Opinion
E066608
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE SMITH, Defendant and Appellant.
Dwayne Smith, in pro. per.; and Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR007838) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed. Dwayne Smith, in pro. per.; and Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Dwayne Smith struck the victim in the head with a glass bottle while the victim was working on top of a ladder. As a result, the victim fell from the ladder and suffered bleeding to his head and neck.
Following a jury trial, defendant was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Defendant waived his right to a presentence probation report and was immediately sentenced to the upper term of four years in state prison with 189 days' credit for time served. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL BACKGROUND
On April 6, 2016, at about 9:00 a.m., Jesus I. and Ernesto R. were at work for a fencing company putting a chain link fence over a Dumpster at the Arrowhead Credit Union when Jesus felt something hit his head from behind, causing him to fall from a ladder to the ground. Jesus turned around and noticed a man, identified as defendant, behind him yelling and jumping. Jesus also saw pieces of glass on the ground and felt glass in his hair, leading him to conclude he had been struck by a glass bottle. Jesus suffered bleeding to his head and neck as a result of defendant's assault.
Ernesto heard a bottle crack and when he turned around, he also saw defendant yelling, with something in his hand. Ernesto used a 21-foot pole to scare defendant away. Defendant ran toward a parking lot. Defendant, however, returned, and then fled behind a store. Ernesto noticed glass on the ground and called the police.
An officer arrived and saw Jesus bleeding from the head and neck. The officer also observed parts of a broken glass bottle on the ground where Jesus and Ernesto had been working. Jesus and Ernesto provided a description of defendant to the officer, and pointed towards the store where defendant had retreated. The officer went behind the store, taking Jesus with him, and contacted defendant. Jesus identified defendant as the person who had hit him in the head with a glass bottle.
Paramedics arrived at the scene and treated Jesus's injuries. Later, Jesus went to his work clinic and received stitches to his neck and head.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court conduct an independent review of the record.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441- 442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page letter brief, defendant essentially claims there was insufficient evidence to support the offense of assault with a deadly weapon or assault causing great bodily injury because the victim suffered insignificant injury and a bottle is not a deadly weapon unless broken first and used to cut or stab. He believes he should have been convicted of misdemeanor assault or battery instead. We disagree.
In reviewing the sufficiency of evidence presented at trial, we apply a substantial evidence standard. Under this standard, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) Additionally, the appellate court must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Rayford (1994) 9 Cal.4th 1, 23.) Simply stated, "we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Davis (1995) 10 Cal.4th 463, 509, italics omitted.)
"Penal Code section 245, subdivision (a)(1) punishes 'an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.' (Italics added.)" (People v. Aguilar (1997) 16 Cal.4th 1023, 1026 (Aguilar), fn. omitted.) In the context of this statutory provision, 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.' " (Id. at pp. 1028-1029.) "Because this definition focuses on potentiality, the People need not prove an actual injury to a victim, or even physical contact between the defendant and a third person, in order to substantiate a conviction for assault with a deadly weapon other than a firearm." (In re D.T. (2015) 237 Cal.App.4th 693, 698, citing People v. Brown (2012) 210 Cal.App.4th 1, 7 (Brown).)
Our Supreme Court has explained Penal Code "section 245 contemplates two categories of deadly weapons: In the first category are objects that are 'deadly weapons as a matter of law' such as dirks and blackjacks because 'the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.' (Aguilar, [supra, 16 Cal.4th] at p. 1029; accord, In re David V. (2010) 48 Cal.4th 23, 30, fn. 5 . . . ; see Aguilar, at p. 1030 ['deadly weapons or instruments not inherently deadly are defined by their use in a manner capable of producing great bodily injury'].) For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon within the meaning of [Penal Code] section 245, subdivision (a)(1), when used in a manner capable of producing and likely to produce great bodily injury. (See, e.g., People v. Zermeno (1999) 21 Cal.4th 927, 931 . . . [beer bottle]; People v. Page (2004) 123 Cal.App.4th 1466, 1472 . . . [pencil].)" (Brown, supra, 210 Cal.App.4th at pp. 6-7.)
When deciding whether an object that is not inherently deadly is nonetheless likely to produce great bodily injury or death, "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. [Citations.]" (Aguilar, supra, 16 Cal.4th at p. 1029.) Two of the facts the trier of fact may consider are "the nature of [any] injuries [that occur] and their location," which are "relevant . . . in determining whether an object was used in a manner capable of producing and likely to produce great bodily injury." (Brown, supra, 210 Cal.App.4th at p. 7.) Moreover, "an instrument can be a deadly weapon even if it is not actually used with deadly force." (People v. Page, supra, 123 Cal.App.4th at p. 1472.) Consequently, multiple California courts have affirmed convictions under Penal Code section 245, subdivision (a)(1), when the deadly weapon used was "some hard, sharp, pointy thing that was used only to threaten, and not actually used to stab." (People v. Page, at p. 1472.)
In the present case, there is substantial evidence to support the jury's finding that defendant committed an assault with a deadly weapon. Defendant struck the unsuspecting victim on the head with a glass bottle while the victim was on a ladder working. Defendant's action caused the victim to fall off his ladder and to suffer bleeding from his head and neck. The victim required medical attention and stitches to close his wounds. Defendant used the glass bottle in a manner likely to produce death or great bodily injury. (Aguilar, supra, 16 Cal.4th at p. 1029.) Accordingly, the jury had ample evidence from which to draw conclusions about the dangerousness of the glass bottle.
Defendant suggests the limited nature of the victim's injuries shows that he did not commit assault with a deadly weapon or assault causing great bodily injury. However, defendant need not have intended to cause great bodily injury, as long as he intended to commit a battery and carried out this intention using an item that qualifies as a deadly weapon. If what defendant means is that the lack of serious injury supports his theory of misdemeanor assault or simple battery, we reject the notion that the absence of a serious injury to the victim affects the validity of the jury's finding. A defendant need not actually injure a victim to commit an assault. While the extent of a victim's injuries may assist the trier of fact in deciding whether an item is likely to cause death or serious bodily injury (i.e. whether it qualifies as a deadly weapon), nothing in the authorities supports the view that the extent of injuries is dispositive.
Substantial evidence supports the finding that defendant used a deadly weapon when he struck the victim in the head with a glass bottle. That the victim was fortunate enough not to suffer a more serious injury does not weaken the force of this conclusion.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.