People v. Raymundo M. (In re Raymundo M.)

• Decision Date: 14 July 2020
• Docket Number: D076158
• Citation: 265 Cal.Rptr.3d 720,52 Cal.App.5th 78
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE RAYMUNDO M., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Raymundo M., Defendant and Appellant.

52 Cal.App.5th 78

265 Cal.Rptr.3d 720

IN RE RAYMUNDO M., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.Raymundo M., Defendant and Appellant.

D076158

Court of Appeal, Fourth District, Division 1, California.

Filed July 14, 2020

Elisabeth R. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

HALLER, J.

After he raised a switchblade-like knife head-high and chased another minor while orally threatening him, Raymundo M. was charged in juvenile court with assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(1) ),¹ making a criminal threat (§ 422), and brandishing a weapon (§ 417, subd. (a)(1)), along with various enhancement allegations. The juvenile court found the charges and certain of the enhancement allegations true, declared Raymundo a ward of the court, and placed him with his mother under the supervision of the probation department.

On appeal, Raymundo contends (1) insufficient evidence supports the true finding on the assault count because he never got within striking distance of the victim or made stabbing or slashing motions with the knife; (2) the juvenile court failed to expressly declare whether it was treating the "wobbler" assault count as a felony or a misdemeanor, as required by Welfare and Institutions Code section 702 ; and (3) the court erred by imposing duplicative punishment on the criminal-threat and assault counts, in violation of section 654. For reasons we will explain, we reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

In October 2018, I.S. was a 17-year-old high school senior. Raymundo did not attend the same high school, but he and I.S. had known each other since elementary school and had never had problems with each other.

One day during the school lunch break, Raymundo's younger brother (a freshman at I.S.'s high school) bumped into I.S., and the two got into an argument. Raymundo's brother apologized, and the incident seemed to blow over.

About one week later, I.S. and his younger brother (a freshman at the same high school) were walking to I.S.'s car a few blocks from campus after school. Raymundo, his brother, and two other males got out of a car and started "dogging" I.S. (i.e., staring aggressively at him). I.S. told his brother, "[Y]ou might want to run, because they're going to come after me." I.S. estimated Raymundo's group was about 21 feet away when the incident began. I.S.'s brother initially estimated on direct examination that the groups were 10-12 feet apart, but on cross-examination he estimated they were "about one house length" apart.

Raymundo asked I.S., "Can you help me with something?" I.S. saw that Raymundo was holding a knife about waist-high. The knife looked like a switchblade with the blade already exposed. Raymundo then raised the knife about head-high and began "lunging towards" and chasing I.S. I.S. was "in shock" and ran away; his brother stayed "frozen" in place. Raymundo and his group chased after I.S.

During the foot pursuit, Raymundo yelled, "Fuck Maza," which I.S. understood to be a gang reference, but it had no significance to I.S. because he was not involved with gangs. When Raymundo got within 10 feet of I.S., Raymundo told him, "You're going to die today." I.S. testified, "I just thought my life was going to end at that moment ... [b]ecause [Raymundo] [was] was lunging at me with knives and everything." I.S. believed Raymundo had the knife exposed throughout the chase, but I.S. acknowledged on cross-examination that he looked back a few times and did not see it.

At some point, Raymundo and his group abandoned their pursuit of I.S. I.S. returned to his school, calling 911 on the way. He told the dispatcher that four "gangsters" had gotten "out of a car, with blades," and were chasing him, but he "got away from ‘em." The 911 call ended when I.S. found a campus security guard, who contacted the police. I.S. told the police Raymundo was the assailant.

Raymundo was charged with assault with a deadly weapon ( § 245, subd. (a)(1) ; hereafter, § 245(a)(1) ), with serious felony and gang enhancement allegations (§§ 1192.7, subd. (c)(23), 186.22, subd. (b)(1)); making a criminal threat (§ 422), with serious felony and weapon-use enhancement allegations (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)); and brandishing a weapon (§ 417, subd. (a)(1)), with a gang enhancement allegation (§ 186.22, subd. (d)). The juvenile court found the offense charges true; dismissed the gang enhancement allegations for a lack of evidence; and found the remaining enhancement allegations true. The court declared Raymundo a ward of the court, and placed him with his mother under the supervision of the probation department.

DISCUSSION

I. Substantial Evidence of Assault With a Deadly Weapon

To commit an assault with a deadly weapon when the weapon used is not inherently deadly, the perpetrator must use the " ‘weapon ... in such a manner as to be capable of producing and likely to produce , death or great bodily injury.’ " ( People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204, italics added ( Aguilar ).) Raymundo contends that because he was never within striking distance of I.S. and never made stabbing or slashing motions with the knife, insufficient evidence supports the juvenile court's finding that he used the knife in a manner likely to produce death or great bodily injury. We disagree. Substantial evidence supports the juvenile court's factual findings that Raymundo was within striking distance—or would have been, had I.S. not taken evasive action—and used the knife in a manner likely to produce death or great bodily injury.

A. Background

At the close of the prosecution's evidence, Raymundo moved to dismiss the assault-with-a-deadly-weapon count on the basis the prosecution had not proven the charge beyond a reasonable doubt. Raymundo argued that because he merely raised a knife head-high from 21 feet away, he lacked the present ability to commit an assault and had not used the knife in a manner "likely to cause injury." Raymundo also argued that conflicting testimony "create[d] a reasonable doubt as to whether a weapon was even involved" at all.

The prosecutor countered that Raymundo completed the assault by "pulling out the knife, raising it up, and then starting [a] pursuit to close th[e] distance to presumably stab or hurt" I.S.

The court denied Raymundo's motion to dismiss. The court found I.S.'s "testimony credible ... that there was a knife." The court further found there was an adequate evidentiary showing that "[a] knife is capable of causing harm," and was likely to do so because Raymundo raised it and ran toward I.S.

Moments later, in closing argument, the prosecutor distinguished Raymundo's assaultive conduct from his brandishing conduct. The prosecutor posited that if Raymundo had merely pulled a knife and stayed put, he would have committed only a brandishing offense. But by raising the knife and "trying to pursue [I.S.] and close th[e] distance," Raymundo converted a brandishing offense into an assault with a deadly weapon. The prosecutor emphasized that the law did not require I.S. to "wait ... to actually get stabbed for" Raymundo to have committed an assault.

Raymundo's counsel argued that because I.S. acknowledged he saw the knife only at the beginning of the incident and not when looking back during the chase, Raymundo had not used the knife (if at all) in a manner likely to harm I.S.

The juvenile court found that the totality of circumstances—when viewed as a film "reel" and not as individual "snapshot[s]"—established that Raymundo had committed an assault with a deadly weapon. The court explained to Raymundo that he committed the assault by "stepp[ing] out of the vehicle, raising the hand, the victim taking off, [and] your giving chase ...." As to Raymundo's striking-distance theory, the court ruled that "[t]he law does not require that you actually close the distance or actually make contact"—it was "the totality of the act" in "attempting to close the distance and, in fact, closing the distance," that gave rise to liability.

B. Relevant Legal Principles

1. Assault

The crime of assault with a deadly weapon has two components: "(1) the assault, and (2) the means by which the assault is committed." ( People v. Smith (1997) 57 Cal.App.4th 1470, 1481, 67 Cal.Rptr.2d 604 ; § 245 (a)(1) [defining the offense as "an assault upon the person of another with a deadly weapon or instrument other than a firearm"].)

"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) A defendant has the " ‘ "present ability to injure" ’ " " ‘ "[o]nce [he] has attained the means and location to strike immediately." ’ " ( People v. Chance (2008) 44 Cal.4th 1164, 1174, 81 Cal.Rptr.3d 723, 189 P.3d 971 ( Chance ).) In this context, immediacy means that the defendant has "equip[ped] and position[ed] himself to carry out a battery ..., even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." ( Id. at p. 1172, 81 Cal.Rptr.3d 723, 189 P.3d 971.) Thus, an assault can occur even when the defendant makes no contact with the victim. ( Aguilar, supra , 16 Cal.4th at p. 1028, 68 Cal.Rptr.2d 655, 945 P.2d 1204.)

For purposes of assault with a deadly weapon under section 245(a)(1), "a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed...