Opinion
G057236
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JESSE ESCOBAR, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF1011) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed as modified. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jesse Escobar of assault with a semiautomatic firearm, misdemeanor vandalism, and petty theft. Escobar contends insufficient evidence supports his conviction for assault with a semiautomatic firearm and the trial court erred by imposing the aggregate total of the court operations assessments and the court facilities assessments based on four convictions.
We conclude substantial evidence supports the assault with a semiautomatic firearm conviction and, therefore, affirm the judgment. We remand the matter to the trial court, however, for correction of the court operations and facilities assessments so they are based on the aggregate total of three convictions, not four.
I
BACKGROUND
One afternoon, Escobar and his cousin Ricardo Lara drove in Escobar's truck into the alley behind Lara's residence and parked. While drinking beer they spotted one of Lara's neighbors, Francisco Perez, washing his concrete pumping machine which sat on a trailer.
When Escobar got out of the truck, he began exchanging words with Perez. Escobar asked Perez sarcastically, "Hey, how much do you want for the machine?" Perez answered it was not for sale. Escobar moved toward Perez, demanding, "How much are you selling it for? How much do you sell it for, you mother fucker?" Perez moved toward Escobar and threw at him a wood-handled brush he had been using to clean the tires of the trailer. The brush struck Escobar on the back of his head. Another neighbor who was some distance away in the alley observed the altercation and called 911.
After being struck by the brush, Escobar reached inside his nearby truck and retrieved a semiautomatic handgun and magazine, each located in a different area of the truck. Escobar inserted the magazine into the gun, pointed the gun at Perez's chest, and walked toward him, stating, "Shut up or else I'm going to fuck you up." Perez testified he saw Escobar pull back the slide on the gun and then the magazine fell out. As Escobar reached down to pick up the magazine, Perez pushed him.
Lara's testimony at trial added a few details. He had been attempting to defuse the situation by holding Perez back and telling him to "calm down" and go inside his apartment, when Lara turned to see Escobar pointing the gun at Perez. Lara said Escobar was holding the gun "sideways" or "horizontally" and, "after a few seconds, he flips it back over," and "turned like sideways, and the clip fell out." For his part, Escobar testified he tried to put the magazine into the gun but "it fell right out. It just slid right out."
After the magazine fell to the ground, Lara asked his cousin, "What the hell are you doing?" Lara told Escobar, "Put that thing away and go inside." Escobar picked up the magazine and put it in his pocket while Perez taunted Escobar about not knowing how to use the gun. Escobar grabbed a screwdriver from his truck and punctured a tire on Perez's cement pump. As police arrived on the scene, Escobar fled through his cousin's yard and ran to the home of his aunt and uncle, Virginia and Fidel Gomez, where he hid in the garage. When he left, he took a bicycle without permission.
A few days later, Escobar's aunt found the magazine for his firearm in the garage where he had hidden, and the family called the police. The magazine had 10 bullets in it. The next day, Anaheim Police Officer Jacob Slechta conducted a phone interview of Escobar; the jury heard the recording of the interview at trial. In the interview, Escobar stated Perez hit him in the head with a brush and Escobar pulled out a gun in response. Escobar stated: ". . . I loaded it in front of him and I told him back away. You know, I felt threatened." Escobar further stated: "I pointed it at him, I told him, 'Just back away [from] me,' . . . . I mean, I could've shot him, but I didn't."
Anaheim Police Sergeant Kelly Phillips recovered Escobar's .45-caliber semiautomatic handgun and .45-caliber ammunition from his mother's home. At trial, Phillips explained to the jury that pulling back the slide on the firearm "chambers" a round in the gun barrel when inserting the magazine, and even if the magazine drops out of the gun, the chambered round stays in the barrel and can be fired. Phillips also explained the gun has a release button which, when pushed, drops the magazine. The prosecutor asked Phillips if "the way that the magazine falls out, basically, is if you touch that release for the magazine?" Phillips answered, "Correct." On cross-examination by defense counsel, Phillips agreed that a magazine "could also fall" if not inserted or "seated" correctly.
The prosecution attorney charged Escobar with four crimes: criminal threats (Pen. Code, § 422, subd. (a)); assault with a semiautomatic firearm (§ 245, subd. (b)); second degree robbery (§ 211); and misdemeanor vandalism (§ 594, subds (a), (b)(2)(A)). The information further alleged Escobar personally used a firearm (§ 12022.5, subd. (a)).
All further undesignated statutory references are to the Penal Code.
A jury convicted Escobar of assault with a semiautomatic firearm with the firearm enhancement, and misdemeanor vandalism. The jury acquitted Escobar of the second degree robbery charge, but found him guilty of the lesser included offense of petty theft. The jury was unable to reach a verdict on the criminal threats charge, and the trial court later dismissed that count.
The trial court suspended the imposition of sentence and granted Escobar probation with terms and conditions. The court imposed various fines and fees, including a $300 restitution fine (§ 1202.4, subd. (b)), a total of $120 in court operations assessments (§ 1465.8, subd. (a)(1)), and a total of $160 in court facilities assessments (Gov. Code, § 70373).
II
DISCUSSION
A. Substantial Evidence Supports the Conviction of Assault with a Semiautomatic Weapon
Escobar contends there was insufficient evidence to support his conviction of assault with a semiautomatic firearm, arguing there was a lack of evidence the firearm was loaded. The argument lacks merit.
1. Standard of Review
In an appeal challenging the sufficiency of the evidence to support a conviction, our task is to "'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We must presume in support of those findings the existence of every fact reasonably deducible from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
"If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.)
2. The "Present Ability" Aspect of the Crime of Assault
Section 240 provides: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Italics added.)
"It is settled in California that pointing an unloaded shotgun does not constitute 'present ability.' [Citations.] Similarly, threatening to shoot someone with a toy gun or candy pistol does not show the requisite present ability to commit a violent injury. [Citation.] On the other hand, an automatic rifle does present such 'present ability' when there are loaded cartridges in the magazine of the rifle even though the firing chamber is empty . . . ." (People v. Ranson (1974) 40 Cal.App.3d 317, 321 (Ranson).)
In People v. Chance (2008) 44 Cal.4th 1164 (Chance), the California Court provided a comprehensive overview of "'the present ability' aspect of the crime" of assault. (Id. at p. 1167.) The Supreme Court began its analysis by stating a key principle: "[T]he present ability element of assault . . . is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.]" (Id. at pp. 1167-1168, italics added.) The Court explained "'immediately'" is a somewhat elastic concept as applied to the crime of assault. "In this context, . . . 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Id. at p. 1168, fn. omitted.)
The Supreme Court in Chance articulated the rule for finding "present ability" to inflict injury as follows: "[W]hen a defendant equips and positions himself to carry out a battery, he has the 'present ability' required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Chance, supra, 44 Cal.4th at p. 1172.)
The facts in Chance illustrate the application of this rule. In Chance, the gun-wielding defendant escaped on foot from officers attempting to serve him with a felony arrest warrant in a rural area. One officer chased after the defendant and watched him run around the front end of a 20-foot long travel trailer. "[A]nticipating that defendant might be lying in wait for him," the officer advanced around the rear of the trailer, essentially sneaking up behind the defendant. (Chance, supra, 44 Cal.4th at p. 1168.) "Carefully peering around the corner, [the officer] saw defendant pressed against the trailer, facing the front end. He was holding the gun in his right hand, extended forward and supported by his left hand. [¶] Defendant looked back over his right shoulder at [the officer], who had his own gun trained on defendant." (Ibid.) When the officer ordered the defendant to drop his weapon, the defendant instead attempted to flee, but tripped and fell. Officers arrested the defendant and recovered the gun which "was fully loaded with 15 rounds in the magazine. There was no round in the firing chamber, but defendant could have chambered one by pulling back a slide mechanism. The safety was off." (Id. at p. 1169.)
A jury convicted the defendant of assault with a firearm on a peace officer under section 245, subdivision (d)(1), along with other offenses. On appeal, a divided appellate court reversed the assault conviction, concluding the defendant did not have the "'present ability[] to commit a violent injury' required for assault under section 240, because his act of pointing a gun at a place where he thought [the officer] would appear was not immediately antecedent to a battery." (Chance, supra, 44 Cal.4th at p. 1169.)
The Supreme Court reversed, concluding the fact the defendant pointed his gun in the wrong direction, away from the officer, "did not deprive defendant of the 'present ability' required" for assault. (Chance, supra, 44 Cal.4th at p. 1176.) The Court held the defendant satisfied the "present ability" requirement for an assault by equipping and positioning himself to carry out a battery: "[Defendant] attained the present ability to inflict injury by positioning himself to strike on the present occasion with a loaded weapon. This conduct was sufficient to establish the actus reus required for assault." (Ibid.)
3. Substantial Evidence of "Present Ability"
There is no dispute Escobar pointed his semiautomatic firearm at Perez in the alley. Escobar disputes, however, whether there is substantial evidence the firearm was loaded when Escobar pointed it at his victim. The issue is crucial because, as Escobar correctly asserts, pointing an unloaded gun at a person, without threatening to use the gun as a club or bludgeon, does not constitute assault with a firearm. (People v. Mosqueda (1970) 5 Cal.App.3d 540, 544.)
Escobar argues the evidence supports only one conclusion: the gun was unloaded. Escobar's argument begins with the assertion he did not properly insert the magazine into the gun. He contends the fact the magazine "immediately" fell out of the gun when he pointed it at Perez proves he did not insert it properly. As additional proof the magazine was not properly "seated," Escobar points to the fact there was no chambered bullet in the gun when the magazine fell, despite Perez's testimony he saw Escobar pull back the slide and Sergeant Escobar's testimony pulling back the slide chambers a bullet which will remain chambered if the magazine is released. From there, Escobar argues the lack of a properly "seated" magazine meant the gun could not fire a bullet, rendering it an "unloaded gun." Consequently, Escobar asserts, there is insufficient evidence he had the requisite "present ability" to commit a violent injury on Perez.
There are two fundamental errors in Escobar's argument. The first is the factual assertion the magazine was not properly "seated" in the gun when Escobar pointed the weapon at Perez. As explained below, there was substantial evidence from which the jury could infer the properly "seated" magazine fell out because Escobar pressed a release button. The second error is the argument's underlying premise Escobar's "present ability" to inflict injury within the meaning of the statute depended on his proper insertion of the magazine. It did not.
(a) The Evidence the Pointed Gun Held a Properly Inserted Magazine
At trial, Escobar admitted he "tried" to insert the magazine into the semiautomatic handgun after retrieving both items from his truck, but he said the magazine "immediately" slid out when he pointed it at Perez. Conflicting testimony from both Perez and Lara describes two scenarios that differ from each other and from Escobar's account of how and when the magazine fell. It is Lara's testimony, combined with other evidence discussed later in this section, which supports the finding the magazine was "seated" properly in the gun when Escobar extended his arm and took aim at Perez.
Perez testified the magazine fell from the gun when Escobar pulled the slide back. Lara testified the magazine fell several seconds after Escobar took aim at Perez and after he flipped the gun over, turning it "sideways."
In her testimony, Sergeant Phillips stated two possible explanations for why the magazine fell from the gun. The first, which the prosecutor asserted in closing argument, was that Escobar properly inserted the magazine into the gun and the gun was loaded when Escobar aimed it at Perez, but Escobar subsequently pushed the magazine release button on the gun by accident, causing the magazine to fall. The second explanation was that Escobar failed to insert the magazine properly.
Escobar argues the prosecutor's "release button" theory is pure speculation because the prosecution offered no evidence "operation of the slide would necessarily, or even potentially, depress the magazine release button." Conversely, Escobar asserts, substantial evidence supports the defense theory the magazine was never properly seated. Escobar identifies the following three pieces of evidence as supporting the defense "unseated magazine" theory: Perez's testimony Escobar pulled back the slide just before the magazine fell, Sergeant Phillips' testimony that pulling back the slide chambers a bullet which remains chambered if the magazine is released, and the undisputed evidence the gun lacked a chambered bullet when the magazine fell. In other words, the defense theory asserts, had the magazine been properly inserted, there would have been a chambered bullet when the magazine fell. Therefore, the lack of a chambered bullet proves the magazine was never "seated" in the gun.
While the jury certainly could have believed the defense theory of events, as it flowed logically from the evidence, so too did the prosecution's theory. Escobar is incorrect in arguing the "release button" theory is based on speculation alone.
Escobar's argument the "release button" theory relies on speculation ignores the fact Escobar testified he was "nervous" when handling the gun. Given that nervousness, the jury reasonably could have concluded Escobar accidentally pressed the release button when "flip[ping]" the gun sideways, from a horizontal to a vertical position, as Lara described. Additionally, the fact the magazine remained in the gun for several seconds while Escobar turned the gun from side to side, falling only when Escobar "flip[ped]" the gun over, supports the inference the magazine was properly seated and fell because a nervous Escobar inadvertently pressed the release button.
Escobar's own words during the incident provide additional support for the finding the firearm was loaded with a properly seated magazine when Escobar pointed it at Perez. Escobar concedes in his opening brief, "A defendant's statements and behavior while making an armed threat against a victim may warrant a jury's finding a weapon was loaded." In People v. Rodriguez (1999) 20 Cal.4th 1, the Supreme Court held a gun wielding defendant's threat to use the gun against the victim "was highly relevant to, and supportive of, the assault charge." (Id. at p. 12.) The high court stated, "[T]he jury could reasonably have interpreted the warning as an admission by defendant of his present ability to harm [the victim]." (Ibid.) Escobar issued just such a threat to Perez. While walking toward Perez with the gun pointed at Perez's chest, Escobar stated, "Shut up or else I'm going to fuck you up." As in Rodriguez, the jury could have concluded Escobar's verbal threat was an admission the gun was loaded and he had the present ability to harm Perez.
There is no merit to Escobar's argument the jury's failure to convict him of the criminal threats charge prevented the jury from relying on evidence of the threat in convicting him of assault with the semiautomatic firearm. The jury could have believed Escobar made the threat and considered it proof the gun was loaded, despite failing to convict him of the separate criminal threats charge. (See People v. Lewis (2001) 25 Cal.4th 610, 656 ["Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. . . . This review should be independent of the jury's determination that evidence on another count was insufficient"].)
Finally, the admissions Escobar made to Officer Slechta in the telephone interview days after the incident also support the finding the firearm Escobar pointed at Perez was loaded. Escobar stated: ". . . I loaded it in front of him and I told him back away." Escobar further stated: "I pointed it at him, I told him, 'Just back away [from] me,' . . . . I mean, I could've shot him, but I didn't." Simply put, the jury could have taken Escobar at his word and believed the gun was loaded.
Because there was no direct evidence of what caused the magazine to fall, it was up to the jury to decide whether the gun was loaded with a properly inserted magazine. On appeal, our mandate is to presume in favor of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Osband (1996) 13 Cal.4th 622, 690.) We conclude the jury found the magazine was seated properly in the gun when Escobar pointed it at Perez and the magazine fell when Escobar inadvertently pressed the release button.
Because the inference the jury drew here was reasonable, we cannot draw a different one. (See Rodriguez, supra, 20 Cal.4th at p. 12 [appellate court improperly acted as "appellate fact finder" in drawing inferences from the evidence that conflicted with "contrary (but, in our view, equally logical) inferences the jury might have drawn"].) Consequently, we conclude substantial evidence supports the jury's finding Escobar pointed a loaded gun at Perez.
(b) Escobar Met the Chance Test for "Present Ability"
Even if the jury had found the magazine fell out because Escobar improperly inserted it in the gun—a disputed issue we conclude the jury resolved against Escobar (see supra), that finding would not preclude the finding Escobar had the "present ability" to inflict injury on Perez. Escobar's "present ability" to inflict injury within the meaning of the assault statute did not depend on his proper insertion of the magazine.
In Chance, supra, 44 Cal.4th 1164, the Supreme Court articulated the test for "present ability" as whether the defendant has "equip[ped] and position[ed] himself to carry out a battery" and "is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Id. at p. 1172, italics added.) Significantly, the Chance opinion cited Ranson, supra, 40 Cal.App.3d 317 as "particularly instructive" regarding the "present ability" required for an assault. (Chance, supra, 44 Cal.4th at p. 1172.) Ranson involved a confirmed finding of "present ability" despite the fact the defendant's gun was jammed and incapable of firing until the magazine was removed and reinserted.
In Ranson, supra, 40 Cal.App.3d 317, the defendant aimed a rifle at a police car. After the police shot and disarmed the defendant, they discovered there was no round in the chamber because a cartridge was jammed in the magazine. (Id. at pp. 319-320.) The appellate court affirmed Ranson's conviction of assault with a deadly weapon on a police officer. The court rejected Ranson's claim he lacked the present ability to carry out the assault because the gun was jammed, explaining the trier of fact reasonably could have inferred Ranson had the ability to quickly resolve the gun's firing problem by removing and reinserting the clip. (Id. at p. 321.)
In Chance, supra, 44 Cal.4th 1164, the Supreme Court agreed with the Ranson court's holding "the evidence of present ability [was] sufficient, even though Ranson . . . had to remove the clip, dislodge a jammed cartridge, reinsert the clip, chamber a round, point the weapon, and pull the trigger. (Ranson, supra, 40 Cal.App.3d at p. 321.)" (Chance, supra, 44 Cal.4th at p. 1173.)
Based on both Chance and Ranson, we conclude there is no merit to Escobar's assertion his "present ability" to inflict injury on Perez depended on the proper insertion of the magazine in the gun. Just as the trier of fact in Ranson reasonably could have inferred Ranson had the ability to quickly resolve the gun's firing problem by removing and reinserting the magazine, so too could the jury in the present case reasonably infer Escobar was capable of resolving the problem with his gun by picking up the fallen magazine and reinserting it.
Once Escobar approached Perez and pointed the loaded gun at him, whether the magazine was properly inserted or not, Escobar satisfied the "present ability" element of assault because he had equipped and positioned himself to carry out a battery and was capable of inflicting injury on that occasion. (Chance, supra, 44 Cal.4th at p. 1172.) Consequently, we conclude sufficient evidence supports Escobar's conviction of assault with a semiautomatic firearm. B. Modification of the Judgment
Escobar argues the trial court improperly calculated the aggregate total of the court operations assessments and court facilities assessments based on four convictions. The Attorney General agrees the court erred in its calculations.
Escobar was tried on four counts, but convicted of three: assault with a semiautomatic firearm, petty theft, and misdemeanor vandalism. For each count the court is required to impose a $40 court operation fee (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). For Escobar's three convictions, then, the total fees and assessments should have been $210, but at sentencing the trial court mistakenly imposed a total of $280, stating, "There were four counts." Escobar challenges the order as an unauthorized sentence.
Escobar mistakenly asserts he was acquitted of the petty theft and convicted of just two counts.
The $210 reflects a total of $120 in court operations assessments and a total of $90 in court facilities assessments.
The Attorney General agrees the trial court erred. Consequently we will modify the judgment to reflect the proper amounts.
III
DISPOSITION
The judgment is modified (§ 1260) to reflect a total of $120 in court operations assessments and a total of $90 in court facility assessments. The trial court is ordered to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.