Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWF024365, Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Herbert De Angelo Brown appeals his conviction for assault with a deadly weapon. He contends that the evidence is insufficient to support the conviction and that his trial attorney provided constitutionally deficient representation by failing to request an instruction on a lesser related offense, brandishing a weapon. We affirm the conviction.
PROCEDURAL HISTORY
Brown was convicted by a jury of one count of assault with a deadly weapon on Zoilo Carbajal. (Pen. Code, § 245, subd. (a)(1).) The jury found him not guilty of one count of misdemeanor vandalism. (§ 594, subd. (b)(2).) An allegation that Brown personally used a knife in the commission of the assault was stricken on motion of the prosecutor because assault with a deadly weapon is not subject to that enhancement. (§ 12022, subd. (b)(1).)
All further statutory references will be to the Penal Code unless otherwise indicated.
The court sentenced Brown to a term of four years in state prison, to be served concurrently with sentences imposed for two probation violations. Brown filed a timely notice of appeal.
FACTS
On January 26, 2008, Zoilo Carbajal discovered that someone had “keyed” his car, leaving a long scratch along the driver’s side of the car. He believed that his girlfriend’s roommate, Herbert Brown, had done it. At approximately 1:00 p.m., he called Brown’s cell phone and asked the person who answered the phone, whom he believed to be Brown, why he had keyed his car. The speaker responded, “Why did you pop the tires to my car?” Carbajal denied having done so, and the speaker replied, “Well, it is what it is” and hung up.
A defense witness, Jason Ross, testified that he had borrowed Brown’s cell phone and that he answered the call from Carbajal. Ross said that he identified himself when he answered the phone and that he believed that Carbajal or Carbajal’s girlfriend had slashed his tires.
Carbajal then drove to work at a Verizon cell phone store in Lake Elsinore. Shortly after he arrived at work, he was standing outside the store, adjacent to the parking lot, when Brown drove up with two friends. Brown stopped the car in the middle of the parking lot, about 20 feet from where Carbajal was standing, and got out of the car. He called to Carbajal, “Hey, come on, kickboxer, let’s go. Come on.” He began to run toward Carbajal. Carbajal saw a knife in Brown’s hand and began to run toward the Verizon store. He ran through the store, out the back and down an alley to the Longs Drugs store about 100 yards away. Brown continued to pursue him, yelling. Carbajal asked someone in Longs to call the police. During the pursuit, Carbajal looked back several times to see if Brown was still behind him. Brown never got close enough “to raise his hand and try to do anything with the knife.”
Brandon Amador, Carbajal’s friend and coworker, saw Carbajal run through the store pursued by Brown. He said that Brown was about 10 to 15 feet behind Carbajal when Brown entered the store. Brown was yelling and had a knife in his hand. He followed Carbajal out the back of the store.
A few minutes later, Amador saw Brown and another man in the parking lot, kicking Carbajal’s car. They then apparently left.
No witnesses other than Carbajal and Amador testified or told law enforcement that Brown had a knife. Brown denied that he had a knife. Jason Ross and Albert Molina, who were in the car with Brown, testified for the defense that Brown had his cell phone in his hand as they drove into the parking lot. Neither of them saw a knife.
LEGAL ANALYSIS
THE EVIDENCE SUPPORTS THE ASSAULT CONVICTION
Brown contends that to satisfy the elements of assault with a deadly weapon, “there must have been an attempt to strike with or use the weapon.” Consequently, because the evidence shows that he never got within striking distance of Carbajal and never made any motion toward stabbing him, he contends that the evidence was insufficient to support the conviction for assault with a deadly weapon and that it supported, at most, a conviction for brandishing a weapon.
Section 417 provides that it is a misdemeanor to draw or exhibit a deadly weapon other than a firearm, in the presence of another person, in a “rude, angry, or threatening manner.” (§ 417, subd. (a)(1).)
Although Brown couches the argument as one of substantial evidence, in reality his contention is that the evidence, even viewed in the light most favorable to the prosecution, which he does not dispute for purposes of this issue, is insufficient as a matter of law. For these purposes, it is undisputed that Brown pursued Carbajal with a knife in his hand, that he came no closer to Carbajal than 10 to 15 feet and that he made no attempt to strike or stab him with the knife. Whether these facts constitute assault with a deadly weapon is a question of a law which we decide independently. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) In the recent case of People v. Chance (2008) 44 Cal.4th 1164 (Chance), the California Supreme Court discussed the “present ability” element of assault in depth. After examining the common law definition of assault and California precedent, the court held that the “present ability” element does not require either that the defendant must have committed a “direct attempt at violence” or that injury would necessarily occur as “the very next step in the sequence of events.” (Id. at p. 1172.) Rather, that element is satisfied “when ‘a defendant has attained the means and location to strike immediately.’ [Citations.]” (Id. at p. 1168.) The court also held that in this context, “immediately” does not mean “instantaneously.” Rather, it simply means that the defendant must have the ability to inflict injury on the present occasion, even if the defendant is “several steps away from actually inflicting injury.” (Ibid.) Accordingly, a defendant has the present ability required by section 240 when he “equips and positions himself to carry out a battery... even if the victim or the surrounding circumstances thwart the infliction of the injury.” (Chance, at p. 1172.)
Here, the evidence showed that Brown armed himself with a knife and chased Carbajal, coming within 15 feet of him. Brown never came close enough to strike, but only because Carbajal was able to outrun him. This scenario is similar to the facts of People v. Yslas (1865) 27 Cal. 630, a case discussed by the court in People v. Chance. In that case, 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. (Id. at pp. 633-634.) This constituted assault, “even though [Yslas] never closed the distance between himself and the victim, or swung the hatchet.” (Chance, supra, 44 Cal.4th at p. 1174.) Here, the fact that Brown never raised the knife is immaterial. He had the knife in his hand and would have been able to use it if he had been able to catch up to Carbajal. That is sufficient.
Brown relies heavily on another early decision by the California Supreme Court, People v. Dodel (1888) 77 Cal. 293. In that case, the court held that it was error for the trial court to refuse requested jury instructions stating that where “‘assault is charged to have been committed with a deadly weapon, there must have been an attempt to strike with or to use the deadly weapon’” and that “[t]o constitute an assault, the defendant must have the intent to strike, the ability to do so, and must have made the attempt to strike.” The court held that an attempt to strike is an element of assault with a deadly weapon. (Id. at p. 294.) Dodel has been implicitly overruled by Chance, which, as discussed above, expressly states that an actual attempt to inflict injury is not an element of assault. (Chance, supra, 44 Cal.4th at p. 1172.)
DEFENDANT HAS FAILED TO DEMONSTRATE INEFFECTIVE ASSISTANCE OF COUNSEL
Brown contends that his trial attorney failed to provide adequate representation because he did not ask the trial court to instruct the jury on brandishing a weapon as a lesser offense. This contention fails because he cannot demonstrate that he was prejudiced by the error.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show both that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the error or omission, i.e., that it is reasonably probable that in the absence of the error or omission, the outcome of the trial would have been more favorable to him. (People v. Ledesma (1987) 43 Cal.3d 171, 215, 217-218; Strickland v. Washington (1984) 466 U.S. 668, 687, 694-696.) Brandishing a weapon is not a necessarily included lesser offense of assault with a deadly weapon; rather, it is a lesser related offense. (People v. Steele (2000) 83 Cal.App.4th 212, 218.) A defendant has no right to demand, unilaterally, an instruction on a lesser related offense. The instruction may be given only with the consent of the prosecutor. (People v. Birks (1998) 19 Cal.4th 108, 112-113.) Consequently, even if we assume that reasonably competent counsel would have requested the instruction, Brown cannot demonstrate prejudice without showing that the prosecutor would have agreed to it. He has not made that showing. Accordingly, his claim of ineffective assistance of counsel fails. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; Strickland v. Washington, supra, 466 U.S. at p. 697.)
We make this assumption for the sake of discussion only. Contrary to Brown’s contention, we can imagine a rational tactical reason not to request the instruction. The defense was that Brown did not have a knife, contrary to the testimony of Carbajal and Amador. It would be a reasonable tactical choice to avoid an instruction which is factually contradictory, i.e., to avoid having to argue that Brown did not have a knife, but if he did have a knife, he merely brandished it rather than assaulting Carbajal with it.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Miller, J.