P. v. Magana

Filed 4/24/07 P. v. Magana 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, Harry M. Elias, Judge. Affirmed.

Heriberto Garcia Magana appeals a judgment arising out of his conviction of assault with a deadly weapon, contending that the evidence introduced at trial was insufficient to support it. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of July 9, 2005, Home Depot Loss Prevention Investigator Sean McPherson saw Magana shoplift two items from the Escondido Home Depot and followed Magana out into the store parking lot. McPherson confronted Magana, identified himself and attempted to take Magana into custody. Magana, however, pulled away from McPherson, dropping the stolen items on the ground.

As McPherson continued to try to hold him, Magana reached into his right rear pants pocket and pulled out a 7 to 10 inch Phillips head screwdriver, saying "Now that you've got your items, let me go." Magana pointed the screwdriver at McPherson and extended it toward him; according to a third party witness, Magana made a downward stabbing motion with the screwdriver, although McPherson testified that Magana raised the screwdriver about 45 degrees and "extended it forward" in his direction. McPherson released Magana and backed away. Magana ran off, but was later apprehended by police.

The district attorney charged Magana with assault with a deadly weapon by means of force likely to cause great bodily injury, with a personal use enhancement. At trial, the defense introduced expert testimony regarding the unreliability of eyewitness identifications and argued solely that Magana was misidentified as the perpetrator. A jury convicted Magana and, in a bifurcated proceeding, found that he had suffered a prison prior, a serious felony prior and two strike priors.

Magana moved for a new trial on the ground that there was insufficient evidence to support the verdict, arguing alternatively that the court should modify the verdict to reflect a finding of guilt as to the lesser offense of brandishing a weapon. The superior court denied the motion and, after striking one of the strike prior allegations, sentenced Magana to 12 years in prison. Magana appeals.

DISCUSSION

Penal Code section 245, subdivision (a)(1), makes it a crime for "[a]ny person [to commit] 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 . . . ." (All further statutory references are to the Penal Code.) An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240.) Magana argues that no substantial evidence supports a conclusion that he committed assault with a deadly weapon and that, at best, the evidence supported a conviction for the lesser related offense of brandishing a screwdriver.

An assault with a deadly weapon "can be committed by pointing a [weapon] at another person [citation], but it is not necessary to actually point the [weapon] directly at the other person to commit the crime." (People v. Raviart (2001) 93 Cal.App.4th 258, 263 [upholding the defendant's conviction of two counts of assault with a firearm on a peace officer after a confrontation with two police officers in which he pointed his gun at only one of the two officers].) The mere act of "presenting a gun at a person who is within its range" or "any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another," suffices to constitute an assault. (People v. McMakin (1857) 8 Cal. 547, 548 [upholding an assault conviction where the defendant pointed a revolver at a trespasser in such a way that the bullet would have hit the ground rather than the victim if he had fired a shot]; see also People v. Hunter (1925) 71 Cal.App. 315, 317-319 [assault conviction upheld where the defendant tried to pull a pistol from his sock to shoot his wife, but did not successfully wrest the gun out until after she had leapt out of a window].) Thus, where the defendant pulls out a knife, "it [is] not necessary that the prosecution introduce evidence to show that the appellant actually made an attempt to strike or use the knife upon [the victim]" to establish the commission of an assault. (People v. McCoy (1944) 25 Cal.2d 177, 189.) Rather, where the defendant's ability to commit a battery is clear, the exhibition of a deadly weapon in a menacing or threatening manner is sufficient to complete the crime of assault. (Id. at pp. 189, 193, italics omitted.)

Applying these principles here and viewing the evidence in the instant case in the light most favorable to the judgment, we conclude that there is ample evidence in the record to support the jury's finding that Magana assaulted McPherson. As noted above, a third party witness testified that, after pulling the screwdriver out of his back pocket, Magana made a downward stabbing motion with it toward McPherson, while McPherson himself testified that Magana raised the screwdriver about 45 degrees and moved it toward him. This testimony is sufficient to establish an overt act constituting an assault and that Magana had both the intent and the present ability to commit a violent act against McPherson. (See People v. Thompson (1949) 93 Cal.App.2d 780, 782-783 [the defendant's conduct in removing a loaded revolver from a chest of drawers and pointing it downward between two sheriff's deputies sufficient to establish two counts of assault with a deadly weapon, even though he did not point the gun directly at either of the officers].) Based on this evidence, a rational jury could have found beyond a reasonable doubt that Magana committed an assault on McPherson.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P.J.

AARON, J.

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