Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09WF2253 Daniel Barrett McNerney, Judge.
Ellise R. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Donald W. Ostertag and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of assault with a deadly weapon and resisting arrest. He contends there is insufficient evidence to support his assault conviction, and the trial court erred in admitting evidence he had previously brandished a knife. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
On the morning of October 29, 2009, sheriff’s deputies went to appellant’s apartment in Sunset Beach to serve a warrant authorizing his arrest for brandishing a knife. The deputies knocked on appellant’s door and said they were with the sheriff’s department, but appellant did not let them in. Instead, he accused the officers of trespassing and told them to go away. More deputies were summoned, and when appellant ignored their repeated demands for entry, they forced their way into his apartment with a battering ram.
Once inside, the deputies noticed movement in the bedroom and forcibly entered that room. Although no one was inside, the deputies heard someone talking on the phone in the adjoining bathroom. The deputies pounded on the bathroom door and demanded entry, but no response was forthcoming. At that point, Deputy Richard Johnson kicked open the bathroom door and found appellant.
Appellant was standing about 3 to 5 feet from Johnson, between the sink and the shower. He was holding a knife in his right hand at or above head level, with the tip of the blade pointed at Johnson. Johnson ordered appellant to drop the knife and released a police dog on him. The dog attacked appellant, and he dropped the knife into the sink. But he refused Johnson’s demand to exit the bathroom, so Johnson grabbed him by the shirt and tried to pull him out. When appellant resisted, one of the other deputies “tased” him with a stun gun. The taser floored appellant, but he continued to struggle and fight with the deputies. It took several more jolts before he finally stopped moving and the deputies were able to take him into custody.
Appellant testified he did not believe the deputies were really with the sheriff’s department. Once they broke into his apartment, he ran into the bathroom with the knife, called 911 and reported there were people breaking into his house. When the dispatcher told appellant those people were the police, he put the knife into the sink. After that, Johnson kicked in the bathroom door, and he tried to surrender peaceably, but the dog and deputies attacked him. Appellant said he never threatened the deputies with the knife or intended to hurt anyone.
The jury rejected appellant’s testimony and found him guilty of assault with a deadly weapon and resisting arrest. The trial court sentenced him to three years formal probation.
I
Appellant argues there was insufficient evidence to support his conviction for assault with a deadly weapon, because he did not explicitly threaten Johnson with the knife or make any offensive gestures or movements toward him with the weapon. That’s not the point. Because there is substantial evidence he committed an unlawful act that would probably and directly result in the application of physical force against another, we affirm his conviction for assault with a deadly weapon.
In assessing the sufficiency of the evidence in criminal cases, we review the record in the light most favorable to the prosecution to determine whether it contains substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ceja (1993)
4 Cal.4th 1134, 1138.) In making this determination, we do not reweigh the evidence or assess the credibility of witnesses. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Therefore, we will not second-guess the jury’s obvious rejection of appellant’s testimony.
Assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) The gravamen of the offense “‘is the likelihood that the force applied or attempted to be applied will result in great bodily injury.’ [Citation.]” (People v. Williams (2001) 26 Cal.4th 779, 787.) In other words, the crime focuses on what might happen, not what did happen. (Ibid.) Actual injury to the victim is not required. (People v. Valdez (1985) 175 Cal.App.3d 103, 113.)
“[A]ssault 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 at p. 790.) Since the crime deals with the probability of injury (id. at p. 787), it may be committed merely by “[h]olding up a fist in a menacing manner, drawing a sword or bayonet, [or] presenting a gun at a person who is within its range....” (People v. McMakin (1857) 8 Cal. 547, 548.)
Here, the evidence showed appellant was only 3 to 5 feet away from Johnson when Johnson kicked in the bathroom door. At that time, appellant was holding the knife head high and had the tip of the blade pointed in Johnson’s direction. Thus, he surely had the ability and means to strike at once. All he had to do was either lunge at Johnson or throw the weapon at him.
Appellant contends he never intended to use the knife in an aggressive manner, but assault is a general intent offense; it “does not require a specific intent to injure the victim. [Citation.]” (People v. Williams, supra, 26 Cal.4th at p. 788.) Even “a defendant who honestly believes that his act was not likely to result in a battery is... guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (Id. at p. 788, fn. 3.)
The record here shows that appellant had defiantly evaded Johnson and his fellow deputies for several minutes before they were finally able to corner him inside the bathroom. And when Johnson kicked down the bathroom door, appellant was only a few feet away, with knife in hand, in a ready position to attack. On these facts, the jury was entitled to find appellant’s actions would probably and directly result in the application of physical force against another. Therefore, we affirm his conviction for assault with a deadly weapon. (People v. Chance (2008) 44 Cal.4th 1164, 1170 [“An assault occurs whenever ‘“[t]he next movement would, at least to all appearance, complete the battery.’”]; People v. Vorbach (1984) 151 Cal.App.3d 425, 429 [holding knife in a threatening manner constitutes assault with a deadly weapon].)
II
Appellant also contends the court erred in allowing the prosecution to admit evidence the deputies were at his apartment to arrest him for brandishing a knife. We disagree.
Before trial, the prosecutor sought to introduce evidence the police were at appellant’s apartment to serve an arrest warrant for a prior incident involving brandishing a knife. The prosecutor argued the basis for the arrest warrant was relevant because “it goes to the state of mind of the officers with respect to the actions they took when trying to arrest the defendant.... I anticipate there may be an argument by the defense regarding excessive use of force as [to the resisting arrest count and] knowing the reason for the arrest warrant, the prior brandishing allegation, that would come into effect with respect to how much force they chose to use on the defendant when they were trying to arrest him.”
Defense counsel objected to any mention of the prior brandishing incident and simply wanted the jury to be informed that the deputies were at appellant’s apartment to serve a “misdemeanor arrest warrant.” He argued, “Getting into the nature of [the warrant] is more prejudicial than it is probative. When [the jurors] hear the evidence about the knife, they are going to assume the wors[t] for my client and it doesn’t give any probative value. The officers are going to be responding the same, enforcing the arrest warrant regardless of whether it’s a misdemeanor brandishing or a drug charge once the individual is hiding in the house.”
The trial court rejected defense counsel’s argument. It figured that, given the amount of force the deputies used in the case, both appellant and the deputies would effectively be on trial in the eyes of the jury. In order to “fairly evaluat[e] the relative conduct” of all the parties in the case, the court determined it was “highly relevant” that the basis of the arrest warrant be revealed. And since the warrant was for an offense that was on par with the current charges in terms of seriousness, the court found it would not be unduly prejudicial for the jurors to know what that offense was. Therefore, the court allowed the prosecution to present evidence the warrant was for brandishing a knife.
In conjunction with this evidence, the court instructed the jurors as follows: “You can consider that information only for the limited purpose of evaluating the information that the officers had about [appellant] when they went to the apartment and how they responded to [appellant] when they entered the apartment and confronted him and detained and placed him in custody.
“You cannot consider this matter regarding [appellant] having a warrant for his arrest for misdemeanor brandishing a knife... for the purpose of determining whether or not [appellant] is a violent person, was a violent person at the time of the issuance of the warrant or as evidence that [appellant] intended to assault or injure anyone during the course of this arrest.”
We have no occasion to disturb this ruling. “Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts [in the case]. The trial court retains broad discretion in determining the relevance of evidence.” (People v. Garceau (1993) 6 Cal.4th 140, 177, citations omitted.)
One of the central issues in this case was whether the deputies used unreasonable or excessive force when attempting to take appellant into custody. Factors bearing on this issue logically included not only whether appellant was actively resisting detention, but also the threat he posed to the safety of the deputies and the severity of the crime at issue. (See Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 514.) The fact the deputies were at appellant’s apartment to arrest him for brandishing a knife would naturally play into the deputies’ perception of the situation they were facing and bear on the reasonableness of their actions. Therefore, the trial court properly determined that fact was relevant to the case.
As for the issue of prejudice, the trial court was guided by Evidence Code section 352, which allows for the exclusion of evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) As our Supreme Court has explained, “The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against... [one party] as an individual and which has very little effect on the issues.” (People v. Garceau, supra, 6 Cal.4th at p. 178, citations and internal quotation marks omitted.) A trial court’s decision to admit or exclude evidence pursuant to Evidence Code section 352 will not be disturbed unless it constitutes a manifest abuse of discretion that results in a miscarriage of justice. (People v. Cain (1995) 10 Cal.4th 1, 33.)
No such abuse appears here. As explained above, the evidence regarding the basis of the arrest warrant was clearly relevant to the reasonableness of the deputies’ conduct in taking appellant into custody. And, the evidence was not used to vilify appellant or show his propensity for criminal activity. In fact, the court carefully prohibited the jury from considering the evidence for this purpose. As there is nothing to suggest the jury disregarded this instruction and since experience has demonstrated jurors are remarkably capable of following such instructions even when they don’t like the result we presume the jury considered the evidence for the limited purpose for which it was offered. (People v. Garcia (1995) 41 Cal.App.4th 1832, 1849-1850.)
Other factors pointing to lack of prejudice are that the evidence consumed very little time at trial, no details concerning the prior brandishing incident were revealed, and, as the trial court rightly noted, the incident did not involve an offense that was any more serious than the charged offenses. For all these reasons, we find no abuse of discretion in the court’s decision to admit the subject evidence. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.) The fact the jury knew the deputies were at appellant’s apartment to arrest him for brandishing a knife on a prior occasion does not compel a reversal of the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., ARONSON, J.