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P. v. Thomas

P. v. Thomas
08:22:2007





P. v. Thomas



Filed 8/20/07 P. v. Thomas CA2/7



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION SEVEN



THE PEOPLE,



Plaintiff and Respondent,



v.



CEDRIC MAURICE THOMAS,



Defendant and Appellant.



B191200



(Los Angeles County



Super. Ct. No. MA031149)



APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Chung, Judge. Affirmed.



Maureen L. Fox, 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, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.



___________________________________



Cedric Maurice Thomas appeals his convictions for, among other charges, attempted murder, and three counts of assault with a firearm. The evidence adduced at trial showed appellant fired a gun at a van occupied by his estranged wife and his youngest son and daughter. He maintains there was insufficient evidence to support his conviction for assault against his son because he claims there was no evidence that he was aware that his son was in the vehicle when he fired at it. Appellant also asserts that the court erred in answering questions submitted by the jury with respect to the assault charge involving his son. He further claims the court erred in admitting evidence of threats uttered against his estranged wife during his interview with a psychiatrist at the county jail. Finally, appellant claims the court committed prejudicial error in failing to give the cautionary instruction to the jury to view his out-of-court statements with caution. As we shall explain, sufficient evidence supported appellants convictions and the court did not abuse its discretion in handling questions from the jury. In addition, appellants statements to the psychiatrist were properly admitted and any error in failing to give the form cautionary instruction was harmless. Accordingly, we affirm.



FACTUAL AND PROCEDURAL BACKGROUND



Appellant and Ms. Thomas were married in 1984 and they have five children. They had a troubled relationship and separated and reunited several times. In 2004, Ms. Thomas obtained legal custody of the children while appellant had visitation rights.



In January 2005, during a period they were residing together, Ms. Thomas and appellant had an argument, during which, Ms. Thomas asked appellant: What are you going to hit me? To which he responded: No, I am going to shoot you. Ms. Thomas took her children and left the home.[1] She obtained a restraining order against appellant and an order extinguishing his visitation rights.



On February 20, 2005, appellant called Ms. Thomas on the telephone. During the conversation he told her: Give me joint custody of the kids. In four days I am going to be in jail. Appellant explained he was going to be in jail because he was going to shoot her. He called again later that day and reiterated his threat and at one point discussed his plans for where the children would live after she had been shot. Ms. Thomas believed appellant might carry out his threat so she called the police.



On February 22, Ms. Thomas kept her youngest children Amber and Jonathan home from school and took them to work with her because she believed that they were aware their father had made threats against her and that they were afraid. That evening Ms. Thomas drove the two children around the neighborhood in a friends van to show them that they were safe and everything was alright.



Ten-year-old Amber sat in the front passenger seat, while Jonathan, age eleven, kneeled on the floor between the front seats where Ms. Thomas and Amber sat.[2] At about 7:30 p.m., while they were driving they saw appellant walking on the sidewalk near their home carrying a black bag and a backpack; he tried to signal for the van to stop. Ms. Thomas turned the vehicle around to leave. Jonathan testified that as they drove past his father again, [w]e all looked at him, and he looked at us. The children testified they saw their father run into the middle of the street and pull out a gun. Ms. Thomas accelerated and told the children to duck. As they drove away they heard bullets hitting the back of the van.[3] Ms. Thomas picked up her other children and then drove around until she found a police officer.



Appellant was arrested. On March 8, 2005, while appellant was in custody in county jail, he underwent a psychiatric evaluation by a Dr.Yatin Patel. The purpose of the evaluation was to diagnose appellant and make recommendations for treatment; appellant had apparently been on suicide watch while in the facility. Dr. Patel stated that at the time of the interview he was unaware of the charges or circumstances which caused appellant to be incarcerated.



During the interview, appellant told Dr. Patel that he had bought a gun a few weeks before, intending to knock on his estranged-wifes door to shoot her and her boyfriend. Dr. Patel conveyed the statements to jail personnel, the sheriffs station and ultimately he called Ms. Thomas as well to apprise her of appellants statements.



Appellant was charged with one count of attempted premeditated murder by attempting to kill Ms. Thomas (Count 1); shooting at an occupied motor vehicle (Count 2); assault with a firearm upon Ms. Thomas (Count 3); assault with a firearm upon Amber (Count 4); assault with a firearm upon Jonathan (Count 5); criminal threats against Ms. Thomas (Count 6); and possession of a firearm by a felon (Count 7). The information also alleged various weapons and Vehicle Code violation enhancements.



The jury convicted appellant on all counts. Appellant was sentenced to 27 years followed by a life sentence.



This appeal followed.



DISCUSSION





I. Conviction for Assault with a Deadly Weapon in Count 5



On appeal, appellant asserts two claims of error with respect to the assault with a firearm upon Jonathan alleged in count 5. First he asserts there was insufficient evidence to support his conviction on the charge. Second, he claims the court erred in responding to questions submitted to the jury as to the charge. We examine each of these contentions in turn.



A. Sufficiency of the Evidence.



On appeal, appellant claims insufficient evidence supported his conviction for the assault alleged in count five involving his son Jonathan because there was no evidence appellant was aware that his son was present when he fired the weapon at the van. As we shall explain, we cannot agree.



When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether substantial evidence exists to support the decision of the trier of fact. (People v. Diaz (1992) 3 Cal.4th 495, 534; People v. Jennings ( 1991) 53 Cal.3d 334, 364.) In making this determination, the court presumes every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) We do not put ourselves in the position of the jury and ask whether in our judgment the evidence proves guilt beyond a reasonable doubt, but merely decide whether the verdict is supported by any substantial evidence, contradicted or uncontradicted. (People v. Farmer (1989) 47 Cal.3d 888, 924, overruled in part on another ground in People v. Waidla (2000) 22 Cal.4th 690; People v. Alcala (1984) 36 Cal.3d 604, 623.)



In count 5, appellant was charged with assaulting his son Jonathan with a firearm in violation of Penal Code section 245, subdivision (a)(2).[4] An assault is an attempt to commit a battery. [Citation.] Assault with a deadly weapon is termed a general intent crime because it is not necessary to find a specific intent to cause a particular injury. What is required, however, is the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another. [Citations.] Intent to frighten or mere reckless conduct is insufficient. [Citation.] (Peoplev. Lee (1994) 28 Cal.App.4th 1724, 1734; People v. Williams (2001) 26 Cal.4th 779, 788 [assault is a general intent crime].)



In Williams, the California Supreme Court held that assault requires actual knowledge the act, by its nature, would probably and directly result in physical force being applied to another.[5] (People v. Williams, supra, 26 Cal.4th at p. 784.)



A person need not intend to commit violence against a specific victim or particular person to be guilty of an assault. (Peoplev. Tran (1996) 47 Cal.App.4th 253;[6]People v. Lee, supra, 28 Cal.App.4th at p. 1737 [Assault conviction upheld where information alleged assault on named individual but evidence showed defendant shot into a group of persons].) When the defendant shoots into a group of persons primarily targeting only one of them, the defendant can be convicted of assault with a deadly weapon as to the non-targeted members of the group. (People v. Bland (2002) 28 Cal.4th 313, 329.) The determination of whether a defendant can be held accountable for an assault in this context appears to turn on whether a reasonable jury could find based on the evidence of the circumstances surrounding the assault the defendant was actually aware any others (in addition to the intended target) were in close proximity to the target. (People v. Lee, supra, 28 Cal.App.4th at p. 1735; see also Peoplev. Griggs (1989) 216 Cal.App.3d 734, 742 [court concluded defendant was clearly aware he had fired into a crowd assembled in front of an auditorium]; Peoplev. Birch (1969) 3 Cal.App.3d 167, 177 [observing an assault with a deadly weapon may be perpetrated against two or more victims by firing a single shot but concluding that under the facts no assault against unintended victim; there was no evidence defendant aware that unintended victim was present]; Peoplev. Lathus (1973) 35 Cal.App.3d 466, 469-471 [defendant shot at a car stalled on the highway and struck a person standing outside of it; although defendant claimed he saw no one near the car and had no intent to shoot anyone, appellate court concluded that based on the circumstances [t]he jury reasonably could find that appellant deliberately shot at the parked automobile with actual knowledge that there were people in or near it . . . .].)



Williams, although not directly on point, appears to follow suit. In Williams, the three alleged victims, a father and his two sons, were hiding behind a pickup truck when the defendant fired a shot into the wheel well of the truck. The defendant testified he saw the father crouched behind the truck but never saw the sons and did not know they were there. The jury convicted defendant of assault on the father but deadlocked on the counts involving the sons. (People v. Williams, supra, 26 Cal.4th at pp. 782-783.) After disapproving the assault instruction given in the case for failure to require proof of the defendants knowledge of the facts, the court turned to the question whether the error was prejudicial. The court concluded that since the jury convicted defendant of assault on the father whom defendant knew was crouched behind the truck and not on the two sons whom he did not know were present behind the truck, the jury was not misled by the instructions failure to require the jury find the defendant had actual knowledge of facts sufficient to establish the act of shooting would probably and directly result in the application of physical force against another. (Id. at p. 790.)



Here there is no dispute as to the sufficiency of the evidence except to the extent appellant claims there was no evidence he knew his son Jonathan was in the van. In contrast to Williams, appellant did not testify and did not present any evidence to support any finding he lacked awareness that the van was occupied by more than one person. Appellant does not claim he was unaware his ex-wife and daughter were in the car, and from the testimony of Jonathan a reasonable jury could infer appellant was aware his son was also in the van -- Jonathans testimony was we looked at him, and he looked at us. Thus, there was sufficient evidence presented to the jury which suggested he was aware of his sons presence.



In sum, there was substantial evidence that appellant, angry with his estranged wife, intentionally fired the gun at the van occupied by his wife and his two youngest children. There was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed assault with a firearm against Jonathan as alleged in count five, including sufficient evidence of the requisite mens rea for that offense. (Peoplev. Colantuono, supra, 7 Cal.4th at pp. 214-215; People v. Ochoa, supra, 6 Cal.4th at p. 1206; Peoplev. Lee, supra, 28 Cal.App.4th at pp. 1734-1737.) Neither the cases cited by appellant, nor his argument, compels a contrary conclusion. Appellants contention amounts to no more than a request that we reweigh the evidence and substitute our judgment for that of the trier of fact. That is not the function of a reviewing court. (People v. Culver (1973) 10 Cal.3d 542, 548.)



B.                Instructions on Count 5.



During deliberations, the jury sent the court the following question: Does Jonathan count on charges 3-5 as it was not know [sic] by Cedric [appellant] that he was there[?] The trial court responded as follows:



Several comments regarding that. First, keep in mind you are the factfinders, so I cant be in a position to tell you what you think the evidence shows or doesnt show. All I can say is this: Count 5, which is assault with a firearm, Jonathan T[.] is listed as the main victim. I refer you to the verdict forms which separates each count along with each victim; and, also, keep in mind the jury instruction that I read to you that each count -- there are seven counts here. Each of these counts are separate charges and that you return verdicts, if you can, based on the evidence, on all seven. But they are separate charges. [] Having said that, is there any further request for clarification on that, . . . 



The foreperson responded, Basically, the question was: Can that law be applied to someone if they don't know that that person is in the car or in a vehicle? The trial court replied,



To say it was not known, I cant make the factfinding for you. I will tell you this: refer to the jury instructions that discuss assault with a firearm. [] I will tell you its a general intent crime. Okay? So read the instructions on general intent. And beyond that, Im sorry I cant be much more help. Short of actually making a finding or discussing the evidence, I think the evidence is there. You have the intent requirement. You have the elements that prove that, and then its your call. Okay? [] If I can help any further, would anything else be more useful other than referencing you to the law?



A different juror asked, If I shoot at something, does it matter how many people are present in a vehicle? Do I have to know, you know? If I shoot at someone -- at a vehicle and there is ten people in there, can I be liable ten counts?



At sidebar, the trial court discussed the legal issue with counsel and decided it would allow counsel to re-open argument for five minutes to address the issue.



Thereafter the prosecutor explained to the jury the difference between a specific intent crime and a general intent crime. He explained that as applied to this case, for the attempted murder charge, the defendant had to have a specific intent to kill a specific person. However, with assault, a general intent crime, the defendant did not have to have the intent to assault any particular person. One of the elements of the offense states that the defendant did an act that would probably result in the application of force to a person. It doesnt say a specific person. It doesnt say he has to know.



So the People do not have the burden of proving to you that the defendant knew how many people were in that van or that, specifically, that his son was in that van. He just has to know is [sic] if there is evidence to show that he knew that van was occupied. And a reasonable person under those circumstances would know that if you shoot in an occupied vehicle, there is a chance you might harm someone in that vehicle.



Defense counsel agreed that if a person shot at a vehicle and there were ten people in there, the shooter could be liable for ten counts. However, defense counsel urged the jury to consider the dynamics of the case, implying the evidence showed no more than that appellant knew he was shooting at a vehicle occupied by his wife.[7]



In this court, appellant contends that the trial court erred in failing to correctly instruct the jury regarding the liability for assault against an unintended, unseen person and by delegating the legal instruction to additional argument by counsel. He further contends he received ineffective assistance of trial counsel because counsel failed to request the proper instruction. We find no error.



The trial court has a duty to help the jury understand the legal principles the jury is asked to apply. (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) In particular, the court must attempt to clear up any instructional confusion expressed by the jury. (Ibid.) But [t]his does not mean the court must always elaborate on the standard instructions. When the original instructions are themselves full and complete, the court has discretion to determine what additional explanations are sufficient to satisfy the jurys request for information. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In exercising that discretion, the trial court must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (Ibid.; original italics.)



In view of the discretion allowed by the trial court we find no error with the resolution of the jurys questions in this case.[8] Nor based on the principles discussed elsewhere, do we find any error in counsels explanations of the law. As counsel pointed out, the jury did not have to find appellant knew that his son was present in the van when he fired the gun. Neither appellants knowledge of the exact number of occupants or their identities is determinative. To support appellants conviction on count five the evidence need only show that appellant had actual knowledge the van was occupied by more than one person. The jurys initial question implied that some on the jury doubted the evidence supported a finding that appellant knew his son was in the van. Nonetheless, the question related only to Jonathan. There was no indication that the jury doubted that appellant was aware that the van was occupied by at least two other peoplehis daughter Amber and Ms. Thomas. Consequently in view of the evidence from which the jury could reasonably find that appellant knew the van had multiple occupants, we conclude the jury was not misled by the court or counsel.



II.              Appellants Statements to the Psychiatrist



Prior to trial the prosecutor indicated to the court he intended to present testimony from the psychiatrist, Dr. Patel, who evaluated appellant. Dr. Patel planned to testify that during the interview, appellant had made a threat against his estranged wife. The prosecutor asserted the statements were admissible at trial under Evidence Code section 1024, the dangerous patient exception to the doctor-patient privilege. The prosecutor also claimed that when appellant made the threats Dr. Patel was unaware of the charges or circumstances which caused appellant to be incarcerated. Dr. Patel informed jail personnel, the sheriffs station and ultimately Ms. Thomas of appellants statements.



Appellant objected asserting that the statements were protected under the doctor-patient privilege. He pointed out he was on suicide watch at the time and clearly in custody when he made the statements to the doctor and thus the doctor should have known that appellant did not pose a genuine threat of harm to Ms. Thomas.



The prosecutor responded appellant could have made bail and therefore, the doctor could reasonably believe that appellants wife could have been at risk. The trial court ruled it would allow the testimony based on the public policy which favored Evidence Code section 1024, namely, that the confidences between doctors and patients give way when there is a legitimate and reasonable concern for public peril . . . . The court also limited the statements to the threats against appellants wife and excluded the threat to shoot the boyfriend under Evidence Code section 352.



Thereafter, Dr. Patel testified before the jury that he conducted a psychiatric evaluation of appellant while appellant was in custody. During the evaluation, appellant said that he bought the gun a few weeks ago and that he intended to knock on his wifes door and shoot her.



As a general rule, communications between a patient and a psychotherapist are privileged. (Evid. Code,  1012.) However, there is no privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger. (Evid. Code,  1024.) The conjectural and uncertain damage done to a patient by revealing the threat is outweighed by the peril to a potential victim, and professional inaccuracy in predicting violence cannot negate the therapists duty to protect the threatened victim. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 439 (Tarasoff).)



Where there is reasonable cause to believe that someone poses a danger to others, the law imposes a duty to protect the potential victim. A duty arises when the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (Tarasoff, supra, 17 Cal.3d. at p. 435; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129.) The dangerous patient exception requires only reasonable cause for belief by the psychotherapist in the dangerousness of the patient and the necessity of disclosure. (Menendez v. Superior Court (1992) 3 Cal.4th 435, 451; original italics.)



In addition, this narrow exception to the psychotherapist privilege embodied in Evidence Code section 1024 may require that the psychologist testify against the patient in a criminal trial. (People v. Wharton (1991) 53 Cal.3d 522, 558, 563 [where a psychotherapist warns a potential victim pursuant to section 1024, that statute permits the psychotherapist to reveal, in a later trial or proceeding, both the substance of the warning and the patients statements, made in therapy, which caused or triggered the warning]; People v. Felix (2001) 92 Cal.App.4th 905, 911-912.)



Before this court appellant argues it was not reasonable for Dr. Patel to believe that appellant posed a genuine threat to Ms. Thomas because he was incarcerated at the time he made the statement and that the doctor should have known that he was already in custody for shooting at his estranged wife. We do not agree.



As the evidence at trial demonstrated Dr. Patel did not know the factual circumstances which caused appellant to be incarcerated prior to his evaluation of appellant in custody. In addition, as the prosecutor pointed out Dr. Patel did not know whether appellant could have been released on bail to carry out his threat. Moreover, as the threat was conveyed by appellant (i.e., that he had purchased a gun a few weeks before and that he was going to knock on his estranged wifes door and shoot her) to the doctor, there was no apparent indication that he had already attempted to shoot at her. Thus, we cannot say it was unreasonable for the doctor to believe that appellant had made a genuine threat of future harm to Ms. Thomas. Consequently, in our view the court did not err in admitting the threats under Evidence Code section 1024.





III. Cautionary Instruction.





Appellant argues that having admitted testimony from Ms. Thomas and Dr. Patel concerning his threats the trial court erred in failing to instruct the jury sua sponte that evidence of oral admissions must be viewed with caution. (See CALCRIM No. 358, formerly CALJIC No. 2.71.)[9] Respondent argues the error was harmless, conceding trial court error in failing to give the instructions.



Cautionary instructions such as those in CALCRIM No. 358 are designed to help the jury determine whether appellant actually made the statements attributed to him. (People v. Carpenter (1997) 15 Cal.4th 312, 393.) The purpose of such an instruction is to assist the jury in determining whether the statement was in fact made or was fabricated, and whether it was inaccurately reported. (Ibid.) An error in failing to give such instructions is harmless if no reasonable probability exists appellant would have obtained a more favorable verdict had the instructions been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) In assessing the effect of a failure to instruct, we review the record for any evidence that the statements were not made, were fabricated, or were inaccurately remembered or reported. (Ibid.)



No evidence suggested appellants estranged wife or the therapist fabricated the statements they attributed to appellant or that the statements were inaccurately remembered or reported. Thus, the cautionary instruction would not have assisted the jury in evaluating their testimony concerning appellants threats.



In any event, there is overwhelming independent evidence of appellants guilt on all of the charges. Ms. Thomas, and both children witnessed appellant pull out a gun and heard the gunshots he fired at the van. This evidence standing alone is sufficient to prove his guilt on the charges.



Moreover, the court instructed the jury with CALCRIM No. 226, which informed the jury it was to judge the credibility of each witness, and set forth various factors relevant to a credibility assessment. In addition, the jury was instructed with CALCRIM No. 359, which instructed them appellant could not be convicted based solely on his out-of-court statements. Accordingly, there is no reasonable probability a properly instructed jury would have rendered a verdict more favorable to appellant. A more favorable result is not reasonably probable had the trial court given the cautionary instruction admonishing the jury to view evidence of an oral admission with caution. While the instruction should have been given, its omission was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)





DISPOSITION



The judgment is affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









WOODS, J.



I concur:









PERLUSS, P.J.




ZELON, J., dissenting.



I join in the opinion of the majority except with respect to Count 5. Because I believe the response to the jurors questions was erroneous, and potentially misleading to the jurors, I respectfully dissent.



People v. Williams (2001) 26 Cal.4th 779 makes clear that assault 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. An instruction that permits a conviction premised on facts the defendant should have known but did not actually know is erroneous. (Id. at p. 790.)



In Williams, defendant was charged with assault against a father, whom defendant knew to be present, and two children, of whom defendant was unaware. As here, each assault was alleged in a separate count. While the jury convicted defendant of the assault against the father, it deadlocked as to the children. The Supreme Court concluded that the jury instruction on assault, which allowed a conviction even if [defendant] did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery, was ambiguous. (Ibid.) On the facts of the case, however, the error was harmless; the evidence established that the defendant was aware of the fathers presence, and, as to the children, the failure to convict showed that the jury was not misled. The same cannot be said to be true here.



Count 5 charges assault against Jonathan; this count is alleged separately from the assaults against appellants wife and daughter, requiring proof of defendants knowledge that a battery against the named victim would probably and directly result. While there is no dispute as to his knowledge that his wife and daughter were in the vehicle, with respect to appellants knowledge of Jonathans presence, the only evidence was Jonathans testimony that we looked at him and he looked at us. Had there been no indication from the jury other than their verdict, we could assume that testimony would have been enough evidence of knowledge to support the conviction. However, the questions posed by the jury during deliberations-based on the jurors factual assertion that the appellant did not know that Jonathan was present- do not permit that conclusion.



In response to the jurors questions, the court referred them back to the instructions, carefully reminding them that they must find the facts to which the law applied. However, the court then permitted counsel to argue, and it was there that the error occurred. The prosecutor specifically asserted that the defendant need not know of the presence of the individual victim named in the count: So the People do not have the burden of proving to you that the defendant knew how many people were in that van or that, specifically that his son was in that van.



By this argument, and in the absence of any further clarification of the law, the jury was expressly invited to ignore the issue of appellants actual knowledge, the issue that was at the heart of their inquiry. Had the jury actually concluded that appellant was unaware of Jonathans presence, Williams, and People v. Raviart (2001) 93 Cal.App.4th 258 which followed it, would not permit the conviction on Count 5 to stand. In Williams, the error was harmless because the jury did not reach a verdict; in Raviart, there was a basis to believe that the jury concluded appellant knew of the presence of each victim. Here, in contrast, the verdict on this count followed only after the ambiguity in the assault instruction was expressly interpreted to allow a conviction whether or not appellant had actual knowledge. This failure to require the necessary factual prerequisite for a verdict is Williams error (26 Cal.4th at p. 790); what was ambiguous there was express in this case. Here, because the premise of the jurys questions is grounded in their conclusion at the time the questions were posed that appellant did not know that Jonathan was present, we cannot determine that the jury was not in fact misled, and did not return a guilty verdict based on the argument that knowledge of Jonathans presence was irrelevant to their verdict. I cannot conclude that the error was harmless under these circumstances.



ZELON, J.



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[1] Four of the children were living at home at the time. The youngest two, Amber and Jonathan, were twelve at the time of the trial in March 2006.



[2] Jonathan testified he was sitting in the middle row [of seats] close to the front.



[3] The police later observed a bullet hole in the drivers tail light and other bullet markings which had not been present before that evening.



[4] Penal Code section 245, subdivision (a)(2) provides: (a)(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment. (Pen. Code,  245, subd.(a)(2).)



[5] In Williams, the Supreme Court reviewed the issue of the mens rea requirement of the crime of assault and whether the instructions in former CALJIC No. 9.00 misstated the requirement. The Court concluded the instruction given in Williams was defective because it would permit a conviction premised on facts the defendant should have known but did not actually know. (People v. Williams, supra, 26 Cal.4th at p. 790; italics in original.) In other words, under the instruction a jury could convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery. (Ibid.)



[6] In Tran, a knife-wielding defendant chased a man who was holding his baby in his arms. The defendant was convicted of two counts of assault with a deadly weapon, and the Sixth District affirmed, explaining: We read Colantuono [i.e., Peoplev. Colantuono (1994) 7 Cal.4th 206] to mean that an intent to do an act which will injure any reasonably foreseeable person is a sufficient intent for an assault charge. Defendant need not have specifically intended to injure baby Jackson; chasing Sang Ngoc Tang (who was carrying Jackson) and wielding a large knife conveyed an intent to cause injury with the knife. It is not reasonable to insist that defendant desired only to injure the father, and thus was not liable for an assault on the son. Surely a knife attack on the father could foreseeably have wounded the baby. (Peoplev. Tran, supra, 47 Cal.App.4th at p. 262.)



[7] Defense counsel argued: The thing for you to consider are the dynamics of this particular case, any idea that the actual knowledge of the presences of either or both of the minors may have resulted in an entirely different form of behavior. The reality is what one is looking at is the vehicle.



[8] Although apparently agreeing the trial court correctly instructed the jury on the elements of assault, the dissent asserts the People in their supplemental closing argument improperly invited the jury to convict Thomas on count 5 even if he did not actually know his son Jonathan was in the van. As discussed, however, under Williams, supra, 26 Cal.4th at page 788, the defendant need not be subjectively aware of the presence of the victim but only of those facts that would lead a reasonable person to realize a battery would directly, naturally and probably result from his conduct. Here, there is no question Thomas was aware the van was occupied by at least several individuals. Moreover, even if the prosecutors statements did incorrectly state the law, Thomas did not object to those comments or request that the court admonish the jury to disregard them. That failure forfeits his claim of prosecutorial misconduct on appeal. (People v. Jones (2003) 29 Cal.4th 1229, 1262; People v. Box (2000) 23 Cal.4th 1153, 1207; People v. Green (1980) 27 Cal.3d 1, 27-36.)



[9] CALCRIM No. 358 states, You have heard evidence the defendant made [an] oral or written statement[s] (before trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s] along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such [a] statement[s]. [] [You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.]



CALCRIM No. 358 as given to the jury provided as follows: You have heard evidence the defendant made an oral statement before trial, while the court was not in session. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements.





Description Cedric Maurice Thomas appeals his convictions for, among other charges, attempted murder, and three counts of assault with a firearm. The evidence adduced at trial showed appellant fired a gun at a van occupied by his estranged wife and his youngest son and daughter. He maintains there was insufficient evidence to support his conviction for assault against his son because he claims there was no evidence that he was aware that his son was in the vehicle when he fired at it. Appellant also asserts that the court erred in answering questions submitted by the jury with respect to the assault charge involving his son. He further claims the court erred in admitting evidence of threats uttered against his estranged wife during his interview with a psychiatrist at the county jail. Finally, appellant claims the court committed prejudicial error in failing to give the cautionary instruction to the jury to view his out of court statements with caution. As we shall explain, sufficient evidence supported appellants convictions and the court did not abuse its discretion in handling questions from the jury. In addition, appellants statements to the psychiatrist were properly admitted and any error in failing to give the form cautionary instruction was harmless. Accordingly, Court affirm.

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