Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JW106467
RIVERA, J.
S.R. (Minor) appeals after the juvenile court found he had committed assault and vandalism. He contends the finding that he committed misdemeanor assault is inconsistent with the juvenile court’s other factual findings. We affirm.
I. BACKGROUND
A juvenile wardship petition was filed on behalf of Minor (Welf. & Inst. Code, § 602), alleging he had committed felony assault with a deadly weapon, a BB gun (Pen. Code, § 245, subd. (a)(1)) (count one); that he had committed felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count two); and that he had committed vandalism on the windshield of a truck (§ 594, subd. (b)(1)) (count three).
All undesignated statutory references are to the Penal Code.
The evidence at the contested jurisdictional hearing showed that Dustin Scudder was driving a “flat face” truck, seated close to the windshield, on the morning of September 7, 2010. As he drove out of a parking area, he saw a group of “kids.” One of them, whom Scudder identified as Minor, had a gun. Minor smiled and pointed the gun at Scudder, appearing to aim it straight at the driver’s window. Scudder ducked and heard the front windshield of the truck crack. He looked at the group of youths, and saw the Minor was still holding the gun. The gun had an orange tip.
A BB gun was found at the scene. Scudder identified it as the one that was pointed at him. The trigger of the gun was slanted to the left. When asked if the BB gun could have damaged the windshield, a police officer testified that it was “quite possible that could have caused the damage, ” but agreed that it was also equally possible that it could not have done so. He thought it was possible the trigger broke when the gun was dropped. No one checked to see if the gun was operable.
Minor told a police officer that he and his friends had the gun, the gun jammed, his friends tried to “clear it, ” and the gun went off.
On its own motion, the juvenile court amended count one according to proof to reflect a charge of misdemeanor assault, striking the words “deadly weapon, ” and found count one true as amended. (§ 240.) The court struck count two, and found count three true as a misdemeanor. The court placed Minor on probation. (Welf. & Inst. Code, § 725, subd. (a).)
II. DISCUSSION
Minor contends the juvenile court’s finding that he had committed assault was inconsistent with the juvenile court’s factual findings regarding the operability of the BB gun, and that he was thereby deprived of due process.
In making its ruling, the juvenile court stated: “[T]his Court did not receive the degree of evidence that the Court in [People v. Lochtefeld (2000) 77 Cal.App.4th 533 (Lochtefeld)] had received in terms of the operability of the BB gun and what type of injury this BB gun was capable of producing. As I recall the testimony by the officer, the damage to the windshield was consistent with the type of injury, if you will, that this weapon could inflict. But there was not sufficient evidence on the issue of great bodily injury, the operability of this weapon, and thus, I cannot find that the People have met their burden as to Counts 1 and 2 as charged.” Minor argues that in making this statement, the juvenile court found that the gun’s operability had not been proven beyond a reasonable doubt, and that this finding is incompatible with a finding that he committed assault.
An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “ ‘The evidence must only demonstrate that the defendant willfully or purposefully attempted a “violent injury” or “the least touching, ” i.e., “any wrongful act committed by means of physical force against the person of another.” [Citation.]’ ” (People v. Golde (2008) 163 Cal.App.4th 101, 108 (Golde).) A conviction of assault may not be based on the use of an unloaded or inoperable gun. (People v. Sheldon (1989) 48 Cal.3d 935, 962.)
The court in Lochtefeld concluded, based on tests of a pellet gun and expert testimony, that the evidence supported a conclusion that the gun was a deadly weapon capable of inflicting great bodily injury for purposes of section 245. (Lochtefeld, supra, 77 Cal.App.4th at pp. 536-537, 541.) It went on to conclude that based on the defendant’s threatening words and actions, the jury could conclude the weapon was operable at the time of the offense. (Id. at pp. 541-542.)
Contrary to Minor’s contention, the juvenile court’s ruling does not amount to a finding that the People had not shown the BB gun was operable. Rather, it shows that the trial court did not find the gun’s ability to cause great bodily injury had been proved for purposes of section 245, subdivision (a)(1). A conviction of simple assault does not require a finding that that defendant had the present ability to commit great bodily injury, but only that he willfully or purposefully attempted “ ‘ “the least touching.” ’ ” (Golde, supra, 163 Cal.App.4th at p. 108.) There is no inconsistency between the court’s conclusion that the People had not proved that the gun was capable of causing great bodily injury and a conclusion that Minor shot the BB gun at Scudder. And the evidence is fully sufficient to support a finding that Minor did so, cracking the windshield of the truck Scudder was driving.
Section 245, subdivision (a)(1) applies to “[a]ny person who commits an assault upon the person of another with a deadly weapon... or by any means of force likely to produce great bodily injury....” (Italics added.)
III. DISPOSITION
The order appealed from is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.