P. v. Nguyen

Filed 4/4/06 P. v. Nguyen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William D. Mudd, Judge. Affirmed in part, reversed in part and remanded.

Hai Nguyen appeals a judgment entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))^[1] and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)). On appeal, Nguyen contends there is insufficient evidence to support his conviction of assault with a deadly weapon.^[2] He also contends the trial court erred by not instructing sua sponte with CALJIC No. 2.71.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2004, Nguyen lived with his father, Hoi, and his mother, Ngoc. At that time, a restraining order prohibited Nguyen from possessing firearms. Nguyen had given his three guns to his brother, Hung, who apparently gave them to Hoi for safekeeping. Hoi had hidden the guns in their home's rafters several months earlier.

At about midnight on December 12, Nguyen called police, complaining that someone was in the backyard, watching him. The responding officers found no one in the backyard. However, they arrested Nguyen, apparently for being under the influence of methamphetamine.

Nguyen returned home at about 10:00 a.m., and demanded Hoi return his guns to him. Hoi refused to return the guns to Nguyen. Nguyen then used a 30-pound barbell to smash a table and closet door in his bedroom.^[3] Hoi tried to call police using the telephone in the kitchen, but Nguyen yanked the telephone out of the wall. Nguyen raised and held the barbell over his head. Standing about six to seven feet away from Hoi, Nguyen told Hoi: "If you're not going to return my guns, I'm going to hit you." After Hoi said he would not return the guns, Nguyen threw the barbell down on the floor (apparently away from Hoi) and told Hoi to leave the house. Nguyen then went to his bedroom. Hoi went to a neighbor's house and called police.

An information charged Nguyen with six offenses: (1) making a criminal threat (§ 422); (2) assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); (3) tampering with a telephone (§ 591); (4) owning or possessing a firearm while under a restraining order (§ 12021, subd. (g)(2)); (5) exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)); and (6) vandalism under $400 (§ 594, subds. (a), (b)(2)(A)). The information also alleged Nguyen personally used a deadly and dangerous weapon in committing the count 1 offense (§ 12022, subd. (b)(1)) and personally used a deadly weapon in committing the count 2 offense (§ 1192.7, subd. (c)(23)). The trial court subsequently granted the prosecution's motion to dismiss count 4 based on insufficiency of evidence.

At trial, the jury found Nguyen guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)) and found him not guilty on the remaining three counts. It also found true the allegation Nguyen personally used a deadly and dangerous weapon in committing the assault. The trial court suspended imposition of sentence and granted Nguyen three years' probation on the condition, inter alia, that he serve 270 days in local custody.

Nguyen timely filed a notice of appeal.

DISCUSSION

I

Substantial Evidence Standard of Review

When a defendant appeals on the ground of insufficiency of evidence to support his or her conviction, we review the record to determine whether there is substantial evidence to support the conviction. "In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--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.] 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. Kraft (2000) 23 Cal.4th 978, 1053.)

II

Nguyen's Assault Conviction

Nguyen contends substantial evidence does not support his conviction of assault with a deadly weapon (§ 245, subd. (a)(1)). Because the prosecution did not argue, and the jury was not instructed on, the theory of assault by conditional threat, Nguyen asserts the jury could have found him guilty only on the theory of assault, as instructed by the trial court, that he willfully committed an act which by its nature would probably and directly result in the application of physical force on Hoi. Nguyen asserts his conviction must be reversed because there is insufficient evidence to support his assault conviction on that theory.

A

Section 245, subdivision (a)(1) defines the offense of assault with a deadly weapon: "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 by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." An "assault" is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 215-216.) "The pivotal question is whether the defendant intended to commit an act likely to result in such physical force" against another person, and not "whether he or she intended a specific harm." (Id. at p. 218, italics added, fn. omitted.)

In this case, the trial court instructed with a modified version of CALJIC No. 9.02 on the offense of assault with a deadly weapon.^[4] The court then instructed with a modified version of CALJIC No. 9.00 on the definition of "assault:"

"In order to prove an assault[,] each of the following elements must 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 'wilfully' 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.

"To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted, it may be considered by you with the other evidence in determining the nature of the assault.

"A wilful application of physical force upon the person of another is not unlawful when done in lawful self-defense. The People have the burden to prove that the application of physical force was not in lawful self-defense.

"If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty." (Italics added.)

The trial court further instructed with CALJIC No. 9.01 on the "present ability" element of assault.^[5]

B

Nguyen asserts there is insufficient evidence to support a finding by the jury he committed an act which "by its nature would probably and directly result in the application of physical force" on Hoi, as required by the trial court's instruction on assault (CALJIC No. 9.00). He argues his act of holding a barbell over his head could not reasonably be found to be an act which by its nature would probably and directly result in the application of physical force on Hoi. Because he did not throw the barbell toward Hoi, Nguyen argues his act of holding the barbell over his head, by itself, was not likely to result in the application of physical force on Hoi.

Based on our review of the record and the instructions given the jury, we conclude the evidence is insufficient to support a finding Nguyen committed an act which "by its nature would probably and directly result in the application of physical force" on Hoi. Considering the evidence, and making all reasonable inferences therefrom, favorably to support the verdict, we conclude the evidence showed Nguyen committed the act of holding the barbell over his head at a distance of about six to seven feet from Hoi. The evidence did not show Nguyen threw the barbell at Hoi or otherwise attempted to strike Hoi with the barbell. The mere act of holding a barbell over one's head cannot reasonably be considered to be an act which would probably and directly result in the application of physical force against another person. If that were true, our courts could quickly be overwhelmed by assault cases against unsuspecting defendants who exercise their arms and upper bodies by simply lifting free weights over their heads in crowded gyms. Because there is nothing inherent in the act of holding a barbell over one's head at a distance of about six to seven feet from another person which would probably and directly result in the application of physical force against that other person, there is insufficient evidence to support the jury's finding that Nguyen was guilty of assault with a deadly weapon based on the instructions given by the trial court. In other words, Nguyen's holding of the barbell at a distance of about six to seven feet from Hoi was not likely to result in physical force against Hoi. (People v. Colantuono, supra, 7 Cal.4th at p. 217.)

C

Although there may have been sufficient evidence to support an instruction on the alternative theory of assault by conditional threat, Nguyen asserts, and the People concede, that the prosecutor did not argue, and the trial court did not instruct on, that alternative theory. People v. McMakin (1857) 8 Cal. 547 apparently was the first California case to recognize that alternative theory of assault, explaining:

"Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him." (Id. at pp. 548-549.)

At the time Nguyen raised the barbell over his head, he told Hoi: "If you're not going to return my guns, I'm going to hit you." In so doing, Nguyen made a conditional threat of violence: If Hoi did not comply with Nguyen's demand that he return his guns, Nguyen would strike him. Accordingly, the prosecutor arguably could have requested, and the trial court could have instructed with, CALJIC No. 9.00.1 on the alternative theory of assault by conditional threat.^[6] However, because the jury was not presented with instructions or argument on that alternative theory and did not address its factual elements, Nguyen could not be convicted of assault with a deadly weapon based on that theory.

Similarly, because the jury was not instructed more generally on the "traditional" theory of assault, Nguyen could not be convicted on a broader definition of assault than presented by CALJIC No. 9.00. As noted ante, section 240 defines "assault" as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." However, the jury was not instructed with that definition. Furthermore, the jury was not instructed on a traditional theory of assault that, on its face, appears to be broader than described by CALJIC No. 9.00. As People v. Colantuono noted:

" ' " . . . An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least to all appearance, complete the battery . . . ." ' (Perkins on Criminal Law (2d ed. 1969) ch. 2, § 2, pp. 118-119; [citations].)

"Assault thus lies on a definitional, not merely a factual, continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault. 'An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.' [Citation.] This infrangible nexus means that once the violent-injury-producing course of conduct begins, untoward consequences will naturally and proximately follow. 'The gravamen of the crime defined by [Penal Code] section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury.' [Citation.] The criminal law thus independently sanctions the initiation of force or violence--the 'assault'--because it directly and immediately culminates in injury--the 'battery.' [Citation.]" (People v. Colantuono, supra, 7 Cal.4th at pp. 216-217, first italics added.)

To the extent an assault may occur if a defendant makes the next to last (but not the last) movement to complete a battery, CALJIC No. 9.00's language does not include that broader definition of assault. Rather, CALJIC No. 9.00's definition of "assault" requires a defendant to have committed an act which "by its nature would probably and directly result in the application of physical force" on another person; it does not include as an alternative that a defendant commit only the "next to last" act to completion of a battery. Although Nguyen's act of holding the barbell over his head could have been considered by the jury as the "next to last" act to committing a battery on Hoi, the jury was not instructed on that theory of assault and therefore did not address its factual elements. Accordingly, the jury's verdict convicting Nguyen of assault with a deadly weapon could not have been based on that theory. Rather, because the jury was instructed on "assault" with CALJIC No. 9.00 and substantial evidence does not support a finding Nguyen's act of holding a barbell over his head would by its nature probably and directly result in the application of physical force (i.e., a battery) on Hoi, Nguyen's conviction of assault with a deadly weapon must be reversed for insufficiency of evidence.^[7]

II

Remand for Resentencing

Because Nguyen does not challenge his conviction of exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)) and the trial court in granting him probation suspended imposition of sentence on both that conviction and his now-reversed conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), we remand the matter for resentencing on Nguyen's sole remaining conviction of exhibiting a deadly weapon other than a firearm.

DISPOSITION

Nguyen's conviction of assault with a deadly weapon is reversed. In all other respects, the judgment is affirmed. The matter is remanded for resentencing.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All statutory references are to the Penal Code.

^[2] Nguyen does not challenge his conviction of exhibiting a deadly weapon other than a firearm.

^[3] At trial, Hoi indicated the barbell was about 14 to 16 inches in length.

^[4] The trial court instructed: "Defendant is accused in Count 2 of having violated section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] 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. [¶] A 'deadly weapon' is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. [¶] 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." (Italics added.)

^[5] CALJIC No. 9.01 instructs: "A necessary element of an assault is that the person committing the assault have the present ability to apply physical force to the person of another. This means that at the time of the act which by its nature would probably and directly result in the application of physical force upon the person of another, the perpetrator of the act must have the physical means to accomplish that result. If there is this ability, 'present ability' exists even if there is no injury." (CALJIC No. 9.01 (Oct. 2005 ed.), italics added.)

^[6] CALJIC No. 9.00.1 instructs: "An assault includes a conditional threat to apply physical force upon another, providing that: [¶] 1. The threat commands the immediate performance of some act which the threatening party has no legal right to demand; [¶] 2. The threat is made with the intention of compelling performance of that act by the application of physical force; [¶] 3. The person making the threat has placed [himself] [herself] physically in a position to inflict such physical force; and [¶] 4. That person has proceeded as far as it is necessary to go in order to carry out [his] [her] intention. [¶] [A person may have a legal right to insist that another person [act] [or] [refrain from acting] in a certain way. However, that person makes an unlawful demand if he or she threatens the use of [unreasonable] force to command [the immediate performance of that act] [or] [the other person to refrain from acting].]" (CALJIC No. 9.00.1 (2004 rev.) (Oct. 2005 ed.).)

^[7] Because we reverse Nguyen's assault conviction on the ground of insufficiency of evidence, we need not address his alternative contention that the trial court erred by not instructing sua sponte with CALJIC No. 2.71.