Filed 3/13/18 P. v. Williams CA4/3






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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

TAYLOR EVAN WILLIAMS,

Defendant and Appellant.


G053891

(Super. Ct. No. 15CF2621)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David
A. Hoffer, Judge. Affirmed in part, reversed in part and remanded for resentencing.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Taylor Evan Williams was convicted of attempted voluntary manslaughter and two counts of aggravated assault on a police officer. The jury also found true sentence enhancement allegations that appellant personally used a firearm during his crimes. Appellant argues there is insufficient evidence to support one of the assault counts, and the matter should be remanded to allow the trial court to decide whether to dismiss the firearm enhancements in the interest of justice. We find appellant’s arguments well taken. Accordingly, we reverse in part and remand for resentencing.
FACTS
In his late teens appellant developed schizophrenia and started to become paranoid and delusional. After dropping out of community college, he quit his job and rarely left the room where he lived in his parents’ house. Appellant’s parents tried to be understanding and supportive of him, but tension mounted at the home. They did not know the extent of appellant’s mental illness, nor did they know he had acquired several guns and was keeping them in his room.
On the night of November 21, 2015, when appellant was 24 years old, he got into a physical altercation with his father. His parents called 911 and told appellant that if he did not leave the house he would have to deal with the police when they arrived. Appellant was very upset over the situation. He tried to talk his parents into letting him stay at the house, but they told him to start packing. His mother warned him, “[Y]ou can either go peacefully or you can go the other way, it’s your choice[.]” Appellant chose “the other way.”
It was shortly after 9:30 p.m. when Orange Police Officer Maurice King and his partner arrived at appellant’s house. After talking with appellant’s parents in the living room, King looked down the hallway and saw appellant standing outside his room. He asked appellant to come out into the living room so they could talk, but appellant ducked into his bedroom and closed the door. King started walking down the hallway and repeated his request. Appellant told him he was packing his things and would be right out.
The conversation continued in this vein as King made his way to the doorway outside appellant’s bedroom. Growing impatient with appellant’s recalcitrance, King finally told him that if he didn’t open his door he was going to break it down. At that point, the door swung open and King saw appellant standing about four feet in front of him with a semiautomatic rifle. Appellant was holding the weapon at waist level with the barrel pointed directly at King’s chest.
Fearing for his life, King stepped backwards, yelled out “gun” to alert his partner, and unholstered his firearm. Appellant shut the door and quickly swapped his rifle for a shotgun. Then he fired a single shotgun blast into the door. According to King, the shot occurred just two or three seconds after appellant closed the door. The shot ripped through the door and struck the wall in the area where King had been standing moments earlier.
King had a choice. He could go to his right and take cover in the spare room next to appellant’s bedroom, or he could go to his left and proceed back down the hallway. He chose to go down the hallway. As he was retreating, appellant fired two more shots in rapid succession with the semiautomatic rifle. King estimated those shots came four or five seconds after the shotgun blast. They were not fired toward King but instead went into the wall between appellant’s bedroom and the spare room. The shots travelled in an upward trajectory in roughly the opposite direction from that in which King was fleeing.
King ushered appellant’s parents out of the house and took up a position with his partner in the living room. The officers told appellant to come out of his room with his hands up or they were going to shoot him. Appellant called 911 on his cellphone and talked to the dispatcher for several minutes about how he feared the officers and just wanted to shoot himself. Then he fired a shot with a handgun that glanced off his head and went into the ceiling. Bleeding from the gunshot, appellant crawled out of his bedroom and surrendered to the officers.
Appellant was charged with attempted murder and assaulting a police officer with a firearm based on the initial shotgun blast he fired through his bedroom door. (Pen. Code, §§ 664/187, 245, subd. (d)(1).) He was also charged with one count of assaulting a police officer with a semiautomatic firearm based on the two shots he fired with the rifle. (§ 245, subd. (d)(2).) At trial, the defense presented evidence appellant was having a schizophrenic episode at the time of the incident. In light of this evidence, the jury found appellant acted in actual but unreasonable self-defense in firing the shotgun at King and convicted him of attempted voluntary manslaughter for that shooting. However, this evidence had no bearing on the remaining charges because, unlike the crime of murder, assault is a general intent offense, so the jury convicted appellant as charged on the two assault counts. It also found true allegations he personally used a firearm during his crimes. (§ 12022.5, subd. (a).) The trial court sentenced him to prison for 15 years and 4 months for his actions.
DISCUSSION
Sufficiency of the Evidence
Appellant does not challenge his convictions for attempted voluntary manslaughter or assaulting King with a firearm, which were based on the shotgun blast he fired in King’s direction. However, he contends there is insufficient evidence to support his conviction for assaulting King with a semiautomatic firearm, which was based on the rifle shots he fired while King was fleeing in the hallway. We agree.
Assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The crime is considered a general intent offense because it “does not require a specific intent to injure the victim.” (People v. Wyatt (2010) 48 Cal.4th 776, 780.) Rather than turning on the defendant’s intent, the crime of assault focuses on the nature of the defendant’s conduct. (People v. Williams (2001) 26 Cal.4th 779, 790.) More particularly, we must examine the likelihood the defendant’s act would result in injury to another. (Id. at p. 787.) An assault occurs only “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; accord, People v. Chance (2008) 44 Cal.4th 1164, 1169.)
In arguing whether this requirement was met in this case, the parties focus on whether appellant knew where King was when he fired the rifle shots into the spare room. Appellant plays up the fact that at one point in his testimony, King stated appellant would have noticed he did not go into the spare room. However, respondent emphasizes that at another point during his testimony, King indicated appellant would have been unable to see which way he went once he closed his bedroom door and began shooting. On this record, it is hard to tell whether appellant knew where King was when he fired the rifle shots. However, even if he thought King was in the spare room, the fact of the matter is, King was not anywhere near the room at that time. The firing of the shots thus did not constitute an act that would naturally and probably result in a battery on King. Therefore, they did not constitute an assault.
People v. Velasquez (2012) 211 Cal.App.4th 1170 (Velasquez) involved an analogous situation. In that case, the defendant fired 10 shots into a house and was convicted of 5 counts of aggravated assault based on each of the 5 people who were inside the house at the time of the shooting. (Id. at pp. 1171-1175.) On appeal, the Velasquez court affirmed as to one of the victims because at the time the shooting occurred, she was located in the area at which the shots were aimed. (Id. at p. 1177.) However, the court reversed as to the other four victims because the jury instructions allowed convictions as to them without proof they were actually in danger when the shots were fired. (Ibid.) In so ruling, Velasquez emphasized the need for the prosecution to establish the defendant’s “act of shooting at the residence would directly and probably result in the application of force to the victim named in each count.” (Id. at p. 1176, italics added.)
Velasquez also posited a hypothetical particularly apt to the present case. It explained, “One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant’s aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that ‘by its nature would directly and probably result in application of force’ to John Doe.” (Velasquez, supra, 211 Cal.App.4th at pp. 1176-1177.)
Likewise here, King was not a victim of assault when appellant fired the rifle shots in the opposite direction from where he was running because by their nature the shots would not directly and probably result in the application of force to him. Respondent argues it doesn’t matter whether King was actually in harm’s way when appellant fired the rife shots because instead of fleeing in the hallway, he could have decided to take refuge in the spare room into which the shots were fired. Had King done so, we would have no difficulty affirming appellant’s conviction for the rifle shots. But fortunately that is not what King actually did. That may be attributable to “sheer luck,” as respondent claims, but it doesn’t change the fact King was not endangered by virtue of appellant’s actions in firing the rifle. That incontrovertible fact precludes appellant’s conviction for assault with a semiautomatic firearm.
In arguing otherwise, respondent likens this case to People v. Brown (1989) 212 Cal.App.3d 1409 (Brown), which affirmed the defendant’s assault convictions in the face of conflicting evidence as to whether his actions would naturally and probably result in injury to the victim. The victim testified he had to dodge out of the way to avoid being hit after the defendant fired two shots at his head from close range. (Id. at p. 1415.) But a witness to the shooting testified the defendant held his gun at such an angle that he could not possibly have hit the victim. (Id. at p. 1420.) Despite this disagreement over the facts, the Brown court determined there was sufficient evidence from which the jury could find the defendant committed the crime of assault. (Ibid., disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
Brown demonstrates the presence of divergent facts will not suffice to overturn an assault conviction on appeal. However, unlike the situation in Brown, there is no dispute as to what happened in this case. Rather, the evidence unequivocally shows that while King was fleeing in one direction down the hallway, appellant fired in the other direction into the adjoining spare room. Under these circumstances, there is no substantial evidence to support the jury’s determination that by firing the rifle, appellant committed an act that by its nature would naturally and probably bring harm to King. Accordingly, appellant’s conviction for assaulting King with a semiautomatic firearm cannot stand.
Sentencing Issue
At the sentencing hearing, the trial court said it had anguished mightily over this case because while appellant’s crimes were certainly serious, he had no prior record and was clearly laboring under the stress of mental illness at the time of his encounter with King. Ultimately, the court sentenced appellant to the midterm of seven years for assaulting King with a semiautomatic firearm, the count we are reversing. With regard to the firearm enhancement attendant to that count, the court imposed the low term of two years because the rifle shots did not come anywhere near King. On the other assault count, which was based on the shotgun blast, the court imposed a consecutive sentence of five years and four months, representing one-third the midterm on both the substantive count and the firearm enhancement. After staying sentence on the attempted manslaughter count pursuant to section 654, the court ended the hearing by saying it would recommend that appellant receive mental health treatment in prison for his schizophrenia.
At the time of sentencing, the trial court did not have the authority to dismiss appellant’s firearm enhancements. However, as of the first of this year, trial courts do have such power, due to a modification in section 12022.5, which now provides: “The court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§ 12022.5, subd. (c).) As respondent concedes, appellant is entitled to the benefit of this modification since his case is not yet final. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299; People v. Francis (1969) 71 Cal.2d 66; In re Estrada (1965) 63 Cal.2d 740; People v. Woods (2018) 19 Cal.App.5th 1080.) Therefore, we remand the matter for further proceedings.

DISPOSITION
Appellant’s conviction for assaulting a police officer with a semiautomatic firearm in count 2 is reversed. Because the trial court used that conviction as the base term for sentencing, appellant’s sentence is vacated, and the case is remanded for resentencing. At resentencing, the trial court shall determine whether one or more of


appellant’s firearm enhancements should be stricken or dismissed in the interests of justice. In all other respects, the judgment is affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.