People v. Raviart

• Decision Date: 26 October 2001
• Docket Number: No. C034739.,C034739.
• Citation: 112 Cal.Rptr.2d 850,93 Cal.App.4th 258
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny George RAVIART, Defendant and Appellant.

112 Cal.Rptr.2d 850

93 Cal.App.4th 258

The PEOPLE, Plaintiff and Respondent, v. Danny George RAVIART, Defendant and Appellant.

No. C034739.

Court of Appeal, Third District.

October 26, 2001.

Review Denied January 29, 2002.

Susan D. Shors, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, David Andrew Eldridge, Deputy Attorney General, for Plaintiff and Respondent.

NICHOLSON, J.

Defendant Danny George Raviart was convicted by a jury of two counts of robbery, one count of being a convicted felon in possession of a firearm, one count of possession of methamphetamine, and two counts of assault with a firearm on a peace officer. On appeal, defendant contends there was insufficient evidence to support one of his assault convictions and the jury was improperly instructed on the elements of assault. He also contends the trial court committed misconduct by intervening in the examination of witnesses. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In late February 1999, defendant became a suspect in a series of robberies, some of them armed, that had occurred in the Sacramento area between January 26 and February 19. On February 24, 1999, law enforcement officers learned defendant was at a motel on Jibboom Street. Among the officers who went there that evening to arrest defendant were Sacramento Police Officers John Keller and Joe Wagstaff. In a confrontation with defendant outside the motel, Officers Keller and Wagstaff shot defendant several times after he pointed a handgun at Officer Keller.

Defendant was charged in an amended information with 11 counts of robbery, one count of attempted robbery, six counts of being a convicted felon in possession of a firearm, one count of unlawful taking of a vehicle, one count of possession of methamphetamine, and two counts of assault with a firearm on a peace officer. The information also alleged numerous weapons enhancements and prior felony convictions.

The case was tried to a jury in November 1999. The court granted defendant's motion for judgment of acquittal on four robbery counts and one felon in possession of a firearm count due to insufficient evidence. The prosecution dismissed another felon in possession of a firearm count during closing argument. The jury found defendant guilty of two of the seven remaining robbery counts, one of the four remaining felon in possession of a firearm counts, the possession of methamphetamine count, and both counts of assault with a firearm on a peace officer. The jury was unable to reach verdicts on the remaining 10 counts, and the court granted a mistrial on those charges. After finding true the prior conviction allegations, the court sentenced defendant under the "Three Strikes" law to six consecutive terms of 25 years to life, with one term stayed pursuant to Penal Code section 654 and with 26 additional years for various enhancements.

DISCUSSION

Sufficiency of the Evidence

Defendant first contends there was insufficient evidence to support his conviction for assault with a firearm on Officer Wagstaff because "[t]here was no evidence presented that [defendant] pointed the gun at Wagstaff[] at any time." Defendant contends "[t]he only act performed by [defendant] upon which an assault charge could be based was the single act of pointing the gun at Officer Keller." For the reasons that follow, we disagree.

When a defendant challenges the sufficiency of the evidence to support a criminal conviction, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the [defendant] guilty beyond a reasonable doubt. In making such a determination we must view the evidence in a light most favorable to respondent and presume in support of the judgment (order) the existence of every fact the trier could reasonably deduce from the evidence.'" (In re Paul C. (1990) 221 Cal.App.3d 43, 52, 270 Cal.Rptr. 369 quoting In re Oscar R. (1984) 161 Cal.App.3d 770, 773, 207 Cal. Rptr. 789.)

"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen.Code, § 240.) Defendant suggests there was no evidence he attempted to injure Officer Wagstaff because there was no evidence he ever pointed his gun at Wagstaff. Defendant also contends there was no evidence he had the present ability to injure Officer Wagstaff because Wagstaff was in a "protected position," sheltered by the corner of the motel, when the shooting occurred.

Assault with a deadly weapon can be committed by pointing a gun at another person (People v. Laya (1954) 123 Cal. App.2d 7, 16, 266 P.2d 157), but it is not necessary to actually point the gun directly at the other person to commit the crime. Three examples will illustrate the point.

In People v. McMakin (1857) 8 Cal. 547, 1857 WL 874, there was evidence the defendant pointed a revolver toward another person, "but with the instrument so pointed, that the ball would strike the ground before it reached the witness, had the pistol been discharged." (Ibid.) The Supreme Court affirmed the defendant's conviction for assault, stating: "Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, 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, will be considered an assault. ... [¶] ... [¶] ... [W]hen the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury are fully warranted in finding that such was his intention." (Id. at pp. 548-549, italics omitted.)

In People v. Hunter (1925) 71 Cal.App. 315, 235 P. 67, there was evidence the defendant attempted to draw a pistol from his sock to shoot his wife, but she jumped out the window before he could do so. (Id. at pp 317-318, 235 P. 67.) On appeal, the defendant contended the evidence was "insufficient to prove the alleged assault in that it does not show that the defendant attempted to use the weapon." (Id. at p. 318, 235 P. 67.) The court disagreed, stating: "The evidence is ample to show that the defendant had the intention and the present ability to kill his wife. The only question remaining is whether he attempted to carry his purpose into execution. To accomplish that purpose, it was necessary for him to take the gun from his sock, to point it at his wife, and to pull the trigger. Any one of these would constitute an overt act toward the immediate accomplishment of the intended crime. He was endeavoring to take the gun from his sock when his wife thwarted the attempt to kill her by jumping out of the window. Naturally she did not wait to see whether he succeeded in getting hold of the gun or whether he pointed it at her, and it is immaterial whether he did either. The actual transaction had commenced which would have ended in murder if it had not been interrupted." (Id. at p. 319, 235 P. 67.)

Finally, in People v. Thompson (1949) 93 Cal.App.2d 780, 209 P.2d 819, there was evidence the defendant pointed a revolver toward two sheriffs deputies, aiming between them and pointing the gun downward. The appellate court held the defendant's actions were sufficient to support his conviction on two counts of assault with a deadly weapon, noting that "[w]hile [the defendant] did not point the gun directly at [the deputies] or either of them, it was in a position to be used instantly." (Id. at p. 782, 209 P.2d 819.)

In light of the foregoing authorities, and viewing the evidence in the light most favorable to the judgment, there is substantial evidence in the record to support the jury's finding that defendant assaulted both officers in the confrontation outside the motel. Officer Keller testified that he and Officer Wagstaff, who has a canine partner, decided to arrest defendant as he and a female companion were getting into a car on the south side of the motel. As the officers were approaching the motel parking lot in their vehicle, a California Highway Patrol unit not involved in defendant's arrest pulled in across the street and illuminated the parking lot with its headlights. Defendant and his companion headed back toward their motel room, and Officers Keller and Wagstaff followed in an attempt to apprehend defendant before he got back into the room.

Officer Keller testified that when he rounded the stairway at the corner of the building in pursuit of defendant, Officer Wagstaff was to his left and slightly ahead of him, although he did not know whether Wagstaff had been on the walkway between the stairway and the building or had rounded the stairway ahead of him. Officer Keller testified that he "came around the stairs wide" because he knew Officer Wagstaff was to his left toward the building, and he was concerned about getting bitten by Officer Wagstaff's dog. As Officer Keller came around the corner, he saw defendant pointing a chrome handgun directly at him. At the same time, he heard Officer Wagstaff yell "Gun." Both officers fired at defendant. Officer Keller testified that when he fired, Officer Wagstaff was crouching at the corner of the building, partially behind the...