People v. White

• Decision Date: 20 December 2019
• Docket Number: B291130
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LEMERY WHITE, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. LEMERY WHITE, Defendant and Appellant.

B291130

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

December 20, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA457904)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ A jury convicted defendant and appellant Lemery White of first degree residential burglary and assault with a firearm. He challenges the judgment, contending that the trial court committed instructional and sentencing errors, and the evidence was insufficient to support his conviction for assault with a firearm. Discerning no error or evidentiary insufficiency, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Anteneh Tadesse Damte and his son Yonathan Tadesse¹ lived in an apartment in Los Angeles. On May 31, 2017, at approximately 7:30 a.m., White, accompanied by a companion, went to their apartment and knocked on the door. When Damte answered, White angrily demanded to talk to Yonathan. White stated that Yonathan had "jumped" him two days earlier. Frightened, Damte falsely told White that Yonathan was not there. In fact, Yonathan was in his bedroom.

Damte tried to close the front door, but White and his companion blocked the door by forcing their legs inside the apartment. White lifted his clothing, displayed a gun in his waistband, and said Yonathan had hurt him and he needed money from Damte. White said he would not hurt Damte.

When Damte said he had no money, White looked "very angry." Frightened, Damte gave White two 14-karat gold rings, told him they were valuable, and exhorted him to "just go." White took the rings but said they were not enough. White then said, "I'm going to hurt somebody today." White took the gunfrom his waistband, and one or two bullets fell out. White picked up the bullet or bullets and reloaded the gun. White did not point the gun directly at Damte.

Yonathan, hearing the men, emerged from his bedroom holding a golf club, which he swung at White. White and his companion stepped back out of the doorway. Damte closed and locked the front door and, at the same time, White fired a shot, hitting the bottom of a wall perpendicular to Damte's front door, approximately one foot from the door jamb. White and his companion then ran from the scene.

Yonathan called 911. In the call, which was played for the jury, he told the dispatcher that he and White had had a "dispute" and a fight; White and a companion had come to the house that morning; and White shot at the front door.

Damte found his two gold rings on the floor outside the front door.

Los Angeles Police Department officers located and arrested White and his companion shortly after the incident. An officer recovered latex gloves and a knife from White. In a field show-up, Damte identified White as the shooter, and the other man as White's companion.²

A detective who responded to the residence removed a bullet fragment from the exterior of the perpendicular wall.

The defense presented no evidence.

2. Procedure

A jury convicted White of first degree residential burglary (Pen. Code, § 459)³ and assault with a firearm (§ 245, subd. (a)(2)).⁴ It found that in commission of the burglary a principal was armed with a handgun (§ 12022, subd. (a)(1)), and White personally used a firearm during commission of the assault (§ 12022.5, subd. (a)). The jury acquitted White of first and second degree robbery, and of shooting at an inhabited dwelling. (§§ 211, 246.) The trial court sentenced White to a term of five years in prison. It imposed a restitution fine, a suspended parole revocation restitution fine, a court operations assessment, and a criminal conviction assessment. White timely appealed.

DISCUSSION

1. The evidence was sufficient to prove White committed assault with a firearm

White contends that the evidence was insufficient to prove assault with a firearm because he did not point the gun at Damte. He is incorrect.

When determining whether the evidence was sufficient to sustain a criminal conviction, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104; People v. Salazar (2016) 63 Cal.4th 214, 242.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Booker (2011) 51 Cal.4th 141, 172; People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Penunuri (2018) 5 Cal.5th 126, 142.)

Section 245, subdivision (a)(2), makes it a crime to commit "an assault upon the person of another with a firearm." Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Thus, the elements of a violation of section 245, subdivision (a)(2), are: (1) the defendant willfully committed an act with a firearm that by its nature would directly and probably result in the application of force on another person; (2) at the time, he was aware of facts that would lead a reasonable person to realize his act would directly and probably result in the application of force; (3) he had the present ability to apply force with a firearm; and (4) he did not act in self-defense. (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186-1187; People v. Golde (2008) 163 Cal.App.4th 101, 108-109, CALCRIM No. 875.) Assault is a general intent crime, and does not require a specific intent to injure the victim. (People v. Wyatt (2012) 55 Cal.4th 694, 702; People v. Chance (2008) 44 Cal.4th 1164, 1167, 1169; People v. Leonard (2014) 228 Cal.App.4th 465, 486.) A defendant may commit an assault without making actual physical contactwith the person of the victim, and injury is not an element. (Leonard, at p. 486.)

It has long been the law that displaying a weapon or firearm in a menacing manner may constitute assault.⁵ "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. . . ." (People v. McMakin (1857) 8 Cal. 547, 548; People v. Rivera (2019) 7 Cal.5th 306, 333 [intentional display of a firearm in a menacing manner may be enough to establish assault]; People v. Raviart (2001) 93 Cal.App.4th 258, 263.) " 'There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one's hand upon his sword, would be sufficient.' [Citation.]" (People v. Chance, supra, 44 Cal.4th at p. 1172.)

Nor is it necessary that the defendant point the firearm directly at the victim. "Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime." (People v. Raviart, supra, 93Cal.App.4th at p. 263.) "[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." (People v. McMakin, supra, 8 Cal. at p. 549 [defendant threatened victim and pointed a revolver toward him, but downward, so that the bullet would strike the ground if the pistol was discharged]; People v. Thompson (1949) 93 Cal.App.2d 780, 782 [evidence supported assault conviction although defendant did not point gun directly at victims; gun was in a position to be used instantly].)

In People v. Raviart, for example, two officers attempted to apprehend the defendant. The defendant pointed a handgun at one of the officers, Keller, but not at the other, Wagstaff. He argued the evidence was insufficient to support his conviction for assault with a firearm on Wagstaff, because there was no evidence he pointed the gun at Wagstaff. (People v. Raviart, supra, 93 Cal.App.4th at p. 262.) Raviart rejected this contention, explaining that assault did not require the defendant point the gun at Wagstaff. (Id. at p. 263.) "[T]he jury could have found beyond a reasonable doubt that when defendant was confronted by the two police officers outside the motel, he drew a loaded handgun from his waistband with the intent to shoot both officers, but he only managed to point it at one of the officers before they both shot him. By drawing the gun with the intent to shoot the officers, defendant performed an overt act sufficient to constitute an assault on both of them. Defendant did not have to perform the further act of actually...