What is the test for instructing a jury on a misdemeanor charge of assault on a minor?

"[T]he 'substantial' evidence required to trigger the duty to instruct on . . . lesser offenses is not merely 'any evidence . . . no matter how weak' [citation], but rather '"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Thus, the court was required to instruct on misdemeanor child abuse in this case only if there was substantial evidence from which the jury could find that the circumstances or conditions of the beating defendant gave Jeremiah were not such that the beating was likely to produce great bodily harm or death.

It is well established that the use of hands or fists alone may be found to constitute a "'means of force likely to produce great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Defendant used his hands and fists to punch Jeremiah in the chest and the kidneys up to 10 times, with such force that it knocked him from one end of the room to the other. A blow to the kidney caused Jeremiah to fall, urinate on himself, and start to lose consciousness. Nevertheless, defendant continued to hit him, causing Jeremiah pain and fear. Jeremiah was 14 years old at the time, and thus most likely much smaller than defendant, a grown man. Defendant had a violent temper that sometimes led him to draw a firearm on the object of his anger. As defendant beat Jeremiah, he said, "I will kill you." We cannot conclude that beating a child under such circumstances was unlikely to produce great bodily harm or death.