Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF220877 Joseph A. Kalashian, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Crescencio Perez appeals a judgment following his conviction of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of battery (§ 243, subd. (e)(1)). We conclude that sufficient evidence supports defendant’s conviction of assault with a deadly weapon and that the trial court properly instructed the jury on the elements of that offense under Judicial Council of California Criminal Jury Instructions (2009) CALCRIM No. 875 (CALCRIM). We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
The victim, Elizabeth Fox, did not testify; however, her mother, Yvonne Fox, testified that at the time of the underlying incident, Elizabeth and defendant had been dating for six years and had two children together. The family lived together in a two-story townhouse in Porterville.
Some parties and other participants share last names. We refer to them by their first names in the interests of clarity and brevity, and not out of disrespect.
Yvonne testified that on May 1, 2009, she went out on a dinner date and returned home sometime between 9:00 and 11:00 p.m. When she walked inside the house, she could hear defendant and Elizabeth upstairs arguing.
Yvonne sat down on the living room couch while the argument continued upstairs. Approximately 45 minutes later, defendant came downstairs and went into the kitchen. He got something from the silverware drawer and wrapped it in a towel. As he passed Yvonne and walked back upstairs, she heard him say, “I might as well kill myself.”
After defendant returned upstairs, Yvonne heard him repeat that he might as well kill himself. Elizabeth responded: “Go ahead. If you’re gonna do it, just do it. Stop talking about it.” After Elizabeth said this, Yvonne heard Elizabeth start screaming loudly.
Yvonne ran upstairs to Elizabeth’s bedroom. The door was open and Yvonne saw defendant with one hand around Elizabeth’s throat, “pushing her out through the window, through the blinds, and he had a knife back here.” Yvonne indicated that defendant was holding a knife back in his other hand and that the blade was pointed up in the air. Defendant looked angry. Elizabeth, who was crying, looked scared.
Yvonne screamed at defendant to get his hands off her daughter. Defendant turned around and said, “get the hell out of here, bitch.” Defendant then started coming after Yvonne. Elizabeth yelled, “Run, mom.” As she started running, Yvonne heard Elizabeth say, “Call 911.”
Yvonne dialed 911 as she ran downstairs. Once downstairs, she ran into the bathroom and spoke with the 911 operator. She told the operator her son-in-law had a knife and was trying to strangle her daughter, and that when she went in, he came after her with a knife. The police arrived at the house within minutes of the call.
Porterville Police Officer Mark Knox testified that when he arrived at the house, he could hear a male and female arguing upstairs. He went upstairs and saw that the doors of both bedrooms were closed. Suddenly, defendant opened the door of one of the bedrooms and walked to the threshold. Officer Knox made defendant lie down on the ground and put handcuffs on him. Officer Knox then saw Elizabeth standing between the bed and the wall. She was crying and appeared upset. She pointed to a knife lying on the ground.
The defense
Defendant testified that around the time of the incident, he and Elizabeth were having relationship problems. They started several months earlier, when Elizabeth discovered that he had cheated on her.
When Elizabeth came home from school on May 1, 2009, defendant told her he wanted to go to his cousin’s house to celebrate his cousin’s eighteenth birthday. At first Elizabeth was upset and did not want him to go. However, she eventually agreed to meet him there and had her mother drop her off with the children. Defendant estimated they stayed at his cousin’s party for six hours and came home around 9:00 p.m. During the party, defendant drank four or five beers, while Elizabeth drank three or four beers.
When defendant and Elizabeth got home, they put the children to bed and then went to their own bedroom to get ready for bed. They started arguing after Elizabeth mentioned the other woman defendant had been involved with.
In his testimony, defendant admitted that he went downstairs and got a knife from the kitchen. When asked why he did this, defendant testified, “Because I wanted to kill myself” and “I felt really bad for cheating on her.” He explained he wrapped the knife in a towel because Elizabeth’s mother was downstairs and he did not want her to see it.
After defendant returned upstairs, he sat down on the bed. When Elizabeth continued yelling at him, defendant pulled the knife out and put it to his throat. Defendant explained he did this because he was “trying to get her to calm down” and “trying to get some sympathy from her.” Defendant testified he had purposefully selected a big knife from the kitchen, explaining: “I was thinking, Well, if I get a big one she’ll see it. And she’ll be like, Oh, no, no, don’t do that, please, don’t hurt yourself. But that’s not what happened.” Instead, Elizabeth started yelling and telling defendant to do it.
Defendant testified that Elizabeth started getting into his face and that he “got scared.” He thought she might fall over him or push him, so he “pushed her back.” After defendant pushed Elizabeth, she fell over a box and hit the window screen, which popped out of the window. Defendant claimed he grabbed Elizabeth to prevent her from falling out the window. Around that time, Elizabeth’s mother came into the room and started yelling something.
DISCUSSION
I. Sufficient Evidence Supports the Assault Charge
Defendant contends there was insufficient evidence to support his conviction of assault with a deadly weapon. This is so, he argues, because the evidence failed to establish that he “acted in a manner that would have directly and probably resulted in the application of force to Elizabeth” and “there was no evidence that [he] was trying to harm Elizabeth, as opposed to scare her.” Defendant observes that, despite having the “present ability” and “ample opportunity” to “commit a violent act” on Elizabeth, he failed to do so. Thus, defendant concludes: “The only possible interpretation is that he was not trying to do so.”
In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)
“‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ [Citation.] Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. [Citation.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Assault with a deadly weapon requires proof of the basic crime of assault, plus proof that it was accomplished by the use of a deadly weapon or with force likely to cause great bodily injury. (CALCRIM No. 875; § 245, subd. (a).) Assault is a general intent crime that does not require a specific intent to injure the victim or a subjective awareness of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) “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.)
To prove an assault with a deadly weapon, the People must prove: (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 the 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 with a deadly weapon. (CALCRIM No. 875, § 245, subd. (a).) “Section 245 ‘prohibits an assault by means of force likely to produce bodily injury, not the use of force which does in fact produce such injury. While … the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.] Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.] ‘“The crime …, like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.”’ [Citation.]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.)
Based on defendant’s assertions, it appears he is arguing the evidence is sufficient to support his conviction of assault with a deadly weapon because there is no evidence that he subjectively intended to harm the victim or that he did an act that by its nature would directly and probably result in the application of force on the victim. Defendant’s arguments are unavailing. As seen above, an assault does not require a subjective intent on the part of the defendant to commit a battery on the victim. Rather, if the evidence shows the defendant was aware of facts which would lead a reasonable person to realize an injury, i.e., a battery, would naturally and probably result from the conduct, the mental state necessary for an assault is shown. Here, the requisite facts are present. The evidence established that defendant purposefully introduced the presence of a large knife into the middle of a heated argument with the victim. The victim screamed loudly and her mother ran in to discover defendant grabbing the victim by the neck with one hand and holding the knife in the other. Such acts are inherently dangerous and carried with them a strong possibility for harm, even if unintended, to the victim. Put differently, a reasonable person would not engage in the conduct precisely because of the high likelihood of injury.
Moreover, despite defendant’s assertions his version of events was undisputed and consistent with the prosecution’s evidence, a reasonable jury could have disbelieved his altruistic explanation for his conduct or otherwise found his testimony to lack credibility. The victim’s screaming and frightened demeanor, defendant’s hostile reaction when the victim’s mother tried to intervene (“get the hell out of here, bitch”), and the victim’s exhortations to her mother (“Run, mom” and “Call, 911”) constitute strong circumstantial evidence casting doubt on defendant’s claim that he grabbed the victim simply to prevent her from falling out the window. Based on this evidence, a reasonable jury could infer that defendant became angry and began to fight physically with the victim when she did not exhibit the desired sympathetic response to his suicide ploy. As discussed, bringing a large knife into a heated argument and then pushing and grabbing the other person by the neck while still holding the knife within striking distance of the person’s body are inherently dangerous acts, and defendant’s subjective intent is irrelevant to the objective determination of whether a reasonable person would realize that the act by its nature would directly and probably result in the application of force to Elizabeth. (People v. Williams, supra, 26 Cal.4th at pp. 788, 790.) Accordingly, we conclude defendant has not carried his burden on appeal to persuade us that the evidence is insufficient to support his conviction of assault with a deadly weapon.
II. The Jury Instructions Were Proper
Defendant contends it was error to instruct the jury on the elements of assault with a deadly weapon pursuant to CALCRIM No. 875 because that instruction fails to reflect the statutory definition of the crime of assault. In support of his contention, defendant observes that section 240 defines an assault as an attempt to commit a “violent injury” on another person; CALCRIM No. 875, on the other hand, speaks in terms of an act likely resulting in the application of “force” to a person. Defendant concludes CALCRIM No. 875 is “fatally flawed” because it “states that the crime is completed if the level of force is less than violence.” Assuming defendant did not forfeit this issue by failing to object to the assault instructions in the trial court, we find his contention lacks merit.
In California, the law is settled that the “terms ‘violence’ and ‘force’ are synonymous when used in relation to assault, and include any application of force even though it entails no pain or bodily harm and leaves no mark. [Citation].” (People v. Flummerfelt (1957) 153 Cal.App.2d 104, 106; see also People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12; and People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.) It is also settled that “the criminal intent which is required for assault with a deadly weapon … is the general intent to willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (People v. Rocha, supra, 3 Cal.3d at p. 899.) “[B]ut only an ‘injury’ as that term is used with respect to a battery need be intended. ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute battery.’” (Ibid.)
Consistent with the forgoing case law, the trial court’s instructions in this case on assault with a deadly weapon (CALCRIM No. 875) and simple assault (CALCRIM No. 915) correctly informed the jury that the crimes involve an act that is naturally and likely to result in the “application of force” to a person and that the term “application of force” means “to touch in a harmful or offensive manner” and can include the “slightest touching.” (CALCRIM Nos. 875, 915.) Because the terms “force” and “violent injury” are synonymous in the context of assault, and a subjective intent to harm the victim is not required, we reject defendant’s assertions that CALCRIM No. 875 omitted essential elements and lightened the prosecution’s burden of proof on the assault charge. In addition, defendant cites no authority for his assertion that jury instructions must mirror statutory as opposed to decisional definitions of crimes. Because CALCRIM No. 875 reflects well-established case law defining the crimes of assault and assault with a deadly weapon, we reject defendant’s challenge to the instruction on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.