Opinion
B293737
10-23-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE POLANCO GARCIA, Defendant and Appellant.
Law Offices of Joy A. Maulitz, Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA447485) APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed. Law Offices of Joy A. Maulitz, Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Jose Polanco Garcia of willful, deliberate, and premeditated attempted murder (Pen. Code, § 664/187 ) (count one) and assault with a deadly weapon (§ 245, subd. (a)(1)) (count two). The jury found true the allegation that defendant personally used a deadly and dangerous weapon—a knife—and personally inflicted great bodily injury in committing the attempted murder. (§§ 12022, subd. (b)(1) & 12022.7, subd. (e).) The trial court sentenced defendant to six years to life in state prison.
All statutory references are to the Penal Code.
We appointed counsel to represent defendant on appeal. Defendant's appointed appellate counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting that we independently review the entire record to determine if there are any arguable issues. On August 22, 2019, we notified defendant that appointed appellate counsel had failed to find any arguable issues and defendant had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider. Defendant did not file a brief.
On November 15, 2019, after our initial review of the record as required by People v. Wende, supra, 25 Cal.3d 436, we ordered counsel for defendant to serve and file a supplemental opening brief that addressed the following issue: "Whether the trial court erred in instructing the jury on count two . . . that 'a deadly or dangerous weapon is any object, instrument, or weapon that 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.' (People v. Aledamat (2019) 8 Cal.5th 1, 6-7 ['[b]ecause a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons' and a trial court thus errs 'in presenting the jury with two theories by which it could find [the knife] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct'].) Further, if the trial court erred, was defendant prejudiced by the error? (Id.[ ]at p. 13 [conviction must be reversed unless a court determines that the error was harmless beyond a reasonable doubt . . .].)" We invited the Attorney General to file a response within 30 days after the filing of the supplemental opening brief.
On December 13, 2019, counsel for defendant filed a supplemental brief arguing that we should reverse his assault with a deadly weapon conviction because the trial court prejudicially erred in instructing the jury about deadly weapons. On December 16, 2019, counsel for defendant filed a motion for leave to file a second supplemental brief that argued insufficient evidence supported his assault with a deadly weapon conviction. We granted the motion. The Attorney General then filed a brief entitled "Supplemental Brief," which was the only responding brief in this matter.
We affirm.
II. BACKGROUND
A. Aura F.'s Testimony
Aura F. testified that she and defendant dated, lived together, and had a child together. In 2012, the police went to Aura's apartment in response to a domestic violence incident in which defendant grabbed her by the hair, threw her to the ground, and bit her twice. From that point forward, Aura and defendant were broken up.
From 2014 to June 2016, defendant frequently asked Aura to resume her relationship with him. Aura declined because defendant was very aggressive toward her—insulting and fighting with her. Defendant also threatened Aura, both verbally and by text message—telling her that it would not be hard for him to kill her.
In June 2016, Aura lived in a house with her brother Jose Perez, his wife, and his stepson. At about 6:00 a.m. on June 10, 2016, Aura opened her front door to leave for work. Defendant was at the door. Because of defendant's prior threats, Aura attempted to shut the door. Defendant pushed against the door and forced his way into the house.
Defendant did not say anything and went to the kitchen. He was very nervous and appeared to be looking for something. Aura told defendant that there were people asleep in the house and asked him to step outside so they could talk. Defendant took a soda from the refrigerator and continued to look around the kitchen. Defendant went to the sink and grabbed a knife and "went right at" Aura.
Defendant lifted the knife and attacked Aura. Aura raised her arm in defense and felt the knife penetrate her skin. She suffered three wounds to her left arm. Defendant was "full of rage" and "furiously stab[bed]" her.
Aura ran down a hall to her brother's bedroom. Defendant chased her. Aura attempted to enter her brother's room, but the door was locked. Aura screamed for her brother, and defendant continued to attack her. Defendant wounded Aura's head with the knife.
Perez came out of his bedroom. He told defendant to drop the knife and calm down. Perez struggled or wrestled with defendant to take the knife from him—Aura testified that Perez did not fight with defendant—and succeeded in disarming defendant. Defendant said, "I want to kill you, you fucking bitch." He had said that each time he stabbed her.
Aura ran down the hall to get away from defendant. Defendant ran to the kitchen and opened a drawer to get a knife. When Aura saw defendant grab the second knife, she ran outside to the street. Defendant followed Aura outside and continued to attack her, stabbing her four times and inflicting injuries to her finger, lip, and lung.
Perez came outside to defend Aura. He made "physical contact" with defendant and "stopped" him so Aura could run across the street to a neighbor's house. Defendant ran away. Aura was hospitalized for seven days. B. Perez's Testimony
Perez testified that he was awakened by his sister's screams for help and loud knocking on his door. He opened the door and saw defendant "hurting" his sister.
Aura told Perez that defendant had a knife, and Perez grabbed defendant to take it away. As they wrestled, Perez saw a knife in defendant's hand. Asked what action he took "in regards to that knife," Perez responded, "I grabbed his hand. I was trying to take it away in that struggle that we had. I was able to take it away." The knife fell to the ground. After Perez disarmed defendant, defendant immediately ran to the kitchen where he grabbed a second knife.
On cross-examination, Perez testified that he had defendant in a headlock—"I got him by the back to get him off of—of my sister. From there, that's where I grabbed the knife. We both fell to the ground. The knife was where we both of us let go of it."
Asked whether he was "injured at all during this time," Perez responded that he suffered a "light cut" on his hand. Perez later testified he suffered a cut "on [his] wrist or by [his right] hand."
Perez told his sister to run for help because defendant could kill her. Aura left the house and ran toward the street. Defendant ran outside and assaulted her again. Perez testified both that he did and did not see defendant assault Aura with the second knife. Perez pushed defendant from behind. Defendant fell to the ground, got up, and ran away.
III. DISCUSSION
A. Sufficient Evidence Supported Defendant's Assault With a Deadly Weapon Conviction
Defendant contends his conviction for assault with a deadly weapon was not supported by sufficient evidence. We disagree.
1. Standard of Review
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.)
2. Analysis
Section 245, subdivision (a)(1) provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." Section 240 defines an "assault" as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
The trial court instructed the jury on assault with a deadly weapon with former CALCRIM No. 875 as follows:
"The defendant is charged in Count 2 with assault with a deadly weapon other than a firearm in violation of . . . section 245.
"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 other than a firearm 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 the application of force to someone;
"AND
"4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person.
"Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.
"The touching can be done indirectly by causing an object to touch the other person.
"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 if so, what kind of assault it was.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
While still inside the house, defendant struggled with Perez as Perez tried to take the knife away from him. A rational juror could have concluded that this struggle necessarily required the exertion of force by defendant. In other words, defendant necessarily did an act with a deadly weapon that by its nature would directly and probably result in the application of force to Perez and indeed Perez suffered minor cuts as a result of the struggle. Substantial evidence therefore supports defendant's conviction for assault with a deadly weapon. B. The Trial Court's Instructional Error Was Harmless
Defendant next contends his conviction for assault with a deadly weapon must be reversed because the trial court's instruction defining "deadly weapon" erroneously allowed the jury to find a knife to be an inherently deadly weapon. We agree that the court erroneously instructed the jury, but hold the error was harmless beyond a reasonable doubt.
The trial court instructed the jury with former CALCRIM No. 875 ("Assault With a Deadly Weapon") that "[a] deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." That is, the jury could have found defendant guilty of assault with a deadly weapon either because it found the knife to be "inherently deadly" or because it found that he used the knife "in such a way that it [was] capable of causing and likely to cause death or great bodily injury."
As the Attorney General concedes, a knife is not an "inherently deadly weapon." (People v. Aledamat, supra, 8 Cal.5th at pp. 6-7 ["Because a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons" and a trial court thus errs "in presenting the jury with two theories by which it could find [the knife] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct"].) Thus, it was error to instruct the jury that it could find defendant guilty of assault with a deadly weapon if it found the knife to be an inherently deadly object, instrument, or weapon.
Having held that the trial court erroneously instructed the jury, we must determine whether the error was prejudicial. We review for prejudice under the Chapman harmless error test. (People v. Aledamat, supra, 8 Cal.5th at p. 13.) Under that test, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[] the error was harmless beyond a reasonable doubt." (People v. Aledamat, supra, 8 Cal.5th at p. 3.)
Chapman v. California (1967) 386 U.S. 18, 24. --------
One of the circumstances considered by the Supreme Court in People v. Aledamat was the wording of former CALCRIM No. 875 itself, which juxtaposed "inherently deadly" and "used in such a way that it is capable of causing injury and likely to cause death or . . . great bodily injury" such that the instruction "at least indicates what the 'inherently deadly' language was driving at." (People v. Aledamat, supra, 8 Cal.5th at pp. 13-14.) We observe that the court here delivered the same instruction as the one considered in People v. Aledamat.
We also consider the closing arguments of the parties. The prosecutor here argued that 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." Further, the prosecutor analogized a knife to a baseball bat which "has an ordinary usage, not deadly" and noted that a knife can "cut vegetables and skin." Thus, the prosecutor expressly acknowledged that a knife is not an inherently dangerous weapon. Although the prosecutor also later described a knife as, "something aside from a gun with the most killing power," and argued that defendant had "picked up the most lethal thing that was there," these statements were made in the context of the prosecutor describing the evidence that supported the intent element of the attempted murder count. In context, we do not interpret these remarks as an assertion that a knife is an inherently dangerous weapon. Moreover, during defense counsel's closing argument, counsel did not dispute that defendant had used a knife in a deadly manner. Instead, counsel conceded that the prosecution had "proved and met [its] burden beyond a reasonable doubt that [defendant] is guilty of assault with a deadly weapon."
In addition, we consider the relevant circumstances surrounding defendant's assault on Perez, including that: defendant "furiously" and repeatedly stabbed Aura; Aura ran to Perez's bedroom, screaming for help; Perez came out of the bedroom to help his sister and told defendant to drop the knife; Perez and defendant struggled for the knife and, as we held above, defendant assaulted Perez with the knife; in assaulting Perez with the knife, defendant inflicted injuries on Perez—cuts on his hand and wrist; and the jury found that defendant had personally used a dangerous and deadly weapon—a knife—in attempting to murder Aura. Based on all these circumstances, we conclude, beyond a reasonable doubt, that the trial court's error was harmless. (People v. Aledamat, supra, 8 Cal.5th at p. 13.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
BAKER, J.