Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2006045956 James P. Cloninger, Judge
Jolene Larimore, 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, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Robert Mario Jimenez appeals from the judgment following his jury trial and conviction of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court granted probation with the condition that he serve 325 days in county jail, with credit for 325 days served. Appellant challenges the sufficiency of the evidence and contends that the court erred by instructing the jury with CALCRIM No. 875 (the standard assault with a deadly weapon instruction) and providing an inadequate response to a jury question concerning that instruction. We affirm.
FACTS
Appellant's parents lived in an apartment in Oxnard in December 2006. On December 5, appellant went to their apartment and his father noticed that his eyes were "glaze[d]" and he seemed to be under the influence of drugs.
After appellant argued with him, his father told him to leave. Appellant refused to leave. His father grabbed his arm to remove him from the apartment. Appellant broke away and ran to the kitchen. He returned, holding a large butcher knife. Appellant came within a foot of his father and made a slashing movement with the knife at him. His father leaned away from the knife to avoid it. Appellant also moved the knife toward himself.
Appellant left the apartment with the knife. His father called 911. He told the operator that appellant had left the apartment with a knife, after threatening him with it, and "pulling" it on him. Shortly after appellant's father spoke with the 911 operator, Oxnard Police Department Officer Jeffrey McGreevy arrived at the apartment. Appellant's father told McGreevy that appellant had tried to stab him. When he reenacted the incident, he held a knife within 4 to 12 inches of McGreevy's chest.
DISCUSSION
Appellant contends that there is not sufficient evidence to support the assault with a deadly weapon conviction. We disagree.
When the sufficiency of the evidence is challenged, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (Ochoa, at p. 1206.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence . . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396, citations omitted.) Reversal is required only when there is no substantial evidence, direct or circumstantial, to support the conviction beyond a reasonable doubt under any hypothesis whatsoever. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
The elements of the crime of assault with a deadly weapon are: (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) he did the act willfully; (3) he acted while 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) he acted with the present ability to apply force with a deadly weapon. (§ 245, subd. (a)(1); People v. Williams (2001) 26 Cal.4th 779, 790.)
In arguing that the evidence is not sufficient, appellant ignores the evidence that supports his conviction. For example, he argues that he was eight feet away from his father when he "waved the knife around loosely and wildly," which posed no danger. This argument emphasizes his father's trial testimony and ignores his incriminating prior inconsistent statements. On the night of the assault, his father told the 911 operator that appellant had threatened him with a knife. His father told McGreevy that appellant had tried to stab him. While demonstrating the incident, his father held the knife 12 inches or less from McGreevy's chest.
Appellant also argues that there is not sufficient evidence of his intention to commit an assault because he did not yell any threats at his father, and he seemed to be under the influence of drugs during the incident. This argument would be relevant if assault were a specific intent crime. "[A]ssault 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." (People v. Williams, supra, 26 Cal.4th 779, 790.) Here, appellant made a slashing movement with a large butcher knife at his father from a short distance, and there is no suggestion that anyone forced him to do so. In describing the incident immediately after its occurrence, his father expressed no doubt about appellant's intention to threaten or stab him. The jury heard, considered and rejected his father's equivocal trial testimony. As we must view the evidence in a light most favorable to the judgment, we conclude that any rational trier of fact could have found appellant guilty of assault with a deadly weapon upon his father. Substantial evidence supports the assault conviction.
Appellant also contends that the trial court erred by instructing the jury with CALCRIM No. 875 concerning assault with a deadly weapon, because it does not correctly describe the requisite mental state for assault. In a related vein, he contends that the court compounded the claimed instructional error by responding to a jury question without providing a better definition of the mental state necessary for assault. We reject both contentions.
CALCRIM No. 875, as read to the jury, stated: "The defendant is charged in count one with assault with a deadly weapon. [¶] 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 person did that act willfully; [¶] 3. When the defendant acted, he was aware of the 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 to a person."
In Williams, the California Supreme Court addressed the required mental state for assault. (People v. Williams, supra, 26 Cal.4th 779, 785.) The court determined that criminalizing conduct based on what might have happened and not on what actually happened arguably implies an objective mental state consistent with a negligence standard. (Id. at p. 787.) It reiterated that a defendant is guilty of assault only if he intends to commit an act "'which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.'" (Ibid.) The court observed that "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.)
The trial court in Williams instructed the jury with the former standard jury instruction on assault, which required proof of two elements. (People v. Williams, supra, 26 Cal.4th 779, 783; former CALJIC No. 9.00 (1994 rev.) (5th ed. 1995 supp.).) The former standard assault instruction required the prosecution to show that a person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person; and that, at the time the act was committed, such person had the present ability to apply physical force to the person of another. (Williams, at p. 783.) The Williams court stated that "[t]he crime of assault has always focused on the nature of the act and not on the perpetrator's specific intent." (Id. at p. 786.) CALCRIM No. 875 focuses on the nature of the perpetrator's act and correctly instructs the jury regarding the requisite intent for assault with a deadly weapon. (See Williams, at pp. 786-787; see also People v. Flores (2007) 157 Cal.App.4th 216, 219-220.)
Further, in addition to receiving correct instructions concerning assault with a deadly weapon in CALCRIM No. 875, and simple assault in CALCRIM No. 915, the jury in this case was instructed in CALCRIM No. 250 that every crime requires proof of the joint operation of the act and wrongful intent. It was also instructed in CALCRIM No. 200 to "[p]ay careful attention to all of these instructions and consider them together." These instructions correctly informed the jury of the requisite intent for assault with a deadly weapon.
In a related contention, appellant challenges the adequacy of the trial court's response to a jury question. The jury asked: "Please define what 'directly and probably' means in # 1 and 3 on page 7 under Assault w/Deadly Weapon [CALCRIM No. 875]." After discussing the matter with the parties, and indicating its intended response without receiving any objection, the trial court gave the jury the following response: "The words 'directly' and 'probably' do not have a special meaning. These terms are to be applied using their ordinary, everyday meanings." We reject appellant's contention that the trial court erred by responding as it did.
Penal Code section 1138 requires a trial court to "clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212). However, it also grants the court discretion "to determine what additional explanations are sufficient to satisfy the jury's request" where the original instructions are full and complete. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In this case, CALJIC No. 875, alone and with other instructions, provided the jury with full and complete information necessary to decide whether appellant committed assault with a deadly weapon. Our state Supreme Court has admonished trial courts not to "embellish on the standard jury instructions for assault and assault with a deadly weapon unless compelled by the peculiar facts of the case." (People v. Colantuono (1994) 7 Cal.4th 206, 222.) This case lacked any "peculiar facts" warranting the embellishment of the standard assault with a deadly weapon instruction (CALJIC No. 875).
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.