Opinion
NOT TO BE PUBLISHED
Monterey County, Super. Ct. No. SS053531
Mihara, J.
An information filed March 21, 2006 charged defendant Wayne Knight with attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2), exhibition of a loaded firearm (Pen. Code, § 417, subd. (b); count 3), discharge of a weapon in a grossly negligent manner (Pen. Code, § 246.3; count 4), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 5), and vandalism (Pen. Code, § 594, subd. (b)(1); count 6). Pursuant to an agreement between the parties, the prosecution dismissed count 1 and defendant waived his rights to a jury trial with the understanding that a conviction on any of the remaining counts would result in probation. A court trial was held on June 13, 2006. At the conclusion of the prosecution’s case, defendant moved pursuant to section 1118 for a judgment of acquittal on the remaining five counts. The court granted the motion with regard to the vandalism charge, but otherwise denied the motion. The trial court found defendant guilty of the remaining counts, counts 2 through 5. At sentencing, the court concluded that due to defendant’s mental condition this was an “unusual case” under California Rules of Court, rule 4.413 and that defendant was eligible for probation. The court suspended imposition of sentence and imposed five years of formal probation. On appeal, defendant contends there is insufficient evidence to support his convictions for assault with a deadly weapon and exhibition of a loaded firearm. After reducing defendant’s conviction in count 3 to a misdemeanor violation of Penal Code section 417, subdivision (a)(2)(B), we affirm the order of probation.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
On December 27, 2005, Eugene Knight, defendant’s brother, arrived at their mother’s property on Echo Valley Road. The 29-acre property was being sold and Knight intended to remove some of his belongings stored at a second house that he had built on the property. At approximately 7:00 p.m., Knight observed defendant drive onto the property. Knight heard the door to the main house open and shut. Knight was in the garage at the time, but his truck was in plain view.
About 15 minutes later, Knight “heard a loud bang, a thump, like a door” and then the lights went out. He thought the noise came from the area of the porch and back door to the main house where the electrical control box is located. Knight “hollered” in the direction of the house and asked his brother to turn the power back on. Knight told defendant he was trying to move his belongings and reminded him, “The property has sold. We need to move. We have to move out.” After a pause, Knight heard the door to the electrical panel slam and then the back door.
It was quiet for a few minutes and Knight walked toward the main house. Knight, who was familiar with shotguns, then heard a “metal” sound that he recognized as the sound of a shotgun being “racked.” Knight crouched down about 130 feet from the porch area. The shotgun fired in Knight’s direction and he heard the “birdshot or buck shot hit the leaves” about five to eight feet above his head. Knight was not hit by the pellets. Knight could see only his brother’s silhouette by the house.
After the shot, Knight rolled down an embankment. He heard the gun “rack” again, and moved away from the area, hiding behind a tree. Knight heard additional attempts to “rack” the gun, and then heard a door to the house open and foot steps. Knight “took off running” at which point defendant told him that he “woke up Nancy[,]” apparently referring to defendant’s girlfriend from 23 years earlier. Knight replied that defendant “was nuts” and that Knight was going to call the police. Knight ran down the driveway and again heard the gun “rack” as defendant asked, “Can’t you hear her crying?” Knight then heard the door to defendant’s truck open.
Knight ran toward the neighbor across the street, yelling for help and asking someone to call the police. Knight told the neighbor who appeared, Jim Stevenson, that his brother was shooting at him. Stevenson ran out into the road carrying a flashlight and a gun. Defendant’s truck moved down the driveway, accelerated down the road, and swerved toward Stevenson. The passenger side mirror struck Stevenson’s hand, and the impact knocked him to the ground. Defendant lost control of the truck, went down an embankment, and crashed into Stevenson’s fence. Getting out of the truck, defendant told Stevenson that he was sorry, that he thought Stevenson was his brother.
Defendant told the sheriff’s deputies who responded to the incident that he was angry with his brother and that he “shot once into the air.” He wanted his brother to go away and leave him alone. Defendant pointed the deputies toward the shotgun in his truck. Defendant later told a friend of the family that he fired the shotgun “to scare his brother away[.]” Defendant was having difficulty with moving and his brother’s actions that day disturbed him. Defendant explained to the family friend that he shot straight toward a satellite dish, believing his brother was off to his right. He thought the pellets could have deflected off the dish in Knight’s direction.
Knight returned to the site but did not find any pellets on the ground under the trees. However, he did find a spent shotgun shell in the porch area. A sergeant in the sheriff’s office with extensive firearm experience, Brian Parker, testified regarding the shotgun and spent shell. He identified the spent shell as a “bird shot” that holds approximately 300 very small lead pellets. At 40 yards (approximately Knight’s distance from the porch) the birdshot would be “all over the place” and would cover about a 12 by 12 circular area. In a rural area like the Knight property, “it would be very hard to find the[] little pellets scattered all over the ground.” Parker testified that if a person was hit at 40 yards, he did not believe it would be a lethal shot; instead, it would produce “welts” and a few of the pellets might pierce the skin or cause damage to an eye if hit directly. Five live rounds of rifle slugs were found in the shotgun. According to Parker, a rifle slug would cause more serious injuries than the bird shot and could be lethal.
II. Discussion
A. Standard of Review
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Jones (1990) 51 Cal.3d 294, 314.) Substantial evidence is evidence of “ponderable legal significance” that is “reasonable in nature, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 576, internal quotation marks omitted.) “We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) Reversal is warranted only if it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Bolin (1998) 18 Cal.4th 297, 331, internal quotation marks omitted.)
B. Assault with a Deadly Weapon (Count 2)
Defendant first contends there is insufficient evidence to support his conviction for assault with a deadly weapon, claiming a lack of the requisite intent. We find sufficient evidence in the record to support the conviction.
“[A]ssault requires only a general criminal intent and not a specific intent to cause injury.” (People v. Williams (2001) 26 Cal.4th 779, 782 (Williams); see also People v. Colantuono (1994) 7 Cal.4th 206, 218 (Colantuono) [“The pivotal question is whether the defendant intended to commit an act likely to result in [] physical force, not whether he or she intended a specific harm.”].) The crime of assault further requires “actual knowledge of those facts sufficient to establish that the [defendant’s intentional] act by its nature will probably and directly result in the application of physical force against another.” (Williams, supra, 26 Cal.4th at p. 790.) Although a defendant may not be convicted based upon facts he did not know but should have known, he need not be subjectively aware of the risk that a battery might occur. (Id. at pp. 788, 790.) In other words, “a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (Id. at p. 788, fn. 3.) Intent is an issue of fact for the trier-of-fact that may be determined based on circumstantial evidence. (See Colantuono, supra,7 Cal.4th at pp. 220-221 & fn. 12.)
The trial court, citing both evidence that Knight was very familiar with shotguns and “the Court’s own personal experience” that the sound of buck shot hitting leaves “is a very unique sound[,]” found that “the round of shot at least part of it, part of the pattern was very close to Mr. Eugene Knight[.]” The court further determined, “based on what Mr. Wayne Knight did say to a number of different people[,]” that “his intent was to scare his brother.” The court therefore concluded that defendant “fired the gun in his brother’s direction” and that he was guilty beyond a reasonable doubt of assault with a deadly weapon.
We find no cause to reverse the trial court. The evidence shows that defendant intentionally fired the shotgun to scare his brother. Knight’s testimony that the pellets hit the trees five to eight feet above his head supports the court’s further finding that defendant fired in Knight’s direction. Although defendant points to his own statements that he fired the shotgun in a different direction, the presence of conflicting evidence does not compel this court to disregard evidence found credible by the trial court. (People v. Maury (2003) 30 Cal.4th 342, 403 [“Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends.”].) Finally, Parker’s testimony established that pellets shot from a distance of 130 feet could injure Knight, and provided an explanation for the failure to find pellets in the vicinity. Based on these facts, the trial court had ample basis to conclude that defendant undertook an intentional act that a reasonable person in his position would believe “would directly, naturally and probably result in a battery” to Knight.
As defendant concedes, even if the shot was intended only as a “warning,” that fact alone does not preclude conviction. (See Williams, supra, 26 Cal.4th at p. 790 [the defendant’s “warning shot,” which was made with the defendant’s knowledge the victim was “in the near vicinity[,]” was sufficient to constitute assault].)
Defendant’s reliance on the differences between the facts of this case, and those in People v. Escobar (1992) 11 Cal.App.4th 502 (Escobar), is unavailing. In Escobar, the defendant held a gun behind a briefcase, aimed it at the victim, and pulled the hammer back before being disarmed by the victim. (Id. at p. 504.) The court found sufficient evidence of assault with a firearm. (Id. at p. 505.) Defendant stresses that the gun in that case, unlike here, was pointed directly at the victim and only inches away. (See id. at p. 504.) This factual difference does not compel a different result in this case. Although Knight was 130 feet away from defendant, defendant could hit and injure Knight from that distance. Even without knowledge of Knight’s exact whereabouts amongst the trees, the broad pattern of the pellets made it likely that a shot in Knight’s general direction would result in a battery. Moreover, defendant actually fired the weapon. This additional action displaces proximity to the victim as a key factor, in this case, in determining the natural and probable consequences of defendant’s actions.
The record contains substantial evidence that an injury to Knight was a direct, natural, and probable consequence of defendant’s intentional firing of the shotgun. We thus conclude there is sufficient evidence to support defendant’s conviction under count 2.
C. Exhibition of a Firearm (Count 3)
Before we consider defendant’s claim that there is insufficient evidence to support his conviction under count 3, we address an error in the statutory subdivision charged. Defendant was charged with, and the court’s June 13, 2006 minute order indicates he was convicted of, a violation of section 417, subdivision (b), a felony. As the People concede, subdivision (b) of section 417 is inapplicable in this case. (See § 417, subd. (b) [exhibition of a firearm “upon the grounds of any day care center”].) The People contend, however, that there is sufficient evidence to support a conviction under section 417, subdivision (a)(2)(B), a misdemeanor offense. An appellate court has the authority to “reduce the degree of the offense.” (§ 1260.) We therefore consider whether there is substantial evidence to support defendant’s conviction under section 417, subdivision (a)(2)(B). (See People v. Rivera (2003) 114 Cal.App.4th 872, 879-880 (Rivera) [reducing erroneous felony convictions under section 417, subdivision (b) to misdemeanor convictions under subdivision (a)(2)(B) after finding sufficient evidence to support the convictions].)
Defendant acknowledges that despite the error in the information and subsequent documents, both parties below understood that defendant was being tried for a misdemeanor violation of section 417, subdivision (a).
The relevant subdivision makes punishable the action of “[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel . . . .” (§ 417, subd. (a)(2)(B).) The evidence in this case supports a finding that defendant drew the shotgun in an angry and threatening manner. Defendant stood on his porch, repeatedly “racked” the shotgun, and fired the weapon. Further, defendant told several individuals that he intended by those actions to scare his brother and to drive him away. Knight’s fearful reaction upon hearing defendant “rack” the shotgun and defendant’s subsequent pursuit of Knight with his truck provide corroboration of defendant’s threatening manner.
In addition, Knight, who heard defendant “racking” the shotgun for use, was present when defendant drew the firearm. Nothing in the statute supports defendant’s contention that the “other person” present must have a clear view of the firearm. It states only that the firearm be drawn or exhibited, “in a rude, angry, or threatening manner,” and “in the presence of any other person[.]” The focus of the crime thus is not on the other person or on their perception, but is “complete on exhibition of the weapon in a rude, angry, or threatening manner.” (People v. McKinzie (1986) 179 Cal.App.3d 789, 794 (McKinzie); In re Peter F. (2005) 132 Cal.App.4th 877, 881 [“brandishing a deadly weapon in the presence of another person is not a crime of violence ‘upon’ that person, but is committed in someone’s presence”].)
Defendant points to additional language in McKinzie, supra, 179 Cal.App.3d 789,cited above, to argue that the statute does not apply to a situation such as this, in which exhibition of the weapon was on the defendant’s own back porch, at night, and with only his brother present. The McKinzie court observed that a violation of the statute occurs, regardless of the “victim’s” awareness of the firearm, as long as the exhibition of the firearm was “in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or the brandisher need help . . . .” (Id. at p. 794.) This construction of the statute does not apply to the current case. First, the McKinzie court was concerned with a different factual scenario, in which the “other person” present was not even aware of the weapon. (See id. at pp. 793-794.) Second, section 417, subdivision (a) specifically distinguishes between those violations that occur “in a public place” (§ 417, subd. (a)(2)(A)) and those that do not (§ 417, subd. (a)(2)(B)). The People assert a violation of subdivision (a)(2)(B) in this case. Accordingly, despite the broad language in McKinzie, the People need not prove that the firearm was exhibited “in a public place.”
Because it is undisputed that Knight was aware defendant had drawn the shotgun, we do not express an opinion regarding the McKinzie court’s holding that the “victim” need not be aware of the firearm at the time it is exhibited.
The McKinzie court’s reference to the possibility of third parties happening upon the scene is linked to an understanding of an “in a public place” requirement and therefore also is inapplicable to the present case.
We find sufficient evidence to support a conviction under section 417, subdivision (a)(2)(B). We therefore reduce defendant’s conviction to the misdemeanor offense of exhibiting a firearm. (See Rivera, supra,114 Cal.App.4th at p. 880.)
III. Disposition
The order of probation is modified as to count 3 to show a conviction for the misdemeanor offense of exhibiting a firearm in violation of Penal Code section 417, subdivision (a)(2)(B), rather than the felony offense of exhibiting a firearm in violation of Penal Code section 417, subdivision (b). The modified order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.