THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN CRUZ-PARTIDA, Defendant and Appellant.
A160334
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 4/28/22
CERTIFIED FOR PUBLICATION; (San Mateo County Super. Ct. No. 16-NF-004951A)
I. BACKGROUND
On September 22, 2016, the San Mateo County District Attorney filed a felony information charging Cruz-Partida with the murder of Nicholas G. (
The charges stemmed from two different altercations on April 25, 2016, both of which involved Cruz-Partida, Nicholas G., and Nicholas‘s brother, Steven G. Counts 1 through 3 relate to the shooting of Nicholas and Steven near Orange Memorial Park in South San Francisco, which led to Nicholas‘s death and injured Steven. In contrast, as the prosecutor made clear in her statements to the jury, count 4 relates solely to conduct which occurred prior to the park shooting outside of Cruz-Partida‘s nearby apartment. Because the jury ultimately acquitted Cruz-Partida of counts 1 through 3, we focus our factual recitation on the evidence adduced at trial with respect to count 4.
A. Prosecution Evidence
Jury trial in this matter commenced on November 18, 2019. Melissa L. testified that she met Cruz-Partida at school when she was 13 years of age, and the two had an on-again, off-again relationship from 2009 to 2015. They had a daughter together in 2012. Melissa and her daughter lived in an apartment with Cruz-Partida, his parents, and his sister from approximately 2014 until early 2016. Access to the apartment was through either of two locked gates.
On the evening of April 24, 2019, Melissa and Nicholas were in a serious car accident. While Melissa was being transported to the hospital, Nicholas looked through her cellphone, taking screenshots of various pictures and communications involving Melissa and other men that appeared on her phone, including a conversation in which Cruz-Partida called Nicholas “ugly.” Early the next morning, Nicholas and Melissa engaged in a text conversation during which he was very upset and accused her of being unfaithful. By the end of the conversation, Melissa believed they had reconciled, as several of the last messages from Nicholas stated that he loved her. However, later that day, Nicholas texted her, stating: ” ‘I‘m going to whoop your ex‘s ass.’ ” He also called her asking for the name of Cruz-Partida‘s girlfriend. At another point, he called to let Melissa know: ” ‘Your baby daddy wants to fight me. Talk to you later.’ ” Cruz-Partida also called Melissa, telling her that ” ‘they’ ” were at the house and that he told Nicholas ” ‘he didn‘t want to fight in front of the house.’ ”
Digital evidence showed that Nicholas messaged Cruz-Partida that afternoon, stating: ” ‘Aha, I already been hella times. I know where you live. . . . You pussy ass nigga talking over blood. Meet me at PD Valley right
The neighbor who lived on the second floor of Cruz-Partida‘s three-unit apartment complex also testified. She confirmed that the only entrance to Cruz-Partida‘s apartment was through the two locked gates. On April 25, 2016, she heard arguing between Cruz-Partida and another individual who was later identified as Nicholas. Nicholas was with a second young man (his brother Steven), was “very angry,” and was arguing with Cruz-Partida “over some woman.” Nicholas stated, ” ‘She‘s mine,’ ” and ” ‘She loves me.’ ” Cruz-Partida responded that “he was with her” and they had “just had a baby.” When she heard Nicholas say he was going to come back with some friends that night and kill Cruz-Partida, she called 911. Both Cruz-Partida and Nicholas were cursing at each other. Nicholas was trying to get Cruz-Partida to come out, saying: ” ‘You‘re a pussy. Why don‘t you come out? You‘re a chicken shit.’ ” The neighbor took pictures from her window in case the police didn‘t arrive in time.
The back and forth went on for 15 or 20 minutes. Cruz-Partida was telling Nicholas and Steven to leave. The neighbor could not see Cruz-Partida, but, at one point, she heard Nicholas say to him: ” ‘You think you‘re big shit because you have a gun’ ” or ” ‘I don‘t care if you have a gun.’ ”2 Nicholas was pacing back and forth on the sidewalk and would take a
Witnesses tracked three individuals heading from the apartment building to the park, one on a skateboard (Cruz-Partida) and the other two walking quickly behind him. Joseph G., who was sitting in his car in a nearby parking lot saw Nicholas catch up to Cruz-Partida and ” ‘[get] in his face.’ ” Nicholas punched Cruz-Partida, who stepped back, pulled a gun out of his front pocket, and shot both Nicholas and Steven. Cruz-Partida then fled on foot.
Nicholas identified his shooter as Cristian Cruz to the first officer who responded to the scene. At the time of his arrest several days later, Cruz-Partida had a laceration on his left cheekbone. An officer collected a spent brass casing from some dirt in the courtyard at Cruz-Partida‘s apartment complex. It matched three other casings found at the scene of the murder,
At the close of the prosecution‘s evidence, Cruz-Partida brought a motion for acquittal with respect to counts 1, 2, and 4. He argued there was insufficient evidence as to count 4, because there was no evidence that he was shooting at either Nicholas or Steven, and the prosecution failed to provide evidence regarding the location of either brother at the time of the single gunshot. The trial court initially found Cruz-Partida‘s count 4 argument the “most interesting.” The prosecutor argued, however, that for purposes of an assault conviction it does not matter where a defendant was aiming or if the possible targets were out of range, citing People v. Chance (2008) 44 Cal.4th 1164 (Chance) and People v. McMakin (1857) 8 Cal. 547 (McMakin). After noting that the discussion of present ability to inflict injury in Chance was not at issue in the present case, the court denied the motion for acquittal, stating: “The gun can be seen, and we know the gun was loaded at the time. And that moment—putting aside the discharge of the weapon—that moment is an assault.”4
Cruz-Partida testified in his own defense. At 2:05 p.m. on April 25, 2016, he received a direct message on his phone from an unknown sender saying, ” ‘What‘s up, bitch ass nigga?’ ” Thereafter, he received multiple threatening messages, and the sender identified himself as Nicholas. According to Cruz-Partida, he invited Nicholas to come to his house because he wanted to see if he really knew where it was. He was not jealous of Nicholas, as he had been dating another woman, Ashley, for four or five months. When Nicholas antagonized him by stating he would have Ashley bring him to Cruz-Partida‘s house, Cruz-Partida replied in kind, stating: ” ‘Where you at? I‘ll tell her pick you up. How my dick taste, though.’ ”
About 30 minutes later, Nicholas and another individual later identified as Steven arrived at his house.5 Cruz-Partida admitted to being mad, but stated he was mad at Melissa, not Nicholas. He brought a gun when he went outside because he did not know what he was getting himself into. He asked the brothers to leave. Cruz-Partida claimed that the lock on the gate was broken at the time and also testified that he often hopped the gate, which was about eight feet tall. Nicholas was pacing back and forth on the sidewalk and did the talking, stating repeatedly: ” ‘Come out here and fight. Stop being a pussy. Stop being a bitch.’ ” Steven kept his hands in his pockets the whole time. Cruz-Partida took a video of the two brothers and could be heard stating: ” ‘This nigga over here recording me. He know I‘m
As Nicholas paced, Steven was slowly moving closer. Cruz-Partida could see Steven the whole time but could not always see Nicholas. He pulled his gun out when Steven started “coming too close” and, ultimately, he fired his gun at the ground “[t]o scare them, tell them to leave.” At the time he fired the shot, Nicholas was about 21 feet away and Steven was 16 feet away and “slow rolling” towards him. Cruz-Partida shot with his right arm across his torso to the left at about a 30-degree angle downward from parallel to the ground so that Steven “could back up.” He aimed towards the ground near a bush on the street side of the gate. Nicholas responded that now Cruz-Partida was going to get caught as the police were going to come. Nicholas threatened to break his windows if he didn‘t come out.
Aware that his mother and sister would be home soon, Cruz-Partida went into his apartment, grabbed his skateboard, and left toward the back alley. Nicholas and Steven saw him and followed him, telling him to “fight, fight.” He told them “to leave [him] the fuck alone,” but they persisted. Steven still had his hands in his pockets, and Cruz-Partida was concerned Steven had a weapon, especially because the brothers did not seem scared that he had a weapon. When they got to the park, Steven cut off his planned escape route and hit him hard. Cruz-Partida had his hand on the trigger of his gun and accidentally fired a shot at the ground as he was pulling the gun out of his pocket. He then fired at Steven and, when Nicholas started coming at him, he fired a third shot at Nicholas. He did not want to kill anybody, but he was afraid. According to Cruz-Partida, he possessed the gun for about a week before the shootings. Although he had held other firearms on two
C. Jury Instructions, Verdict, and Sentencing
The case went to the jury with final instructions on December 16, 2019. Among the jury instructions, the trial court gave a modified version of CALCRIM No. 845 as follows:
“The defendant is charged in Counts 3 and 4 with assault with a semiautomatic firearm in violation of
“To prove that the defendant is guilty of this crime, the People must prove: [¶] 1. The defendant did an act with a semiautomatic firearm 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; [¶] 4. When the defendant acted, he had the present ability to apply force with a semiautomatic firearm to a person; [¶] AND [¶] 5. The defendant did not act in self-defense.
“Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage.
“The People are not required to prove that the defendant actually intended to use force against someone when he acted.
“No one needs to have been actually injured by defendant‘s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault.
“A semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.”
II. DISCUSSION
A. Standard of Review
The scope of our review in this context is well settled. ” ‘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. Lindberg (2008) 45 Cal.4th 1, 27.)” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
B. Substantial Evidence Supports the Verdict
1. Assault with a Semiautomatic Firearm
Cruz-Partida argues he was improperly convicted of assault because there was no evidence that he did an act that would directly and probably result in the application of force to either Nicholas or Steven; nor, he claims, was he aware of facts that would lead a reasonable person to conclude that his actions would have had such an effect. In particular, he contends that firing one shot at the ground away from the two brothers was not likely to result in any injury, and thus such an act cannot supply the intent necessary to support the jury‘s assault finding. Cruz-Partida misapprehends the nature of this general intent crime.
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”7 (
In Williams, the Supreme Court explained the mental state required to support a conviction for assault. (Williams, supra, 26 Cal.4th at p. 782.) Our high court had previously held that “the ‘mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.’ ”8 (Ibid., quoting People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono).) The Williams court clarified that “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 [or her] conduct.” (Williams, at p. 788.) Therefore, defendants “may not be convicted based on facts [they] did not know but should have known.”9 (Ibid.) “For example, 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 defendant, would find that the act would directly, naturally, and probably result in a battery.” (Id. at p. 788, fn. 3.)
The oldest case touching on this issue is McMakin, supra, 8 Cal. 547. There, John Green and the defendant had a dispute regarding certain land. Green was horseback riding on a trail through those lands when he was intercepted by the defendant, who threatened to shoot him if he did not leave. (Ibid.) At the same time, the defendant drew a revolver, “which he held in a perpendicular line with the body of Green, but with the instrument so pointed that the ball would strike the ground before it reached [Green], had the pistol been discharged. [Green] turned his horse and rode off.” (Ibid.) In discussing the evidence of intent necessary for an assault, the Supreme Court stated that “presenting a gun at a person who is within its range . . . . accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.” (Id. at p. 548.) The McMakin court noted that “[t]he drawing of a weapon is generally evidence
Williams, itself, is also instructive. In that case, two rivals for the affection of a woman (Nicholson) had a number of prior confrontations. (Williams, supra, 26 Cal.4th at p. 782.) On the day in question, King repeatedly telephoned Nicholson, trying to persuade her to accompany him and his two teenage sons on an outing. After she refused to speak to him, King drove to Nicholson‘s house with his sons, parking his pickup truck at the front curb. He left a note for Nicholson on the front door, knocked, and went back to his truck to wait. (Ibid.) Williams opened the front door and told King to stay away from Nicholson. He then got a shotgun from his truck (which was parked in the driveway), loaded it, and “walked back toward the
More recently, our high court confirmed that “pointing a gun at someone in a menacing manner is sufficient to establish the requisite mental state” for assault. (People v. Hartsch (2010) 49 Cal.4th 472, 507–508.) In that case, a woman heard something ram the front door of her apartment and, when she opened it, she saw the defendant in the passenger seat of a truck “not far from the door” pointing a gun at her. She slammed the door. (Id. at p. 507.) Hartsch argued under Williams that there “was no showing he knew that his actions that night would probably and directly result in a battery.” (Hartsch, at p. 507.) The Supreme Court concluded that pointing the gun at the woman “under threatening circumstances” was sufficient to establish the mental state for assault. (Id. at p. 508.)
We discern from these cases the general rule that displaying a gun and/or firing it in the general direction of others is sufficient to provide the mens rea for an assault charge where there is animus between the defendant and the targeted party and/or the surrounding circumstances are fraught. Thus, understanding the context is important. Here, we note the following facts of which Cruz-Partida was aware: Nicholas was currently dating Melissa, the mother of Cruz-Partida‘s young child. Cruz-Partida remained in contact with Melissa, with whom he had had an on-again, off-again relationship for six years. Cruz-Partida was aware that Nicholas had come to his house with his brother to fight him. Both were angry during the altercation. The two cursed at and antagonized each other repeatedly, both
2. Absence of Self-defense
Cruz-Partida nevertheless argues that there was insufficient evidence that he was not acting in self-defense when he displayed and fired his gun outside of his apartment, making his conviction for assault improper. In arguing that it was reasonable to take defensive action, Cruz-Partida focuses on the facts that Nicholas and Steven came to his apartment with the intent
The parties agree on the applicable law. To justify conduct that would otherwise be an assault on grounds of self-defense, a defendant ” ‘must have an honest and reasonable belief that bodily injury is about to be inflicted on him [or her].’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) “In other words, the defendant‘s belief must both subjectively exist and be objectively reasonable.” (People v. Brady (2018) 22 Cal.App.5th 1008, 1014Minifie, at p. 1064) Moreover, ” ‘any right of self-defense is limited to the use of such force as is reasonable under the circumstances.’ ” (Id. at p. 1065, citing Civ. Code, § 50 [“Any necessary force may be used to protect from wrongful injury the person . . . of oneself . . . .“].) It is the prosecution‘s burden to prove beyond a reasonable doubt that the defendant did not act in lawful self-defense. (People v. Lee (2005) 131 Cal.App.4th 1413, 1429 Here, the jury was properly instructed on the law of self-defense. And it is clear they knew how to apply it, as they acquitted Cruz-Partida on the more serious charges associated with the altercation at the park. Indeed, the jury asked several questions regarding the self-defense requirements. For example, it sought clarification on what amount of time constitutes the ” ‘future’ ” in contrast to an “imminent” threat. The court responded by referring the jury back to its instructions and stating: “An imminent danger is one that is present in the situation when the defendant acted rather than a danger threatened at some future time.” It appears that the jury concluded that the threat of bodily harm was not imminent with respect to the assault charge at Cruz-Partida‘s apartment, and substantial evidence supports that conclusion. As detailed above, Cruz-Partida conceded that he thought Nicholas only wanted to engage in a fist fight with him. While he and Nicholas did trade insults outside his home, the exchange went on for a significant period of time without escalating. Rather, Nicholas kept demanding that Cruz-Partida come out and fight, and Cruz-Partida repeatedly asked the brothers to go away. Cruz-Partida admitted that Nicholas at one point stated that he would come back later with “friends,” a comment his neighbor corroborated. However, this comment refers solely to a future threat and suggests that the standoff would likely end by the brothers retreating until a better opportunity presented itself. While they might also have reached the opposite conclusion, the jury could reasonably determine, on these facts, that Cruz-Partida was not responding to an imminent threat when he pulled out his gun and/or fired a warning shot. The jury may also have reasonably determined based on the evidence presented that Cruz-Partida was not actually afraid of imminent bodily injury. He was on his home turf with a loaded gun, and there was no evidence either of the brothers had a weapon. Although Cruz-Partida testified he was afraid Steven might have a weapon because he always had his hands in his pockets, the jury could have discounted this testimony. Similarly, the only evidence that Steven was coming closer to Cruz-Partida before he fired the warning shot came from Cruz-Partida, himself. The neighbor testified that she could not see Steven until after the shot was fired. And there was an eight-foot gate nearby which Cruz-Partida could use as cover. Finally, Cruz-Partida‘s own behaviors could be viewed as showing a lack of fear. When he took the video of the brothers standing outside of his apartment he could be heard saying: ” ‘This nigga ain‘t fucking with shit.’ ” Cruz-Partida testified he meant by this that “whatever [Nicholas was] doing [by trying to fight him] is not going to affect me.” Finally, during closing arguments, the prosecutor referenced the picture taken by Nicholas of Cruz-Partida holding his gun, stating: “Does this person look scared? Because he said at this time he was afraid for his life. Look at his face. That is a big fat smile on his face. And you know why? It‘s because he knows he has the upper hand.” Under such circumstances, the jury also could have reasonably concluded as much. III. DISPOSITION The judgment is affirmed. EAST, J. WE CONCUR: MARGULIES, ACTING P. J. BANKE, J. A160334 People v. Cruz-Partida Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Trial Court: Superior Court of San Mateo County Trial Judge: Donald J. Ayoob, Judge Counsel: Mary K. McComb, State Public Defender, Joy F. Haviland and Caroline C. Cincotta, Deputy State Public Defenders for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General for Plaintiff and Respondent.