Opinion
G045092
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ERNESTINE GRANT, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF024754)
OPINION
Appeal from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed as modified.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Alleging insufficient evidence and instructional error, appellant challenges her conviction for assault with a semiautomatic firearm. She also contends the trial court erred in imposing certain fees and costs at sentencing. Other than to modify an aspect of appellant's sentence, we affirm the judgment.
FACTS
Bruce Anderson was appellant's landlord, real estate agent and financial advisor. They had a good relationship at first, but over time, appellant became dissatisfied with Anderson's services. Thinking he owed her money, she confronted him at his airport hangar on February 21, 2008,
Alone at the hangar, Anderson was not expecting to see appellant that day. However, when she sat down at the table where he was seated and demanded money, he agreed to give her a check. As he was writing it out, he noticed she was pointing a pistol about two feet from his head. She was also pulling the trigger and trying to disengage the safety on the gun. Anderson grabbed her arm and wrestled the weapon from her. He then fled the hangar and reported the incident to authorities.
When interviewed by the police, appellant initially denied having a gun when she confronted Anderson. Then she admitted she had one but claimed the weapon was inoperable. In actuality, though, the gun — a semiautomatic .25 caliber pistol — was loaded and in working condition.
Appellant was charged with attempted murder and assault with a semiautomatic firearm. It was also alleged she personally used a firearm during the commission of those offenses. The jury acquitted her of attempted murder and found the firearm use allegation not true. However, it convicted her of the assault charge. The court trial granted appellant probation subject to various terms and conditions.
I
Appellant claims there is insufficient evidence to support her assault conviction because she lacked the present ability to harm Anderson. The claim is not well taken.
In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record "'in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, 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.]" (People v. Stuedemann (2007) 156 Cal.App.4th 1, 5.) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.) The term "present ability" refers to the defendant's objective proximity to infliction of injury. (People v. Valdez (1985) 175 Cal.App.3d 103, 111-114.) So long as the defendant has the means and the ability to commit injury immediately, the present ability requirement will be satisfied, even if the victim takes action to avoid actual injury. (Ibid.)
Appellant argues the present ability requirement was lacking here because, even though she tried to shoot Anderson, she was unable to disengage the safety on her gun before he seized it from her. However, that fortuitous circumstance does undermine her conviction. While a defendant who points an unloaded gun at another generally lacks the present ability to inflict injury (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3), "a defendant has been held to have a present ability to injure where he is only a moment away from being able to fire his gun. (People v. Simpson (1933) 134 Cal.App. 646, 650 [gun's magazine was loaded but no bullet in firing chamber]; People v. Ranson (1974) 40 Cal.App.3d 317, 321 [gun jammed when defendant tried to fire first round but he possessed knowledge and ability to quickly cure the jam, even though he had not done so at time attempt ended.].)" (People v. Valdez, supra, 175 Cal.App.3d at p. 111.)
Here, the evidence demonstrated the gun appellant pointed at Anderson's head was loaded and operable. In addition, appellant was trying to pull the trigger and disengage the safety before Anderson grabbed her arm and seized the weapon from her. On these facts, the jury could reasonably find appellant had the present ability to inflict a violent injury on Anderson. Although she was unable to get off any shots, the jury could infer she had the means and ability to shoot Anderson momentarily, if he had not interrupted her plan. We thus reject her challenge to the sufficiency of the evidence.
II
Appellant also contends the trial court erred in failing to instruct the jury on brandishing a weapon as a lesser offense to assault. Again, we disagree.
Although assault with a firearm and brandishing a weapon are related offenses, the latter is not a necessarily included offense of the former because "it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner . . . ." (People v. Steele (2000) 83 Cal.App.4th 212, 218.) This is significant because, while trial courts are required to instruct the jury on lesser-included offenses, they are not required to instruct on lesser-related ones. (Id. at p. 217.)
Nevertheless, appellant argues the trial court should have instructed on brandishing here because, based on the facts in this case, "brandishing was somewhat a necessarily included offense of assault with a semiautomatic firearm." Anderson did testify he saw appellant pointing the gun at his head. However, "[t]he determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial." (People v. Steele, supra, 83 Cal.App.4th at pp. 217-218, italics added.) Accordingly, appellant's reliance on the trial evidence is misplaced.
In this case, the information simply alleged appellant "did willfully and unlawfully commit an assault upon [the victim] with a semiautomatic firearm." So worded, the allegation did not encompass the crime of brandishing a firearm. And as noted above, brandishing is not a lesser included offense of assault under the statutory elements test. (People v. Steele, supra, 83 Cal.App.4th at p. 218.) Therefore, the trial court did not err in failing to instruct on brandishing a weapon.
III
Appellant also challenges various aspects of her sentence. She maintains initially the court erred in ordering her to pay a booking fee and for the costs of her probation report and supervision. (Gov. Code, § 29550; Pen. Code, § 1203.1b.) In her view, these assessments are invalid because the court never determined whether she has the ability to pay them. However, appellant waived this claim by failing to raise it in the trial court. (People v. McCullough (2011) 193 Cal.App.4th 864 [booking fee]; People v. Valtakis (2003) 105 Cal.App.4th 1066 [probation costs].)
Appellant also argues the court erred in ordering her pay a fee for court funding (Gov. Code, § 70373) and a surcharge for courtroom security (Pen. Code, § 1465.8). She does not contest the fee and surcharge per se but contends the court erred in making their payment a condition of her probation. The Attorney General disputes appellant's characterization of the record. Relying on notations in the clerk's transcript, she argues the fee and surcharge were simply part of the court's overall sentencing order, not a condition of probation. But the reporter's transcript of the sentencing hearing shows otherwise, so to clear up any confusion of the matter, we will formally modify appellant's sentence to make payment of the fee and surcharge part of the judgment of the case, as opposed to a condition of her probation. (People v. Flores (2008) 169 Cal.App.4th 568, 578; People v. Hart (1998) 65 Cal.App.4th 902, 907.)
As this is a purely legal challenge to the court's sentencing order, it is reviewable on appeal despite appellant's failure to object below. (In
Appellant also argues the statute under which the court funding fee was authorized (Gov. Code, § 70373) does not apply to her because it did not go into effect until January 1, 2009, some 10 months after she committed her crime. However, the pertinent event for triggering the statute is not the date of the defendant's offense, but the date of her conviction. (People v. Castillo (2010) 182 Cal.App.4th 1410.) Because appellant was not convicted until December 2009, after the statute became effective, she was properly subjected to its terms. (Ibid.)
DISPOSITION
The order requiring appellant to pay a fee for court funding and a surcharge for courtroom security as a condition of her probation is modified to delete the condition. However, the fee and surcharge are affirmed as separate orders. In all other respects, the judgment is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.
re Sheena K. (2007) 40 Cal.4th 875, 888.)