Opinion
C083778
11-07-2017
THE PEOPLE, Plaintiff and Appellant, v. JORGE AURELIO HERRERA CRUZ, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKCRFE20150014335)
Following a preliminary hearing, defendant Jorge Aurelio Herrera Cruz was held to answer for numerous counts, including assault on an officer with a semiautomatic firearm. (Pen. Code, § 245, subd. (d)(2).) He later moved to set aside the assault charge, and the superior court found insufficient evidence to hold him on that count. The People now appeal, challenging that finding. We will affirm.
Undesignated statutory references are to the Penal Code. --------
I. BACKGROUND
The assault charge stemmed from defendant exiting a crashed Lexus, while holding a rifle in some manner. The officer, who had chased after defendant before the crash, testified at the preliminary hearing.
The officer testified that on November 3, 2015, he was driving a marked police car. Around 2:00 p.m., he saw a white Lexus with darkly tinted windows. The officer activated his lights to signal a traffic stop. The Lexus slowed, drifting to the right, before it jerked back to the roadway, accelerating.
The officer gave chase, reaching 80 miles per hour. The fleeing Lexus failed to negotiate a turn and slammed into a guardrail, causing the airbags to deploy. The guardrail split into the street, blocking the officer's path, forcing him to stop approximately 25 yards from the crashed Lexus.
The officer watched the Lexus's door open and defendant come out through the driver's side. Defendant was holding a rifle.
At the preliminary hearing, the officer could not recall how defendant held the rifle; if he held it with one hand or two, or in what direction it was pointed. He did, however, recall that defendant was looking directly at him, with his shoulders parallel to the officer's. He added, "I thought I was going to get shot at," and defendant "had a position of advantage over me."
But as the officer raised his pistol, defendant fell to the ground. Defendant had leaned against the car door as he exited the car. But the door was damaged and would not fully open. As he leaned on it, the door bounced back, pushing defendant.
While defendant was on the ground, he looked up, then got up and ran, leaving the rifle behind. He was apprehended a short while later.
The entire incident happened very quickly. The officer only saw defendant holding the rifle for a split second. The rifle was found to be a loaded Ruger Mini-14, measuring about three feet long.
The magistrate found sufficient evidence to hold defendant to answer for assault, concluding, based on circumstantial evidence, that defendant exited the car with the intent of assaulting the officer.
Defendant later moved under section 995 to set aside several counts including the assault count. The superior court partially granted the motion finding insufficient evidence to hold defendant on the assault count. The court noted the officer had no memory of exactly how defendant was holding the rifle, and there was no evidence defendant pointed the gun at the officer.
The People timely appealed.
II. DISCUSSION
On appeal, the People contend the superior court erred in setting aside the assault count, averring probable cause supported the finding defendant assaulted an officer with a semiautomatic rifle. The People argue defendant unlawfully attempted to injure the officer by holding the loaded rifle when he exited his car and turned to face the officer. On the record before us, we disagree.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault is established by proof " 'the defendant wilfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.' " (People v. Chance (2008) 44 Cal.4th 1164, 1169.)
Unlike criminal attempt, where the act may be more remote, assault requires an act done toward the commission of a battery that immediately precedes the battery. (People v. Chance, supra, 44 Cal.4th at p. 1170.) Assault occurs when, to all appearance, the next movement would complete the battery. (Ibid.) " '[S]pecific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent.' " (Id. at p. 1170.)
In a section 995 proceeding, the magistrate is the fact finder; the superior court sits as a reviewing court and draws every legitimate inference in favor of the information. (People v. Laiwa (1983) 34 Cal.3d 711, 718, superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) On appeal to this court, we disregard the superior court's ruling and directly review the magistrate's determination. (Ibid.; Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.) " 'We review the evidence in support of the information to determine whether as a matter of law it is sufficient.' " (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842.) "[T]he crucial inquiry is 'whether the evidence presented at the preliminary examination discloses circumstances from which the magistrate might reasonably have inferred the existence of each element of the charged crime.' " (Birt v. Superior Court (1973) 34 Cal.App.3d 934, 937.)
Here, the evidence fails to support an inference that defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person.
The evidence establishes only that defendant exited the Lexus, holding the rifle in some fashion, and that at some point, he faced the officer. That is insufficient. Indeed, how he held the rifle could mean the difference between an act that by its nature would probably and directly result in injury to another and an act that would not. That the officer felted threatened and believed defendant was about to shoot cannot substitute for evidence of defendant's actual act.
The People, nevertheless, argue that one may commit assault with a gun without pointing the gun at the victim. In support, the People cite several cases upholding an assault conviction where the defendant did not point the gun at the victim: People v. Raviart (2001) 93 Cal.App.4th 258 (Raviart), People v. McMakin (1857) 8 Cal. 547 (McMakin), People v. Thompson (1949) 93 Cal.App.2d 780 (Thompson), and People v. Hunter (1925) 71 Cal.App. 315 (Hunter). These cases are distinguishable.
In Raviart, the defendant was pursued by two officers. (Raviart, supra, 93 Cal.App.4th at p. 264.) He actually shot at one of the officers and was convicted of assaulting the officer as well as a nearby officer. (Id. at pp. 262, 264-266.)
In McMakin, the defendant drew a revolver, aimed in the victim's general direction, but pointed down, and threatened to shoot the victim if he did not leave. (McMakin, supra, 8 Cal. at p. 547.)
In Thompson, the defendant pointed a revolver toward two officers, aiming between them, but pointing downward, and said, " 'No God damn law is going to take me without a search warrant (or a warrant).' " (Thompson, supra, 93 Cal.App.2d at p. 782.) He then ordered the officers to raise their hands. (Ibid.)
In Hunter, the defendant said to his wife, " 'I am going to kill you. We are both going to die on that bed together.' " (Hunter, supra, 71 Cal.App. at p. 317.) He then tried to draw a gun from his sock. (Id. at p. 317.) His wife jumped out of a window before he could shoot. (Id. at pp. 317-318.)
In all those cases, the underlying act—by virtue of the defendant's conduct—was unambiguously an act that would by its nature probably and directly result in injury to another.
Here, the act is decidedly ambiguous. Defendant held the rifle — but how? Was his hand on the grip, aiming at the officer? Was he holding the barrel, stock down, about to sprint away with the rifle? Was he—stunned and confused from the crash and airbag deployment—holding the rifle without any volition? We cannot say. And with no direct evidence to elucidate defendant's act, the evidence fails to disclose circumstances from which the magistrate might reasonably have inferred the existence of each element of the charged crime. We will therefore affirm.
III. DISPOSITION
The judgment is affirmed. Upon finality of this decision, the previously issued stay is vacated.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.