Filed 8/27/26 P. v. Dominique CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B350336 Plaintiff and Respondent, Los Angeles County Super. Ct. No. 24CJCF06269 v.
GERAL DOMINIQUE, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed.
Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Maggie K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Geral Dominique was convicted by a jury of assault with force likely to produce great bodily injury (GBI assault; Pen. Code, § 245, subd. (a)(4)).1 He now appeals on the sole basis that the trial court failed to instruct the jury, sua sponte, on the lesser included offense of simple assault (§ 240).
To the extent Dominique was entitled to a simple assault instruction, we conclude the trial court’s failure to give it was harmless and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND The victim in this case is Maria C.,2 who had recently turned 67 at the time of the incident in question. She owned a property in Los Angeles improved by a five-bedroom house and a freestanding studio apartment. Her daughter, Edith L., lived in the apartment. Maria separately rented the bedrooms in the house to different tenants, including the then-28-year-old Dominique.
On October 7, 2024, Maria went to the property to collect rent. While there, she got into a confrontation with Dominique. We need not recite the parties’ acrimonious history nor all the events of the day. It is sufficient to say that Maria and Dominique did not get along, could not communicate effectively due to a language barrier, and Maria was in the process of trying to evict Dominique. Maria encountered Dominique inside the
1 The acronym “GBI” stands for “great bodily injury.” Undesignated statutory references are to the Penal Code. 2 We identify the victim and other witnesses in this case by their first names and last initials only. (Cal. Rules of Court, rule 8.90(b)(4) & (b)(10).)
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house holding Maria’s broom. She demanded the broom, and he refused. She tried to grab it. From his bedroom, another tenant, Carlos R., heard Dominique tell Maria to “back away” or he would “slap the shit out of [her],” followed by scuffling, the sound of something or someone hitting a wall, and a scream. Dominique struck Maria with an open hand, causing her to fall back, impact something with enough force to leave a significant bruise on her right buttock, and lose consciousness.3 Edith, whom Maria had called for shortly before, arrived to find Maria face down on the floor and unresponsive. She called 911. Carlos also arrived shortly after hearing the commotion and he, too, saw Maria unconscious and face down on the floor. He shook her and called her name to wake her up but she did not respond. He estimated she came to about five to 10 minutes later. When she did, “[i]t looked like she was dizzy. She didn’t know exactly what happened.” She complained to Carlos of “some small pain” on the left side of her neck and face. Carlos observed no bleeding, bruising, or red mark on her face, but she appeared “confused” and “disoriented” for about 15 minutes after reviving.
The paramedics arrived and examined Maria at the house.
They offered to take her to the hospital, but, despite being in pain, Maria declined. She testified she declined because she did not want to pay for medical care. She testified she did not do
3 Dominique suggests the record is ambiguous as to whether Maria lost consciousness. We reject this. We do not read her testimony as inconsistent the way Dominique does. As Maria explained in trying to answer questions about the specifics of the fall and loss of consciousness, “[w]hen I take a blow like this, you just don’t know anything.” In any event, Edith and Carlos testified to seeing her on the ground unconscious.
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anything for her pain because her mentality was to simply tough it out.
A sheriff’s deputy who interviewed Maria shortly after the paramedics examined her thought she seemed “a little bit” disoriented. Though she denied any pain to him, the deputy described her as “having complications to pretty much just walk around.” The deputy arrested Dominique.
In addition to the GBI assault count of which he was convicted (§ 245, subd. (a)(4)), Dominique was charged with elder abuse (§ 368, subd. (b)(1)) and was alleged to have actually caused GBI as an enhancement to the GBI assault count (§ 12022.7, subd. (a)).
The case was tried to a jury. Dominique was represented by counsel. His counsel did not request an instruction on simple assault (§ 240), and none was given. Dominique’s defense in closing argument to the GBI assault count was that Maria fabricated the entire incident. According to Dominique’s counsel: “Ladies and gentlemen, she was acting. She put herself on the ground.”
Defense counsel urged the jury to acquit on the elder abuse count for the same reasons and the additional reasons that the prosecution had presented no evidence Dominique knew or reasonably should have known Maria was 65 or older.
After some deliberation, the jury’s foreperson advised the trial court it had reached a verdict on GBI assault but was deadlocked on the elder abuse count and the GBI enhancement. It was split 7 to 5 on the former after two rounds of balloting and 6 to 6 on the latter after three rounds of balloting. The court declared a mistrial on those matters and requested the jury’s verdict on GBI assault. The verdict was guilty.
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At sentencing, the People agreed to dismiss the elder abuse count. For the GBI assault conviction, the trial court sentenced Dominique to the midterm of three years.
Dominique timely appealed.
DISCUSSION
Dominique’s sole contention on appeal is that the trial court erred by failing to instruct the jury on simple assault. Simple assault is a lesser included offense of the GBI assault for which he was convicted (People v. Rupert (1971) 20 Cal.App.3d 961, 968 (Rupert)), comprising all the same elements except that the defendant used force likely to produce GBI. We conclude that, even to the extent Dominique was entitled to a simple assault instruction, he was not prejudiced by the trial court’s failure to give it. I. Law and Standard of Review “In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. [Citation.] The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged.” (People v. Cruz (2008) 44 Cal.4th 636, 664.) Put another way, the trial court must instruct on the lesser included offense if there is “ ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Ibid.) “ ‘The rule’s purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and
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supported by the evidence.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 403–404.)
We independently review whether an instruction on a lesser included offense should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) Even if we find error, however, “[r]eversal . . . is warranted only if, ‘ “ ‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” [Citation.] The question is not what a jury could have done, but what a jury would likely have done if properly instructed.’ [Citation.] ‘ “In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” [Citation.]’ [Citation.] We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.” (People v. Larsen (2012) 205 Cal.App.4th 810, 831.) II. Analysis The jury convicted Dominique of GBI assault. As instructed, this required the jury to find that he (1) did an act that would directly and probably result in the application of force to Maria, and the force used was likely to produce GBI; (2) did so willfully; (3) was aware of facts that would lead a reasonable person to realize his act would directly and probably result in the application of force to Maria; and (4) had the present ability to apply force likely to produce GBI to Maria.
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At trial, the evidence showed Dominique threatened to “slap the shit out of” Maria and then proceeded to strike her in the face and neck area. Dominique’s defense did not seriously refute this. Instead, he argued Maria threw herself on the floor and pretended to be unconscious for several minutes, suggested she was not really hurt, and called into question the authenticity of a photograph Maria testified showed her buttock bruise sustained in the incident.
It is well established that a strike with a hand, particularly one that results in a fall, can support a conviction for GBI assault. (Rupert, supra, 20 Cal.App.3d at p. 967; People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) But that is not the question here. The question is whether a reasonable jury could have concluded the force Dominique applied was not likely to cause GBI, defined in the jury instructions as a “significant or substantial physical injury[;] [one] that is greater than minor or moderate harm.”
There is authority to suggest that a jury should be given the option of simple assault where the defendant is alleged to have struck the victim without using a weapon and no GBI results. (See, e.g., Rupert, supra, 20 Cal.App.3d at p. 967; People v. Roth (1964) 228 Cal.App.2d 522, 530–531.)
But even assuming without deciding the trial court erred in failing to provide that option, we conclude any error was harmless.
The evidence that Dominique used force likely to cause GBI was quite strong relative to the evidence he did not. Maria testified that the blow knocked her down. Carlos heard something impacting the wall from inside his room down the hall. Whether as a result of the blow or the fall it caused, Maria
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testified she lost consciousness. Edith testified to seeing Maria unconscious. So did Carlos. Both described her as being slow to regain lucidity after coming to. And even though Maria declined to go to the hospital, the sheriff’s deputy described her as still appearing disoriented and having difficulty walking some time after the incident.
Weighing against this evidence was nothing but speculation that Maria’s antipathy towards Dominique might have driven her to set him up and purported inconsistencies in witness accounts that Dominique’s counsel used to cast Maria as a malingerer. As to the former, we are satisfied that the cumulative testimony Maria lost consciousness and remained disoriented after coming to renders it highly unlikely a juror would have concluded Maria’s fall and loss of consciousness were an act. As to the latter, we think any inconsistencies in the testimony are trivial. None of them casts doubt on the compelling and unrefuted objective witness testimony that Maria was on the floor unconscious for several minutes immediately after an enraged Dominique “very aggressive[ly]” threatened to “slap the shit out of [her].”
Satisfied it is unlikely any reasonable juror would conclude Dominique did not strike Maria with such force as to knock her down and cause her to lose consciousness, we are equally satisfied it is unlikely a reasonable juror would have found he did not subject Maria to the risk of likely GBI, even if instructed on simple assault. As instructed, GBI is “significant or substantial physical injury[;] [one] that is greater than minor or moderate harm.” To the extent Maria escaped GBI here—the jury split evenly on the question—striking a nearly 70-year-old woman with such force as to knock her to the ground and render her
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unconscious for several minutes is likely to cause more than minor or moderate harm. (See People v. Clark (2011) 201 Cal.App.4th 235, 246 [“it is common knowledge that falling to the ground as the result of an unexpected tripping creates a substantial danger of broken bones, torn ligaments or other injuries”]; cf. People v. Racy (2007) 148 Cal.App.4th 1327, 1336 [“as a matter of common knowledge, [74] is an age that carries with it an increased risk of bone fractures from a fall”]; People v. Berry (1976) 18 Cal.3d 509, 519 [choking a victim to the point of unconsciousness “necessarily indicates force likely to produce [GBI]”].)
Dominique asks us to infer the jurors struggled with the likelihood of GBI based on the length of their deliberations, which he calculates at nearly five hours, and their deadlock on the elder abuse count and GBI enhancement. Such an inference is unwarranted here.
As to the duration of the deliberations, the record shows the jury spent a substantial portion of this time debating the issues on which it ultimately deadlocked. The foreperson reported the jury was split roughly evenly on these issues and went through multiple rounds of balloting on each (five in total). It never reported being deadlocked on GBI assault.
As to the fact of the deadlocks, that roughly half the jury rejected the elder abuse count and GBI enhancement implies no infirmity in the jury’s conclusion on GBI assault. As their instructions made clear, the jury could convict Dominique for GBI assault even if Maria did not suffer GBI. (Rupert, supra, 20 Cal.App.3d at p. 967 [“[section 245, subdivision (a)] focuses on the type of force likely to cause [GBI] rather than the injury which actually results”]; McDaniel, supra, 159 Cal.App.4th at
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p. 748 [“ ‘ “The issue . . . is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.” ”].) Though the foreperson’s report tells us roughly half the jurors thought Maria’s loss of consciousness or bruise to her buttock was more than “minor or moderate harm” but the other jurors did not, there is no reasonable probability a jury would not have found likely GBI if instructed on simple assault.
And, we reject Dominique’s argument that juror disagreement over the elder abuse count shows the jury “struggled with the prosecutor’s narrative of assault.” On appeal, Dominique focuses on the similarities between elder abuse and GBI assault. But at trial, the only special attention his counsel gave the elder abuse count was to argue the prosecution had offered no evidence Dominique knew or should have known Maria was over 65—an element unique to elder abuse. Counsel’s argument on this point was compelling. The prosecution had conceded Dominique did not know Maria’s age and simply asked the jury to conclude “a reasonable person . . . could tell that she’s an elderly woman.” Based on this record, we think it highly likely the jury focused on the only element of elder abuse defense counsel did.
Contrary to the inferences Dominique asks us to draw, we think the record of the jury’s deliberations indicates the jury acted conscientiously and with diligence to reach their verdict confidently. The deadlocks imply jurors were attentive to the elements of the charges, attuned to the People’s burden, and those who harbored doubt about whether that burden was met were comfortable dissenting.
Under these circumstances, any error in failing to instruct on simple assault was harmless.
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DISPOSITION
The judgment is affirmed.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
CHAVEZ, J.