Opinion
E080936
07-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHEAL WAYNE HEDDY, JR., Defendant and Appellant.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum, Sahar Karimi and Monique L. Myers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF2200478, Walter H. Kubelun, Judge. Affirmed.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum, Sahar Karimi and Monique L. Myers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
After an evening of drinking at a casino defendant Micheal Heddy and his wife Daniella Heddy (Daniella) drove away with Daniella behind the wheel. While Daniella drove, defendant took a loaded handgun and fired shots out the window telling Daniella they would both die that night before the police could be called. He also threatened to shoot the engine, kicked the passenger door, and shattered the car window. Eventually, Daniella exited the car at a construction zone along the road, where Daniella called for assistance; defendant drove off and was later arrested. Defendant was charged with numerous offenses including assault with a firearm (Pen. Code, § 245, subd. (a)(2)),along with an allegation he had been previously convicted of a prior serious felony (§ 667, subd. (a)), as well as allegations of two prior convictions under the Three Strikes law. He was convicted of all but two charges and sentenced to an aggregate term of 16 years four months in prison. He appeals the convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues (1) he was deprived of effective assistance of counsel for failing to object to the prosecutor's violation of an in limine ruling limiting admissibility of evidence of prior convictions by cross-examining defendant about a prior assault with a firearm incident, and (2) there is insufficient evidence to support the conviction in count 3 of assault with a firearm. We affirm.
Statement of the Case
By way of an information, defendant was charged with kidnapping (§ 207, subd. (a); count 1); criminal threats (§ 422; count 2); assault with a firearm (§ 245, subd. (a)(2); count 3); false imprisonment (§ 236; count 4); unlawful possession of a firearm while addicted to narcotics and a convicted felon (§ 29800, subd. (a)(1); count 5); spousal battery (§ 243, subd. (e)(1); count 6); violating a domestic violence protective order (§ 166, subd. (c)(1); count 7); and driving under the influence of alcohol (Veh. Code, § 23152, subds. (a), (b); counts 8 &9).
It was further alleged that during the criminal threats, defendant personally used a firearm (§§ 12022.5, subd. (a); 1192.7, subd. (c)(8)) and probation should not be granted for attempting to use a deadly weapon (§ 1203, subd. (e)(2)). It was further alleged in count 5 that defendant was armed with a deadly weapon (§ 667, subd. (e)(2)(C)(iii)). Defendant was also charged with a prior serious felony conviction under section 667, subdivision (a), as well as having sustained two previous convictions for felonies under the Three Strikes law, section 667, subdivisions (c) and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A) (erroneously cited as section 1170.12, subd. (c)(2)(a)), relating to a prior robbery and an assault with a firearm conviction. The information also alleged several aggravating factors for purposes of sentencing within the meaning of California Rules of Court, rule 4.421, subdivision (a).
The jury found defendant guilty on counts 2, 3, and 5 through 9. The jury could not reach a unanimous verdict on counts 1 and 4. On count 2, the jury found true that defendant personally used a firearm. On count 5, the jury found true that defendant was armed with a deadly weapon.
Defendant waived a jury trial on the aggravating factors. The court struck one of defendant's prior strike convictions upon defendant's suggestion that the court exercise its discretion to do so pursuant to section 1385. He was sentenced to 16 years four months in state prison, calculated as follows: the mid-term of four years (middle term of two years, doubled) on count 2 with an additional four years for the enhancement; two years on count 3; one year four months on count 5; and five years on the prior serious felony conviction (nickel prior). He was also sentenced to 364 days in county jail on counts 6 and 7 and 180 days in county jail on counts 8 and 9.
Ref. People v. Superior Court (Romero) (1994) 13 Cal.4th 497.
Defendant filed a timely notice of appeal.
Statement of Facts
1. Prosecution Evidence
a. The Current Incident
Daniella is married to defendant, and they have one child together. They were separated for a time but got back together in April 2022. In the late night of April 25, and early morning of April 26, defendant and Daniella went to a casino. Defendant drove them to the casino in Daniella's car, taking defendant's friend with them.
After arriving at their destination, defendant's friend entered the casino while Daniella and defendant sat down at the casino bar and ordered drinks, occasionally walking around to play on the slot machines and then drank some more. They were both intoxicated. At one point, they got into an argument when defendant accused Daniella of being attracted to the bartender as they were getting into the car to leave after 2:00 a.m. They drove off with Daniella driving, and she drove slowly because she had been drinking. Defendant told Daniella that she was driving too slowly, so she sped up.
After Daniella sped up defendant removed a black handgun from his waistband. Then he pointed the gun out the open window telling her that they were going to die that night before she could call the cops and fired it out toward the desert. He threatened to shoot the car engine. Defendant asked her to drive him home so that he could see his mother. Daniella was scared and crying hysterically.
Daniella rolled up the window, so defendant could not shoot outside the window. Defendant hit the window with the gun, completely shattering it. As he did so, the firearm magazine fell off and Daniella instinctively grabbed it and threw it out the driver's side window.
Daniella pulled the car over to the side of the road, so she could get out and check the shattered window. She also intended to call her mother. She was hysterical, but defendant told her it could be fixed, and he moved into the driver's seat. Defendant told her to get back in the car, but she refused. Defendant drove away but soon returned. She did not want to get back into the car, so she walked on the side of the road to call her mother, but realized she did not have her cell phone.
As Daniella was kneeling or squatting on the ground, defendant grabbed her, pulled her by both arms, and dragged her into the rear seat of the vehicle. He forcefully threw her in the back seat, face down. Video surveillance captured this part of the incident and a concerned security guard watching on surveillance called 911. Another witness saw Daniella crying; Daniella then repeatedly told the witness, "Call the cops. Call the cops. He threw me out of the car."
After driving for approximately 10 minutes defendant stopped at a construction zone along the road, where Daniella exited the vehicle. She saw a patrol vehicle parked at the construction zone and walked towards it. Defendant drove off with Daniella's phone in the car. Before Daniella reached the patrol vehicle, they turned on their lights and went after the defendant as defendant drove around two cars and a construction worker, who was directing traffic at the site for a lane closure with a stop sign. The patrol officer pursued the defendant as the defendant drove at an excessive rate of speed and entered the southbound lanes while driving northbound, to pass slower moving vehicles. Defendant was arrested for driving under the influence of alcohol and his breath alcohol concentration was 0.09 and 0.10 percent.
Meanwhile, Daniella contacted a construction worker who let her use his cellphone to call her mother, and at the construction worker's suggestion, Daniella also called the nonemergency police number to let them know defendant had a gun. The construction worker used a "walkie talkie" and said to someone, "The person you are going after has a weapon." Daniella then called 911, and police arrived to take her statement and photos.
Officers obtained a search warrant for defendant's vehicle and found two spent ammunition shell casings on the front passenger's seat and driver's side floorboard, as well as a live ammunition round on the front passenger's floorboard. The front passenger side window was missing, and glass was shattered on the floorboard and passenger seat. An investigator concluded based on the evidence collected that a firearm had been fired from within the vehicle. A witness found the magazine clip on the side of the highway.
Daniella denied that she became violent when she drank. On cross-examination, she acknowledged going out with Tina (Catrina) Munoz and drank a lot on the evening before the charged incident. Daniella met Munoz through defendant. Defendant and Munoz had been seeing each other for a while, although they were not seeing each other on April 24, 2022. Defendant and Daniella were separated at that point, and she thought he was seeing other people, including Munoz. Daniella and Munoz maintained contact with each other because they both knew defendant was lying to them.
The witness's given name is Catrina, but both defendant and Daniella referred to her as Tina.
That night, Munoz gave Daniella a ride to the home of defendant's brother, where defendant was staying, because Daniella wanted to see defendant. Daniella knew defendant was seeing other women and she did not want him seeing anyone but her. She went to the garage where he was staying and found him. She did not recall yelling at him. However, she did recall spending the night with him. Then she went home. Later she returned to where defendant was staying, and they went to the casino.
b. Prior Incident of Domestic Violence
The People offered the following evidence of defendant's propensity for domestic violence as provided in Evidence Code, section 1109.
Defendant had previously been violent with Daniella. In 2019, Daniella got off work early from her casino job and went, still in her uniform, with her mother to see defendant. Defendant had been drinking and Daniella found him sleeping in the passenger seat of a car. Daniella woke defendant up, upsetting defendant. Defendant did not want to go home with her, so she sat on his lap. When she had arrived, defendant's phone was on his lap, so when he woke up, she told him that she would take the phone away because she was paying for it.
Daniella saw a message on defendant's phone from someone telling defendant to call back and Daniella assumed he was cheating on her, which upset her and caused an argument. The two ended up between two cars and defendant pushed Daniella against a car pressing his forearm against her chest and throat. Defendant called her a "fucking whore," ripped open the top portion of her dress and spit in her face. Defendant then said he was going back inside "[t]o grab his gun." Daniella got in her car and left, but defendant followed her in another car. Daniella called 911 and drove to the police station.
This incident gave rise to defendant's conviction for felony false imprisonment and a no-negative-contact criminal protective order (CPO) that was issued to protect Daniella, which was still in effect during the current incident. Defendant admitted he could not own a firearm based on this CPO and his prior conviction for assault with a firearm.
2. Defense Evidence
The night before the incident for which defendant stood trial, Daniella went out to a restaurant and drank with defendant's girlfriend, Munoz. Daniella had sent Munoz a text message asking if they could get together. Munoz agreed to meet up because she wanted Daniella to be "okay" with the fact that Munoz was seeing defendant. At the time Munoz and defendant were "on a little break," although they had not completely broken up.
At the restaurant, Daniella became upset when she saw that Munoz had defendant's name tattooed on her chest. Daniella was afraid of defendant meeting someone new because he was her husband. Daniella started crying and became more emotional as she drank. Daniella told Munoz she preferred for defendant to be in jail so she can live her life.
After an hour at the restaurant Daniella and Munoz went to a nearby bar. There, Daniella drank and talked more. Daniella could not believe defendant had moved on to someone else. When Munoz went to the restroom Daniella followed her and asked Munoz to feel her chest (which had apparently been augmented) and to touch her face, which seemed abnormal to Munoz. They left the bar and Munoz helped Daniella walk to the car, where they sat in the parking lot for about a half hour as Daniella put on her make up.
After stopping at a friend's house, Daniella and Munoz eventually went to defendant's brother's house, where defendant was staying, at around 2:30 a.m. to 3:00 a.m. Munoz intended to drop Daniella off there. When they arrived, Daniella was asleep in the car, so Munoz got out of the car and knocked on defendant's window. In the meantime, Daniella exited Munoz's car went through the side gate of the brother's house and entered the garage where she found defendant asleep. Daniella was upset that defendant was asleep, yelled at him, and woke him up. Daniella fell onto the ground and defendant tried to help her up. She got upset and slapped him, hitting him hard on the face approximately four times. Defendant told Daniella to calm down and he did not hit or push her back. Defendant took Daniella to his room to calm her down, but she continued to yell and tried to break loose from defendant, who was trying to restrain her in a hug. Munoz left when defendant took Daniella to his room.
Daniella tried to take her shirt off and leave, but defendant stopped her from leaving the house. Daniella stayed the night with defendant, where they slept in the same bed and were intimate with one another. The next morning, Daniella apologized and said she was upset because defendant was moving in with Munoz. Defendant invited Daniella to go to the casino later that night because she wanted to talk about their relationship.
That night, defendant and Daniella went to the casino and straight to the bar. Defendant made a comment about Daniella cheating on him with the bartender and she got upset. They gambled and continued drinking until defendant's phone rang, when Daniella got upset and tried taking the phone. She walked out of the casino and told defendant if he wanted a ride home, he should leave with her.
Daniella drove really slowly, so defendant begged her to let him drive because she was drunk. Defendant felt that he could still drive because he had a high tolerance for alcohol, regularly drinking six drinks at the casino. Daniella eventually stopped the car, but when defendant tried to get out, she sped up with the door open, such that the door pressed against him, as he had one leg almost out the door. Defendant had wanted to get out of the car because Daniella said she was going to call the cops. But after she hurt him with the door, he also wanted to get out of the car and began kicking the door, as she speeded up and swerved into the oncoming lane. He kicked the door so hard; he broke it. Defendant took his gun out of the glovebox because he did not want to leave it in the car and put it underneath his leg when he sat back down.
Daniella slowed the car and reached for the gun. To disarm the gun, defendant shot out the window toward the ground, letting everything out of the clip. Defendant denied pointing the gun at Daniella. After he fired the shots, she rolled up the window as he was trying to bring the gun back inside, when he noticed a bullet was lodged into the chamber. Defendant smashed the window with his fist, dropped the clip, and "dry-shot" out the window again. Daniella started looking for something, but defendant could not tell what it was, until she found the clip and threw it out the window.
Daniella was very upset about the damage caused to her car from first defendant's kicking of the door and then smashing the window. Daniella got out of the car to check the damage to the window. Daniella began slapping the defendant because she was angry about the damage. Defendant told her not to worry about the car, because they could fix it, but Daniella was hysterical. She stumbled as she walked outside the car, so defendant got out to check on her, but Daniella told him to get back in the car. Defendant again asked Daniella to let him drive and to stop the car so he could find his magazine clip. Daniella resumed driving again, faster.
Daniella stopped the car again, exited the vehicle and stumbled a bit. Defendant tried to get Daniella back into the car because she was in the middle of the roadway and there were cars coming, but Daniella pushed him away and threw herself on the ground. Daniella told defendant to leave and that she would walk, so defendant drove away for a short distance before coming back. Defendant pleaded with her to get back into the car. Defendant told her to get in the car because he did not want to be on the highway; he was concerned because he had a gun, and someone would call the police. Defendant knew he should not have a gun, so he would not have called the police himself.
He grabbed her hand, dragged her to the back seat, and drove to the construction zone. Daniella yelled that she did not want to go back in the car. Defendant drove until they reached the construction zone when Daniella started yelling from the back seat. Defendant saw police cars there and told Daniella to get out there because if she wanted to call the police and she could go to them there. Defendant left because he had a gun, about which he did not want to answer any questions the police might have, and he got rid of the weapon. After he got rid of the gun, the police pursued him, so he stopped. Defendant admitted he had a prior convictions for assault with a firearm and robbery from 2014.
Defendant denied telling Daniella that they were both going to die before she could call the cops, but admitted saying instead that they would both be going to die that night because of her driving.
In March 2019, defendant was staying at his brother's house, and was drunk, asleep in the passenger seat of a friend's car, when Daniella woke him up by going through his pockets while on top of him. Daniella wanted the phone back if he was not going to be with her anymore because she had bought it for him, and that she had proof he had cheated on her because she had been monitoring his phone. Defendant would not give Daniella the phone, and she slapped him twice in the face and once with her fist.
Defendant slid Daniella off of him and tried to find his keys so he could leave, but they were not in his pocket. He figured Daniella had taken them when he could not find them and got out of the car, running to Daniella's car to look for his keys. Defendant locked himself inside Daniella's car so she could not hit him anymore. Daniella hit the window and hood of the car, telling him to open the door. Defendant realized he was not in his own car, so he intended to go to his own car (of the same make and model) to look for his keys when Daniella ran to defendant's car and found his phone. Daniella then got in her car, drove off, but came back and started yelling about a text message she had seen on his phone. Defendant's brother told him to go inside the house, which he did.
Defendant denied pinning Daniella against the car, putting his forearm on her, and ripping her dress. He believed Daniella had been drinking because the only time she gets like that is when she drinks.
Discussion
1. Defendant Was Not Deprived of Effective Assistance of Counsel Regarding the Admission, Without Objection, of His 2014 Prior Conviction For Assault With a Firearm.
a. The Motions In Limine
The People sought, among other things, admission of defendant's 2019 prior conviction for domestic violence. During the in limine proceedings, defendant objected to admission of defendant's prior conviction for domestic violence, although counsel acknowledged that, pursuant to Evidence Code section 1109, the victim would be permitted to testify about the incident itself. The court initially indicated it might sanitize the prior conviction. The People argued the conviction itself was also admissible, and the court agreed, stating:
This refers to his 2019 conviction for a violation of section 236. We discern that defendant also had two prior convictions for assault with a firearm, one of which occurred in 2012 and the other in 2014.
"[THE COURT:] In weighing all of these factors, the Court's ruling is as follows: The People will be permitted to introduce evidence of the prior conviction, since it is both relevant and probative as to material issues in the case under Evidence Code Section 1109. The Court finds that the probative value of the prior conviction is not substantially outweighed by undue prejudice to the defendant. The People's evidence will be limited to the victim's testimony and one other witness, if necessary, to avoid undue consumption of time. The defense is welcome to offer any appropriate jury instructions for the Court's consideration. As to the conviction, I do believe that it is proper under [Evidence Code section] 1109 and can be admitted by the People. The defense objection is noted for the record."
Regarding the admissibility of defendant's other convictions for impeachment (§ 788), the court had tentatively ruled that defendant's conviction for second degree burglary from 2010, and a robbery conviction from 2012, would be allowed, but that his 2009 prior assault with a firearm conviction would not be permitted because of its remoteness and similarity to the current charged offense. After additional argument, the court ruled the People could not use the 2010 convictions for impeachment due to remoteness, as well as the 2009 conviction for section 245, subdivision (a)(2).
Apparently, in 2012, defendant was also convicted of assault with a firearm.
However, midtrial, an issue arose as to the admissibility of character evidence (Evid. Code, § 1103), because defendant intended to call as a defense witness Munoz, to testify about Daniella's habit or character for getting drunk and becoming violent, including her actions on the day before the charged incident, to impeach Daniella's testimony. The People argued that the admission of such evidence opened the door to admission of defendant's character for violence. The trial court agreed with the People and ruled the prosecution could admit into evidence the prior convictions for assault with a firearm from 2012 and 2014.
After the court made this ruling, when the defendant testified in his own defense, the People questioned him about his own history of violent offenses, including the 2014 conviction for assault with a firearm, as well as the 2011 offenses of second degree burglary and robbery, for impeachment. Defendant now argues his conviction must be reversed because his trial attorney failed to object when the People violated the in limine ruling by introducing the evidence of the 2014 assault with a firearm conviction. We disagree.
b. Analysis
We begin by noting that, as defendant himself acknowledges, the issue would ordinarily be forfeited by failing to object. However, we need not decide whether the issue was forfeited for two reasons: (a) defendant asserts in the alternative that his trial counsel rendered constitutionally deficient assistance by failing to prevent the jury from receiving the challenged evidence, and (b) the in limine ruling was superseded by the trial court's subsequent ruling on admissibility.
A claim that counsel's assistance was so defective as to require reversal has two components: First, the defendant must show that counsel's performance was deficient. Second, defendant must show that the deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Defendant cannot establish ineffective assistance of counsel because counsel's failure to object did not constitute deficient performance.
The prosecutor did not violate the trial court's in limine ruling because, prior to defendant's testimony, the court was presented with a new evidentiary issue relating to the admissibility of character evidence, specifically defendant's character for violence, to counter the testimony of witness Munoz, offered to impeach Daniella's credibility through evidence of her character or habit for becoming aggressive or violent when inebriated. The trial court expressly ruled that evidence of defendant's 2014 conviction was admissible. It goes without saying that proffering evidence the court has specifically ruled admissible is not a violation of a prior ruling.
A sufficiently definite and express ruling on a motion in limine may serve to preserve a claim, but the better practice is to renew the objection at trial, when the context of the evidence may be clearer. (People v. Thompson (2016) 1 Cal.5th 1043, 1108.) "The reason for this rule is that until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3.)
Here, the in limine discussions did not address the admissibility of the 2014 assault with a firearm conviction as character evident pursuant to Evidence Code section 1103. Additionally, while defendant argues the admission of the evidence violated the original in limine ruling, he makes no argument that the evidence should not have been admitted under Evidence Code section 1103. Because, contrary to defendant's assertion, when presented with the question, the court specifically allowed the evidence of defendant's prior assault with a firearm pursuant to Evidence Code section 1103, there was no misconduct by the prosecutor in introducing the evidence, and no deficient conduct on the part of defense counsel for failing to object. There was no error and no ineffective assistance of counsel.
2. There Is Sufficient Evidence to Support the Conviction on Count 3, the Assault With a Firearm Charge
Defendant argues reversal is required because, as a matter of law, there is insufficient evidence to support the conviction on count 3, the assault with a firearm charge. Specifically, he argues there is no evidence he specifically intended to commit a battery. We disagree.
a. Standard of Review
We review the record in the light most favorable to the judgment for evidence from which a rational trier of fact could find the elements of the crime established beyond a reasonable doubt. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We presume the existence of every fact in favor of conviction that the jury could reasonably infer. (People v. Medina (2009) 46 Cal.4th 913, 919.) "All conflicts in the evidence are resolved in favor of the judgment." (People v. Guzman (2011) 201 Cal.App.4th 1090, 1098, citing People v. Neely (2009) 176 Cal.App.4th 787, 793.) Thus, to overturn a conviction, "it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
Naturally, we must ensure the evidence is reasonable, credible, and of solid value, but it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Thompson (2010) 49 Cal.4th 79, 125 ["it is not a proper appellate function to reassess the credibility of the witnesses"]; People v. Jones (1990) 51 Cal.3d 294, 314.) Thus, where the verdict is supported by substantial evidence, we must defer to the trier of fact and not substitute our own judgment of a witness's credibility for that of the fact finder. (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is not within our province to reassess witness credibility or reweigh the evidence. (People v. Guzman (2011) 201 Cal.App.4th 1090, 1098.)
b. Analysis
The crime of assault with a firearm is defined as follows: '"Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment."' (People v. Law (2011) 195 Cal.App.4th 976, 982.) "This definition has two elements, (1) an assault, and (2) the means by which the assault is committed." (People v. Smith (1997) 57 Cal.App.4th 1470, 1481, disapproved on other grounds in People v. Williams (2001) 26 Cal.4th 779 (Williams).) '"Assault with a deadly weapon is nothing more than an assault where there is used either a deadly weapon or any means of force likely to produce ''great'' bodily injury."' (Smith, supra, at p. 1481, quoting People v. Carmen (1951) 36 Cal. 2d 9 768, 775.) Assault with a firearm, similarly, is an assault where a firearm is used.
An assault is committed when a person does something knowing it will likely result in physical force being applied to another. (Williams, supra, 26 Cal.4th at p. 788; People v. Chance (2008) 44 Cal.4th 1164, 1169.) However, assault has been defined as an attempted battery, requiring proof of the element of specific intent to commit a battery. (See People v. Colantuono (1994) 7 Cal.4th 206, 215 (Colantuono), and cases there cited.) From this, defendant urges us to reverse his conviction because the act of shooting into the desert did not demonstrate an attempt to commit a battery of the victim, where that act would not naturally and probably be expected to result in an injury.
However, contrary to defendant's assertion, the definition of assault and assault with a deadly weapon or assault with a firearm do not require proof that an accused specifically intended to commit a battery. In fact, the term "attempt," even as used in the original assault statute, does not refer to a definition of attempt that requires a specific intent. (Williams, supra, 26 Cal.4th at p. 787.) Instead, "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (Id. at p. 788.) "Consequently, criminal attempt and assault require different mental states." (People v. Chance (2008) 44 Cal.4th 1164, 1170; see People v. Hood (1969) 1 Cal.3d 444, 452 ["neither assault with a deadly weapon nor simple assault is a specific intent crime"].)
Assault is a general intent crime and does not require proof that defendant specifically intended to injure the victim. (Williams, supra, 26 Cal.4th at p. 788; Colantuono, supra, 7 Cal.4th at pp. 215-216.) Thus, to commit an assault, all that is required is actual knowledge of the facts sufficient to establish that the defendant's act by its nature will probably and directly result in injury to another. (Williams, at p. 782.) The intent requirement is satisfied if the People adduce proof that (1) the defendant willfully engaged in the conduct constituting assault, and (2) the defendant was subjectively "aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Williams, at p. 788; People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1190 [defendant "need only be aware of what he is doing"].)
Nor does a conviction for assault with a firearm require that the firearm be pointed at the victim, although pointing a gun at another person is an act that will probably and directly result in injury to another person. (People v. Raviart (2001) 93 Cal.App.4th 258, 263 (Raviart).) But a defendant can assault a person with a firearm without directly pointing it at the other person. (Ibid.) Exhibiting a weapon while making a qualified threat has been held to be sufficient evidence of an assault with a deadly weapon, especially where the defendant is within striking distance of the intended victim. (People v. McCoy (1944) 25 Cal.2d 177, 192 [knife displayed but put back into defendant's pocket], citing People v. McMakin (1857) 8 Cal. 547, 548 [firearm pointed downward, accompanied by a conditional threat].) The key question is whether the defendant has the present ability to commit a violent injury on another. (See People v. Webb (2023) 90 Cal.App.5th 660, 667-668 ["a defendant has a present ability to commit a violent injury where he or she attains the means and location to do so, even if additional steps remain to be taken"], citing Chance, supra, 44 Cal.4th at p. 1172.)
Defendant relies heavily on the case of People v. Diamond (1939) 33 Cal.App.2d 518, in arguing that there is insufficient evidence he committed the assault with the firearm because the gun was not pointed at Daniella. In Diamond, the defendant was alleged to have confronted the owner of a service station from the sidewalk, swinging a firearm above his head and telling the victim not to come closer as the person's life was in danger. In addressing the sufficiency of the evidence in that case, however, the court focused not only on the testimony of the complaining witness who admitted that the gun was not pointed at him, but also on the testimony of two other witnesses who were present at the time in question, but who did not see a firearm. (Id. at p. 522.) Clearly, there was no proof beyond a reasonable doubt that defendant assaulted the victim with a firearm in that case.
But the Diamond decision does not stand for the proposition that an assault with a firearm requires proof the defendant pointed a firearm at the victim. What we glean from that decision is that the equivocal evidence of the presence of any firearm at all defeated any finding the defendant committed an assault with a firearm, having the present ability to commit a violent injury on the victim, especially where, by all accounts, the defendant was at least six feet away.
Defendant also urges us to consider People v. Hunter (1925) 71 Cal.App. 315, in support of his position that to constitute an assault with a firearm, the defendant must have pointed the gun at Daniella. In Hunter, the defendant went to the apartment of his estranged wife with a gun in his sock, making statements about killing himself and his wife. (Id. at pp. 317-318.) On appeal, the defendant in that case argued he could not be convicted of assault with a deadly weapon because he did not attempt to use the firearm, but the reviewing court affirmed the conviction where the defendant had the intention and present ability to kill his wife. The Hunter decision supports our conclusion that an assault with a firearm was committed because defendant stated an intention to harm Daniella and himself, and he had the present ability to do so.
Taken in isolation, any fact representing a single point on the spectrum of defendant's conduct might be insufficient to constitute an assault with a firearm, but we do not review each point on the spectrum; we review all the circumstances to determine if there is substantial evidence to support the verdict. Here, the defendant was seated in a vehicle next to Daniella, with a loaded firearm in hand, which he used to fire several shots out the window and then threatened to shoot into the engine compartment, telling Daniella that they were both going to die that night. Viewing all the circumstances, defendant's statement, made while holding a loaded firearm, supports the jury's verdict that he was guilty of an assault with a firearm where he had the present ability to commit violent injury and a general criminal intent.
There is substantial evidence to support the judgment.
Disposition
The judgment is affirmed.
We concur: FIELDS J., RAPHAEL J.