Opinion
D072454
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ALLEN, Defendant and Appellant.
Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS292313) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Allen chased Jason S. with scissors in a public park. Based on this incident, a jury found Allen guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Allen admitted one prison prior. (Pen Code, §§ 667.5, subd. (b), 668.) The court granted probation conditioned on Allen serving 365 days in local custody.
Allen contends: (1) the evidence was insufficient to show the intent element of the assault crime and that the scissors were used as a deadly weapon; (2) the court abused its discretion in excluding evidence that Jason had pepper-sprayed an unrelated third party several weeks earlier; and (3) the prosecutor engaged in prejudicial misconduct during closing arguments. We find no prejudicial error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim (Jason) did not testify at trial. Instead, the prosecutor's case was based primarily on a two-minute surveillance video (without audio), still photographs from that video, and a photograph of the scissors.
The video shows Jason washing his hands at an outside sink in a public park. Allen (in a football jersey) approaches, and appears to be speaking to Jason in an animated fashion. Allen briefly walks out of the camera's view, and then jogs back toward Jason near the sink. Allen is now holding orange-handled scissors in his right hand behind his back. As Allen moves towards Jason, Jason jumps back and starts to run backwards. Allen then sprints toward Jason, and Jason turns around and runs away. Running at full speed with his arms swinging back and forth as he runs, Allen chases Jason. When Allen has almost caught up to Jason, Jason suddenly turns around and starts running toward Allen, who then runs away from Jason. The video ends there.
Shortly after the incident, two law enforcement officers, Officer Lozano and Corporal Barawed, responded to a dispatch call. Officer Lozano spoke with Jason, who said a person (later identified as Allen) chased him. Corporal Barawed made contact with Allen and found the orange scissors in Allen's rear pocket. Allen denied pulling out his scissors or threatening Jason with the scissors.
After later viewing the surveillance video, police officers arrested Allen for assault with a deadly weapon.
At trial, the prosecution showed the surveillance video and three photographs from the video. Although it is difficult to see the scissors in the video, one of the photographs depicts Allen holding the scissors behind him as he faces Jason near the sink. Another photograph captures the moment at which Allen begins to chase Jason. At that time, Allen is holding the scissors in his right hand behind his body while he is beginning his swinging motion with his arms towards the front. Putting together the photographs with the video, Allen is running with the scissors as he is chasing Jason.
The jury was also shown a photograph of the orange scissors (Exhibit 2, attached to this opinion). The blades of the scissors are approximately three to four inches and the handle is approximately three inches. The metal blades appear pointed. In his testimony, Corporal Barawed said he thought the scissors were "standard hand-held size, used for crafts, wrapping paper, sewing, et cetera." When asked by the prosecution if the scissors have a sharp point or a dull point, the officer responded, "It's kind of in between the two."
Allen did not testify or present any of his own witnesses. His counsel did not dispute that Allen was the person in the video with the scissors, but argued the crime was "brandishing," (e.g. getting out a weapon and showing it to Jason), and not an assault with a deadly weapon. Defense counsel argued Allen had the scissors behind him while he was running and noted the video does not show Allen pointing the scissors at Jason. Counsel also emphasized the portion of the video in which Allen caught up with Jason and, instead of attempting to stab him, Allen turned around and ran away from Jason. Defense counsel alternatively argued that Allen acted in self-defense.
The jury returned a verdict finding Allen guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)
DISCUSSION
I. Sufficiency of the Evidence
Allen contends the evidence is insufficient to support the jury's finding that he committed an assault with a deadly weapon. Specifically, he challenges the sufficiency of the evidence supporting the intent and deadly weapon elements of the assault crime.
A. Elements of Assault with a Deadly Weapon and Review Standard
To establish assault with a deadly weapon, the prosecution must prove beyond a reasonable doubt: (1) the defendant committed an act with a deadly weapon 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; (4) when the defendant acted, he had the present ability to apply force with a deadly weapon to a person; and (5) the defendant did not act in self-defense. (People v. Golde (2008) 163 Cal.App.4th 101, 121; see People v. Adrian (1982) 135 Cal.App.3d 335, 340-341.) It is undisputed the court properly instructed the jury on these elements using CALCRIM No. 875.
An appellant challenging the sufficiency of the evidence bears a heavy burden. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.) " '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. [Citation.]' " (People v. Manibusan (2013) 58 Cal.4th 40, 87; see People v. Zaragoza (2016) 1 Cal.5th 21, 44 ["the relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt' "].) In conducting this review, we evaluate "the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zaragoza, at p. 44; accord, People v. Brady (2018) 22 Cal.App.5th 1008, 1014.)
B. Sufficiency of the Evidence to Support Intent Element
Allen contends there was insufficient evidence to show he intended to commit the assault crime.
Assault with a deadly weapon is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 782, 784.) The requisite intent is the intent to engage in a purposeful action that is objectively likely to result in the application of physical force to another person. (Id. at p. 790.) "[T]he required mens rea is '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.' " (People v. Perez (2018) 4 Cal.5th 1055, 1066.) Put otherwise, the intent necessary to commit an assault is "the intent to attempt to commit a battery, a battery being 'any willful and unlawful use of force or violence upon the person of another.' " (People v. Colantuono (1994) 7 Cal.4th 206, 214; accord Williams, at pp. 786-788.)
Under these principles, the prosecution must prove the defendant acted willfully, i.e., engaged in the act "on purpose," with knowledge that the action would likely result in the application of physical force against another. (CALCRIM No. 875; see Williams, supra, 26 Cal.4th at p. 790.) But "assault does not require a specific intent to injure" or even a specific intent to use force against someone. (Williams, at pp. 788, 790; In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
Allen agrees the court correctly instructed the jury on these principles. (See CALCRIM No. 875.) But he argues the evidence was insufficient to show he acted in a manner likely to result in physical force to Jason. The argument is without merit. The surveillance video and photographs show Allen holding scissors behind his back when approaching Jason. When Allen first exhibits the scissors, Allen and Jason are standing within a few feet of each other, and Jason quickly jumps back. Seconds later, Allen chases Jason from the bathrooms into the grass area of the park. As noted by the detective, Allen appears to be "in a full run," while holding scissors in his swinging right hand.
Viewing this evidence in the light most favorable to the prosecution, it was reasonable for the jury to infer Allen acted willfully and that harm to Jason was a foreseeable result from these actions. The test is whether a reasonable person in Allen's position with knowledge of the facts would realize that force would directly and probably result from his actions. (See Williams, supra, 26 Cal.4th at p. 790.) The jury could reasonably reach this conclusion based on the initial proximity between Allen and Jason, Jason's reaction to quickly retreat backward when he saw the scissors in Allen's hand, and the speed at which Allen chases Jason. The fact that an injury did not occur did not preclude the jury from finding the prosecution proved the assault crime. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1346-1347.) "[A]ssault criminalizes conduct based on what might have happened," and "not what actually happened." (Williams, at p. 787.)
Allen argues he did not act with the requisite intent because the surveillance video shows he intended only to frighten Jason. (See People v. Wolcott (1983) 34 Cal.3d 92, 99 (Wolcott).) He emphasizes he never touched Jason, and when he caught up with Jason, he did not stab him but instead began running in the other direction. These assertions are merely arguments for a different interpretation of the evidence. The jury's conclusions were reasonable and supported by the evidence. The evidence supported that Allen acted willfully, and a reasonable person would have known that chasing Jason with scissors would probably and directly result in the application of physical force against him. We do not reweigh the factual inferences made by the jury. (People v. Kerley (2018) 23 Cal.App.5th 513, 530; People v. Brady, supra, 22 Cal.App.5th at p. 1014.)
In re Gavin T. (1998) 66 Cal.App.4th 238, relied upon by Allen, is factually distinguishable. In Gavin T., a 15-year-old boy was eating lunch at school. (Id. at p. 240.) When he was finished with his apple, he threw the half-eaten apple toward a distant wall, intending to watch it splatter on the wall. (Ibid.) But the apple "somehow sailed through a slowly closing door, entering through a gap of about 12 inches, and struck [a] teacher in the head while she was in the classroom," which was normally unoccupied during lunch. (Ibid.) The juvenile court found the boy committed an assault by means of force likely to cause great bodily injury or with a deadly weapon. (Id. at p. 239.)
The reviewing court reversed, finding the apple core was not a dangerous weapon and the juvenile did not have the requisite intent for an assault. (In re Gavin T., supra, 66 Cal.App.4th at pp. 240-242.) On the latter finding, the court stated "[w]hen by some freak mischance an unintended injury results from an accelerated apple core . . . there simply is no criminal assault." (Id. at p. 241.) The court emphasized that the evidence showed only that the minor "intended to watch the discarded apple splatter against the wall. Such an urge may have been juvenile . . . but it did not constitute a criminal intent to batter the victim or a general criminal intent to act in a manner inherently dangerous to human life." (Id. at p. 242.)
This case is different because Allen's intent can be inferred from his conduct in chasing after Jason with scissors in hand. Allen's chase of the victim was purposeful and reasonably likely to lead to force being applied to another person, unlike the action of aiming an apple toward the wall that lands in an unexpected and unforeseeable place. There was ample evidence from which the jury could infer Allen acted willfully and he was aware of facts that would lead a reasonable person to realize his act would directly and probably result in force being applied to the victim.
We likewise reject Allen's related contention that his conduct could not have constituted an assault because he was not close enough to Jason to inflict injury. Assault requires both an attempt to commit a battery and the present ability to do so. (§ 240; People v. Chance (2008) 44 Cal.4th 1164, 1167.) Unlike other attempt crimes, which generally require specific intent, assault is a general intent crime and "requires an act that is closer to the accomplishment of injury than is required for other attempts." (Chance, at p. 1167.) Thus, the courts have referred to an assault as " 'unlawful conduct immediately antecedent to battery.' " (Ibid.) But " 'immediately' does not mean 'instantaneously.' " (Id. at p. 1168.) It means only that the defendant "must have the ability to inflict injury on the present occasion." (Ibid.) The "present ability" element of assault is satisfied when a defendant has attained " 'the means and location to strike immediately' " (id. at p. 1168), even if one or more additional actions might be required to complete the battery or if the attempt is thwarted by the victim's actions or another circumstance. (Id. at pp. 1168, 1172, 1173-1174, fn. 11.)
The evidence supported that Allen was in a place and had the means to strike immediately when he chased Jason and then caught up with him. The fact that words or threats may have been exchanged at that point and Allen then retreated does not mean an assault did not occur.
C. Sufficiency of the Evidence to Support Deadly Weapon Element
Allen contends the evidence is insufficient to support the jury's finding that the scissors constituted a deadly weapon.
Under Penal Code section 245, subdivision (a)(1), 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.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) "Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed established their character as such. [Citation.] Other objects, while not deadly per se, may be used, under circumstances, in a manner likely to produce death or great bodily injury." (Id. at p. 1029.) "[T]he 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." (Ibid.)
Allen does not challenge that the trial court properly instructed the jury on these principles (CALCRIM No. 875), but contends "no reasonable trier of fact could find . . . the craft scissors constituted a 'deadly weapon' as used in this case."
The surveillance video and photographs showed Allen was swinging the scissors in his right hand as he chased after Jason at full speed. Although Corporal Barawed's characterization of the item as "craft scissors" could suggest a type of equipment that would not pose a stabbing danger, the officer's additional description and the photograph attached to this opinion support a finding that the scissors were capable of being used as a deadly weapon. The photograph shows the blades are sufficiently sharp that they would create a substantial injury if used against another person. The jury's finding was based on sufficient evidence.
We reject Allen's argument that the scissors were not a deadly weapon because he never used them to stab Jason. California courts have repeatedly upheld findings of a deadly weapon "when the [object] used was 'some hard, sharp, pointy thing that was used only to threaten, and not actually to stab.' " (In re D.T. (2015) 237 Cal.App.4th 693, 699; see People v. Simons (1996) 42 Cal.App.4th 1100, 1106-1108 [screwdriver used as a deadly weapon when the defendant waived the tool at officers and held the screwdriver in a threatening manner]; People v. Tran (1996) 47 Cal.App.4th 253, 261-262 [assault with a deadly weapon based on a defendant chasing victims with a knife]; In re Jose R., supra, 137 Cal.App.3d at p. 276 [defendant inserted a pin into an apple and gave to the victim].)
Allen's reliance on In re Brandon T. (2011) 191 Cal.App.4th 1491 is misplaced. There, the court found insufficient evidence supported that a butter knife was a dangerous weapon after a minor pressed the knife against the victim's cheek. (Id. at p. 1494.) In finding the knife was not dangerous, the court emphasized that "despite [the minor's] efforts, the knife would not cut" (id. at p. 1497) and thus the knife could not have produced a stabbing injury. (Id. at p. 1498.) Here, the blades of the scissors are three to four inches in length and appear sufficiently sharp that they would cause injury if they were used to stab another person.
II. Exclusion of Pepper-spray Incident
Allen challenges the trial court's exclusion of evidence relating to Jason's using pepper spray against a third party.
A. Background
Before trial, the prosecutor moved to exclude facts pertaining to Jason's pepper-spraying an unrelated individual several weeks before the charged offense. The prosecutor explained she was alerted to this incident when reviewing the body-worn camera video of Officer Lozano's interview with Jason shortly after Allen chased him. During the first three minutes of this interview, the officer asked Jason, "So how come you didn't pepper-spray him [Allen] this time like you sprayed the other guy?" Jason responded, "Oh, it just happened too quick."
The prosecutor said she then obtained a police report of the pepper-spray incident, which stated that Jason had pepper-sprayed a man during an argument after Jason had accused the man of stealing a woman's cell phone at the same park. Jason was not arrested or charged based on this incident because the police officers at the time believed Jason acted in self-defense. The record is not entirely clear whether this third-party male had actually stolen the cell phone. There was no evidence that Allen knew of the pepper-spray incident.
Based on these facts, the prosecutor argued the pepper-spray evidence was not relevant, and asked the court to exclude the reference to the incident in the body-worn camera video and any cross-examination of Jason on this subject. Allen's counsel opposed the motion, arguing the body-worn video shows that when Jason is "retelling" the story about Allen chasing him, Jason was using "very large gestures," and therefore it appears that Jason was exaggerating or "inflating what happened." Allen's counsel said she thus intended to use the pepper-spray incident to show that Jason "blows things out of proportion [and] takes them too far." She said she was seeking permission to show "the first three minutes of the body-worn camera" video during the "brief mention of the pepper spray" and was also contemplating cross-examining Jason about the pepper-spray incident.
Defense counsel clarified she was not seeking to introduce the pepper-spray evidence on a self-defense theory because "I don't think that's what happened here." Defense counsel also made clear she was "not asking to introduce [evidence of Jason's] character for violence." She explained: "I'm just asking that the pepper-spray incident come in [solely] for [Jason's] veracity . . . . [¶] I think that his credibility is going to be at issue on whether or not he did see a hand movement towards him with the scissors. And he's going to say that he did, and I think the video's unclear."
The prosecutor responded that the pepper-spray incident was "completely irrelevant, has no probative value, and also doesn't do anything in terms of impeachment for veracity or credibility." She asserted that evidence of Jason's credibility was particularly irrelevant because "the jury can see for themselves in the [surveillance] video exactly what happened." The prosecutor stated she was not intending to seek the admission of any portion of the body-worn camera video at trial.
At the conclusion of the arguments, the court said it was considering permitting some limited evidence on the pepper-spray incident, but would take the matter under submission.
At the next hearing, the court granted the prosecution's motion to exclude evidence of the pepper-spray incident. The court said the evidence was "not particularly relevant to the issues in this case," and "was substantially more prejudicial than probative, and . . . would also potentially cause an undue consumption of time in that it would, essentially, open up the possibility of a mini-trial within our trial."
Shortly after, the prosecutor notified the court and defense counsel that she would not be calling Jason as a witness. No portion of the body-worn camera video was admitted at trial, nor were any statements by Jason to law enforcement officers other than a brief identification that Allen was the person who chased him.
B. Legal Principles
Only relevant evidence is admissible. (Evid. Code, § 350.) " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Even if evidence is relevant, the court has broad discretion to exclude the evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Section 352 "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of the prejudice, confusion and undue time consumption." (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599 (Burrell-Hart).)
All further statutory references are to the Evidence Code.
We review the trial court's evidentiary rulings under the abuse of discretion standard. (People v. Anderson (2018) 5 Cal.5th 372, 402, 406.) Under this standard, a trial court's ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" ' " (People v. Rogers (2013) 57 Cal.4th 296, 326.)
C. Analysis
The trial court did not abuse its discretion when excluding evidence of the pepper-spray incident under section 352. First, the evidence had minimal, if any, relevance. Defense counsel argued the evidence was relevant to Jason's tendency to exaggerate, but the facts were unclear whether the pepper-spray constituted an "exaggeration" or whether it was a reasonable response to an argument between Jason and the third party. In any event, Jason ultimately did not testify and the prosecution did not present any evidence of Jason's prior statements. The prosecutor instead relied solely on the surveillance video and photographs to establish the events surrounding the chase. Thus, the evidence challenging Jason's credibility would not have had any relevance during the trial. Without Jason's testimony or prior statements, there was no reason to introduce evidence as to his veracity.
Recognizing this, Allen now asserts the pepper-spray evidence was relevant to support his self-defense argument to the jury. However, when the court ruled on the admissibility of the pepper-spray evidence, Allen's counsel said she would not be asserting a self-defense theory at trial and made clear she was seeking to introduce the evidence solely on the issue of Jason's credibility. The fact that defense counsel later changed her mind does not show the court abused its discretion when it ruled on the evidentiary motion. (People v. Hendrix (2013) 214 Cal.App.4th 216, 243 [appellate review is limited to evidence and arguments presented at the time of the evidentiary ruling].) Additionally, there is no basis to find the pepper-spray evidence was relevant to a self-defense theory without some evidence that Allen knew of the prior incident and/or that Jason had the pepper spray in his possession when Allen made the decision to chase Jason.
Further, the court acted within its discretion in concluding that even if relevant, the pepper-spray evidence would likely confuse the jury, encourage jurors to improperly speculate regarding Jason's prior actions, and/or require an undue consumption of time to determine what had actually occurred in the prior incident. (§ 352.) This case is different from Burrell-Hart in which the victim testified at trial, and her prior similar actions were strongly probative on issues related to her credibility and motives. (Burrell-Hart, supra, 192 Cal.App.3d at pp. 597-598.)
III. Alleged Prosecutorial Errors
Allen contends the prosecutor prejudicially erred during closing argument when she discussed: (1) the intent element of the assault crime; (2) the deadly-weapon element; and (3) Jason's absence at trial.
A. Legal Principles
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. . . . However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' [Citations.] To establish such error, bad faith on the prosecutor's part is not required. [Citation.] '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) When challenging the prosecutor's remarks to the jury, the defendant must show that, " '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.]' " (Id. at p. 667.)
Generally, a specific and timely objection to prosecutorial misconduct must be made to preserve a claim for appellate review. (People v. Seumanu (2015) 61 Cal.4th 1293, 1339 (Seumanu).) A defendant's failure to object and request an admonition may be excused where the error could not be cured or an admonition would be ineffective. (People v. Fuiava (2012) 53 Cal.4th 622, 679.) "In that situation, the court must then reach the issue as to whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the state Constitution." (People v. Beach (1983) 147 Cal.App.3d 612, 628.)
B. Prosecutor's Arguments on Intent Element
Allen contends the prosecutor misled the jury during closing arguments by suggesting an intent to frighten is sufficient to satisfy the intent element. He directs us to the prosecutor's statements in her initial closing argument that Allen "could have just intended to scare" Jason, and "[a]ll we have to prove, really, is that a reasonable person would have been frightened and would have thought that they were about to be inflicted with serious bodily injury by this weapon." Allen forfeited this contention by failing to object to the statements during closing arguments. (See Seumanu, supra, 61 Cal.4th at p. 1339.)
But even if we were to reach the merits, there was no error. During her closing argument, the prosecutor discussed each element of the assault-with-a-deadly-weapon crime as set forth in CALCRIM No. 875, and reminded the jury it was the prosecution's "burden to prove each of these elements beyond a reasonable doubt." On the intent element, the prosecutor explained that the jury must find Allen acted in a manner that " 'directly and probably [would] result in the application of force to someone,' " and must find he did this act "willfully." Using the CALCRIM No. 875 language, the prosecutor argued this element was satisfied by Allen's conduct in chasing Jason, even if he did not "[intend] to break the law, hurt someone, or gain any advantage." The prosecutor also said she was required to show a reasonable person would have realized that Allen's action—chasing someone with the scissors—"would result in the application of force," and urged the jury to find this element was satisfied because "[a]ny reasonable person being chased with scissors would think they were going to be stabbed."
At the conclusion of this discussion, the prosecutor noted the difference between battery and an assault, and reiterated that she did not have the burden to prove an intent to harm for the assault crime:
"We are just dealing with an assault here [not battery]. [¶] The defendant actually intended to use force against him when he acted. Not required to prove that. I don't have to prove to you that he meant to hurt him. He could have just intended to scare him. We don't know. But the point is the California Legislature said we don't
have to prove that. All we have to prove, really, is that a reasonable person would have been frightened and would have thought that they were about to be inflicted with serious bodily injury by this weapon. So no one needs to actually have been injured by the defendant's act." (Italics added.)
Allen contends the italicized statements were "erroneous[]" because they "informed the jury the People were only required to prove [he] 'intended to scare' " Jason. Viewing the prosecutor's entire argument, the prosecutor's statements correctly stated the applicable law. As discussed, assault is a general intent crime. (Williams, supra, 26 Cal.4th at p. 788.) Therefore a finding of assault is not defeated merely because the individual intended to frighten (rather than harm) the victim; assault may be established in such a circumstance if all the necessary elements of the crime are proved. (See id. at p. 790.) This is precisely what the prosecutor told the jury. After explaining each required element of the assault crime, the prosecutor said she did not have the burden to show Allen specifically intended to harm Jason, and thus the jury could find him guilty even if Allen intended only to frighten him. But the prosecutor also made clear that—with respect to the intent element—she had the burden to prove beyond a reasonable doubt Allen acted willfully with knowledge that his conduct would probably and directly result in the application of physical force against another. Viewed in context, the purpose of the prosecutor's "intended to scare" remark was to distinguish this state of mind from an intent-to-harm state of mind, and to note that proof of intent to harm was not required. The argument was not improper.
The authorities relied upon by Allen do not support a contrary conclusion. (Wolcott, supra, 34 Cal.3d 92; People v. Marceaux (1970) 3 Cal.App.3d 613 (Marceaux).) In Wolcott, the court discussed the elements of an assault crime, and noted that an intent only to frighten is insufficient to establish the crime because the defendant "must also have the present ability" to commit a battery. (Wolcott, at p. 99, italics added.) The court explained that " 'if a person points an unloaded gun at another, without any intent or threat to use it as a club or bludgeon, he does not commit' " an assault, even if the defendant had an intent to " 'place[] [another person] in great fear.' " (Ibid.) In this case, the court properly instructed the jury on the "present ability" element, and the prosecutor's intent-to-scare reference did not relate to this particular element.
Marceaux is unhelpful because it does not reflect current law on the intent element. The California Supreme Court expressly disapproved Marceaux to the extent the court held that to prove an assault, a specific intent to injure the victim may be required (and thus intent to frighten is insufficient). (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 8; see People v. Chance, supra, 44 Cal.4th at p. 1169; Williams, supra, 26 Cal.4th at p. 782.)
We recognize that the prosecutor's reference to the victim's reasonable belief ("All we really have to prove . . . is that a reasonable person would have been frightened and would have thought that they were about to be inflicted with serious bodily injury by this weapon") was somewhat imprecise. The belief regarding the likelihood of force must be viewed from the standpoint of a reasonable person in the defendant's position, not necessarily from the victim's point of view. (People v. Minifie (1996) 13 Cal.4th 1055, 1065; see Williams, supra, 26 Cal.4th at p. 790.) But Allen has not focused his appellate contentions on this aspect of the prosecutor's argument. In any event, we are not persuaded the prosecutor's somewhat awkward phrasing of the reasonable-person standard would have confused the jury on the relevant point.
Allen also challenges the prosecutor's argument (during rebuttal) responding to defense counsel's assertions that Allen did not intend to injure Jason:
"Members of the jury, that's not an element of the offense. That's not what the CALCRIM says at all. [Defense counsel] read you the elements. I read you the elements. The judge has given you the elements. You will not find anything in there that says that he needed to have been trying to stab him. In fact, it actually says we don't need to prove the defendant even intended to. It's really that a reasonable person would have thought that they would have been attacked with those scissors. And we know that because the victim ran.
"[Defense]: Objection. Misstates the law.
"[The Court]: Sustained.
"[Prosecutor]: Go back to the CALCRIM. Read the CALCRIM. And I want you to have it exact, because the CALCRIM tells you, an assault with a deadly weapon—I want to make sure I get it right for you. [¶] 'The people are not required to prove the defendant actually touched someone. The people are not required to prove the defendant actually intended to use force against someone when he acted.' That's the important part: not required to prove that." (Italics added.)
As explained above, the prosecutor's statements were accurate on the intent element. Further, to the extent the prosecutor's comments created any confusion on the reasonable-person standard for determining whether an action is likely to result in physical force to another person, the trial court sustained the objection, and we are required to presume the jury disregarded the argument. (See People v. Redd (2010) 48 Cal.4th 691, 751; People v. Trinh (2014) 59 Cal.4th 216, 248.) The prosecutor also cured any error by reading from the assault instruction and encouraging the jurors to carefully review the language of the instruction.
Finally, even if the prosecutor misstated the intent concept, the court told the jury that it should follow only the court's instructions, and should disregard any statements by counsel that conflict with the instructions. We are required to presume the jurors understood and followed this instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
B. Prosecutor's Arguments Regarding Deadly Weapon Element
Allen contends the prosecutor misstated the law by suggesting scissors are a deadly weapon as a matter of law. The prosecutor's challenged comments were as follows:
"[T]he Penal Code describes a deadly weapon as a weapon that naturally and probably results in greater than minor or moderate harm. It's something that can inflict great bodily injury. [¶] Again, scissors: scissors in this case that you are going to have a picture of. Those are shears. (Indicates) It's two knives put together. That's what scissors are. Now, used in the proper way, you can stab someone. You can slice someone. You can injure any of their major bodily functions. This is much greater than just a moderate harm. This isn't just me trying to punch someone with my little fist. These are scissors. This is a deadly weapon according to the Penal Code, and that's what the defendant used." (Italics added.)
In response, defense counsel argued: "Are scissors a deadly weapon? That's up to you to decide beyond a reasonable doubt . . . . You'll have the picture of the scissors. The officer testified they weren't sharp. They weren't used to stab. That's up to you to decide." In her rebuttal, the prosecutor asserted: "The defendant chased a man in the park with scissors. And that's a crime in the state of California. That is a 245(a)(1), an assault with a deadly weapon. And that's why I'm asking you to find him guilty." (Italics added.)
Because defense counsel failed to object to the prosecutor's challenged arguments, Allen forfeited the claim on appeal. (See Seumanu, supra, 61 Cal.4th at p. 1339.) In any event, there was no error. Viewing the comments in a reasonable manner, the prosecutor was not suggesting the scissors were a deadly weapon as a matter of law. Instead, she was arguing the jury should make that finding based on the nature and design of the scissors, including the sharp blades. The court's instructions made clear that the deadly-weapon determination was for the jury to decide. The court instructed the jury that the People had the burden of proving each element of the assault crime, including that Allen acted "with a deadly weapon." The court defined the "deadly weapon" phrase for the jury.
On this record, the prosecutor's argument was appropriate. We presume the jury followed the instructions and interpreted the arguments in a reasonable manner to mean that it must resolve the issue of whether the scissors were a dangerous weapon, and not that the issue had been decided as a matter of law.
C. Prosecutor's References to Jason's Absence from Trial
1. Factual Summary
In voir dire, the prosecutor asked the jurors, "Can anyone think of why a victim may not want to testify?" One prospective juror responded that the victim may be "too traumatized" and another said the victim may be "afraid to speak up."
Outside the jury's presence, defense counsel said she wanted to make sure during trial "there is no mention that [Jason] was afraid to come to court," noting "there's absolutely no evidence of that." The prosecutor responded she was "very clear with all my officers . . . there [should be] no mention of any victim statements or anything of the like. I'm not going to be able to argue anything like that." When defense counsel continued to express concern that jurors may speculate on the reason Jason was not present at trial, the court responded: "You know, it may be something that can be done as some sort of a pinpoint instruction, that [the jurors] must not speculate as to why the victim is here or not here; okay? So if you want to propose such an [instruction], we can consider that." Defense counsel never proposed an instruction on this issue.
Later, in her closing argument, the prosecutor referred to Jason's absence: "[Defense counsel] might argue that there's no victim. You didn't hear from the victim. Members of the jury, you don't need the victim. We talked about this in voir dire. If I prove every element beyond a reasonable doubt, which the surveillance does, that's all it is. You don't need a victim." (Italics added.) The prosecutor also discussed Jason's absence during her rebuttal argument: "Now, 'There's no victim.' [Defense counsel] gave you a lot of different examples. 'Never told to be in court. Maybe he started the fight. Maybe he was scared.' The important thing to note is that the jury instructions say you may not speculate. You can't speculate about what happened before, what happened after. You can't speculate about why someone is not here, what the defendant was thinking, any of those things."
2. Analysis
Allen contends the prosecutor's closing statements improperly shifted the proof burden by suggesting Jason "was too afraid to come to court." Allen forfeited the claim by failing to object during closing arguments. (See People v. Tully (2012) 54 Cal.4th 952, 1000-1001.)
Allen's contention is also factually unsupported. The prosecutor did not suggest Jason was afraid to come to court, and instead made clear to the jury that it should not speculate as to the reason that Jason did not appear at trial. The prosecutor's assertion that she could prove her case without the victim's testimony, and there are many reasons a victim would not appear at trial, was within the proper scope of argument. Additionally, the court told defense counsel it was willing to instruct the jury not to speculate regarding Jason's absence, but counsel never requested this instruction.
Within this same section of his appellate brief, Allen contends the jury might have improperly speculated on Jason's absence based on the prosecutor's characterization of a 911 call when the prosecutor was questioning law enforcement officers during trial. During in limine motions, the court ruled that Jason's 911 call would not be admitted into evidence if he was not a witness at trial. The court also directed the prosecutor to instruct her law enforcement witnesses to say, "Just that they responded to a call," and not to elaborate on the nature or reason for the call.
Despite this admonition, during her direct examination of Officer Lozano, the prosecutor asked: "Around 11:15 that morning, did you respond to a call of an assault in Kimball park?" (Italics added.) In her examination of Corporal Barawed, the prosecutor asked: "Could you tell me how many minutes apart from when you first received the call of service about the assault with a deadly weapon to when you contacted Mr. Allen . . . ?" (Italics added.)
Allen does not raise a separate contention of error regarding the prosecutor's references to the 911 call, and instead argues these statements "[c]ompound[ed] the prejudicial value" of the prosecutor's "insinuations" during closing arguments that Jason was "so traumatized by the incident he could not come to court." Because we have found the prosecutor did not make improper references to Jason's absence during closing argument, this prejudice assertion is without merit. Moreover, even if Allen had raised the issue as a separate appellate contention, the argument was forfeited because Allen never objected to the prosecutor's questions.
Additionally, the record does not support that the jury would have inferred that Jason was "traumatized" by the incident based on the prosecutor's questions to the law enforcement officers. First, in her questions, the prosecutor did not say who made the call; thus the prosecutor's references to the report about an "assault with a deadly weapon" was not necessarily reasonably attributable to Jason. Further, even assuming Jason made the call and characterized the crime as an assault, this does not fairly suggest the reason Jason did not appear for trial was that he was afraid. The jury saw the video of what occurred, and saw that Jason appeared frightened as he ran away, but then turned and started running after Allen. Further, contrary to Allen's appellate assertions, the fact that one juror asked a question whether Allen and Jason knew each other does not show the jury was prejudicially misled regarding the reason for Jason's absence at trial.
Additionally, the court expressly instructed the jury that, "Nothing the attorneys say is evidence." We presume the jury followed this instruction and disregarded the content of the prosecutor's questions.
Although the challenge to the prosecutor's questions was forfeited and there was no prejudicial error, we do not condone the prosecutor's failure to comply with the court's express directions that the officers should say only that they were responding to a "call." The court's ruling clearly conveyed that the prosecutor should not ask whether the officers were responding to a report of an "assault" or "an assault with a deadly weapon."
DISPOSITION
Judgment affirmed.
HALLER, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.
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