In re Jose A.






Filed 9/26/11 In re Jose A. CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re JOSE A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JOSE A., Defendant and Appellant.	G044187 (Super. Ct. No. DL035482) O P I N I O N

Appeal from an order of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Niki Shaffer and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Introduction
Jose A. challenges the juvenile court’s true finding that he committed assault with a deadly weapon. (Jose does not challenge the true finding that he committed vandalism.) The evidence showed Jose, with a sharp object in his hand, willfully made stabbing and swiping motions toward the victim, from a distance of only three feet away. All elements of the crime of assault with a deadly weapon were established. There is substantial evidence supporting the juvenile court’s finding, and we therefore affirm.

Statement of Facts
In the afternoon of July 29, 2010, John Quinones saw Jose scratching the outside of Quinones’s office window with an object in his hand. Quinones walked outside his office building and saw Jose walking away, into the street. Quinones followed Jose, yelling at him to come back and wait for the police to arrive. Jose responded with expletives.
When both Quinones and Jose were in the street, about three feet apart, Jose turned, faced Quinones, and squared off against him in a fighting stance, with his fists clenched and his hands held waist high. Quinones felt his personal safety was threatened. Jose then reached back and withdrew what appeared to be pruning shears from his back pants pocket. Jose advanced on Quinones, made stabbing motions and five swiping motions with the object in his hand, while continuing to shout threatening obscenities. Quinones backed away.
Quinones testified that during their confrontation, Jose advanced on him between two and five times; each time, Quinones backed away to keep a distance of about three feet between them. Quinones stopped trying to get Jose to stay, and Jose walked away with two friends.
Melissa Zehner, a coworker of Quinones, observed the altercation from her office window. She saw Quinones motion to Jose, and saw Jose move his hands back and forth, as if “air boxing,” and lunge at Quinones. Zehner saw Quinones move backwards in response to Jose’s actions. Zehner then saw Jose reach into his back pants pocket with his right hand, pull something out, and make swiping motions at Quinones. Zehner called 911.
Another coworker of Quinones, Douglas Petrikat, saw Jose scratch the office building window with an eight-inch-long, sharp metal object, and witnessed the confrontation between Jose and Quinones in the street. Petrikat followed Quinones out of the building, and saw Jose “waving his arms around.” Petrikat saw Quinones get within three feet of Jose; when Quinones yelled at Jose not to walk away, Jose aggressively responded by cursing at Quinones in a hostile manner. Jose’s arms were swinging wildly and making striking motions at Quinones. Petrikat could not see whether Jose had anything in his hands.
Quinones and Zehner identified Jose at a field show-up. Jose was placed in custody, and searched; a pocketknife and a spray tip for a can were found in his pocket. The knife had two blades, which appeared to be the same shape as pruning shears when both were opened.
Jose provided many inconsistent stories to the police regarding his whereabouts and activities at the time the crime was taking place.

Procedural History
Jose was declared a ward of the juvenile court in October 2009, after he admitted allegations that he had committed assault likely to result in great bodily injury on a school employee (Pen. Code, § 245.5, subd. (a)), and had resisted and obstructed a peace officer (id., § 148, subd. (a)(1)). Jose was placed on supervised probation with conditions, including that he not possess any dangerous or deadly weapons.
Jose was continued as a ward of the court in June 2010, after admitting he had been in possession of graffiti tools. (Pen. Code, § 594.2, subd. (a).) The juvenile court continued Jose on supervised probation. All earlier probation conditions were again imposed, and Jose was also ordered not to possess any graffiti tools.
On August 2, 2010, the district attorney filed a subsequent petition under Welfare and Institutions Code section 602, alleging that, in the encounter with Quinones, Jose had committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and vandalism (id., § 594, subds. (a), (b)(1)). A notice of hearing on probation violation was filed the same day. Following a contested jurisdictional hearing, the juvenile court found the allegations of the petition true beyond a reasonable doubt. Jose admitted the probation violation. The court continued Jose as a ward of the court, and again placed him on supervised probation. Jose timely appealed from the juvenile court’s disposition order.

Discussion
Jose argues there was not sufficient evidence to support the juvenile court’s finding that he committed assault with a deadly weapon. At most, Jose suggests, he committed misdemeanor brandishing.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the adjudication against defendant. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same principles of review of a criminal case apply to a review of the sufficiency of the evidence supporting a true finding in a juvenile delinquency proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
A true finding on a charge of assault with a deadly weapon requires proof that (1) the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to another person; (2) the defendant committed the act willfully; (3) the defendant was aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to another person; and (4) the defendant had the present ability to apply force with a deadly weapon. (Pen. Code, § 245, subd. (a); CALCRIM No. 875.)
Jose concedes that the object in his hand during the confrontation with Quinones—whether it was a knife or pruning shears—could be considered a deadly weapon.[1] Jose argues, however, that his use of the knife would not directly and probably lead to the application of force on Quinones, and that he lacked the present ability to apply force to Quinones. Jose argues that he was only using the knife to flee the scene. But the question before us is whether swinging or making stabbing motions with a knife would directly and probably result in the application of force to Quinones, who was three feet away from Jose; the answer is unquestionably yes. Making a stabbing or striking motion with a knife is an act that, by its nature, would directly and probably result in the application of force to another person; that is, in fact, the usual purpose of making such a motion with a knife.
Jose also argues the three-foot distance between himself and Quinones means that Jose lacked the present ability to apply force. Again, we must disagree. Jose could have quickly and easily traversed the three-foot distance. The evidence establishes Jose was making stabbing, striking, and swiping motions with the knife. He could have lunged forward with the knife extended, striking Quinones, without any difficulty. Indeed, Quinones’s testimony was that he had to back up to keep a three-foot distance between himself and Jose. A reasonable inference from this evidence is that, at least part of the time during their confrontation, Jose and Quinones were less than three feet from each other. Substantial evidence supports the juvenile court’s finding that Jose had the present ability to apply force with a deadly weapon.
Jose argues the evidence does not support a finding that he intended to use the knife in such a manner as to cause violent or serious injury on Quinones. Because assault with a deadly weapon is a general intent crime (People v. Valdez (2002) 27 Cal.4th 778, 787), it does not matter whether Jose had the intent to inflict injury on Quinones; Jose’s willful act of making stabbing or slashing motions with a deadly weapon, combined with the present ability to apply force, is sufficient.
Finally, Jose argues the juvenile court should have found he had committed misdemeanor brandishing, rather than assault with a deadly weapon.[2] Whether the district attorney might have charged Jose with brandishing rather than assault with a deadly weapon is irrelevant; there was substantial evidence supporting the court’s true finding on the charge of assault with a deadly weapon.

Disposition
The order is affirmed.



FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



O’LEARY, J.









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