Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA081670, Douglas Sortino, Judge.
Joseph S. Klapach, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P.J.
Reuben Rene Smith appeals from the judgment entered following his conviction by a jury for assault with a firearm, making a criminal threat and evading a peace officer with true findings on the related firearm-use allegations. Smith argues the evidence is insufficient to support his aggravated assault conviction, the court failed to properly instruct the jury on the required elements of assault, his trial attorney provided ineffective assistance by failing to seek proper jury instructions and the court abused its discretion in imposing upper term sentences for aggravated assault, making a criminal threat and the firearm-use enhancements. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Confrontation in the Parking Lot
According to the evidence presented at trial, Smith and his wife, Elizabeth Smith, were separated and in the process of obtaining a divorce. Smith knew his wife had become involved with Jesse Herrera.
On the evening of December 13, 2007 Smith entered the parking lot of Herrera’s condominium complex and waited for him next to Herrera’s assigned stall. When Herrera arrived from work, he parked his car and saw Smith sitting in his pickup truck nearby. Smith and Herrera remained in their respective vehicles, watching each other for several minutes. Smith then started his truck and accelerated toward Herrera’s car, but applied the brakes before striking Herrera.
At this point, both Smith and Herrera got out of their vehicles. Herrera remained standing by his car door. Smith, holding a shotgun by his side, walked toward Herrera and shouted, “You stay away from my wife or I’ll kill you.” Smith moved closer to Herrera until they were only a few feet apart. He raised the shotgun, aimed it at Herrera’s head and chest and said again, “If you don’t stay away from my wife, I will kill you.” Smith then cocked the shotgun to load a cartridge while continuing to yell threats at Herrera.
Smith lowered the shotgun and walked toward his pickup, but then returned to Herrera and again pointed the shotgun at him, warning, “You better stay away.” As Smith once more returned to his truck, he turned and said, “Oh, by the way, stay away from my daughter, too.” Finally, as he entered the truck, Smith said, “[I]f you tell anyone about this I’m going to come back and kill you.”
2. The High Speed Pursuit
Notwithstanding Smith’s last threat, Herrera told Elizabeth Smith about the incident. Several days later, on December 17, 2007, Smith confronted Elizabeth Smith about the matter and told her Herrera had made the biggest mistake of his life by letting her know what happened. Smith also promised he was “going to finish” what he had started.
That afternoon Smith’s sister, Marie McCune, called the police several times, asking them to send an officer to Smith’s home to check on him. McCune then waited with Smith in the driveway of his home under the pretense Smith’s daughter would soon meet them there. While standing in the driveway, Smith saw an unmarked police vehicle waiting in front of the residence. Following a brief argument with McCune, Smith got into his truck and drove away at a high speed. The detective in the unmarked vehicle called for assistance.
Responding to the call for assistance and believing Smith might be armed with the shotgun, officers in marked patrol units from the Los Angeles County Sheriff’s Department and the California Highway Patrol attempted to conduct a felony traffic stop; but Smith avoided them and began a two-hour, high-speed flight. The pursuit finally ended when Smith’s truck, traveling at a high speed in a canyon, struck the side of the mountain next to the road. Smith was arrested.
3. Smith’s Jailhouse Telephone Conversations
Following his arrest and while in jail, Smith had several telephone conversations with Elizabeth Smith. During one call, Smith spoke with his 12-year-old daughter and told her, “The only thing I could’ve done, W[.,] is pulled that trigger on that motherfucker and killed him. And I regret not doing it.” During the same call Smith told Elizabeth Smith, “I should’ve pulled the fucking trigger on that bastard when I had a chance to.” Smith ended the call with a description of his confrontation with Herrera: “[Herrera] fell to his knees and he begged me not to fucking kill him and I should’ve done it. I should’ve fucking cranked those two rounds into his fucking ass.”
4. Smith’s Defense
Smith did not testify or present any evidence in his own defense other than through cross-examination of the People’s witnesses, primarily Herrera. Smith’s theory of defense was that he had only intended to frighten Herrera.
5. The Jury’s Verdict and Sentences
The jury found Smith guilty of all three offenses charged: one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), one count of making a criminal threat (§ 422) and one count of evading a peace officer with wanton disregard for public safety (Veh. Code, § 2800). The jury also found true the special allegations Smith had personally used a firearm while committing the aggravated assault and making a criminal threat. (§ 12022.5, subds. (a), (d).)
Statutory references are to the Penal Code unless otherwise indicated.
The court sentenced Smith to an aggregate state prison term of 14 years: the upper term of four years for assault with a firearm plus the upper term of 10 years for the firearm-use enhancement. The court imposed the middle term of two years for evading a police officer, to be served concurrently with the sentence for aggravated assault, and stayed imposition of the sentence for making a criminal threat pursuant to section 654.
Explaining its reasons for selecting the upper terms, the court noted Smith’s actions involved planning and sophistication (see Cal. Rules of Court, rule 4.421(a)(8)) and threatened the life of a particularly vulnerable victim (see rule 4.421(a)(3)). With regard to the firearm enhancement, the court concluded this case involved a threat of great bodily harm (see rule 4.421(a)(1)), subjecting Herrera to extreme emotional distress. The court also observed it could have imposed a consecutive term for evading a police officer, an additional factor supporting imposition of the upper term (rule 4.421(a)(7)). Whether the factors in aggravation were considered individually or collectively, the court stated, they outweighed the limited mitigating factors advanced by the defense: Smith’s insignificant prior record (rule 4.423(b)(1)) and his satisfactory performance on probation resulting from those cases (rule 4.423(b)(6)).
References to a rule or rules are to the California Rules of Court.
DISCUSSION
1. The Court Properly Instructed the Jury on the Elements Required To Prove Assault with a Firearm
a. Assault with a firearm
To prove a violation of section 245, subdivision (a)(2), the People were required to prove a person was assaulted and the assault was committed with a firearm—that is, to prove Smith willfully used his shotgun in a manner that would directly and probably result in the application of force to Herrera, he was aware of facts that would lead a reasonable person to realize his act by its nature would directly and probably result in the application of force to Herrera and, when he acted, he had the present ability to apply force through use of the shotgun. (See People v. Chance (2008) 44 Cal.4th 1164, 1167, 1169-1170; People v. Miceli (2002) 104 Cal.App.4th 256, 269; People v. Riva (2003) 112 Cal.App.4th 981, 998.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) It is enough for the defendant to have had “only a general criminal intent and not a specific intent to cause injury.” (People v. Williams (2001) 26 Cal.4th 779, 782 (Williams); accord, People v. Chance, supra, 44 Cal.4th at p. 1169.) “[A]ssault 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.” (Williams, at p. 790.) “The drawing of a weapon is generally evidence of an intention to use it,” and may be evidence of intent sufficient for an assault conviction. (People v. McMakin (1857) 8 Cal. 547, 549; accord, People v. Colantuono (1994) 7 Cal.4th 206, 219; see People v. Raviart (2001) 93 Cal.App.4th 258, 263 [“[a]ssault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime”].)
Certain purposeful acts have long been recognized as assaultive conduct because of their inherent danger to others. “‘Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault.’” (People v. Colantuono, supra, 7 Cal.4th at p. 219; see People v. Miceli, supra, 104 Cal.App.4th at p. 269 [“pointing a loaded gun”]; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541 [“‘[i]t is enough that the prosecution produce evidence of a gun designed to shoot and which gives the appearance of shooting capability’”].)
“Ordinarily, ‘[a]n assault occurs whenever “‘[t]he next movement would, at least to all appearance, complete the battery.’” [Citation.]’ [Citations.] But there can also be an assault when the battery is only threatened.” (People v. Page (2004) 123 Cal.App.4th 1466, 1473.) “Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him.” (People v. McMakin,supra, 8 Cal. at pp. 548-549; accord, People v. McCoy (1944) 25 Cal.2d 177, 192-193; Page, at p. 1473.) However, as Smith argues, under this theory of assault, “[a] conditional future threat will not suffice.” (Page, at p. 1473.) There must be a present condition on the threat, which calls for immediate compliance, in order for it to constitute an assault. (McMakin, at p. 548; People v. Lipscomb (1993) 17 Cal.App.4th 564, 570.)
b. The trial court’s instructions
The trial court used CALCRIM No. 875 to instruct the jury on the charge of assault with a firearm. As given in this case, that official instruction, approved by the California Judicial Council, provides: “The defendant is charged in Count 1 with assault with a firearm in violation of Penal Code section 245. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 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 firearm to a person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] 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 defendant’s act. But if someone was injured, you may consider that fact, along with all other evidence, in deciding whether the defendant committed an assault. [¶] Simply pointing an unloaded firearm at a person without any attempt to use the firearm as a bludgeon or club is not assault with a firearm. [¶] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.”
c. The court’s instructions were neither improper nor misleading
Smith challenges two aspects of the trial court’s instructions on aggravated assault. First, he asserts the court erred in failing to instruct sua sponte on assault by a conditional threat to use force and, specifically, by failing to instruct the jury that a defendant is not guilty of assault by conditional threat if he made only a conditional future threat. Second, Smith argues the aggravated assault instructions that were given were misleading because they failed to explain an assault conviction cannot be predicated upon an intent only to frighten the victim. Neither challenge has merit.
In both his opening and reply briefs on appeal, Smith insists the trial court had a sua sponte obligation to instruct the jury with “CALCRIM 9.00.1.” There is no such instruction. Presumably, Smith means either CALJIC No. 9.00.1 or CALCRIM No. 915, both of which contain the elements for assault committed by a conditional threat to apply physical force.
There was no sua sponte duty to instruct the jury concerning assault by conditional threat in this case. As discussed, assault by a conditional threat of physical harm is simply an alternate means by which an assault can be committed (see People v. Page, supra, 123 Cal.App.4th at p. 1473; People v. McMakin, supra, 8 Cal. at pp. 548-549). It is not a lesser included offense of assault (cf. People v. Breverman (1998) 19 Cal.4th 142, 160 [trial court has sua sponte duty to instruct on any lesser included offenses or theory supported by the evidence]), and was not the theory advanced by the People to prosecute Smith. At trial, the People argued Smith committed an aggravated assault by cocking and pointing his shotgun at Herrera in a threatening manner. Smith’s additional threatening statements, although certainly material to the separate count charging him with making a criminal threat, were essentially irrelevant to the assault charge. (See People v. Lopez (1998) 19 Cal.4th 282, 294 [no sua sponte duty to instruct on an uncharged offense that is not a lesser included offense].)
The trial court has a sua sponte duty to instruct on the general principles of law governing the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 824; People v. Cummings (1993) 4 Cal.4th 1233, 1311.) “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) We review de novo the claim a court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
During closing argument the prosecutor emphasized, “[I]n this case, we know what happened. We know that the defendant walked up to the victim and pointed a shotgun at the victim.... The crime of assault with a firearm is committed when you point a loaded gun at somebody.”
Smith’s contention CALCRIM No. 875 was misleading also fails. Relying on People v. Marceaux (1970) 3 Cal.App.3d 613, 618, which held a conviction for assault “may not be grounded upon an intent only to frighten,” Smith argues CALCRIM No. 875 misled the jury by suggesting an assault could be committed even if the jury believed his threats were intended merely to frighten Herrera. However, Marceaux was disapproved by the Supreme Court in People v. Rocha (1971) 3 Cal.3d 893, 899, footnote 8, to the extent it concluded assault was not a general intent crime, a ruling more recently reaffirmed in People v. Chance, supra, 44 Cal.4th at page 1169 and Williams, supra, 26 Cal.4th at page 782. (See also People v. Colantuono, supra, 7 Cal.4th at p. 214 [“[a]lthough the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm”].) Because assault is a general intent crime, the mens rea for assault “is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another,” regardless of the defendant’s intent to either hurt or use force against another person. (Ibid.) The portions of the instruction Smith now challenges are correct statements of the law. (Williams, at p. 790; Colantuono, at p. 214; Rocha, at p. 899.) Accordingly, the instructions given were both adequate and proper.
“In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
Because the trial court’s instructions were proper, it necessarily follows Smith’s trial counsel did not provide ineffective assistance by failing to object to the instructions or to request additional instructions to ensure the jury was correctly instructed on the mental state required for assault. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection does not constitute ineffective assistance of counsel]; see also People v. Cudjo (1993) 6 Cal.4th 585, 616 [“[b]ecause there was no sound legal basis for objections, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance”].)
2. Substantial Evidence Supports the Aggravated Assault Conviction
As a corollary to his faulty legal argument concerning the failure of the trial court to instruct on assault by a conditional threat to apply force, Smith argues the evidence at trial was insufficient to support his conviction because he made only a conditional future threat when he said, “If you don’t stay away from my wife, I’ll kill you.” Smith may be correct his repeated threats to kill Herrera were merely conditional future threats—although they were sufficient for the jury to conclude he made a criminal threat in violation in section 422, which requires proof the threat was “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” a conviction not challenged in this appeal. However, this argument also fails because the case was tried on a different theory—that Smith committed an aggravated assault by aiming his loaded shotgun directly at Herrera while standing only a short distance from him. The evidence of Smith’s conduct presented at trial was more than sufficient to permit the jury to reasonably conclude Smith committed assault with a firearm. (See People v. Colantuono, supra, 7 Cal.4th at p. 219; People v. Miceli, supra, 104 Cal.App.4th at p. 269; People v. Raviart, supra, 93 Cal.App.4th at p. 263; see generally Williams, supra, 26 Cal.4th at p. 790.)
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] 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. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
In the trial court, but not on appeal, Smith suggested the evidence was insufficient to prove his shotgun was loaded when he aimed it at close range at Herrera. It is true an assault is not necessarily committed by a person’s pointing an unloaded gun in a threatening manner at another person (see People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3), and the People generally must show not only that the defendant pointed a gun at the victim, but also that the gun was loaded. (Ibid.) Direct evidence the gun was loaded, however, is not required; a defendant’s statements or behavior may constitute sufficient circumstantial evidence the gun was loaded. (Id. at p. 7 [defendant’s placement of gun barrel under victim’s chin along with threat to keep quiet was sufficient evidence the gun was loaded]; People v. Lochtefeld, supra, 77 Cal.App.4th at p. 542 [defendant’s act of pointing gun at police officers with his finger on trigger demonstrated an “implied assertion the gun was sufficiently charged to inflict injury”]; People v. Mearse (1949) 93 Cal.App.2d 834, 836-838 [defendant’s command to victim “halt or I’11 shoot” constituted sufficient evidence gun was loaded to support assault charge].) Here, Smith’s comments to his daughter and to Elizabeth Smith indicating his regret at not having pulled the trigger and killed Herrera, together with the evidence he had cocked the gun while pointing it at Herrera, were certainly sufficient to support the inference the shotgun was loaded.
3. Smith Has Forfeited His Sentencing Arguments
Although conceding the trial court has broad discretion in weighing aggravating and mitigating circumstances and selecting an appropriate sentence, Smith contends the court here relied on improper factors, not supported by the record, to impose upper term sentences for aggravated assault and the firearm enhancement related to that count, as well as for making a criminal threat and its firearm-use enhancement (terms which were then stayed pursuant to section 654). However, Smith made no objection to the trial court’s consideration of the aggravating and mitigating factors it articulated at the sentencing hearing. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) By failing to object, Smith has forfeited the claim the sentence was improper. (Id. at p. 353 [“waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”]; see also People v. Velasquez (2007) 152 Cal.App.4th 1503, 1512 [lack of objection to trial court’s failure to state reasons for imposing upper term forfeits issue for appeal].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., JACKSON, J.