Opinion
B161283.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. SELVIN ORLANDO CARRANZA, Defendant and Appellant.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Peggie Bradford Tarwater, Deputy Attorney General, for Plaintiff and Respondent.
Selvin Orlando Carranza appeals from the judgment entered following his convictions by jury of two counts of assault with a deadly weapon or by means of force likely to cause great bodily injury. He was sentenced to prison for five years.
In this case, we hold there was sufficient evidence that appellant committed the above offenses.
FACTUAL SUMMARY
1. Peoples Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103), the evidence established that on July 19, 2000, Billy Krickeberg and John Smith were inmates of the Los Angeles County jail being transported by bus from Long Beach to Los Angeles. Krickeberg and Smith were African-Americans, and Krickeberg testified that African-Americans and Hispanics separated themselves from each other on the bus. When the bus stopped at the jail in Los Angeles, some Hispanics exited the bus before Krickeberg. Krickebergs hands were handcuffed in front of him, Smiths hands were handcuffed in front of Smith, and Krickeberg and Smith were chained to each other. Krickeberg and Smith exited the bus. Smith was on Krickebergs left side, and Krickeberg was talking to Smith.
Appellant "turned around screaming something[.]" Appellant yelled, "Sureno" or "Su Trese." Krickeberg saw appellant approaching; appellant might have taken a step or two. Appellant, who was not handcuffed, had a shank in his closed left hand with the end of the weapon extending out from between two fingers. The end of the weapon was about two or three inches long. Appellant swung the shank at Krickeberg. Krickeberg testified that the swing was "head level the whole time[,]" and that appellant "swung across" with the shank.
Krickeberg identified appellant as the assailant to police. There is no dispute that appellant was the assailant.
Krickeberg stepped back, the shank missed Krickeberg, but appellants elbow hit Krickeberg in the jaw. Smith was also hit. It appeared to Krickeberg that appellant hit Smith "with the hand part and the weapon part, . . ." Appellant struck his elbow on Krickebergs jaw, and hit Smith, in a single swing. Krickeberg was not struck more than once, and Krickeberg did not see appellant strike Smith more than once. Immediately after the attack, deputies tackled and arrested appellant. Krickeberg observed that Smiths right cheek was bleeding.
Krickeberg had been convicted of battery and spousal battery, each incident involving his common law wife, and he was on probation at time of trial.
Los Angeles County Sheriffs Deputy Steven Perez testified that at about 7:30 p.m. on July 19, 2000, he was outside the jail and inmates were waiting in line, two-by-two and handcuffed, to enter the jail. Appellant began yelling obscenities at Krickeberg and Smith and, although inmates had been ordered to stay in line, appellant left his line. Perez testified that "I saw [appellant] approach . . . [Krickeberg and Smith], and I saw [appellant] swing his arm at them while he was standing right in front of them." Perez was about 45 to 50 feet away. Perez testified that, when appellant was approaching Krickeberg and Smith, appellant and Perez were facing each other, and Perez could see "the backs of [Krickebergs and Smiths] heads, shoulder and head." Appellant had a chain around his waist, but was not handcuffed.
Perez testified that when appellant swung his arm at Krickeberg and Smith, appellant swung it "at least two times if not more[,]" although Perez "could not see the actual contact, . . ." Appellant swung using his right arm in a "sidearm" motion. Perez also described the swing as a "downward-side arm slashing motion." Perez did not know how many times appellant swung his arm, and could not see anything in appellants hand as he was swinging his arm. It appeared to Perez that appellant made contact with Smith, although Perez did not actually see the impact. After appellant swung his arm, he backed off, looked around, took a few steps away from Krickeberg and Smith, and threw from his hand a small white object later determined to be the shank.
Perez testified at trial that, at an earlier proceeding, he testified that he thought that the area in which appellant had swung was "the body, the face and the torso." However, Perez testified at trial that that did not mean there were three strikes, because "the three areas could have been made with one blow."
Perez testified that the shank "looked like a nail, but it could have been just a piece of metal that was sharpened at one end and had a handle fashioned out of cloth and rubber . . . ." The cloth wrapped in rubber was on one end, and the protruding metal end was on the other. The shank was a deadly weapon commonly used for assaults in jail, stabbings, and slashings. The shank was capable of putting out a persons eye, and could be used to stab through a person, including through a persons neck or torso. Perez testified that the shank could also be used "in a slashing motion, . . . to cut sideways or horizontally of the skin of a person[.]" (Sic.)
Immediately after appellant threw the shank, deputies handcuffed him and the shank was recovered. Perez observed Smith with blood on his lip immediately after the incident. Smith was bleeding from his mouth and the side of his face. A deputy assigned to investigate crimes which occurred in jail testified that there was currently a power struggle within the jail between African-Americans and Hispanics. An Hispanic gang member used the word "Sureno" when committing a crime to convey to the victim that the gang member was from a Southern California Hispanic gang.
Smith testified that at the time of his testimony at trial, he was in custody and serving sentences for "drugs and burglary," both felonies. On July 19, 2000, Smith, a jail inmate, had gotten off the bus and was standing in line in handcuffs, chained to another person, when a third person yelled something, possibly "Sureno," and stabbed Smith. The third person struck Smith with a shank. Smith was struck on the left inside corner of his mouth, causing bleeding. As a result of the blow, Smith fell and hit his left ear on the bumper of the bus, causing him to lose hearing in that ear. The assailant swung only once, and Smith was struck only once. Smith did not at trial identify appellant as the assailant. In fact, Smith did not want to testify because he did not want to be labeled a "snitch."
2. Defense Evidence.
In defense, a deputy who interviewed Krickeberg and Smith after the above incident testified that neither told the deputy that the assailant said anything during the attack. The jail nurse who treated Smith after the incident testified that he suffered a single injury, that is, a superficial laceration, about one centimeter long and two-tenths centimeters deep, to the left corner of his mouth.
CONTENTION
Appellant contends: "one of the assault convictions must be reversed because appellants conduct consisted of a single swing of a weapon."
DISCUSSION
There Was Sufficient Evidence That Appellant Committed Two Felonious Assaults.
There is no dispute appellant committed two felonious assaults, one each against Krickeberg and Smith, respectively, except to the extent appellant claims only one assault occurred because, according to appellant, he swung the shank only once.
Felonious assault is a general intent crime, not a specific intent crime. A defendant need not intend to commit violence against a specific victim or particular person to be guilty of an assault. A defendant need not intend to cause any consequences, such as injury, of the defendants act. (People v. Williams (2001) 26 Cal.4th 779, 783-790; People v. Colantuono (1994) 7 Cal.4th 206, 214-215, 865 P.2d 704; People v. Lee (1994) 28 Cal.App.4th 1724, 1734-1737; People v. Valdez (1985) 175 Cal. App. 3d 103, 107-108, 220 Cal. Rptr. 538.) "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 at p. 790.) The defendant must be subjectively aware of the facts giving rise to the risk of injury, but need not be subjectively aware of the risk. (Id. at p. 788.)
Perezs testimony provided substantial evidence of the following. Appellant, who was not wearing handcuffs, began yelling at Krickeberg and Smith, who were handcuffed and standing next to each other. Appellant approached Krickeberg and Smith. Appellant was holding the shank in his hand when he swung his arm at both Krickeberg and Smith. At the time appellant swung his arm, he was standing "right in front" of Krickeberg and Smith. Appellant swung his arm at least two times, if not more, and used a "sidearm" motion. It appeared to Perez that appellant made contact with Smith. Appellant discarded the shank, evidencing consciousness of guilt.
We conclude that when, as related by Perez, a defendant repeatedly swings a shank at two people, and does so in the circumstances presented in this case, which were also race- and gang-related, the defendant has committed a felonious assault against each person, that is, the defendant has done an intentional act with actual knowledge of facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (Cf. People v. Williams, supra, 26 Cal.4th at pp. 783-790; People v. Colantuono, supra, 7 Cal.4th at pp. 214-215; People v. Lee, supra, 28 Cal.App.4th at pp. 1734-1737; People v. Valdez, supra, 175 Cal. App. 3d at pp. 107-108.)
The result does not differ if we assume appellant swung the shank only once. According to Krickebergs testimony, Krickeberg and Smith were each in handcuffs, and chained to each other, when appellant swung the shank once at Krickeberg. Krickeberg dodged the shank and was struck by appellants elbow, but the shank struck Smith. Again, we conclude that when, as related by Krickeberg, a defendant swings a shank once at a person with a second person standing right next to the first, and does so in the circumstances presented in this case, which were also race- and gang-related, the defendant has committed a felonious assault against each person. (Cf. People v. Williams, supra, 26 Cal.4th at pp. 783-790; People v. Colantuono, supra, 7 Cal.4th at pp. 214-215; People v. Lee, supra, 28 Cal.App.4th at pp. 1734-1737; People v. Valdez, supra, 175 Cal. App. 3d at pp. 107-108.) None of the cases cited by appellant compels a contrary conclusion.
We note that, according to Smith, he was struck with sufficient force to cause him to fall.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., and ALDRICH, J.