Filed 11/29/18 P. v. Angel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Joseph Angel appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)[1] - count 1), harming a peace officer’s dog (§ 600 - count 3), and resisting an officer (§ 148, subd. (a)(1) - count 4). The jury also found true the allegation that defendant had personally used a deadly weapon (§§ 667, 1192.7). In a separate proceeding, the trial court found true the allegation that defendant committed the offenses while on bail or released on his own recognizance (§ 12022.1). The trial court sentenced defendant to a total term of three years in prison.

On appeal, defendant argues that: (1) the evidence was insufficient to show that he had the present ability to commit a violent injury; (2) the evidence was insufficient to support a finding that he used a dangerous or deadly weapon in the commission of the offense; and (3) the trial court erred when it instructed the jury pursuant to CALCRIM No. 371 (consciousness, or awareness, of guilt inferred by defendant’s destruction of evidence). We affirm the judgment.

I. Factual Background

On July 8, 2016, at approximately 3:20 a.m., Gabino Magana left his house. As he approached his car, he heard “screeching tires” and saw an SUV “peeling out.” Magana entered his car, closed the door, and started the engine. Defendant exited the SUV and walked toward Magana’s car. Magana opened the window slightly to see if defendant wanted to ask him something. Defendant, who was standing near the driver’s door, asked Magana if he had seen his girlfriend. Magana denied knowing defendant’s girlfriend. Defendant began looking into Magana’s car and soon asked Magana to open his car door so that he could look inside the car. Given the circumstances, Magana, who was scared, declined to do so.

Magana put his car into reverse so that he could leave. As he did so, defendant tried unsuccessfully to open the locked car door. Defendant then took out of his pocket what Magana thought was “some sort of weapon”—an object that was “shiny . . . like a metal object . . . .” Defendant maneuvered the object in a manner similar to a knife. As Magana tried to drive away, defendant swung the hand holding the object at the driver’s window, shattering the window and striking Magana’s face with glass. Magana drove away and called 911. He told the dispatcher that he “felt like someone was trying to stab me.”

San Jose Police Department officers responded to the 911 call of a “disturbance involving a male with a knife.” Officers made contact with Magana and were told that defendant was still armed. Officers located defendant outside a convenience store and attempted to speak with him. Defendant entered his SUV and reversed “at a high rate of speed” into a fence. Defendant then ran from the vehicle. Officers established a perimeter and brought in a K-9 unit. Officers announced via a public address system that a K-9 unit would be deployed and advised defendant to surrender. Kitaj, a K-9 dog, showed interest in a large blue recycling bin in a backyard. As Kitaj lifted the lid of the recycling bin with his nose, defendant stood up from inside the recycling bin. Kitaj jumped up and bit defendant on his chest. Defendant punched Kitaj on his head. Kitaj did not let go and officers eventually restrained and arrested defendant.

II. Discussion

A. Sufficiency of the Evidence

1. Present Ability to Commit a Violent Injury

Defendant contends that the evidence was insufficient to show that he had the present ability to commit a violent injury on Magana. Specifically, he argues that he did not have the ability to injure Magana “because the car window was between him and the victim and [defendant] was clearly aware of the presence of the window.”

“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425 (Reilly); accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Section 245, subdivision (a) punishes assaults committed “with a deadly weapon or instrument other than a firearm,” or by “any means of force likely to produce great bodily injury.” “One 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.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).) “ ‘Once a defendant has attained the means and location to strike immediately he has the “present ability to injure.” ’ ” (People v. Raviart (2001) 93 Cal.App.4th 258, 267 (Raviart).)

We conclude that there was sufficient evidence to allow a rational trier of fact to conclude that defendant had the present ability to commit assault with a deadly weapon. Defendant relies on People v. Valdez (1985) 175 Cal.App.3d 103 (Valdez). Specifically, defendant argues that he “was fully aware” that there was a car window separating him from Magana, and that he only attained the means and location to strike the window, not Magana.

In Valdez, the appellant fired a gun at a gas station employee who was behind bulletproof glass. (Valdez, supra, 175 Cal.App.3d at pp. 106-107.) The court rejected appellant’s argument that he did not have the present ability to commit assault with a deadly weapon because the employee was safely ensconced, unbeknownst to appellant, behind bulletproof glass. (Valdez, at pp. 113-114.) The court concluded that appellant had the present ability to injure when he “attained the means and location to strike immediately . . . .” (Valdez, at p. 113.) That appellant was unsuccessful because of the bulletproof glass was immaterial because appellant did not know the bulletproof glass would hold. (Valdez, at p. 114.)

In the present case, defendant attained the means and location to strike Magana when he stood outside Magana’s car window wielding a shiny metal object. Defendant swung the object toward Magana’s driver’s side window with such force that it shattered the window, striking him with glass. The fact that Magana was “sheltered, in whole or in part, by the [car window] did not preclude the jury from finding defendant had the present ability to injure him.” (Raviart, supra, Cal.App.4th at p. 267.) Moreover, there is no evidence that defendant knew the car window would prevent him from striking Magana directly. (See Valdez, supra, 175 Cal.App.3d at p. 114.) Contrary to defendant’s arguments on appeal, there is nothing in the record to compel the conclusion that he intended only to damage Magana’s car. Defendant’s reliance on Valdez is therefore unpersuasive. It was reasonable for the jury to conclude that defendant did intend to assault Magana. (Reilly, supra, 3 Cal.3d at p. 425.) In sum, there is substantial evidence in the record to support the jury’s finding that defendant was guilty of assault with a deadly weapon.

2. Use of a deadly weapon

Defendant argues that there was insufficient evidence to support his conviction for assault with a deadly weapon other than a firearm. Specifically, he argues that the “shiny . . . metal object” was never proven to be dangerous or deadly, that the testimony as to the nature of the object was never definite, and that there was no evidence that the weapon was instrumental in breaking the window.

Defendant’s contentions are unavailing. For purposes of assault with a deadly weapon, an object or instrument can be a “deadly weapon” if it is either (1) “inherently deadly” or (2) if it is “ ‘used . . . in a manner’ ” “ ‘capable of’ ” and “likely to produce death or great bodily injury,” taking into account “the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.)

Here, substantial evidence establishes that defendant used some sort of “shiny . . . metal object” “in a manner likely to produce death or great bodily injury.” (Aguilar, supra, 16 Cal.4th at p. 1029.) After asking to see inside Magana’s car and trying to open the door, defendant took out a “shiny . . . metal object” and swung it at Magana’s window. Broken glass struck Magana’s head. Defendant swung the object as one would swing a knife. Although the object was never recovered, it was sufficiently hard and swung with enough force to break a car window. Taking into consideration “the nature of the object, the manner in which it [was] used,” and the facts described above, and viewed in the light most favorable to the judgment, substantial evidence supports the jury’s finding that defendant assaulted Magana with a deadly weapon. (Aguilar, supra, 16 Cal.4th at p. 1029; Reilly, supra, 3 Cal.3d at p. 425.)

B. Jury Instruction

Defendant argues that the trial court erred in instructing the jury, pursuant to CALCRIM No. 371, that if defendant tried to hide evidence, such conduct may show that he was aware of his guilt. He contends that there was insufficient evidence to support the instruction given the lack of independent evidence pertaining to the shiny object he purportedly had in his hand prior to his apprehension. He maintains that the inclusion of this instruction was prejudicial.

The prosecution requested that the trial court instruct the jury pursuant to CALCRIM No. 371. The prosecutor argued such an instruction was proper because officers did not recover the object defendant had used to strike Magana’s car window, and thus he must have hidden the object after the assault. Defendant objected based on a lack of evidence. The trial court granted the prosecution’s request, finding that “sufficient evidence” justified the instruction. The instruction was given as follows: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.” The jury was also told that “[s]ome of these instructions may not apply,” and their applicability may depend on “your findings of the facts of the case.” “Do not assume just because I give a particular instruction that I am suggesting anything about the facts.”

We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) It is error to give an instruction “ ‘which is correct in law but irrelevant’ ” to the case at hand. (People v. Rowland (1992) 4 Cal.4th 238, 282.)

We discern no error in the trial court’s instruction pursuant to CALCRIM No. 371. Magana testified that defendant took out a “shiny . . . metal object” and swung it at Magana’s window. Although defendant maintains there was no weapon in the first place, the jury was permitted to conclude otherwise based on the testimony it heard. (See Young, supra, 34 Cal.4th at p. 1181.) Based on the evidence adduced at trial, the instruction was relevant. Although defendant claims that the instruction misled the jury into assuming the existence of a weapon, the instruction did no such thing. The jury was told: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance.” By its plain language the instruction was permissive, not directory. Consequently, the instructions permitted, but did not require, the jury to conclude that defendant’s suppression of evidence showed an awareness, or consciousness, of guilt. (See People v. Peyton (2014), 229 Cal.App.4th 1063, 1078.)

III. Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.

People v. Angel

H044441