Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA311326. Nancy L. Newman, Judge.
Michele A. Douglass, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Howard Betts (appellant) of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). The trial court suspended imposition of sentence and placed appellant on 36 months formal probation with 365 days county jail time. The trial court ordered appellant to pay a restitution fine (§ 1202.4, subd. (b)), a probation revocation restitution fine (§ 1202.44), a court security fee (§ 1465.8), and $1,000 in attorney fees (§ 987.8).
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the grounds that: (1) reversal is mandated and retrial is barred because the prosecution presented insufficient evidence to establish that appellant committed an assault with a deadly weapon; (2) the trial court incorrectly charged the jury on the elements of assault with a deadly weapon, omitting two of the four required elements; and (3) appellant was denied the required notice and hearing on the issue of ability to pay attorney fees.
FACTS
We recite the evidence in the light most favorable to the judgment below in accordance with the usual rule of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On October 22, 2006, at approximately 7:25 p.m., Officer Joseph Cruz of the Los Angeles Police Department was working in the area of Seventh Street and San Julian Street with his partner, Officer Indreland. A woman flagged down their police car and pointed to a Black male, later identified as appellant, holding a broken liquor bottle. He was screaming and pointing the bottle in a threatening manner at another Black male, later identified as Jordan Elliott (Elliott), who had his hands in the air. The two men were approximately five yards apart. Appellant was waving the bottle back and forth and thrusting it. Officer Cruz heard appellant say to Elliott, “I’m going to kill you, mother fucker.” Elliott kept backing up.
When appellant saw the police car he threw down the bottle. The officers took him into custody. Appellant was very agitated and said again to Elliott, “I’m going to kill you, mother fucker.”
The officers took appellant to the police station, and Officer Indreland interviewed him after reading his Miranda rights. Appellant said, “I ain’t going to lie. I was going to cut his throat with the bottle” and “Man, I’m not going to let him tell me what to do, push me down. I will tell the judge everything.”
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
DISCUSSION
I. Sufficiency of the Evidence of Assault
A. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is 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.’ [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. [Citations.] The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
As set out in CALCRIM No. 875, the elements of the crime of assault with a deadly weapon in violation of section 245, subdivision (a)(1) are: (1) the defendant did 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; and (4) when the defendant acted, he had the present ability to apply force with a deadly weapon to a person. Appellant’s arguments challenge specifically the evidence in support of elements 1, 2, and 3.
B. Appellant’s Argument
Appellant contends that the evidence did not establish the elements of assault with a deadly weapon, and his behavior constituted “harmless sound and fury.” Appellant bases his claims on that fact that the evidence showed he came no closer than 15 feet to the victim.
According to appellant, the first element of the crime is not proved because appellant was not advancing. He stood in one place, or at most shuffled forward one step, while swinging a broken bottle back and forth and forward in a thrusting motion. These uninterrupted and completed acts came no closer than 15 feet to the victim and by their nature would not probably nor directly injure the victim or anyone else. This leads to the conclusion that element 3 was also not proved because this state of affairs was obvious to everyone, including appellant. Therefore, he was necessarily unaware of “facts that would lead a reasonable person to realize that [his] act . . . would directly and probably result in the application of force.” Lastly, it could not be said that appellant willfully committed an assault with a deadly weapon (element 2) because there was no evidence of a willfully committed act that by its nature would probably result in injury.
Simply put, appellant argues he was too far away to do any damage or even make contact, and neither speculation nor suspicion that appellant might charge the victim can supply the necessary substantial evidence to support the conviction. According to appellant, an assault never occurred and certainly was never completed.
C. Evidence Sufficient
Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) An assault is generally said to occur whenever the next movement would, at least to all appearances, constitute a battery. (People v. Williams (2001) 26 Cal.4th 779, 786 (Williams).) It is not necessary, however, that a defendant “must in every instance do everything physically possible to complete a battery short of actually causing physical injury.” (People v. Raviart (2001) 93 Cal.App.4th 258, 266.) A defendant demonstrates the required present ability once he “‘has attained the means and location to strike immediately.’” (Id. at p. 267.) “[A]n assault may be committed by ‘[h]olding up a fist in a menacing manner, drawing a sword, or bayonet, [or] presenting a gun at a person who is within its range . . . .’” (Ibid.) Present ability is not negated by the fact that the victim takes effective steps to avoid injury. (Ibid.)
Appellant’s arguments based on his distance from the victim are contrary to long-established precedent. In People v. Yslas (1865) 27 Cal. 630, the defendant was convicted of assault after raising a hatchet in a threatening manner and approaching within seven or eight feet of the victim. The victim ran into another room and locked the door. (Id. at pp. 630-631.) The Supreme Court affirmed the conviction, concluding: “It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self-defense or retreat, the assault is complete. In such a case the attempt has been made coupled with a present ability to commit a violent injury within the meaning of the statute.” (Id. at p. 634.)
The record shows that Elliott was in front of appellant with his hands up in a defensive manner while appellant was shouting that he was “going to kill” and “going to cut” Elliott in a “loud, angry tone.” While appellant was shouting and waving and thrusting the broken bottle, Elliott was backing up, away from appellant. Officer Indreland, who was the first to approach appellant, testified that appellant was “slightly advancing towards the victim.” There were no persons or obstacles in between appellant and Elliott.
Under the circumstances of the instant case, it does not matter that appellant had not arrived at a point close enough to the victim to hit or cut him with the bottle. The evidence supported the conclusion that appellant was advancing with the intent to strike the victim with the broken bottle, and, at the point the police arrived and appellant’s actions were halted, he had come close enough to the victim to cause a reasonable person in the victim’s position to believe that the striking of a blow was imminent if he did not immediately take evasive or defensive action. Since appellant could have readily completed a battery by lunging toward Elliott or throwing the broken bottle at him, there was sufficient evidence of an assaultive act. (See, e.g., People v. McCoy (1944) 25 Cal.2d 177, 191 [sufficient evidence of assault where defendant got close enough to the victim that he “had the ability to commit a violent injury with (his) knife upon her person,” and proof of an attempt to use the knife not required]; People v. Valdez (1985) 175 Cal.App.3d 103, 113 [“Once a defendant has attained the means and location to strike immediately he has the ‘present ability to injure.’ The fact an intended victim takes effective steps to avoid injury has never been held to negate this ‘present ability’”].)
Given our conclusion that appellant’s act would, by its nature, probably result in the application of force to Elliott, it follows that appellant, who was not shown to be mentally impaired or otherwise not cognizant of his actions, was aware of the facts that would cause a reasonable person to realize his act would probably result in the application of force. For the same reasons, we conclude that appellant performed his acts willfully, which requires only that appellant did the acts willingly or on purpose. (CALCRIM 875.) Therefore, there was sufficient evidence for the jury to find that the disputed elements were proved.
Viewing the evidence as we must in a light most favorable to the People in support of the verdict, we believe any rational trier of fact could have found defendant guilty of assault with a deadly weapon upon Elliott, and appellant’s arguments are without merit.
II. Elements Lacking in Jury Instruction on Assault
A. Appellant’s Argument
Appellant points out that the trial court omitted two elements when it instructed the jury with CALCRIM No. 875 regarding the crime of assault with a deadly weapon. The trial court failed to instruct the jury with the second and third elements, which require that the defendant perform the act willfully and that he be aware of facts that would lead a reasonable person to realize that his act would directly and probably result in the application of force to someone at the time he acted. Appellant argues that the trial court’s error in omitting these two elements is a violation of his right to due process and reversible per se. At a minimum, it cannot be deemed harmless beyond a reasonable doubt. According to appellant, the incomplete instruction served to obviate the need for the prosecutor to prove appellant’s knowledge (or awareness) and intent, the evidence of which was extremely weak, and the instruction as given was tantamount to a directed verdict on the element of intent.
B. Relevant Authority
In criminal cases, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] 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. [Citation.]”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We review claims of improper jury instructions de novo to determine whether the trial court fully and fairly instructed on the applicable law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) As stated in People v. Smithey (1999) 20 Cal.4th 936, 976, footnote 7, a defendant does not waive his or her right to object to an instruction alleged to be an incorrect statement of law and given in violation of due process.
Whether the error was harmless is reviewed under the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 [federal constitutional error requires harmlessness beyond a reasonable doubt]. (Williams, supra, 26 Cal.4th at p. 790.)
C. Any Error Harmless
In Williams, the California Supreme Court revisited the issue of the required mental state for assault. (Williams, supra, 26 Cal.4th at p. 785.) The court determined that criminalizing conduct based on what might have happened and not on what actually happened arguably implies an objective mental state consistent with a negligence standard. (Id. at p. 787.) The court reiterated that a defendant is guilty of assault only if he intends to commit an act “‘which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.’” (Ibid.) The court added, however, that the defendant “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.” (Id. at p. 788.) In other words, “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.” (Ibid.)
The trial court in Williams instructed the jury with the standard jury instruction on assault at that time, which required proof of two elements. (Williams, supra, 26 Cal.4th at p. 783; former CALJIC No. 9.00 (1994 rev.) (5th ed. 1995 supp.).) This instruction required the prosecution to show that a person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person and that, at the time the act was committed, such person had the present ability to apply physical force to the person of another. (Williams, supra, at p. 783.) Thus, as in the instant case, the jury was not instructed that the defendant must possess objective knowledge that his act by its nature will probably result in the application of physical force.
The defendant in Williams was charged with three counts of assault with a firearm after he shot a “‘warning shot’” into the rear passenger-side wheel well of a truck while one of the assault victims was crouched approximately a foot and a half away from the rear fender well of the truck. (Williams, supra, 26 Cal.4th at pp. 782-783.) Two other victims, whom defendant said he did not see, were either standing on the curb outside the immediate vicinity of the truck or getting into the truck when the defendant fired. (Id. at p. 783.) Williams stated that under the instruction given, “a jury could conceivably convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery.” (Id. at p. 790.)
Williams held, however that “any instructional error is largely technical and is unlikely to affect the outcome of most assault cases, because a defendant’s knowledge of the relevant factual circumstances is rarely in dispute.” The jury’s verdict in Williams, in which it found the defendant guilty of assaulting the crouching victim and deadlocked on the counts relating to the two victims he claimed not to have seen, was seen as an illustration of this principle. (Williams, supra, 26 Cal.4th at p. 790.)
We reach the same conclusion in the instant case. The circumstances here cannot be stretched to support an argument that appellant threatened Elliott with the broken bottle without being aware of the facts “sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Williams, supra, 26 Cal.4th at p. 790). The evidence is not susceptible to an interpretation that appellant was merely negligent, the concern that led to the introduction of this element into the jury instruction. Moreover, the instant case was not tried by the defense on the theory that appellant was merely negligent in his acts towards Elliott. Instead, defense counsel argued that the case was based on the issue of present ability and that no assault took place because appellant was 15 feet away from Elliott while thrusting and waving the broken bottle. Counsel argued that the police never saw an assault and did not arrest appellant for an assault. Counsel allowed that appellant was guilty merely of brandishing a weapon. We therefore conclude that the trial court’s error in not reading the third element of CALCRIM No. 875 was harmless beyond a reasonable doubt. (See also People v. Riva (2003) 112 Cal.App.4th 981, 998 [a reasonable person would realize that firing a gun at someone in a car under attendant circumstances would directly, naturally, and probably result in battery upon pedestrian victim, and failure to instruct on “actual knowledge” element is harmless].)
We also conclude that the trial court committed harmless error when it omitted the element that appellant “did the act willfully.” (CALCRIM No. 875.) In CALCRIM No. 250, the jury was instructed that every crime requires proof of the joint operation of the act and wrongful intent. The jury was instructed that, in order to be guilty of the crime of assault with a deadly weapon, appellant must have not only committed the act but had to have done so intentionally or on purpose. In reading CALCRIM No. 875, the trial court stated that “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.” Therefore, the jury was well aware of the need for appellant to have committed the act willingly, or on purpose. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [instructions are adequate when element omitted in one instruction is clearly supplied in other instructions or cured in view of the jury instructions as a whole].)
Finally, as respondent points out, the trial court did include the willfulness element (as well as the element of objective awareness of facts, discussed ante) in its instruction on simple assault. Appellant urges that the jury would not have had occasion to read the instruction on simple assault, since it found appellant guilty of assault with a deadly weapon. However, the record shows that defense counsel drew the jury’s attention to the offense of simple assault as a lesser included offense while arguing that appellant could not have had the present ability required for that offense either.
We are convinced, beyond a reasonable doubt, the jury would have reached the same verdict if it had been properly instructed on the actual knowledge element of assault and the element of willingness to commit the act.
III. Denial of Notice And Hearing on Attorney Fees
A. Appellant’s Argument
Appellant contends that the trial court’s order compelling appellant to pay $1,000 in attorney fees for the services of his public defender was invalid. Appellant was denied the required notice, and the court did not hold a hearing to determine his present ability to pay all or part of the cost of counsel. Appellant asserts that the lack of an objection to the order should not lead to forfeiture of the claim, since his constitutional right not to be deprived of property without due process of law is at issue.
B. Proceedings Below
The record shows that after reciting appellant’s conditions of probation, the trial court imposed a restitution fine, a probation revocation restitution fine, and a court security fee. The court then stated, “And there are attorneys’ fees for the trial. I’m not sure of the exact amount. I think it’s $1,000. Do you know?” Appellant’s counsel replied that he did not. The court stated, “I think it’s a set amount for trial. I will go ahead and impose $1,000.”
C. Relevant Authority
Section 987.8 subdivision (b) provides: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (Italics added.)
Section 987.8, subdivision (e) provides: “At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights:
“(1) The right to be heard in person.
“(2) The right to present witnesses and other documentary evidence.
“(3) The right to confront and cross-examine adverse witnesses.
“(4) The right to have the evidence against him or her disclosed to him or her.
“(5) The right to a written statement of the findings of the court.”
(See also People v. Amor (1974) 12 Cal.3d 20, 30 [due process requires notice and a hearing but also implies the rights to discovery, confrontation, cross-examination and other procedural devices].)
Section 987.8, subdivision (f) specifies in pertinent part: “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. . . .”
Section 987.8, subdivision (g)(2)(B) provides criteria for determining a defendant’s “ability to pay.” The defendant’s present financial position, “[t]he defendant’s reasonably discernible future financial position,” and the likelihood of his or her obtaining employment in the six-month period following sentencing are factors the court should consider.
D. Remand Required
The record in the present case contains no evidence of notice, of a hearing, of the actual costs of appellant’s defense, or of any consideration of appellant’s ability to pay any amount toward the costs of his legal representation. In short, there is nothing in the record to show any attempt to comply with the requirements of section 987.8. Accordingly, the order must be vacated and the cause remanded for further proceedings consistent with the notice and hearing procedures set forth in section 987.8, subdivision (b). (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)
DISPOSITION
The order requiring appellant to pay attorney fees in the amount of $1,000 pursuant to section 987.8 is vacated, and the cause is remanded to the trial court for further consideration consistent with the requirements of section 987.8. The judgment is affirmed in all other respects.
We concur:
BOREN, P.J., DOI TODD, J.