P. v. Vargas

Filed 1/14/10 P. v. Vargas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

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

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Miguel Angel Vargas, appeals the judgment entered following his conviction, by jury trial, for assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)).[1] Vargas was sentenced to state prison for a term of two years.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

In December 2007, Cynthia Poulos and her six-year-old son were living in a duplex apartment with defendant Vargas, whom Poulos had been dating for about a year. Poulos began renting this duplex before Vargas moved in with her. Although Vargas did not speak English fluently, and Poulos did not speak Spanish fluently, they managed to converse.

Shortly after midnight on December 8, 2007, Vargas came home very drunk. He could not walk straight and he was bumping into the walls. He yelled at Poulos and accused her of being with other men. He kicked the television, urinated on himself, and went around the apartment breaking things. At one point, he pulled the stove away from the wall and tried to unscrew the gas line. Afraid he was going to blow up the house, Poulos pushed him to the ground and started punching him. After Vargas calmed down, Poulos let him up and told her son to get the phone. She called Vargass boss and asked him to come over because Vargas was trying to kill her.

Tammy Andrews lived in the other half of the duplex. When she arrived home from work at 12:30 a.m. that night, she heard a lot of banging, and the lady kept saying No, stop hitting me, stuff like that. And it just kept getting louder and louder. After calling 911, Andrews saw Bernard Hadnot, the landlord, and told him about the fight. Hadnot went to Pouloss door and knocked.

Poulos testified she and Vargas were still arguing when someone knocked on the door. She thought it was going to be Vargass boss, but it turned out to be Hadnot. Poulos opened her wooden front door and an iron security gate. Hadnot asked what was going on. Poulos testified she replied, [H]elp me, help me. . . . [O]h my god, this man is trying to kill me. Vargas came up behind Poulos and said to Hadnot, in English, [N]ot your business. Hadnot said, [W]hat are you doing to my tenant? and [W]hats going on here? . . . [T]he neighbor . . . said you guys are fighting. Hadnot was speaking sternly but he was not yelling. Vargas went into the kitchen, got a steak knife, and came at Hadnot. Poulos pushed Vargas back against the bathroom door. Hadnot told her not to worry, he could handle himself, and she should get her son. When Poulos let go of Vargas, he charged at Hadnot, who was still standing at the front door. Hadnot backed up. Vargas yelled at Hadnot to go away and he shut both the wooden door and the security gate.

Andrews testified she made another 911 call to alert police that Vargas had a knife. Hadnot knocked on the front door a second time. Poulos testified she took the steak knife away from Vargas, but he grabbed another knife, opened both doors, and came at Hadnot again. Both Andrews and Hadnot described this second knife as a butcher knife. Vargas swung the knife, the blade coming within a foot of Hadnot. Hadnot took a step back each time Vargas swung the knife.

According to Andrews, Hadnot was calmly telling Vargas he was going to stay there until the police arrived. Poulos testified Vargas yelled at Hadnot about repairs that needed to be made in the apartment and called Hadnot a fucking nigger in Spanish. Hadnot did not get angry; he merely said, Okay, Okay. . . . I just came to see what was wrong. According to Poulos, Vargas disliked Hadnot because he thought Hadnot wanted to have sex with Poulos, but he thinks that about everybody that I talk to, whether its a man or a woman. After Poulos again disarmed Vargas, he shut the apartment doors.

When a police helicopter arrived, Vargas ran into the apartment and shut the door. When the police knocked on the apartment door, Vargas threw the knife on the floor and said, in English, Oh, shit, the cops are here. Vargas then retreated to the bedroom. Poulos opened the door for the police, who went into the bedroom and arrested Vargas.

2. Defense evidence.

Vargas testified he had been living with Poulos for about seven months. When he came home that night, he argued with her because there was nothing to eat and she had refused to give him a ride home. While they were arguing, someone knocked on the front door. Vargas opened both doors and saw a tall black man standing there. He did not recognize Hadnot at first because he was drunk. Vargas left the doors open and went to the kitchen to get a knife. He got a steak knife and he returned to the front door. Thats when he realized the man was the landlord. Even though Vargas was holding the knife, Hadnot just kept standing there and staring at him menacingly. Vargas repeatedly told Hadnot in Spanish to go away. Vargas had the knife to try to scare Hadnot and prevent him from coming into the apartment. He kept the knife blade pointed down at his side and he never attacked Hadnot.

CONTENTIONS

1. The trial court committed Batson/Wheeler error.

2. The trial court erred by refusing to instruct the jury on self-defense.

3. There was insufficient evidence to sustain the conviction.

4. The trial court abused its discretion by refusing to reduce the conviction from a felony to a misdemeanor.

DISCUSSION

1. The Batson/Wheeler motion was properly denied.

Vargas contends the trial court erred when it denied his motion alleging the prosecutor improperly used peremptory challenges against two Hispanic prospective jurors. This claim is meritless.

a. Legal principles.

A party [commits error under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712], and People v. Wheeler (1978) 22 Cal.3d 258, by using] peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (People v. Fuentes (1991) 54 Cal.3d 707, 713.)

The United States Supreme Court recently reiterated the applicable legal standards. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.  [Citations.] [] In order to make a prima facie showing, a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class. [Citation.] (People v. Gray (2005) 37 Cal.4th 168, 186.)

[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. [] For example, a prosecutor may fear bias . . . because [a jurors] clothes or hair length suggest an unconventional lifestyle. (People v. Wheeler, supra, 22 Cal.3d at p. 275.) Because Wheeler motions call upon trial judges personal observation, we view their rulings with considerable deference on appeal. [Citations.] If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. [Citation.] (People v. Howard (1992) 1 Cal.4th 1132, 1155.)

b. Background.

(1) Prospective Juror No. 8.

When the trial court asked the prospective jurors about their personal information, Juror No. 8 answered in less than fluent English, saying things like, I work in a used car lot as salesman, my wife is housekeeper, and never been on jury before. Later, the following colloquy occurred:

[Defense counsel]: Now, prospective Juror No. 8, do you speak both English and another language?

Prospective Juror No. 8: No, not fluent in English.

[Defense counsel]: Do you speak another language?

Prospective Juror No. 8: Spanish.

Then, when the prosecutor asked No. 8 if he would follow the rule that for assault with a deadly weapon the victim does not have to be injured, the following colloquy occurred:

Prospective Juror No. 8: I would follow law.

[Prosecutor]: I think when defense counsel was asking you a couple of questions you mentioned about the Spanish versus English language. Did you say youre not fluent in

Prospective Juror No. 8: No, not fluent in English. I understand more than I can speak.

The prospective juror went on to say he felt his English was good enough to engage in jury deliberations.

(2) Prospective Juror No. 9.

When the trial court was asking the prospective jurors about their personal information, Juror No. 9 said: I have an apartment in Whittier, but Im staying in Montebello with my daughter and girlfriend slash ex-wife. She loves that. After describing his occupation, Juror No. 9 said, My girlfriend slash ex-wife is a judicial secretary for [a federal judge]. Juror No. 9 also said he had been a juror in a civil case that ended in a hung jury.

(3) The Batson/Wheeler motion.

Defense counsel made a Batson/Wheeler motion asserting the prosecutor had challenged prospective Jurors No. 8 and No. 9 because they were both male Hispanics. The trial court ruled a prima facie case had been made out and asked for the prosecutors justifications.

The prosecutor responded: With respect to Juror No. 9, he had told us earlier that he was on a jury which hung, so that was the reason that I had asked that he be excused, along with the fact . . . his wife or ex-wife or girlfriend or whatever that relationship may be, I thought that that was a little bit of an odd response, and his joking manner was not all together [sic] appropriate for the courtroom. . . . [] . . . [] In terms of No. 8, he volunteered the fact that he was not fluent in English. I asked him some questions and I just have some reservations . . . in terms of his ability to communicate with the jury in terms of his ability to adequately . . . deliberate.

The trial court ruled: As regards . . . Juror No. 9, I think [the prosecutors] adequately given a non-race . . . or [ethnic] based reason for having exercised a juror challenge, so Ill deny as to No. 9. As to No. 8, the record should reflect that he does have a heavy Spanish accent. When inquired whether or not he would be able to participate he said hes not fluent in English, but understood enough. . . . Ill find that thats a sufficient non-raced based reason for purposes of denial of the Wheeler motion.

c. Discussion.

Vargas argues the prosecutors justifications were pretextual and, therefore, the Batson/Wheeler motion should have been granted. We disagree.

(1) The appropriate category.

Pointing out Vargas phrased his motion in terms of discrimination against male Hispanics, and that the trial court echoed this designation when it ruled on the motion, the Attorney General argues this combination of factors is not a cognizable Batson/Wheeler category. The Attorney General appears to be correct. (See Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 812, disapproved on another ground in Tolbert v. Page (1999) 182 F.3d 677, 685 [[N]either the Supreme Court nor the Ninth Circuit has recognized that the combination of race and gender, such as black males, may establish a cognizable group for Batson purposes.]; see also People v. Davis (2009) 46 Cal.4th 539, 583 [[W]e reject defendants contention that the trial court erred by ruling that people of color is not a cognizable group for Wheeler analysis. No California case has ever recognized people of color as a cognizable group.].)

Hence, we shall analyze this issue as if the cognizable Batson/Wheeler group consisted of just Hispanic prospective jurors.

(2) Prospective Juror No. 9.

During voir dire, Prospective Juror No. 9 said: Ive been on a jury before, it was civil . . . and it was a hung jury. [] . . . [] They settled. We were hung twice, and they settled right there I guess in back chambers. It is generally recognized that a prospective jurors experience of sitting on a hung jury constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict. (People v. Turner (1994) 8 Cal.4th 137, 170, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; accord People v. Farnam (2002) 28 Cal.4th 107, 138.)

Vargas asserts this justification was pretextual, however, because Juror No. 9s trial had been civil, not criminal, and there was no information about the vote breakdown as far as jurors siding with the plaintiff or the defendant. Vargas argues: Whereas a hung jury in a criminal case might suggest a jurors favoring a criminal defendant over the state or vice versa, in a civil case the roles of the parties are diverse and interchangeable, such that bias cannot be presumed by a civil jurors taking one side against another. Also, in a civil case, there would be no single hold-out juror, since a unanimous verdict is not required . . . .

But the concern about a prospective juror having served on a hung jury is not only that the juror might be defense or prosecution-oriented, but also that the experience might have caused lasting frustration with the judicial system. (See, e.g., Currin v. State (Ind. 1996) 669 N.E.2d 976, 979 [legitimate justification for challenge where prospective juror served on criminal case, voted for conviction and became frustrated because no verdict was reached].) The unanimity concern, in addition to the holdout juror issue, also focuses on the collective failure of the majority to achieve a verdict. (See Yarbough v. State (Tex.App. 1987) 732 S.W.2d 86, 90, disapproved on another ground in Yarbough v. State (Tex.App. 1988) 761 S.W.2d 17 [legitimate justification for challenge where juror served on civil case which resulted in mistrial: Even though [the juror] did not indicate that she caused the mistrial, the State preferred a juror who had not served as a juror in a mistrial case.].)[2]

Prospective Juror No. 9 also referred to the woman he lived with as his girlfriend slash ex-wife, and remarked She loves that. The prosecutor said she found Juror No. 9s comment odd and his joking manner inappropriate for the courtroom. Vargas complains the trial court simply accepted this justification at face value, and argues the remark reveals nothing more than [the jurors] attempt at humor regarding his moving back in with his ex-wife.

Hunches and gut feelings may be valid justifications (People v.Dunn (1995) 40 Cal.App.4th 1039, 1048), and peremptory challenges can be proper even when based on a prospective jurors silent looks or gestures that happen to alienate one side or the other. (People v.Wheeler, supra, 22 Cal.3d at p. 275 [upon entering the box the juror may have smiled at the defendant, for instance, or glared at him]; see also Purkett v.Elem (1995) 514 U.S. 765, 766 [115 S.Ct. 1769] [I dont like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me, constituted race-neutral explanation].) As our Supreme Court has explained: [N]othing in Wheeler disallows reliance on the prospective jurors body language or manner of answering questions as a basis for rebutting a prima facie case . . . . (People v. Fuentes, supra, 54 Cal.3d at p. 715.)

[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutors race-neutral reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom. (People v. Reynoso (2003) 31 Cal.4th 903, 919, italics added.) Whatever it was about Juror No. 9s joke that particularly offended the prosecutor, we are unlikely to discover it by examining the reporters transcript. It is in just such circumstances that a Court of Appeal should give maximum deference to the trial courts Batson/Wheeler ruling.

The trial court did not err by accepting the prosecutors explanation for challenging prospective Juror No. 9.

(3) Prospective Juror No. 8.

Regarding prospective Juror No. 8, Vargas argues: [I]f the prosecutors justification is accepted at face value, prosecutors will be permitted to strike any Hispanic juror who speaks English with an accent. Not so. As the Attorney General points out: [T]he prosecutor excused prospective juror number 8 because she had reservations about whether he would be able to communicate effectively if empanelled, and not because he had a heavy Spanish accent or was Hispanic.[3]

A prospective jurors lack of fluency in English is a legitimate reason for exercising a peremptory challenge. (See People v. Jurado (2006) 38 Cal.4th 72, 107 [difficulty understanding spoken English and birth in Philippines indicates English might not be jurors native language]; People v. Ayala (2000) 24 Cal.4th 243, 266 [juror struggled with English]; People v. Sims (1993) 5 Cal.4th 405, 431 [juror appeared to have difficulty with English].) The fact Juror No. 8 believed his English was good enough to fully engage in deliberations does not alter this result. The rule cannot be that a valid justification is nullified because the prospective juror disagrees with the prosecutors evaluation of the situation. That is why a prospective jurors I could be fair statement does not invalidate an otherwise legitimate factor. (See People v. Watson (2008) 43 Cal.4th 652, 679-680 [neighborhood exposure to gangs may have biased prospective juror despite jurors insistence this would not bias him]; People v. Williams (1997) 16 Cal.4th 153, 191 [exposure to defendants gang in high school indicated prospective juror might be pro-defense despite jurors statement defendants gang membership meant nothing to him].)

2. Trial court properly refused to give self-defense instruction.

Vargas contends the trial court erred by denying his request to have the jury instructed on self-defense. This claim is meritless.

a. Proceedings below.

Defense counsel asked for a self-defense instruction, arguing Vargass testimony showed the reason he had the knife . . . was for protection and that he was scared of this person who was on the other side of the door, and that he was afraid of what might happen to him. The prosecutor objected: The facts are pretty much undisputed . . . that someone is knocking at the door and [Vargas] keeps going to the door and answering it. Theres no evidence that anyone ever tried to open the door or that anyone ever tried to step into the house.

The trial court ruled a self-defense instruction was unwarranted. While acknowledging Vargas might have subjectively believed he was in danger, the trial court concluded such a belief would have been unreasonable: I dont think Mr. Hadnot was threatening on an objective reasonable basis.

b. Legal principles.

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter.[4] [Citation.] To constitute perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, [T]he circumstances must be sufficient to excite the fears of a reasonable person . . . . (Pen. Code, 198; see also 197, subds. 2, 3.) Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. Fear of future harm no matter how great the fear and no matter how great the likelihood of the harm will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.]  []  Although the belief in the need to defend must be objectively reasonable, a jury must consider what would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . . (CALJIC No. 5.50.) It judges reasonableness from the point of view of a reasonable person in the position of defendant . . . . [Citation.] . . . As we stated long ago, . . . a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind . . . . [Citation.] (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.)

c. Discussion.

We question whether there was even sufficient evidence Vargas honestly believed he was in imminent danger. The prosecutor elected to predicate the assault with a deadly weapon charge on what happened after Hadnot knocked the second time. Although Vargas testified he used the knife because he was afraid Hadnot would come into the apartment, Vargas never really explained why he believed that would constitute an imminent peril.

Hadnot was not some ominous stranger; he was the landlord. Vargas never testified he believed Hadnot wanted to hurt him. Although there was evidence Vargas disliked Hadnot, primarily because he apparently believed Hadnot had designs on Poulos, the evidence that Vargas believed Hadnot disliked him was extremely weak.[5] The closest the evidence came to showing a belief in imminent harm was Vargass testimony he was afraid of Hadnot [b]ecause . . . hes big. And over there, there are a lot of . . . black people and they all know him. . . . So I thought that if I would hold the knife, he would not do anything to me. That is why I didnt put away the knife. This was arguably insufficient to prove Vargas had an honest belief he faced imminent harm.

But even assuming arguendo the evidence showed Vargas honestly believed he faced imminent peril, the evidence clearly shows that belief was unreasonable. The apartment was protected by an iron security gate and Vargas could have just kept the door closed. Moreover, Hadnot had not done anything threatening and all the testimony showed he never tried to enter the apartment. Although Vargas yelled at Hadnot, Hadnot did not yell back, did not get angry, and at most spoke sternly to him. No one testified Hadnot made any sudden moves or acted in a belligerent or provocative manner. Rather, the evidence showed Hadnot stood calmly outside the apartment during the entire incident, never took any steps toward Vargas, and backed away each time Vargas slashed at him with the knife. Vargas himself testified Hadnot never entered the apartment, even when Vargas left both front doors wide open the first time he went to the kitchen for a knife. Even Vargas acknowledged the evidence showed Hadnot only wanted to make sure Poulos and her son were safe; Vargas testified: I think that he wanted to know what was happening in the house, and he wanted to . . . know that nothing was happening to [Poulos].

In sum, no reasonable person would have believed Hadnot presented an imminent peril to Vargas.

As an alternative to a straight self-defense instruction, Vargas argues the trial court should have instructed the jury with CALCRIM 3475 (right to eject trespasser from real property: It is evident that appellants valid defense was that, as a reasonable man, he believed that Hadnot was trespassing and that his brandishing a knife was necessary to prevent Hadnots unsolicited entry.

But even if Vargas honestly and reasonably believed Hadnot was a trespasser, even though he had not gone any farther than the front porch,[6] a defense of property instruction was unwarranted for the same reason a self-defense instruction was unwarranted: there was no evidence Vargas had a reasonable belief Hadnot posed a threat to either Vargas or to the apartment. CALCRIM 3475 provides, in pertinent part: The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave. (Italics added.)

The trial court did not err by failing to give any self-defense related instructions.

3. Sufficient evidence to prove assault with a deadly weapon.

Vargas contends there was insufficient evidence to support his conviction for assault with a deadly weapon. He argues California case law has incorrectly held assault with a deadly weapon is a general intent crime. This claim is meritless.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, 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.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]  Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt.  If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.  [Citations.]  [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

[T]he crime of assault has always focused on the nature of the act and not on the perpetrators specific intent. An assault occurs whenever  [t]he next movement would, at least to all appearance, complete the battery.  [Citation.] Thus, assault lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault. [Citation.] As a result, a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent. (People v. Williams (2001) 26 Cal.4th 779, 786.) [A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (Id. at p. 790.)

Taking a knife and swinging it very close to Hadnot constituted an assault because the circumstances proved Vargass intentional act was probably going to result in the application of physical force to Hadnot. (See People v. Williams, supra, 26 Cal.4th at p. 790 [defendant committed assault by intentionally firing warning shot at victims truck because victim was close by]; People v. Wright (2002) 100 Cal.App.4th 703, 724-725 [under reasoning of Williams, defendant who tried to scare victims by driving his truck close to them was properly convicted of assault]; People v. Tran (1996) 47 Cal.App.4th 253, 262 [knife-wielding defendant committed two assaults when he chased man holding a baby, even if defendant intended no harm to the baby]; People v. Martinez (1977) 75 Cal.App.3d 859, 862-864 [assault with deadly weapon charge could be sustained on preliminary hearing evidence that defendant threw bottle which bounced off police car and struck officer, even if defendant did not intend to hit the officer].)

Vargas argues Williams was wrongly decided, and that the evidence showed he had not intended to harm Hadnot. We cannot, of course, ignore Williams. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)

There was sufficient evidence to sustain the assault with a deadly weapon conviction.

4. Trial court did not err by refusing to reduce assault conviction to a misdemeanor.

Vargas contends the trial court erred by refusing to reduce his assault with a deadly weapon conviction from a felony to a misdemeanor, as it had discretion to do. Vargas also contends the trial court erred by using elements of the assault with a deadly weapon offense as aggravating factors to justify imposing the felony rather than the misdemeanor. These claims are meritless.

a. Legal principles.

Section 245, subdivision (a)(1), provides: Any person who commits 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 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Under section 17, subdivision (b)(1), an offense punishable in the trial courts discretion as either a misdemeanor or a felony becomes a misdemeanor for all purposes [a]fter a judgment imposing a punishment other than imprisonment in the state prison.

[S]ection 17(b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely in the discretion of the court. By its terms, the statute sets a broad generic standard. [Citation.] The governing canons are well established: This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] [Citation.] Obviously the term is a broad and elastic one [citation] which we have equated with the sound judgment of the court, to be exercised according to the rules of law. [Citation.] [Citation.] Thus, [t]he courts have never ascribed to judicial discretion a potential without restraint. [Citation.] Discretion is compatible only with decisions controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . . [Citation.] [Citation.] [A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. [Citation.]

On appeal, two additional precepts operate: The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [a] decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] [Citation.] (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

b. Discussion.

Vargas contends the trial courts decision to impose a felony sentence, when a misdemeanor one would have satisfied the general objectives of sentencing, was arbitrary, mean-spirited, and an abuse of discretion. We disagree.

Vargas argues the record does not demonstrate a reasoned consideration of the circumstances of this offense, the background or motivation of the offender, or the objectives of sentencing generally. To the contrary, the trial court said at sentencing: The court having reviewed the probation departments report, which does recommend prison; the court having been the judge that tried this case and very familiar with the facts, and the fact that he used two separate knives . . . one was larger than the other, looking at the circumstances in aggravation . . . the crime involved a threat of great bodily injury; further, the defendant was armed at the time of the incident. And while this isnt quite a pattern, I do take it important that he did it twice. Never mind that his girlfriend told him to calm down, stay inside, he got another knife and did it again. [] I do note in mitigation that the defendant has no record in the State of California. [] Sentence is now imposed as follows: the defendant is to be sentenced in state prison for the low term of two years. . . . By implication, I am denying the defenses request to reduce this to a misdemeanor.

Vargas argues the trial court erred by considering the fact Vargas was armed and his crime involved the threat of great bodily injury because these factors are elements of the offense itself. But the only authority Vargas cites is the general rule that offense elements cannot be used to impose an upper term. (See Cal. Rules of Court, rule 4.420(d) [A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1261 [It is established that a circumstance that is an element of the substantive offense cannot be used as a factor in aggravation].) However, as the Attorney General points out, People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, did not limit the trial courts section 17 discretion to a consideration of factors that would warrant an aggravated term. The Attorney General argues the proscribed dual use of sentencing factors contained in rule 4.420 does not control here because the trial court had to decide whether the offense Vargas committed was a felony or a misdemeanor, not whether to impose an upper term. Vargas cites no authority to the contrary.

Vargas argues, Although charged as a felony . . . this offense was in essence an attempt by appellant, albeit in an inebriated state, to prevent what he believed to be a trespassory incursion on his own property. But as the Attorney General points out, the trial court was under no obligation to accept appellants testimony that he acted to prevent a trespass, especially in light of overwhelming evidence to the contrary. We agree. That contrary evidence included the following: Hadnot never entered Vargass apartment, even though he could have easily walked in when Vargas left the front door open; when Hadnot initially came to the front door, Poulos asked for Hadnots help and it was clear Hadnot was only trying to make sure Poulos and her child were safe; Vargas took up a new knife after Poulos disarmed him; Vargas appeared to have been motivated by anger, jealousy, and/or racism rather than fear.

Applying the extremely deferential and restrained standard by which appellate courts are bound in [reviewing a trial courts determination that a section 17 wobbler should be punished as a felony or a misdemeanor], we find the trial court did not abuse its discretion. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 981.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] We note it is not unusual for cases discussing the hung jury factor to do so either without mentioning whether the case was civil or criminal (see People v. Turner, supra, 8 Cal.4th at p. 169; People v. Hutchins (2007) 147 Cal.App.4th 992, 996; United States v. Ruiz (2d Cir. 1990) 894 F.2d 501, 506-607), or without distinguishing between them (see Watkins v. State (Ala.App. 1989) 551 So.2d 421, 422 [legitimate justification for challenge where juror had served on two juries: a criminal case which resulted in a hung jury and a civil case which also resulted in a hung jury]).

[3] The trial courts reference to Juror No. 8s accent was nothing more than an acknowledgment this jurors native tongue was not English.

[4] However, imperfect self-defense does not apply to general intent crimes such as assault. (People v. Minifie (1996) 13 Cal.4th 1055, 1069.)

[5] There was, for instance, this colloquy: Q.  Why did you have this knife? [] I had it because I was trying to scare him away so that he would not come in, because hes a tall man. [] Q.  Why did you think he was going to come in? [] A.  Because he doesnt like me. [] Q.  Okay [] A.  The way that I have always seen him is like he is somehow upset with me, so I was trying to avoid him to get close to me.

[6] See People v. Curtis (1994) 30 Cal.App.4th 1337, 1361 [Like traditional self-defense, however, defense of habitation applies only if the defendants belief that a trespass is occurring or about to occur is reasonable.].)