In re Oliver M.

Filed 6/21/07 In re Oliver M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed.

David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Oliver M. was declared a ward of the court and placed on probation after the court found he committed an assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) His appeal alleges that, as a matter of law, there is insufficient evidence to support the finding of an assault because he made no attempt to complete the battery.

The incident providing the basis for the courts determination followed an unidentified dispute between two young women, Rachel Solis and Maria Esquivel. There also was bad blood between defendant, Rachels brother, and Maria. As Marias sister Denise Esquivel was driving Maria and two other young women home after school, she saw defendant, Rachel, and another young women on the street. Denise stopped her car and got out to talk to Rachel. Almost immediately defendant came up to her, pulled out a knife, and started cussing at her and screaming dont confront them, dont confront them, you stupid bitch. He placed the knife close to Denises neck, stating dont threaten them and stupid bitch. Thinking defendant might stab her, Denise backed away, whereupon defendant turned away stating lets go finish this at my house.

Defendant argues that because [a]ssault requires the intentional commission of an act[,] the natural and probable consequences of which if successfully completed would be the injury to another, there was no assault as a matter of law. He reaches this conclusion by stating [defendants] act of holding a knife near Denises neck and warning her not to harass his friends did not have a natural and probable consequence of injury to Denise. And [defendant] neither attempted to commit a battery with the knife, nor use[d] the [knife] to demand compliance with a condition he ha[d] no legal right to impose. Even if we accept defendants analysis, it does not help him because this was no mere playful gesture on his part; substantial evidence supports the inference that he intended to place the victim in fear and that the victim actually experienced such fear.

The requisite intent for the commission of an assault with a deadly weapon is the intent to commit a battery. [Citation.] Moreover, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the intent to commit a battery is presumed. [Citation.] [Citation.] (People v. Griggs (1989) 216 Cal.App.3d 734, 740.) [O]ne may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) And, as defendant notes, citing People v. Williams (2001) 26 Cal.4th 779, 787, [t]he gravamen [of assault] . . . is the likelihood that the force applied or attempted to be applied will result in a battery.

Whether there was a likelihood that defendants conduct or the force applied would result in a battery is a question of fact. Under the doctrine of implied findings, an appellate court must conclude that the superior court impliedly made findings of fact to support its decision if the record contains substantial evidence to support such findings. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [under abuse of discretion standard of review, appellate court must accept trial courts implied findings of fact supported by substantial evidence]; also see People v. Wells (1945) 68 Cal.App.2d 476, 480.) Therefore we must review the trial courts decision, not as a matter of law, as defendant suggests, but under the normal substantial evidence test.

Applying the substantial evidence test on appeal, we may not reweigh the evidence, but consider that evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial courts findings and resolving all conflicts in its favor. [Citations.] The question on appeal is whether the evidence reveals substantial support-contradicted or uncontradictedfor the trial courts conclusion that the weight of the evidence supports the commissions findings of fact. [Citation.] We uphold the trial courts findings unless they so lack evidentiary support that they are unreasonable. (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1078.)

Here there is substantial evidence that defendants act in holding a knife near the victims neck was inherently dangerous to her and was committed with a conscious disregard of human life and safety. Therefore, the intent to commit a battery is presumed. The fact that defendant had a change of heart after the victim backed away does not detract from the quality of his act.

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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