Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR250927.
SIMONS, J.
Defendant Marcus Givens fired several shots at a vehicle driven by Patricia C., who did not know defendant. Unbeknownst to defendant, Patricia C.’s three children were passengers in the vehicle at the time of the shooting. No one was physically injured in the assault. Following a jury trial, defendant was convicted of four counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and of misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). On appeal, defendant contends the convictions for assault against the children are not supported by substantial evidence because there is no evidence he was aware of their presence in the van. We affirm.
All undesignated section references are to the Penal Code.
In a prior appeal brought by the People (People v. Givens (Mar. 20, 2009, A122591) [nonpub. opn.] (Givens I)), we reversed the trial court’s order dismissing three of the counts of attempted murder, each of which named one of the children, because defendant was not aware of their presence. We concluded that the evidence introduced at the preliminary hearing supported a rational inference that defendant intended to kill every person in the vehicle.
Procedural Background
On September 29, 2009, the District Attorney of Solano County filed an amended information charging defendant with attempted murder of Patricia C. and her three children, J.C., D.C., and Y.C. (§§ 187, subd. (a), 664) (counts 1-4), with enhancements for personal use and intentional discharge of a firearm alleged as to each count (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)); with assault with a semiautomatic firearm on the same four victims (§ 245, subd. (b)) (counts 5-8), with enhancements for personal use of a firearm (§ 12022.5, subd. (a)); and with misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) (count 9).
Following trial, the jury found defendant guilty on counts 5 through 9, and found the associated enhancement allegations to be true. The jury deadlocked on counts 1 through 4, and the court declared a mistrial on those counts.
The trial court sentenced defendant to state prison for a term of 26 years. This appeal followed.
Factual Background
On January 1, 2008, around 12:20 a.m., Patricia C. was driving her van in the City of Fairfield. Her three children were also in the vehicle, the eldest child (J.C.) in the front passenger seat, the other two behind in the second row of seats. The windows of the van were tinted next to the second row of seats.
As Patricia C.’s van approached the intersection of East Tabor and Kidder Avenue, she observed defendant standing at the corner holding a gun, approximately 20 feet away. Patricia C. had never seen him before. She tried to drive away and defendant fired the gun three or four times at the van. One shot hit the passenger side door, shattering the window. Patricia C. drove home; no one was physically injured.
On January 1, 2008, at 12:23 a.m., Officer Paul Augusto of the Fairfield Police Department was on patrol. As he approached the intersection of East Tabor and Kidder Avenue, he saw defendant, who was standing at the corner, raise a gun and fire it three or four times. Augusto illuminated defendant with the police vehicle’s spotlight and defendant ran. After some difficulty, Augusto apprehended defendant using a police dog and blows from the butt of the his pistol and his baton.
Discussion
Defendant contends there was insufficient evidence to “support [his] conviction for aggravated assault as to the passengers of the van (counts 6, 7, and 8) since there was no evidence that a reasonable person in [his] position would be aware of the presence of anyone in the van other than the driver.”
“In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509.) “ ‘In making this determination, the reviewing court must 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.’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Counts 5 through 8 charged defendant with assault with a semiautomatic weapon, in violation of section 245, subdivision (b). Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “[A]ssault does not require a specific intent to injure the victim.” (People v. Wyatt (2010) 48 Cal.4th 776, 780 (Wyatt).) “Because assault criminalizes conduct based on what might have happened—and not what actually happened—the mental state for assault incorporates the language of probability, i.e., direct, natural and probable consequences.” (People v. Williams (2001) 26 Cal.4th 779, 787 (Williams).) Thus, assault requires only “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)
“In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.” (Williams, supra, 26 Cal.4th at p. 788 (fn. omitted); see also Wyatt, supra, 48 Cal.4th at p. 779.) “[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to [the] defendant, would find that the act would directly, naturally and probably result in a battery.” (Williams, at p. 788, fn. 3.)
The present case is very similar to People v. Trujillo (2010) 181 Cal.App.4th 1344 (Trujillo), in which the defendant fired several shots at a vehicle occupied by a driver and a backseat passenger. (Id. at pp. 1348-1349.) The Court of Appeal concluded sufficient evidence supported two convictions for assault with a firearm, even in the absence of proof that the defendant knew there was a passenger. (Id. at p. 1355.) The court reasoned that, because shots directed at a vehicle are likely to injure anyone in the vehicle, the shooter may be convicted of assault on any person in the vehicle, regardless of whether he had reason to be aware of all of the occupants. (Ibid.)
Defendant contends that Trujillo was wrongly decided because, under Williams, the prosecution was required to prove a reasonable person in his position would have had “actual knowledge” of the presence of the passengers. But Williams only required “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, supra, 26 Cal.4th at p. 790.) Williams did not hold that an assailant must be aware of the presence of all potential victims in order for that standard to be met. In this case, the jury reasonably could have found that, in light of the facts known to defendant, a reasonable person would have realized that other persons could be in the vehicle and that his actions would result in a battery on any passengers. (See Trujillo, supra, 181 Cal.App.4th at p. 1357 [“The jurors could have reasonably found that a person with actual knowledge that he is shooting indiscriminately at a moving vehicle would realize that his conduct would directly, naturally, and probably result in a battery to anyone and everyone inside the [vehicle].”]; People v. Riva (2003) 112 Cal.App.4th 981, 998 (Riva) [“The facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct.” (Fn. omitted.)].)
Defendant points to a sentence in the Williams harmless error analysis in which the court states, “The jury’s deadlock on the other assault counts, in which defendant denied actual knowledge that the victims were near the truck when he fired his shotgun, further confirms that the jury was not misled.” (Williams, supra, 26 Cal.4th at p. 790.) Because the issue in that case was not the application of the assault standard to victims whose presence was unknown to the assailant, we decline to read that single sentence to mandate reversal of assault convictions wherever the assailant did not have actual knowledge of the presence of additional victims. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127 [“ ‘ “It is axiomatic that cases are not authority for propositions not considered.” ’ ”]; see also Trujillo, supra, 181 Cal.App.4th at p. 1357, fn. 7.)
Moreover, the courts in Riva and Trujillo applied in the assault context the zone of harm concept employed by People v. Bland (2002) 28 Cal.4th 313 (Bland) in the attempted murder context. (Trujillo, supra, 181 Cal.App.4th at pp. 1355-1357; Riva, supra, 112 Cal.App.4th at p. 999.) In Bland, the defendant and another man shot into a moving vehicle, killing the driver and wounding the two passengers. (Bland, at p. 318.) The Supreme Court held that the specific intent to kill could not be transferred “ ‘from an intended victim to an unintended victim’ ” so as to provide the necessary mental state for attempted murder. (Id. at p. 326.) But Bland did hold that “a person who shoots at a group of people... [, ] even if that person primarily targeted only one of them... [, ] might still be guilty of attempted murder of everyone in the group” under a theory of concurrent intent. (Bland, at p. 329.) The Supreme Court explained, “although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within... the ‘kill zone.’ ‘The intent is concurrent... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’ ” (Ibid.)
In Bland, the defendant was aware of the passengers’ presence when he shot at the driver. (Bland, supra, 28 Cal.4th at p. 318.) People v. Adams (2008) 169 Cal.App.4th 1009 is instructive on the issue raised in our case. In Adams, the defendant was convicted of the premeditated murder of one victim, by means of arson, and the attempted murder of three other persons who were at the site of the arson fire. (Id. at p. 1012.) The defendant argued the attempted murder convictions should be vacated because she did not know those three victims were present when the fire was set. (Id. at pp. 1019-1020.) The court rejected the contention, concluding that the concurrent intent theory articulated in Bland did not depend upon the defendant’s awareness of the presence of others. “The theory imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant’s primary objective of killing a specific person or persons despite the recognition, or with acceptance of the fact, that a natural and probable consequence of that act would be that anyone within that zone could or would die. Whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims actually were within the zone of harm. [Citation.]” (Adams, at p. 1023.)
Defendant contends that the zone of harm concept is inapplicable in the assault context because “criminal attempt and assault require different mental states.” (Williams, supra, 26 Cal.4th at p. 786.) But Williams does not state that assault requires a greater showing of intent or knowledge. To the contrary, “[b]ecause the act constituting a criminal attempt ‘need not be the last proximate or ultimate step toward commission of the substantive crime, ’ criminal attempt has always required ‘a specific intent to commit the crime.’ [Citation.] In contrast, the crime of assault has always focused on the nature of the act and not on the perpetrator’s specific intent.” (Id. at p. 786.) Defendant does not explain why, if the zone of harm analysis is sufficient to satisfy the mens rea requirement for attempted murder, a specific intent crime, Riva and Trujillo erred in finding it sufficient to satisfy the mens rea requirement for assault, a general intent crime. Stated differently, defendant does not explain why it should be that he could be convicted of the attempted murder of J.C., D.C. and Y.C., as we held in Givens I, but not assault against those same victims. (See Trujillo, at p. 1357.) Because defendant had actual knowledge that he was creating a zone of harm by firing at the car, harm to all occupants of the vehicle was a natural and probable consequence of his action. (See Bland, supra, 28 Cal.4th at p. 330 [“Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.”].)
Disposition
The judgment is affirmed.
We concur. JONES, P.J., BRUINIERS, J.