In re RAYMUNDO M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO M., Defendant and Appellant.
D076158
Court of Appeal, Fourth Appellate District, Division One, State of California
July 14, 2020
CERTIFIED FOR PUBLICATION; (Super. Ct. No. J242112)
APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.
Elisabeth R. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
On appeal, Raymundo contends (1) insufficient evidence supports the true finding on the assault count because he never got within striking distance of the victim or made stabbing or slashing motions with the knife; (2) the juvenile court failed to expressly declare whether it was treating the “wobbler” assault count as a felony or a misdemeanor, as required by
FACTUAL AND PROCEDURAL BACKGROUND2
In October 2018, I.S. was a 17-year-old high school senior. Raymundo did not attend the same high school, but he and I.S. had known each other since elementary school and had never had problems with each other. One day during the school lunch break, Raymundo‘s younger brother (a freshman at I.S.‘s high school) bumped into I.S., and the two got into an argument. Raymundo‘s brother apologized, and the incident seemed to blow over.
Raymundo asked I.S., “Can you help me with something?” I.S. saw that Raymundo was holding a knife about waist-high. The knife looked like a switchblade with the blade already exposed. Raymundo then raised the knife about head-high and began “lunging towards” and chasing I.S. I.S. was “in shock” and ran away; his brother stayed “frozen” in place. Raymundo and his group chased after I.S.
During the foot pursuit, Raymundo yelled, “Fuck Maza,” which I.S. understood to be a gang reference, but it had no significance to I.S. because he was not involved with gangs. When Raymundo got within 10 feet of I.S., Raymundo told him, “You‘re going to die today.” I.S. testified, “I just thought my life was going to end at that moment . . . [b]ecause [Raymundo] [was] was lunging at me with knives and everything.” I.S. believed Raymundo had the knife exposed throughout the chase, but I.S. acknowledged on cross-examination that he looked back a few times and did not see it.
At some point, Raymundo and his group abandoned their pursuit of I.S. I.S. returned to his school, calling 911 on the way. He told the dispatcher that four “gangsters” had gotten “out of a car, with blades,” and were chasing him, but he “got away from ‘em.” The 911 call ended when I.S. found a campus security guard, who contacted the police. I.S. told the police Raymundo was the assailant.
Raymundo was charged with assault with a deadly weapon (
I. Substantial Evidence of Assault With a Deadly Weapon
To commit an assault with a deadly weapon when the weapon used is not inherently deadly, the perpetrator must use the ” ‘weapon . . . 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, italics added (Aguilar).) Raymundo contends that because he was never within striking distance of I.S. and never made stabbing or slashing motions with the knife, insufficient evidence supports the juvenile court‘s finding that he used the knife in a manner likely to produce death or great bodily injury. We disagree. Substantial evidence supports the juvenile court‘s factual findings that Raymundo was within striking distance—or would have been, had I.S. not taken evasive action—and used the knife in a manner likely to produce death or great bodily injury.
A. Background
At the close of the prosecution‘s evidence, Raymundo moved to dismiss the assault-with-a-deadly-weapon count on the basis the prosecution had not proven the charge beyond a reasonable doubt. Raymundo argued that because he merely raised a knife head-high from 21 feet away, he lacked the present ability to commit an assault and had not used the knife in a manner “likely to cause injury.” Raymundo also argued that conflicting testimony “create[d] a reasonable doubt as to whether a weapon was even involved” at all.
The prosecutor countered that Raymundo completed the assault by “pulling out the knife, raising it up, and then starting [a] pursuit to close th[e] distance to presumably stab or hurt” I.S.
The court denied Raymundo‘s motion to dismiss. The court found I.S.‘s “testimony credible . . . that there was a knife.” The court further found there was an adequate evidentiary showing that “[a] knife is capable of causing harm,” and was likely to do so because Raymundo raised it and ran toward I.S. Moments later, in closing argument, the prosecutor distinguished Raymundo‘s assaultive conduct from his brandishing conduct. The prosecutor posited that if Raymundo had merely pulled a knife and stayed put, he would have committed only a brandishing offense. But by raising the knife and “trying to pursue [I.S.] and close th[e] distance,” Raymundo converted a brandishing offense into an assault with a deadly weapon. The prosecutor emphasized that
Raymundo‘s counsel argued that because I.S. acknowledged he saw the knife only at the beginning of the incident and not when looking back during the chase, Raymundo had not used the knife (if at all) in a manner likely to harm I.S.
The juvenile court found that the totality of circumstances—when viewed as a film “reel” and not as individual “snapshot[s]“—established that Raymundo had committed an assault with a deadly weapon. The court explained to Raymundo that he committed the assault by “stepp[ing] out of the vehicle, raising the hand, the victim taking off, [and] your giving chase . . . .” As to Raymundo‘s striking-distance theory, the court ruled that “[t]he law does not require that you actually close the distance or actually make contact“—it was “the totality of the act” in “attempting to close the distance and, in fact, closing the distance,” that gave rise to liability.
B. Relevant Legal Principles
1. Assault
The crime of assault with a deadly weapon has two components: “(1) the assault, and (2) the means by which the assault is committed.” (People v. Smith (1997) 57 Cal.App.4th 1470, 1481;
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (
For purposes of assault with a deadly weapon under
In In re B.M. (2018) 6 Cal.5th 528, the California Supreme Court clarified what it means for an object to be “used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.” (Id. at pp. 532-536.) The minor in In re B.M. stabbed at her sister‘s blanket-covered legs using a butter knife. (Id. at p. 531.) The butter knife did not “pierce” the blanket or cause serious bodily injury to the sister. (Id. at pp. 531, 536.) On these facts, the Supreme Court found it “questionable” whether the knife was ”capable of causing great bodily injury” (id. at p. 539, italics added), and that there was insufficient evidence to support that the minor‘s use of the knife was ”likely to do so” (ibid., italics added).
The In re B.M. court clarified the “likely to cause” prong in several respects. First, the prong “requires more than a mere possibility that serious injury could have resulted from the way the object was used.” (In re B.M., supra, 6 Cal.5th at p. 534, italics added.) Second, “the determination . . . must rest on evidence of how the defendant actually ‘used’ the object“—“conjecture” about the manner of use is impermissible. (Ibid.)3 Third, “the extent of actual injury or lack of injury is also relevant” because it “may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm.” (Id. at p. 535.) Finally, the court clarified that “an aggressor should not receive the benefit of a potential victim fortuitously taking a defensive measure or being removed from harm‘s way once an assault is already underway.” (Id. at p. 537.)
Applying these principles, the In re B.M. court explained why insufficient evidence showed that the minor‘s use of the butter knife was likely to cause death or great bodily injury: the butter knife was not sharp; the minor
2. Standard of Review
Whether a perpetrator is within striking distance or uses an object in a manner that renders it a deadly weapon are questions for the trier of fact, the resolution of which we review for substantial evidence. (People v. Nguyen (2017) 12 Cal.App.5th 44, 49 (Nguyen) [striking distance]; Aguilar, supra, 16 Cal.4th at p. 1029 [nature of weapon].)
” ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness‘s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)
C. Analysis
Considering the record in the light most favorable to the juvenile court‘s factual findings, we conclude substantial evidence supports the true finding that Raymundo committed an assault with a deadly weapon.
I.S. testified Raymundo produced a knife that looked like a switchblade with the blade already exposed. The juvenile court found this testimony credible and reasonably inferred from the description of the knife that it was capable of causing harm. Raymundo raised the knife from waist-high to head-high, indicating he intended to use it in an offensive manner. Then, rather than merely brandish the knife while standing still, Raymundo lunged
The California Supreme Court upheld an assault conviction on substantially similar facts in People v. Yslas (1865) 27 Cal. 630 (Yslas). As the high court more recently summarized its earlier Yslas decision, “In Yslas, the defendant approached within seven or eight feet of the victim with a raised hatchet, but the victim escaped injury by running to the next room and locking the door. [The defendant] committed assault, even though he never closed the distance between himself and the victim, or swung the hatchet.” (Chance, supra, 44 Cal.4th at p. 1174.) The Yslas court explained why the victim‘s evasive actions did not immunize the defendant‘s conduct:
“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 come 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. It cannot be said that the ability to do the act threatened is wanting because the act was in some manner prevented.” (Yslas, supra, 27 Cal. at p. 634.)
Like the defendant in Yslas, Raymundo approached I.S. with a raised weapon. (Yslas, supra, 27 Cal. at p. 631.) And like the victim in Yslas, I.S. escaped injury only by retreating. (Ibid.) Thus, like the defendant in Yslas, Raymundo committed an assault with a deadly weapon “even though he never closed the distance between himself and [I.S.], or swung the [knife].” (Chance, supra, 44 Cal.4th at p. 1174, citing Yslas, at pp. 631, 633-634.) Raymundo suggests the 10 to 12 feet at issue here meaningfully distinguishes this case from the seven or eight feet at issue in Yslas. The Court of Appeal in Nguyen, supra, 12 Cal.App.5th 44 rejected essentially the same argument.5 The Nguyen defendant argued that, as a matter of law, he could not have committed an assault with a deadly weapon because he was 10 to 15 feet away from police officers when he pointed a knife “in the[ir] direction . . .
We find the Nguyen court‘s reasoning persuasive. Thus, we likewise conclude it is “within the province of the trier of fact” (Nguyen, supra, 12 Cal.App.5th at p. 49) to determine whether a perpetrator is “advancing with intent to strike” from “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[s] in self-defense or retreat[s]” (Yslas, supra, 27 Cal. at p. 634). The 10- to 12-foot distance at issue here is within a range the trier of fact could reasonably conclude posed a danger of imminent bodily harm to I.S., absent evasive action. Thus, substantial evidence supports the juvenile court‘s rejection of Raymundo‘s striking-distance defense.6
Nor are we persuaded by Raymundo‘s contention that because he never made swinging or stabbing motions with the knife, he did not use it in a manner likely to cause death or great bodily injury. As noted, the courts have held that an assault with a deadly weapon can occur even when the defendant never swings the weapon. (See Yslas, supra, 27 Cal. at pp. 631, 633-634; Chance, supra, 44 Cal.4th at p. 1174; People v. Bernal (2019) 42 Cal.App.5th 1160, 1168 (Bernal) [affirming conviction for assault with a deadly weapon where the defendant held up a knife to the victim and asked, ” ‘Do you want to do this?’ “].)
Contrary to Raymundo‘s suggestion, simply because the juvenile in In re B.M., supra, 6 Cal.5th 528 made stabbing motions with a butter knife (id. at p. 531), and the defendant in People v. Koback (2019) 36 Cal.App.5th 912 made swinging or swiping motions with the sharp end of a car key (id. at p. 918), does not mean that similar movements are required to establish an assault with a deadly weapon in every case. Moreover, because the butter knife and car key at issue in In re B.M. and Koback, respectively, are less conventionally weapon-like than the switchblade-like knife at issue here, those courts’ extensive discussions about the specific manners in which those objects were used are less instructive here.
All things considered, substantial evidence supports the juvenile court‘s factual finding that, by lunging and running toward I.S. with a raised switchblade-like knife from a distance of 10 to 12 feet away, Raymundo used the knife in a manner that likely would have caused great bodily injury to I.S. had I.S. not taken evasive actions.
II. Express Declaration of Assault as a Felony
Assault with a deadly weapon is a wobbler that can be treated in the court‘s discretion as a felony or a misdemeanor. (
A. Background
At the end of the adjudication hearing, the juvenile court made true findings as to all three offenses and the remaining (i.e., non-gang-related) enhancement allegations. In calculating Raymundo‘s maximum exposure, the court designated the assault the principal offense, the criminal threat the subordinate offense, and the brandishing count “absorbed in the assault” count under
In advance of the disposition hearing, Raymundo filed a memorandum asking the court to “exercise its discretion under
At the outset of the disposition hearing, the court told Raymundo, “[Y]our attorney has filed a disposition memorandum requesting that the court exercise its discretion and reduce the felony true findings to misdemeanors, so we will have that discussion . . . .” During that discussion, Raymundo‘s counsel argued misdemeanor treatment was warranted because, “in the grand scheme of things, considering the circumstances of this offense, I don‘t think it rises to the level . . . where it ultimately ends up strapping Raymundo with two strikes for the rest of his life.”
The prosecutor was “opposed to reducing both of the indicated counts to misdemeanors” because, “[i]n looking at the facts of this case,” Raymundo engaged in conduct that “elevate[d] the situation, by having the knife there, by chasing the victim, by telling the victim that, ‘You‘re going to die today.’ [] This is felony conduct . . . .” However, the prosecutor acknowledged that if the court were to reduce the aggravated assault count to a misdemeanor, “then the [criminal threat] will automatically no longer be a strike.”
The court stated it was “wrestling with the request” to reduce the offenses to misdemeanors. On one hand, the court found it “an almost absurd result” that Raymundo could receive an “incredibly disproportionate . . . two-strike finding” due to “a quirk in the law.” But on the other hand, the court said, “I[] . . . still have the reality of what went down on my mind. [] I found it to be a felony, so if the Court makes this reduction in the future, it‘s more along the lines of an equitable consideration, which I‘m willing to make, but not today.” (Italics added.)
B. Relevant Legal Principles
C. Analysis
Based on our review of the record as a whole, we conclude the juvenile court made the informed declaration required by
First, the juvenile court expressly declared the aggravated assault a felony at the disposition hearing. In weighing Raymundo‘s request to reduce the assault and criminal-threat offenses to misdemeanors, the court expressly stated, ”I found it to be a felony.” (Italics added.) This statement immediately follows the court‘s reference to “the reality of what went down,” which we construe as referring to the entire incident (and not, as Raymundo suggests, only the criminal threat).
Additional context supports our interpretation. The petition alleged the assault count as a felony and included a serious felony enhancement allegation. The minute order documenting the adjudication hearing expressly
Second, the record shows the court was aware that aggravated assault is a wobbler and that the court had the discretion to treat it as either a felony or misdemeanor. To begin with, Raymundo explicitly told this to the court in his disposition memorandum. And we know the court read the memorandum because the court described it to Raymundo at the outset of the disposition hearing. The court‘s description to Raymundo expressly referenced the “court[‘]s . . . discretion [to] reduce the felony true findings to misdemeanors.” The court also heard extensive argument from counsel on the issue and deferred ruling, indicating the court would revisit the reduction request in six months.
Even more fundamentally, the fact the court was considering reducing the assault count to a misdemeanor at all reflects the court‘s understanding that the offense was a wobbler. This is because courts do not have the authority to reduce straight felonies to misdemeanors; courts can only reduce wobblers. (See Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 683.)
Raymundo argues that because the court‘s consideration of the wobbler issue arose in response to his motion to reduce the offense under
For his final challenge, Raymundo contends the juvenile court erred by failing to stay punishment under
“In the absence of any reference to . . . section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective.” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) “A trial court‘s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618; see Leonard, supra, 228 Cal.App.4th at p. 499.)
Raymundo misplaces his reliance on People v. Mendoza (1997) 59 Cal.App.4th 1333, in which the Court of Appeal concluded the trial court erred by imposing separate punishments for making a criminal threat and dissuading a witness. But in Mendoza, “[t]he parties agree[d] [the defendant]‘s two convictions arose from a single act” (id. at p. 1346, italics added), whereas Raymundo‘s assault and criminal-threat counts arose from separate conduct that the juvenile court could reasonably have concluded were undertaken pursuant to separate objectives. (See Solis, supra, 90 Cal.App.4th at p. 1022 [finding Mendoza “clearly distinguishable” because “the same conduct formed the factual basis of both convictions“].)
Accordingly, the juvenile court did not err in implicitly concluding
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.