Opinion
NOT TO BE PUBLISHED
Superior Court of Ventura County, No. 2004032880, Allan L. Steele, Judge.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Gery Howard Curtis was granted probation with 180 days county jail after a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and making criminal threats (§ 422).) He appeals on the ground that that the jury was not correctly instructed on assault with a deadly weapon and claims that he was denied effective assistance of counsel. We affirm.
All statutory references are to the Penal Code.
Facts and Procedural History
On the afternoon of August 25, 2004, appellant attempted to back out a parking space at a 7-Eleven store in Thousand Oaks. Ryan Parker, the victim, drove up the parking lot the wrong way, blocking appellant's car. Parker apologized but appellant was irate. Words were exchanged at which point Parker, trained in martial arts, said that if appellant did not step back "he was going to get his ass beat."
When appellant continued to argue, Parker said he was "through apologizing" and wanted to fight right there. They both agreed to go across the street and fight.
Appellant parked his car and utility trailer on the other side of the street. Parker took off his shirt and sandals, and walked across the street.
As Parker approached, appellant said, "This isn't your lucky day" and "I'm going to cut you to fucking shreds and cut you with a butcher knife." Appellant pulled a large knife out of the utility trailer and ran towards Parker. Afraid for his life, Parker turned and ran down the block.
Aaron Snyder, a disinterested witness, saw appellant chase Parker with a big knife. The blade was pointed up, reflecting sunlight. Parker was seven or eight feet in front of appellant and sprinted away, quickly out-distancing appellant. Snyder saw appellant stop and return to his car, holding the knife down by his side as if trying to conceal it.
Ventura County Deputy Sheriff Damian Schmidt interviewed Parker and Snyder at the 7-Eleven store. About 20 minutes later, Parker reported that appellant was across the street.
Appellant was detained and told Deputy Schmidt that he and Parker agreed to fight. When appellant told Parker "I'm going to beat your ass," Parker ran. Appellant said that he chased Parker about 15 feet, but later admitted chasing him about 100 yards. When Deputy Schmidt asked about the knife, appellant said that he was holding some car keys. Deputy Schmidt found a large knife in the utility trailer.
Parker made an in-field identification and pointed out where appellant kept the knife on the utility trailer. It was the same place where Deputy Schmidt found it.
At trial, appellant denied threatening Parker with a knife. He claimed they were 50 feet apart and that he scared off Parker by holding up a key chain and yelling. Cameron Peterson, a friend of appellant, was with him that day and testified that appellant kept knives on the utility trailer for his car detailing business.
CALCRIM 875
Appellant argues that his constitutional rights were violated because the jury was not instructed that assault with a deadly weapon requires proof of intent to commit a battery. The jury received CALCRIM 875 which stated that the prosecution was not required to prove that appellant actually touched someone or that appellant intended to use force against someone when he acted.
The CALCRIM 875 instruction stated in pertinent part: "The defendant is charged in Count 1 with assault with (force likely to produce great bodily injury). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] 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 application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person; [¶] AND [¶] 5. The defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] . . . [¶] . . . [¶] The People are not required to prove that the defendant actually touched someone. The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and is so, what kind of assault it was. [¶] A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that is capable of causing and likely to cause death or great bodily injury."
Appellant argues the prosecution was required to prove intent to commit a battery, but that would make aggravated assault a specific intent crime. "Assault and assault with a deadly weapon are general intent crimes. [Citations.]" (People v. Sargent (1999) 19 Cal.4th 1206, 1220.)
In People v. Williams (2001) 26 Cal.4th 779, our Supreme Court reaffirmed the long standing rule that assault is a general intent crime. (Id., at p. 788.) "[A]assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id., at p. 790.)
Appellant contends that Williams is distinguishable because the defendant fired a shotgun and was in striking distance of the victim. He argues that a greater intent to harm is required where the defendant brandishes a knife and is not within striking distance.
Appellant's reliance on People v. Yslas (1865) 27 Cal. 630 is misplaced. There the defendant threatened to kill the victim with a hatchet, got within seven or eight feet of the victim, and struck a door as the victim fled. The court held that an assault occurs where the defendant advances "in a threatening attitude, with intent to strike the [victim] so that his blow would in a second or two have reached the [victim] . . . . It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strikes in [self-defense] or retreat[s], the assault is complete . . . ." (Id., at p. 634.)
CALCRIM 875 correctly instructs that assault requires a willful act which by its nature is likely to result in the application of physical force against another. (People v. Williams, supra, 26 Cal.4th at p. 790.) People v. Yslas, supra, 27 Cal. 630, is a classic example of an assault in which the defendant rushed towards the victim with a hatchet but was not in striking distance. "'Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.' [Citations.]" (People v. Colantuono (1994) 7 Cal.4th 206, 219.)
Chasing a victim with a knife is an aggravated assault even if the victim is not within the defendant's striking distance. (See e.g., People v. McCoy (1944) 25 Cal.2d 177, 189-192; People v. Tran (1996) 47 Cal.App.4th 253, 261-262.) Parker was about 20 feet away when appellant drew the butcher knife and said "I'm going to cut you to fucking shreds . . . ." Snyder saw appellant chase Parker with the knife, getting within seven or eight feet of Parker.
We are bound by People v. Williams, supra, 26 Cal.4th 779, which holds that "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur." (Id., at p. 790.) There is no merit to the argument that CALCRIM 875 misstates the law or violates appellant's constitutional rights. (People v. Cole (2004) 33 Cal.4th 1158, 1212, fn. 14; People v. Flores (2007) 157 Cal.App.4th 216, 218.)
Specific Intent To Use Knife As Deadly Weapon
Appellant complains that CALCRIM 875 fails to instruct that the defendant must intend to use the knife as a deadly weapon. Appellant asserts that certain weapons such as a firearm are inherently dangerous, but a kitchen utensil (i.e., a butcher knife) is not a deadly weapon unless the prosecution proves the defendant intended to use it to harm someone.
We reject the argument because it goes to the definition of what is a deadly weapon, which is set forth in CALCRIM 875. The jury was instructed: "A deadly weapon is any object, instrument, or weapon that it is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (See fn. 2, ante.) The trial court had no sua sponte duty to instruct that the prosecution must prove appellant intended to use the knife as a deadly weapon. "Nearly all knives have sharp edges and points which are designed to cut things, and knives can be - and all too often are - employed to cut - and kill - people. Jurors can certainly employ common sense and experience to determine whether or not such a knife is a 'deadly' instrument." (People v. Pruett (1997) 57 Cal.App.4th 77, 86.)
Chasing a victim with a butcher knife, accompanied with threats to cut the victim to "fucking shreds" leaves little to the imagination. This conduct constitutes an aggravated assault. (People v. Williams, supra, 26 Cal.4th at p. 788.)
Based on appellant's construction of the law, the trial court had a sua sponte duty to instruct that general intent to commit a battery is an element of aggravated assault and that the prosecution must prove that appellant had the specific intent to use the knife as a deadly weapon. Such an instruction would preclude the jury from convicting on the lesser offense of assault unless appellant had the general intent to commit a battery. It would create "hybrid" lesser offenses in which the general intent to commit an uncharged offense (battery) is required to prove the charged offense (aggravated assault with a weapon). California law does not permit a court to instruct on uncharged lesser-related crimes unless agreed to by the prosecution. (People v. Birks (1998) 19 Cal.4th 108, 136-137; see e.g., People v. Valentine (2006) 143 Cal.App.4th 1383, 1387 [no duty to instruct on receiving stolen proper as an uncharged lesser-related crime to robbery].) "It has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged." (Ibid.)
Claimed Ineffective Assistant of Counsel Re Colantuono Instruction
Appellant claims that he was denied effective assistance of counsel because his attorney did not request a defense instruction on lack of intent to inflict injury. In People v. Colantuono (1994) 7 Cal.4th 206, our Supreme Court held that the pivotal question in assault cases "is whether the defendant intended to commit an act likely to result in physical force, not whether he or she intended a specific harm. [Citation.]" (Id., at p. 218.) In a footnote, the court stated that a defendant charged with assault may present "evidence that he or she did not intend to injure or do violence to the victim. [Citation.] However if the jury determines from the acts that the defendant willfully committed a violent act, i.e., engaged in conduct that would by its nature likely and directly result in a 'violent injury,' it can reasonably find from the totality of circumstances that all of the elements of the offense are satisfied, including the requisite mental state. [Citations.]" (Id., at p. 218-219, fn. 10.)
Appellant argues that counsel "failed" to request a Colantuono instruction and that this "failure" denied him a fair trial. "In general, reviewing courts defer to trial counsel's tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel's conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]" (People v. Ray (1996) 13 Cal.4th 313, 349.)
Counsel may have believed that a Colantuono instruction would undermine defense testimony that appellant did not threaten or chase the victim with a knife. (See e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1053 [reasonable attorney may tactically conclude that risk of limiting instruction outweighs its benefits].) A defense instruction that appellant used forced but did not intend to injure the victim would have been inconsistent with the defense theory that no deadly weapon was involved. (See e.g., People v. Freeman (1994) 8 Cal.4th 450, 495; People v. Crawford (1968) 259 Cal.App.2d 874, 800.) Appellant denied even having a knife, denied that he crossed the street to fight Parker, and testified that he was 50 feet away when Parker turned and ran. We cannot say that counsel had no rational tactic purpose for not requesting a Colantuono instruction. (People v. Wader (1993) 5 Cal.4th 610, 643.) Nor is it reasonably probable that a different result would have occurred had such a instruction been given. (People v. Mayfield (1997) 14 Cal.4th 668, 784.)
Claimed Ineffective Assistance of Counsek Re: Prosecutor's Comments – Self Defense
Appellant asserts that counsel was ineffective in not objecting to certain remarks by the prosecutor in final argument. In discussing the self-defense instructions, the prosecutor argued that self-defense may not be contrived. "Here is where it falls apart . . . [T]he defendant used no more force than was reasonably necessary to defend against that danger. There was going to be a fist fight, and he pulled out a knife. There are very good reasons why the legislature has said this is not a self-defense case. [¶] We don't want people out in the street escalating crimes like this with very, very serious consequences and hiding behind a theory of self-defense. So he fails . . . because it was more force than was reasonably necessary to defend against that danger. [¶] Mr. Parker had no shirt on, no shoes on. He was there to fight with his fists. He didn't have any weapons in hand. That's why the defense fails. . . . [¶] . . . [¶] Self defense does not apply in this case. [¶] If Ryan Parker had a knife, if he had a gun, then the defendant's use of a knife may create this excuse. But that's not the case here."
Appellant claims this is a misstatement of law because a person may use deadly force to repel an attack if the person actually and reasonably believes that great bodily injury is about to be inflicted on him by another. (See e.g., People v. Clark (1982) 130 Cal.App.3d 371, 380.) Appellant speculates that the jury concluded, based on the prosecutor's remarks, that use of a weapon against an unarmed person is excessive force as a matter of law.
Counsel, for tactical reasons, may have decided that an objection would draw undue attention to inconsistencies in appellant's testimony. (People v. Huggins (2006) 38 Cal.4th 175, 206.) The evidence showed that appellant had more than 20 years martial arts training, worked as a martial arts instructor, and agreed to fight Parker on the other side of the street. Appellant's account of what transpired contradicted the testimony of the victim, the witness who saw the assault (Snyder), and Deputy Schmidt who found a large knife on the utility trailer.
The prosecutor argued that: "You can't get out of your car, instigate a street fight and retreat to some remote location where no one can see you once someone agrees to fight you and pull out a knife."
Moreover, any assumed error was cured by instructions on self-defense and (CALCRIM 3470), the right to self-defense in mutual combat (CALCRIM 3471), that self-defense may not be contrived (CALCRIM 3472), and the assault instruction which stated that the prosecution must prove that "[t]he defendant did not act in self-defense." (CALCRIM 874.) The trial court instructed that statements of counsel was not evidence (CALCRIM 222), that the jury must follow the court's instructions (CALCRIM 200), and that jury could not convict on the criminal threats count unless it found that appellant willfully threatened to unlawfully kill or unlawfully cause the victim great bodily injury. (CALCRIM 1300.)
It is presumed that the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.) "The court's instructions are determinative in their statement of law, and we presume the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade. [Citation.]" (People v. Sanchez (1993) 12 Cal.4th 1, 70.) If one considers the prosecutor's argument in its entirety, there is no reasonable likelihood that the jury construed or applied the challenged remarks in an objectionable fashion. (People v. Smithey (1999) 20 Cal.4th 936, 961.) Nor has appellant demonstrated that, but for counsel's failure to object, it is reasonably probable appellant would have achieved a more favorable verdict. (People v. Avena (1996) 13 Cal.4th 394, 418 [reversal for ineffective assistance of counsel requires both deficient representation and resulting prejudice].)
Reasonable Doubt
Citing People v. Nguyen (1995) 40 Cal.App.4th 28, appellant argues that defense counsel was ineffective in not objecting to the prosecutor's comments on the reasonable doubt standard. The prosecutor argued that the jury did not "have to be 100-percent sure in this case" and that "the evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] . . . [T]hat's just the world that we live in. Every time you go through an intersection every time you make a decision in life, you factor in the information to you and you make a decision. You never are 100 percent sure of anything in this life. . . . [¶] You don't have to be 100-percent sure in this case either. What you have to do is have an abiding conviction of the truth of the charges. You have to know when you leave this courtroom the charge is true. "
In People v. Nguyen, supra, 40 Cal.App.4th 28, the court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Id., at p. 36.)
Here the prosecutor referred to the instructions on reasonable doubt and argued that, in order to convict, the jury had "to have an abiding conviction of the truth of the charges" and that "[t]he evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." The argument paraphrased CALCRIM 220 and highlighted the difference between reasonable doubt and doubt based on speculation. (People v. Clair (1992) 2 Cal.4th 629, 663; see People v. Dennis (1998) 17 Cal.4th 468, 522 [challenged statements must be considered in the context of the argument as a whole].) The alleged misconduct was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on reasonable doubt and presumption of innocence. (See e.g., People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) In these circumstances, not objecting to the prosecutor's statements, does not show ineffective assistance of counsel. (Id., at p. 37.)
The jury received CALCRIM 220 which stated in pertinent part: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."
Appellant opines that some of the prosecutor's remarks trivialized the reasonable doubt standard. Election not to object rarely constitutes constitutionally ineffective legal presentation. (People v. Boyette (2002) 29 Cal.4th 381, 424.) Counsel, for tactical reasons, may have decided not to object because the comments were brief and the jury had already been instructed on reasonable doubt. After the jury returned a guilty verdict, the trial court denied appellant's motion for new trial. Appellant makes no showing that he was prejudiced by counsel's performance. (People v. Avena, supra, 13 Cal.4th at p. 423.)
Abiding Conviction
Appellant finally asserts that the "abiding conviction" standard referred to in CALCRIM 220 is not the same "abiding conviction" described by the United States Supreme Court a century ago when it defined "abiding conviction" as the level of certainty a juror "would be willing to act upon in the more weighty and important matters relating to your own affairs." (Hopt v. Utah (1887) 120 U.S. 430, 440 [30 L.Ed. 708, 711].)
CALCRIM 220 states: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true." The concept of an "abiding conviction" was approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [127 L.Ed.2d 583, 596]: "An instruction cast in terms of an abiding conviction as to guilty, without reference to moral certainty, correctly states the government's burden of proof. [Citation.]" Our state supreme court and courts of appeal have rejected similar challenges to the "abiding conviction" language. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286.) "The time has come for appellate attorneys to take this frivolous contention off of their menus." (Id., at p. 1287.)
Appellant makes no showing that counsel's errors, either singularly or cumulatively, denied appellant a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 694-695 [80 L.Ed.2d 674, 697-698]; In re Avena (1996) 12 Cal.4th 694, 721-722.) Nor did the prosecutor's remarks deny appellant due process. (Compare People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37, with People v. Johnson (2004) 119 Cal.App.4th 976, 984-986.)
Appellant's remaining arguments have been considered and merit no further discussion. Criminal defendants are entitled to fair trials, not perfect trials. (People v. Bradford (1997) 14 Cal.4th 1006, 1057.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.