What is the test for a jury to determine whether a defendant committed an assault with deadly weapon by throwing a beer bottle at a maintenance worker?

Rodriguez contends the court prejudicially erred by refusing his request to instruct the jury on the lesser included offense of misdemeanor assault. We review the court's decision de novo. (People v. Licas (2007) 41 Cal.4th 362, 366.)

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" 'A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. "The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense.' " (People v. Landry (2016) 2 Cal.5th 52, 96.)

Here, the parties do not dispute misdemeanor assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) "Thus, the question posed by defendant's claim is whether a reasonable jury could have found that defendant committed only [misdemeanor] assault and not an assault with a deadly or dangerous weapon or force likely to produce great bodily injury." (Id. at p. 748.) We conclude a reasonable jury could not have so found.

Rodriguez admitted he intentionally threw a beer bottle at the maintenance worker's head. The maintenance worker was no more than five feet away from Rodriguez at the time. The beer bottle whizzed past the right side of the maintenance worker's head, missing by only a few inches. A beer bottle, when used as a missile in this manner, constitutes a deadly or dangerous weapon. (People v. Cordero (1949) 92

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