Opinion
A151718
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. RICARDO EMANUEL IZAGUIRRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR326772)
Defendant Ricardo Emanuel Izaguirre appeals after a jury found him guilty of assault with a deadly weapon, to wit, a knife (Pen. Code, § 245, subd (a)(1)), arguing no substantial evidence supports his conviction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Jacob Cantrell is a loss prevention officer at a Home Depot in Fairfield. At the time of the incident underlying this case, he was already familiar with Izaguirre, whom he had stopped for shoplifting twice, in January and October of 2016. Home Depot has a policy that a person stopped for shoplifting is deemed "trespassed," meaning the person is not allowed in the store or on Home Depot's property. Each time Izaguirre was stopped for shoplifting, Cantrell explained to him, using a Spanish-speaking interpreter, that he was no longer welcome at the Fairfield Home Depot. Izaguirre was cooperative on both occasions.
On December 28, 2016, Cantrell noticed Izaguirre in the Fairfield Home Depot. As Izaguirre exited the store, Cantrell approached him. Other Home Depot loss prevention employees followed behind Cantrell, including Kyle Ferguson, the asset manager for Home Depot and Cantrell's supervisor. Cantrell spoke to Izaguirre about him being "trespassed" (that is, being banned from the premises) while another employee translated Cantrell's statements into Spanish. At some point, Izaguirre began "cussing and yelling and just making a big scene" outside the front door to the store. Cantrell described Izaguirre's demeanor and actions as hostile, agitated, aggressive, and mean. Izaguirre walked sideways and backwards away from the front door and toward the parking lot while screaming and making vulgar gestures. Cantrell followed Izaguirre into the parking lot while the other loss prevention employees remained on the sidewalk near the Home Depot building. (Ferguson testified it was protocol for a loss prevention officer to escort a trespasser through the parking lot.)
Cantrell testified that Izaguirre spoke mostly in Spanish, which he did not understand, but "there was broken English in there," and Cantrell specifically heard certain "cuss" words and "talking about my mom."
In the parking lot, Izaguirre pulled a knife and moved toward Cantrell. Cantrell thought Izaguirre was no more than 15 to 18 feet away when he began approaching him. The blade of the knife was about six or seven inches long. According to Cantrell, Izaguirre swung the knife aggressively at him six to eight times while continuing to scream. Izaguirre came within about six or eight feet of Cantrell. Cantrell feared for his safety and backed away. He believed if he had remained still, Izaguirre would have contacted him with the knife. Cantrell did not notice whether people were walking in the area when this occurred because he was "focused on not getting stabbed."
Corroborating Cantrell's testimony, Ferguson described Izaguirre becoming agitated and yelling at Cantrell with his arms "flailing, almost like calling somebody out for a fight." Then Izaguirre "took out a weapon and took a few steps towards [Cantrell], kind of swung it around a couple of times, [and] yelled a few more words . . . ." Ferguson saw Cantrell back up as Izaguirre approached him with the knife, and he thought Izaguirre would have "contacted [Cantrell] with the knife" had Cantrell not retreated.
In cross-examination, Ferguson clarified that if Cantrell had continued walking toward Izaguirre and Izaguirre had continued walking toward Cantrell (in the direction of Home Depot), they would have run into each other.
Izaguirre then turned around and walked to the corner of the parking lot, where day laborers congregated. Cantrell testified that Izaguirre advanced a couple steps, "and then I don't know why, he turned" around.
Cantrell called 911. He and Ferguson observed Izaguirre retrieve his backpack from a tree. A police officer who responded to the 911 call found Izaguirre and detained him. There was a can of pineapple near Izaguirre. The officer searched his backpack and found the knife Izaguirre had swung at Cantrell. He also found cans of fruit in the backpack. Izaguirre told the officer, through an interpreter, that the knife was to open a can of pineapple.
Izaguirre testified (with an interpreter) at trial. He admitted that he knew he was not allowed on the Home Depot property, but he went there anyway on December 28, 2016, to buy a little stove. According to Izaguirre, when he left the store, about eight loss prevention officers approached him including some who spoke Spanish. He was friendly with them, and they were okay with him. He walked to a tree in an area where day laborers hung out and retrieved his backpack, while a loss prevention officer followed and watched him. Izaguirre testified that he pulled a can of pineapple juice out of his backpack and then opened it with a "dagger," which he also took out of his backpack. After he opened the can, he shook his dagger, making an "X" shape in the air, to shake the juice off it. Izaguirre denied pulling out the knife as he was walking away from the store. He believed police officers detained him about two minutes after he opened the can.
Asked in cross-examination why he did not buy anything that day, Izaguirre answered, "Because sometimes the officers won't let you; like they will eat you alive with the way they look at you." However, he also agreed that he did not know the loss prevention officers were there until they contacted him after he left the store.
Izaguirre identified as his "dagger" the same knife that Cantrell identified as the one Izaguirre had used to swing at him.
DISCUSSION
" 'When a defendant challenges the sufficiency of the evidence, " '[we] must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' . . . '[I]t is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
In this case, Izaguirre contends there was insufficient evidence to support his conviction for assault with a deadly weapon because the evidence showed he did not get within striking distance of Cantrell before he walked away from Cantrell, and therefore he did not commit " 'an act that by its nature would directly and probably result in the application of force to a person.' "
An assault is defined by statute as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.)
In People v. Williams (2001) 26 Cal.4th 779, 782 (Williams), our high court examined the mental state or mens rea required for assault. In that context, the court "h[e]ld that assault requires actual knowledge of the facts sufficient to establish that the defendant's act by its nature will probably and directly result in injury to another." (Ibid.) The court further observed, "[T]he crime of assault has always focused on the nature of the act and not on the perpetrator's specific intent. An assault occurs whenever ' "[t]he next movement would, at least to all appearance, complete the battery." ' [Citation.] Thus, assault 'lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.' " (Id. at p. 786, italics omitted.)
"Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) --------
Subsequently, in People v. Chance (2008) 44 Cal.4th 1164, (Chance), our Supreme Court considered the act or actus reus required for assault. The court noted that it previously had "characterized assault as 'unlawful conduct immediately antecedent to battery,' " but explained, "In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Id. at pp. 1167-1168, fn. omitted, italics added.)
In Chance, sheriff's officers went to a house to arrest the defendant, and the defendant ran from the house with a gun, pursued by Sergeant Murdoch. Murdoch found the defendant pressed against the side of a trailer facing the front end with a gun in his right hand, extended forward and supported by his left hand, essentially lying in wait for Murdoch. The defendant was arrested, and the gun was recovered. It was loaded, but no round was in the firing chamber. (Chance, supra, 44 Cal.4th at pp. 1168-1169.) After the defendant was convicted of assault with a firearm on a peace officer, he argued on appeal there was insufficient evidence of the offense "because his act of pointing a gun at a place where he thought Sergeant Murdoch would appear was not immediately antecedent to a battery." (Id. at p. 1169.) The defendant argued "he did not have the 'present ability' to inflict injury required by [Penal Code] section 240, because he would have had to turn, point his gun at the officer, and chamber a round before he could shoot at Murdoch." (Id. at p. 1171.)
The Chance court rejected the defendant's argument, explaining, "Although temporal and spatial considerations are relevant to a defendant's 'present ability' under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant's conduct." (Chance, supra, 44 Cal.4th at p. 1171.) The court further explained, "it is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay." (Id. at p. 1172.)
In reaching its conclusion, the Chance court cited with approval People v. Yslas (1865) 27 Cal. 630 (Yslas), a case involving a hatchet rather than a firearm. " 'Once a defendant has attained the means and location to strike immediately he has the "present ability to injure." ' . . . [¶] . . . In Yslas, the defendant approached within seven or eight feet of the victim with a raised hatchet, but the victim escaped injury by running to the next room and locking the door. Yslas committed assault, even though he never closed the distance between himself and the victim, or swung the hatchet." (Chance, supra, 44 Cal.4th at p. 1174.)
People v. Nguyen (2017) 12 Cal.App.5th 44 provides a more recent example of an assault involving a blade weapon. In Nguyen, the defendant wielded a large knife and took a step forward at police officers while he was 10 to 15 feet away from them. (Id. at p. 46.) Convicted of aggravated assault of a peace officer, the defendant argued on appeal insufficiency of the evidence "because he 'did not have the "present ability" to strike the officer[s] with [the] knife' due to how far away from them he was standing." (Id. at p. 47.) Following Chance, the Court of Appeal rejected this argument, explaining, " '[W]hen a defendant equips and positions himself to carry out a battery, he has the "present ability" required . . . if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.' " (Id. at p. 48, quoting Chance, supra, 44 Cal.4th at p. 1172.) Citing Yslas, supra, 27 Cal. 630, the Nguyen court concluded, "We decline to distinguish, as a matter of law, a situation involving seven or eight feet of separation between the perpetrator and the victim [as in Yslas], from that involving 10 or 15 feet, as in the present case. Such is a factual matter within the province of the trier of fact." (Id. at p. 49.)
Here, Cantrell testified that Izaguirre pulled a knife and swung it aggressively as he walked toward Cantrell. Izaguirre came within about six or eight feet of Cantrell, and Cantrell believed Izaguirre would have contacted him with the knife if he (Cantrell) had not backed away. Izaguirre's conduct of approaching Cantrell while swinging a knife at him "enabl[ed] him to inflict a present injury" and thus constituted the actus reus of assault. (Chance, supra, 44 Cal.4th at p. 1172.) In fact, Izaguirre appears to concede that "he might have had the present ability to inflict injury" when he swung his knife at Cantrell. That Izaguirre ultimately stopped and did not contact Cantrell with his knife shows that he did not commit battery, but it does not mean no assault occurred as a matter of law.
Izaguirre argues that, while he may have had the "present ability to inflict injury," he nonetheless did not commit " 'an act that by its nature would directly and probably result in the application of force to a person.' " This latter phrase is from Williams, but that case involved only the mens rea required to support an assault conviction. (Williams, supra, 26 Cal.4th at p. 782.) The Williams court did not purport to define the act or actus reus necessary to establish assault. (See Chance, supra, 44 Cal.4th at p. 1169 ["Williams involved only the mental state required for assault, and did not construe the present ability requirement."].) Thus, Williams should not be read as creating an additional conduct requirement beyond the statutory requirement of "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.)
In Chance, on the other hand, the court directly addressed the actus reus required for assault. (Chance, supra, 44 Cal.4th at p. 1167.) Thus, we look to Chance, not Williams, in assessing whether the jury could reasonably find that Izaguirre's conduct in this case met the act or actus reus required for assault. We conclude the evidence is sufficient to support such a finding.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.