Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SA064977, Katherine Mader, Judge.
Aron Laub for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Michael Patrick Malooly challenges his conviction for assault with a semiautomatic firearm. He asserts the court erred in its response to the jury’s questions with regard to elements for the crime of assault. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the afternoon of June 17, 2007, Veronica Lynch was at home on 6th Avenue in Venice, where she lived with her mother, aunt, and two children. Looking out through the living room window, she saw appellant seated in the driver’s seat of a white pickup truck. There were two men outside of the truck, one on each side. Appellant was arguing with the man standing outside the driver’s side of the truck. The man yelled “Fuck you!” and walked away. Appellant reached down under his seat and then got out of the truck.
According to Ms. Lynch, the man who had stood outside the driver’s side of the truck headed east up an alley bordering her house; the man from the passenger side walked north on 6th Street. She saw appellant walk to the edge of the alley and fire a gun two or three times in the direction that the man from the driver’s side had walked. Appellant then turned toward the north and fired once.
Appellant got back into his truck. As he was driving away, he rolled down the window on the passenger side and fired two shots out the window in the direction of a tree off to the side of Ms. Lynch’s house. There was a white male hiding behind that tree, who had started to rise up. Ms. Lynch’s mother, Nancy Brown, had arrived home in her van during this incident. She was walking along the right side of her house toward the front gate when appellant fired the last two shots. Other witnesses saw portions of the incident; their accounts varied in some respects from the accounts given by Ms. Lynch and Ms. Brown.
Police officers responded to a call about the shooting. While Ms. Lynch and her mother were outside talking to the officers, appellant drove past them. Ms. Lynch pointed appellant out to the officers, who pursued him with lights and sirens on. Appellant sped up, and drove through five stop signs. Appellant threw his gun out of his truck, and eventually stopped in front of his apartment, where he was arrested. Officers found three shells in the street near the alley where the shooting occurred, one live round in the street, and two shells in appellant’s truck.
Appellant was charged by amended information with attempted deliberate premeditated murder upon John Doe (Pen. Code, §§ 664/187) with an allegation of personal use of a firearm (§ 12022.53) (count 1); assault with a semiautomatic firearm upon John Doe (§ 245, subd. (b)) with a personal firearm use enhancement (§ 12022.5) (count 2); assault with a semiautomatic firearm upon Nancy Brown (§ 245, subd. (b)), with a personal use enhancement (§ 12022.5) (count 3); shooting from a motor vehicle at Nancy Brown (§ 12034, subd. (c)) (count 4); and felony evading a police officer (Veh. Code, § 2800.2, subd. (a)) (count 5). Appellant’s motion pursuant to section 995 was granted as to count 6, shooting from a motor vehicle at John Doe (§ 12034, subd. (c)).
All statutory references are to the Penal Code unless otherwise indicated.
At trial, the prosecutor refused to elect whether counts 1 and 2 involved the man in the alley, the man from the passenger side of the truck, or the man hiding behind the tree near the house. The court instructed the jury that in order to find appellant guilty on either of these counts, it must unanimously agree which act appellant committed. During deliberations, the jury sought additional instruction on the assault charges, and the court gave supplemental instructions. This was on a Friday.
While the jury continued deliberations on Monday morning, the court spoke with counsel about the possibility of providing additional amplification of the requirements for assault with a deadly weapon. During that discussion, at approximately 10:50 a.m., the jury informed the court it had reached a verdict on one count, but was hung on the two assault counts. The court and counsel continued discussing whether additional instruction was warranted, and the jury continued its deliberations. Thirty minutes later, the jury informed the court that it had reached verdicts on all but count 3, the assault on Nancy Brown. Two jurors indicated they felt some clarification might be helpful on that count, and the court asked the jury to write out its questions. The jury submitted the following question: “If Nancy Brown is found to be in the vicinity of the shots, is she considered a victim of an ADW... or must she be directly in the line of fire.”
Rather than delay proceedings while counsel researched their views on this question, the court proposed taking the verdicts that had been reached, and letting the People decide at that point whether to proceed on the remaining count. Counsel agreed. The jury found appellant not guilty of attempted murder or the lesser included offense of attempted voluntary manslaughter of John Doe, as charged in count 1, and not guilty of shooting from a motor vehicle at Nancy Brown, as charged in count 4. It found appellant guilty of assault with a semiautomatic firearm on John Doe, as charged in count 2, and found true the personal use of a firearm allegation, and found appellant guilty of felony evading, as charged in count 5. As to the assault on Nancy Brown, as charged in count 3, upon the court’s inquiry (with counsels’ agreement), the jury stated it was hung 11 to 1 toward a verdict of not guilty. The prosecutor dismissed that count. This is a timely appeal from the judgment of conviction.
Appellant does not challenge his conviction on this count.
DISCUSSION
Appellant claims the trial court erred in its instructional response to questions by the jury seeking clarification of the elements of the crime of assault. The court initially instructed the jury in terms of CALCRIM No. 875 as follows: “The defendant is charged in Count 2 involving John Doe and 3 involving Nancy Brown with assault with a semi-automatic firearm. To prove that the defendant is guilty of this crime, the People must prove that: 1, the defendant did an act with a semi-automatic firearm that by its nature would directly and probably result in the application of force to a person, Count 2 as to John Doe, Count 3 as to Nancy Brown; 2, the defendant did that act willfully; 3, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and, 4, when the defendant acted, he had the present ability to apply force with a semi-automatic firearm; and, 5, that the defendant did not act in self defense. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone’s feelings, or gain any advantage. The People are not required to prove that the defendant actually touched someone; the People are not required to prove that the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by the defendant’s act. But if someone was injured, you may consider that fact along with other evidence in deciding whether the defendant committed an assault and, if so, what kind of an assault it was.”
After two hours of deliberations, the jury sent out the following request: “We would like a layman’s explanation of the ADW law and what is required for conviction of this offense.” The court conferred with counsel, indicating it believed the question was too general to be answered. The prosecutor agreed. Defense counsel asserted his feeling that “a layman response would be that the crime requires the defendant to shoot at someone but not necessarily seek to inflict injury on that individual.” The court declined to give a specific answer without a clearer question from the jurors, and sent back the following response: “The court cannot amplify the instruction on ADW without a more specific question from the jury.” Proceedings were adjourned for the day.
Deliberations continued the following morning. At 11:15 a.m., the jurors sent three specific questions to the court:
“1) Does the ADW charge require the defendant to have specific target in mind? If not, does aiming at a possible location of a person constitute an ADW charge?
“2) In order to prove guilt for ADW must prosecution prove beyond a reasonable doubt that defendant aimed and shot weapon directly at or in the specific vicinity of a named or John Doe victim?
“3) Does shooting of a gun in the immediate vicinity of other people without conclusive proof of the guns direction of aim or intended victim constitute ADW.”
The court conferred with the prosecutor and with stand-in defense counsel, and then gave the following reply: “In response to all 3 of the above questions: [¶] The defendant must have the general intent to shoot at a person, not a specific person.”
The court indicated to stand-in counsel that the defense had agreed this would be an appropriate response if the jury pursued its question about ADW. When defense counsel returned to the courtroom that afternoon, he clarified that he had not agreed to the court’s response, and the court acknowledged there had been a misunderstanding.
In People v. Williams (2001) 26 Cal.4th 779 (Williams), the Supreme Court clarified the mental state required for the crime of assault. The court reiterated its holdings that assault is a general intent crime (People v. Rocha (1971) 3 Cal.3d 893, 899), and that “mere recklessness or criminal negligence” is not sufficient to establish the crime. (People v. Colantuono (1994) 7 Cal.4th 206, 219; Williams, supra, 26 Cal.4th at p. 788.) 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.” (Ibid.) The court summarized the requisite mental state: “[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.) And, as the court correctly stated in its supplemental instruction, a defendant need not intend to commit violence against a specific victim to be guilty of an assault. (People v. Lee (1994) 28 Cal.App.4th 1724, 1736.)
The court’s instruction—that defendant must have the general intent to shoot at a person, not a specific person—adequately incorporates the actual knowledge requirement set out in Williams. If when appellant fired a semiautomatic weapon, he had the intent to shoot at a person, he necessarily had actual knowledge that the shooting “by its nature” would probably and directly result in the application of physical force against another.
Appellant argues the court’s answer was too general. He claims the jury’s three questions actually included more than a dozen “simpler questions” to determine his subjective knowledge of the necessary facts and the application of the objective reasonable man analysis. He is parsing the questions into too many pieces.
The first question was whether appellant had to have a specific target in mind, or whether aiming at a possible location of a person was sufficient. The court’s answer—that the necessary intent was to shoot “at a person, not a specific person”—answered answered both halves of this question: it was sufficient if appellant intended to shoot at “a person” rather than at a specific person, and aiming at a possible location of a person was not shooting at “a person.”
The jury’s second question was whether the prosecution had to prove beyond a reasonable doubt that appellant aimed and shot the weapon directly at or in the specific vicinity of a named or John Doe victim. The third question was a variation on the second, whether shooting a gun “in the immediate vicinity of other people without conclusive proof” of the gun’s aim or the intended victim, constituted assault with a deadly weapon. The court’s answer made clear that the People had to prove that appellant shot at a person, not just in the vicinity of a person, but that the targeted person did not have to be the specific named or John Doe victim.
To the extent the jury was inquiring about the quantum of proof, other instructions addressed the question. The court instructed the jury in terms of CALCRIM No. 220: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” The court also instructed in terms of CALCRIM No. 225: “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instructions for each crime explain the intent and/or mental state that’s required. [¶] And intent and/or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to the conclusion beyond a reasonable doubt.”
In addition, the court’s answer to the jury’s questions was supplemental to the pattern instruction on assault with a semiautomatic firearm, in terms of CALCRIM No. 875, which accurately states the elements of the crime. (See People v. Golde (2008) 163 Cal.App.4th 101, 121-122.) These instructions, considered together, satisfied the court’s obligation “to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)
Appellant argues this trial was particularly confusing for the jury because counts 1 and 2 charged crimes against John Doe, and evidence was presented as to three possible John Doe victims: the man from the driver’s side of the truck who ran up the alley, the man from the passenger side of the truck who ran toward the north, and the man hiding behind the tree. There was evidence that appellant shot toward the alley, toward the north, and toward the tree. The jury was instructed on the need for unanimity in deciding which act constituted each charged offense, and the need for unanimity was addressed numerous times in closing by the prosecutor and defense counsel. The existence of three potential John Doe victims raises no inference that the jury instructions were inadequate.
DISPOSITION
The judgment is affirmed.
We concur:
WILLHITE, J., SUZUKAWA, J.