Opinion
G057602
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. YITZAK YEZIEL GONZALEZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF2373) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Yitzak Yeziel Gonzalez appeals from a judgment after a jury convicted him of assault with a deadly weapon. Gonzalez argues insufficient evidence supports his conviction because the weapon, pliers, was not a deadly weapon and the trial court erred by failing to instruct the jury sua sponte on great bodily injury. Because we agree with his first contention, we need not address his second claim. We reverse Gonzalez's conviction for assault with a deadly weapon, reduce his conviction to assault, and remand the matter for resentencing.
FACTS
J.P. (Father) lived with his 11-year-old daughter M.P. (Daughter) in an apartment. One morning, a loud banging noise woke up Daughter. She got up, ran to the living room, and looked through the front window and saw a man crouching by the front door holding pliers against the door. Father, who was sleeping on a bed in the living room, woke up.
Father opened the front door a few inches with the latch secured. Gonzalez said, "I'm going to take your daughter" and "Don't touch your daughter." Gonzalez tried to push the door open, but Father and Daughter pushed it closed. Father told Daughter to call 911, which she did.
After Gonzalez broke the front window with the pliers, he again tried to push the front door open. Despite Father's best efforts, Gonzalez eventually broke the door latch and frame and put his arm and leg inside the apartment.
Gonzalez and Father started hitting each other from opposite sides of the door. Gonzalez hit Father with the pliers on his left forearm about seven times. Father eventually grabbed the pliers from Gonzalez. Father pushed shut the front door on Gonzalez's finger.
Although Daughter described the item as a wrench, there was testimony the item was pliers. The parties do not dispute it was pliers, either standard or channel lock. We refer to the weapon as pliers. --------
Meanwhile, an officer arrived, saw Gonzalez trying to enter the apartment, and arrested him. Another officer entered the apartment, saw pliers on the ground, and observed Father suffered a visible injury to his arm.
An information charged Gonzalez with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), all further statutory references are to the Penal Code) (count 1), and first degree burglary (§§ 459, 460, subd. (a)) (count 2). As to count 2, the information alleged a non-accomplice was present (§ 667.5, subd. (c)(21)).
At trial, Father showed the jury the scar on his arm, which the prosecutor described as a dark-colored mark. In anticipation of Gonzalez's claim he acted to prevent Father from abusing Daughter, both Father and Daughter denied any inappropriate conduct. Gonzalez testified he looked through a window, saw a man trying to attack a girl, and tried to save her.
The jury convicted Gonzalez of count 1 but acquitted him of count 2. The trial court sentenced Gonzalez to prison for three years.
DISCUSSION
Gonzalez argues insufficient evidence supports his conviction for count 1. We agree.
"[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We draw all reasonable inferences in favor of the verdict, and presume the existence of every fact the jury could reasonably deduce from the evidence that supports its findings. [Citations.] [¶] The court may not, however, '"go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed."' [Citations.] '"[E]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact."' [Citation.] Indeed, '[a] trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. [Citation.]' [Citation.]" (People v. Franklin (2016) 248 Cal.App.4th 938, 947-948.)
"'As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury."' [Citation.] . . . 'In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.' [Citation.]" (In re B.M. (2018) 6 Cal.5th 528, 532-533 (B.M.).) Here, our inquiry is whether substantial evidence supports the jury's conclusion Gonzalez used the pliers as a deadly weapon.
In B.M., supra, 6 Cal.5th 528, weeks before trial here, the California Supreme Court clarified the law concerning assault with a deadly weapon. In B.M., minor made slicing motions at her sister's blanket-covered legs using a butter knife without applying pressure sufficient to pierce the blanket or cause serious bodily injury. (Id. at p. 531.) The B.M. court clarified the law concerning assault with a deadly weapon, articulating three principles. "First, the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also '"likely to produce death or great bodily injury."' [Citation.]" (Id. at p. 533.) Second, whether the object is a deadly weapon "must rest on evidence of how the defendant actually 'used' the object[,]" and not "conjecture as to how the object could have been used." (Id. at p. 534 [degree of the force used].) "Third, although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant. '[A] conviction for assault with a deadly weapon does not require proof of an injury or even physical contact' [citation], but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (Id. at p. 535.)
The B.M. court opined that based on a totality of the evidence, minor's use of the butter knife was not likely to produce death or great bodily injury. (B.M., supra, 6 Cal.5th at p. 536.) The court found the following facts dispositive: the butter knife had slight ridges on one edge of the blade and it was not sharp; minor used the knife on her sister's blanket-covered legs and not on a vulnerable area; and minor used moderate pressure that did not pierce the blanket or cause her sister serious bodily injury. (Id. at pp. 536-537.) The court rejected the finding minor could have committed mayhem because she did not target a vulnerable area. (Id. at p. 535.) In reversing the judgment, the B.M. court stated the following: "[W]e find it questionable whether a trier of fact could reasonably conclude that the manner in which [minor] used the knife was capable of causing great bodily injury. But even if [minor's] use of the knife were capable of causing great bodily injury, there is no substantial evidence that it was likely to do so." (Id. at p. 539.)
Viewing the facts in the light most favorable to the judgment, we conclude substantial evidence does not support the jury's conclusion Gonzalez used the pliers as a deadly weapon. Unfortunately, our record does not include a picture of the pliers (exhibit No. 2) or Father's injuries (exhibit Nos. 6 & 7); they were admitted at trial. Nevertheless, the record supports the conclusion the weapon was a pair of pliers that were not sharp; there was no evidence they were needle nose pliers capable of stabbing or puncturing the skin. Gonzalez used the pliers on Father's left forearm, an extremity that was not particularly vulnerable. There was no evidence Gonzalez used or attempted to use the pliers in the area of Father's head, face, or neck. The evidence demonstrated Father suffered "a scar" on his forearm that the prosecutor described as a dark-colored mark. Although the evidence demonstrated Gonzalez struck Father's left forearm numerous times, there was no evidence this resulted in significant injury like a fracture or a gaping wound. Father did not provide greater detail about his injury. Like in B.M., we conclude that even if Gonzalez's use of the pliers was capable of causing great bodily injury, there was insufficient evidence it was likely to do so.
The Attorney General's claim Gonzalez could have imposed significant injury if not thwarted by the front door is simply conjecture. As the B.M. court noted, "the inquiry must focus on the evidence of how [defendant] actually used the knife, not on various conjectures as to how she could have used it." (B.M., supra, 6 Cal.5th at p. 538.)
Based on the totality of this record, there was insufficient evidence Gonzalez actually used the pliers in a manner likely to produce death or great bodily injury. We reverse Gonzalez's conviction on count 1 for assault with a deadly weapon and reduce his conviction to assault (§ 240). (§ 1181, subd. (6); People v. James (2014) 230 Cal.App.4th 1256, 1265 [appellate court authorized to reduce conviction].)
DISPOSITION
The judgment is reversed. We reduce Gonzalez's conviction for assault with a deadly weapon to assault. We remand the matter for resentencing.
O'LEARY, P. J. WE CONCUR: MOORE, J. GOETHALS, J.