Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA097243, Michael A. Cowell and Margaret Miller Bernal, Judges.
Deborah Blanchard, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Thomas Charles Kegarice appeals from the judgment entered following a jury trial in which he was convicted of assault with a deadly weapon, to wit, a knife (Pen. Code, § 245, subd. (a)(1)), and his admission that he had previously been convicted of three felonies within the meaning of section 1203, subdivision (e)(4). He was sentenced to prison for the middle term of three years and contends that, because the evidence did not show he had the ability to cause significant injury, the evidence was insufficient as a matter of law to convict him of the offense. For reasons stated in the opinion, we affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On September 16, 2006, Mamadou Fofana was employed as a security officer for Sure Guard Security, working at the Quad, a shopping center in the City of Whittier. At approximately 5:45 p.m., he saw appellant sleeping in an alley on the Quad’s property and woke him up. Mr. Fofana told appellant he was not permitted to sleep there and that he should leave. Appellant appeared “a little drunk” and insulted Mr. Fofana. Mr. Fofana told him to leave, otherwise he would call the police. Mr. Fofana left the area and approximately 15 minutes later, saw appellant lying down behind the Ralphs market. Mr. Fofana again told appellant to leave the premises and appellant again insulted him. Appellant left and approximately 15 minutes later, Mr. Fofana saw appellant sitting at the entrance to a Rite Aid store asking customers for money. Mr. Fofana parked the golf cart he was driving and told appellant to leave the premises. Appellant continued to insult him, using racial slurs, and to ask customers for money. When Mr. Fofana told appellant to leave the premises and that he must not ask for money, appellant got “upset” and punched Mr. Fofana in the left ear. Mr. Fofana testified appellant “was a little drunk, so he didn’t have a lot of strength.” After appellant sat down and continued to ask patrons for money, Mr. Fofana contacted a police officer who was leaving the shopping center and asked for assistance. The officer stated she had just been called on the radio for an intervention and that she would call the Whittier Police Department. Mr. Fofana told appellant two or three more times to leave the premises but appellant refused and continued to insult him. Appellant then stood up and from his pocket took out a small knife and opened it. When Mr. Fofana saw the knife, he got out of the golf cart and took steps back. Appellant approached Mr. Fofana “to jab [him]” and Mr. Fofana backed up and told appellant to “stop.” Mr. Fofana demonstrated how appellant tried to jab him, noting appellant “was not strong.” The court described the motion as “a couple of jabbing motions with his right arm bent at the elbow, thrusting forward from approximately the area of his waist.” Mr. Fofana took another step back, telling appellant to stop, and appellant kept approaching. Mr. Fofana “told [him] self that [appellant] was going to jab [him]” and took out his pepper spray and sprayed him. Mr. Fofana believed “otherwise [appellant] was going to jab [him].” Appellant put the knife back in his pocket and sat down. Mr. Fofana estimated he sprayed appellant when he was five feet away.
Previously, Mr. Fofana had seen appellant in the area drinking beer and sleeping and had always told him to leave. Mr. Fofana acknowledged appellant “was not strong.” On this occasion, however, when appellant continued to approach him with the “knife, blade open,” and continued to make “those jabbing motions,” Mr. Fofana believed appellant was going to “jab” him and that he had to spray appellant “as a last resort.”
Whittier Police Officer Samuel Reed responded to the scene and spoke to Mr. Fofana who identified appellant, who was seated on a bus bench behind them, as the assailant. Officer Reed drew his gun and gave appellant several verbal commands to get on the ground. After several commands, appellant reluctantly complied. Appellant was arrested and a knife was recovered from his pocket.
Officer Reed testified that when he arrived on the scene he was surprised that Mr. Fofana had his back to appellant, that Mr. Fofana was talking very casually, and that appellant had not run off. Officer Reed testified that Mr. Fofana did not appear to be frightened or traumatized, but appeared more aggravated or frustrated.
DISCUSSION
Appellant contends that, because the evidence did not show he had the ability to cause significant injury, the evidence was insufficient as a matter of law to convict him of the offense of assault with a deadly weapon. We disagree.
The standard of review on a claim of insufficiency of evidence is settled. “‘A reviewing court faced with such a claim determines “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.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) Reversal is unwarranted unless it appears “‘“that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’” (People v. Hughes (2002) 27 Cal.4th 287, 370.)
“The same standard applies to the review of circumstantial evidence. [Citation.] . . . Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
Appellant asserts a violation of section 245, subdivision (a)(1) requires proof beyond a reasonable doubt that “appellant possessed ‘the present ability to apply force’ that is likely to produce ‘great bodily injury.’” Appellant is incorrect. Section 245, subdivision (a)(1) provides in pertinent part: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished . . . .” “[S]ection 245, subdivision (a)(1), punishes assaults committed . . . ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any means of force likely to produce great bodily injury.’ One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, first italics added.) Appellant’s citation to People v. Duke (1985) 174 Cal.App.3d 296 to support his argument that that the crime of assault with a deadly weapon requires more than moderate harm is inapposite. In Duke, the defendant was convicted of assault with force likely to produce great bodily harm and not of assault with a deadly weapon. (Id. at pp. 302-304.)
In the present case, the jury was instructed pursuant to CALJIC No. 9.02 in pertinent part that, “Every person who commits an assault upon the person of another with a deadly weapon or instrument, other than a firearm is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was committed with a deadly weapon or instrument other than a firearm.”
The jury was also instructed pursuant to CALJIC No. 9.00 that to prove an assault each of the following elements had to be proved. “1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word ‘willfully’ means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.”
“[A]ssault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) Based on the evidence, a rational trier of fact could have found appellant committed an intentional act knowing the act by its nature would probably and directly result in the application of physical force against Mr. Fofana. (See ibid.)
To the extent appellant’s argument is a challenge to the finding that the knife was a deadly weapon, substantial evidence supports that finding. The jury was instructed regarding the definition of a deadly weapon and observed the knife, which was received into evidence. Contrary to appellant’s claim, appellant did not simply “ineffectual[ly] display” the knife. The jury heard testimony and was given a demonstration as to how the knife was used and concluded it was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.