4.413 did not show this to be an unusual case" where the interests of justice would best be served if the person is granted probation. Specifically, the probation department determined that "[t]he circumstances giving rise to the limitation on probation in this case, are not substantially less serious than the circumstances typically present in other cases, . . . [defendant] did not participate in this crime under circumstances of great

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provocation or duress, nor was the crime committed because of a mental condition not amounting to a defense, and he is neither youthful nor aged." Despite its conclusion that the presumption of probation ineligibility had not been overcome, the probation department recommended that probation be granted because defendant "has no criminal history, is willing to comply with Probation, has stable employment, appears to have abided by the law while Out on Bail, completed a 16-week anger management program, and was participating in therapy, prior to being remanded by the Court."

In his sentencing briefs, defendant argued that his is an unusual case in which probation is warranted. In support of that position, he contended that L.'s injuries were "well within the less severe range of the statute"; he acted under circumstances of great provocation because L. reported that they had been fighting, which takes two; and he committed the crimes because of mental issues regarding anger management and temper control, which he had addressed in therapy and anger management class. He further argued that the court should consider L.'s dependence on him, her desire that he not be incarcerated, and the adverse impact his incarceration would have on her mental health and overall wellbeing.

The prosecutor opposed probation, arguing that the presumption against probation had not been overcome.

At a sentencing hearing on December 14, 2020, the trial court judge stated that she intended to require defendant to serve two years, either in state prison or in county jail as a condition of probation. The judge further indicated that she "would prefer probation to parole because that would give the Court more control," but she "questioned how . . . [defendant] would be eligible for probation, given the criteria and the findings that the Court needed to make." The court later elaborated: "I can tell you straight-up, if the Court has the discretion the Court is going to utilize probation because the court can make orders that will proscribe behaviors that hopefully will not happen here again. . . .

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Parole does nothing in that regard. [¶] And whether Mr. Cheng does his time local or does it in prison really makes no never mind to the Court, to be honest with you. I want him as part of his sentence incarcerated. It is a punishment factor. [¶] But if I'm really looking at [L.'s] safety, which is a big deal for the Court, then probation accomplishes that." The court found that L.'s injuries were not "on the low end of the spectrum" and that "this is not less serious than other similarly situated issues." The court continued the sentencing hearing.

On March 22, 2021, the court held a further sentencing hearing. The court concluded that the presumption of probation ineligibility had not been overcome, stating: "I also believe the Dorsey case does not allow me to find any of the three factors present to find this to be an unusual case, and I'm also mindful of the sort of dicta in Dorsey which said the Court -- it's not a very expansive list outside of the list that's really set forth in the Rules of Court; so I think I can't get past 4.413."

2. Governing Legal Principles and Standard of Review

"Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [a]ny person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted." (§ 1203, subd. (e)(3).) "If the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply the criteria in [rule 4.413](c) [of the California Rules of Court] to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." (Cal. Rules of Court, rule 4.413(b).)

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Rule 4.413(c) lists three types of factors that "may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate." The first is those factors "indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case." (Rule 4.413(c)(1).) For example, the "circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence." (Rule 4.413(c)(1)(A).) The second category is factors limiting "defendant's culpability for the offense." (Rule 4.413(c)(2).) Examples of such factors include that "[t]he defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense" (rule 4.413(c)(2)(A)); "[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation" (rule 4.413(c)(2)(B)); and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Rule 4.413(c)(2)(C).) Finally, "[a]long with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed." (Rule 4.413(c)(3).)

"If a court determines the presumption against probation is overcome, it evaluates whether or not to grant probation pursuant to California Rules of Court, rule 4.414. However, 'mere suitability for probation does not overcome the presumptive bar' . . . ." ( People v. Stuart (2007) 156 Cal.App.4th 165, 178 ( Stuart ), quoting ( People v. Superior Court ( Dorsey ) (1996) 50 Cal.App.4th 1216, 1229 ( Dorsey ).)

" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation . . . .' [Citation.] There is likewise broad discretion to determine whether a given case is 'unusual' and entitles the defendant to probation in the

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interests of justice. [Citation.] To establish abuse, the defendant bears the burden on appeal to show that the denial of probation was, under the circumstances, arbitrary, capricious, or exceeding the bounds of reason. [Citation.]" ( People v. Nuno (2018) 26 Cal.App.5th 43, 49 ( Nuno ).)

3. Analysis

Defendant contends this was an unusual case warranting a grant of probation based on the factors enumerated in rule 4.413(c) and other factors he says the trial court wrongly refused to consider. We begin with the rule 4.413(c) factors.

Regarding rule 4.413(c)(1), defendant argues L.'s injuries fell on the less severe end of the spectrum for great bodily injury cases. The trial court expressly rejected that argument. In doing so, the court did not abuse its discretion. L. lost consciousness three times as a result of the attack. She had bruises all over her body, including on her head, face, neck, arms, back, chest, and legs. Officer Higgins testified that the bruising on L.'s neck was "among the worst marks" he had seen in his 12-year career in law enforcement. Nurse Setterlund described L.'s injuries as "extensive."

As to rule 4.413(c)(2)(A), defendant contends-without citation to the record- that L. "has stated that she provoked defendant during the lengthy argument, and in fact wanted to get him into trouble." We have found no such statement in the record. Therefore, defendant has failed to carry his burden to show that the trial court abused its discretion in implicitly finding that defendant did not act based on great provocation sufficient to overcome the presumption against probation.

With respect to rule 4.413(c)(2)(B), defendant asserts that he "clearly had mental issues regarding anger management and temper control" that he has since addressed by completing a certified anger management class. Defendant offers no support for his position that having a bad temper qualifies as a mental condition for purposes of rule 4.413(c)(2)(B). He, therefore, has failed to carry his burden to demonstrate that the

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trial court abused its discretion in implicitly finding that he did not commit the offenses because of a mental condition not amounting to a defense.

Finally, as to rule 4.413(c)(3), defendant concedes that no risk/needs assessment was performed. But he contends that the probation report's "affirmative recommendation to grant probation is the functional equivalent of a risk/needs assessment, and it weighs strongly in favor of finding that the probation limitation has been overcome." (Underscoring omitted.) Defendant cites no authority holding that, for purposes of rule 4.413(c)(3), there is any substitute for a formal risk/needs assessment. Accordingly, he has not shown that the trial court abused its discretion in implicitly finding that the probation report did not establish that this is an unusual case where the interests of justice would best be served if probation is granted.

In sum, the trial court did not abuse its discretion in concluding, based on the factors enumerated in rule 4.413(c), that this was not an unusual case warranting a grant of probation.

Finally, defendant argues that the trial court erroneously refused to consider factors not expressly listed in rule 4.413(c). Specifically, he maintains the trial court should have considered the factors the probation department said made him a suitable candidate for probation-namely, his lack of criminal history, willingness to comply with probation, stable employment, completion of a 16-week anger management program, and participation in therapy. Defendant also argues the court should have considered the factor he urged below-the adverse impact his incarceration would have on L. For that position, defendant relies on rule 4.408(a), which states that "[t]he listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made."

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While we agree that the criteria listed in rule 4.413(c) are not exhaustive ( Dorsey , supra , 50 Cal.App.4th at p. 1227), we nevertheless find no error. All of the factors defendant claims the trial court should have considered in determining whether the statutory presumption against probation was rebutted are facts that affect the decision whether to grant or deny probation under rule 4.414. (Rule 4.414(b)(1), (3)-(5).) But the trial court is not to "apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted." ( Nuno , supra , 26 Cal.App.5th at p. 49.) This is because "mere suitability for probation does not overcome the presumptive bar set out in section[] 1203 . . . ." ( Dorsey , at p. 1229; Stuart , supra , 156 Cal.App.4th at p. 178.) If it did, there would be no reason for the two separate analyses. Moreover, we agree with the Dorsey court that, "if the statutory limitations on probation are to have any substantial scope and effect, 'unusual cases' and 'interests of justice' must be narrowly construed," and rule 4.413 "limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced." ( Dorsey , at p. 1229; Stuart , at p. 178.) None of the factors that the trial court refused to consider showed defendant's crimes to be atypical or his moral blameworthiness reduced. Accordingly, the trial court did not err.

III. Disposition

The judgment is affirmed.

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WE CONCUR: BAMATTRE-MANOUKIAN, J., DANNER, J.

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Notes:

All further statutory citations are to the Penal Code unless otherwise indicated.

Jurors had been instructed with CALCRIM No. 875, in pertinent part, as follows: "The defendant is charged in Count 1 and 2 with assault with force likely to produce great bodily injury in violation of Penal Code section 245. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [¶] 1B. The force used was likely to produce great bodily injury; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force likely to produce great bodily injury to a person."

All further references to rules are to the California Rules of Court.

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