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People v. Hernandez4/1/2003
Appellant Ruben Hernandez was convicted by jury verdict of assault with a semiautomatic firearm and possession of a firearm by an ex-felon. The jury also found that, in committing the charged assault, appellant personally used a firearm.
From a few feet away, appellant fired seven or eight shots from a .380 caliber semiautomatic pistol at the victim. Three bullets struck the ground near the victim's feet, and the remaining bullets passed by both sides of the victim's head. The victim testified that, as a result of the shots fired past his head, his left ear "rang for about a week." In a pretrial statement to police, appellant said he had fired two shots on either side of the victim's head "mainly just to scare him." At trial, appellant denied having shot at the victim but admitted his pretrial statement to police. Appellant's defense relied upon the testimony of his mother that she was the one who fired the shots at the victim.
I.
There was sufficient evidence to support the verdict for assault with a semiautomatic weapon.
" defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (People v. Williams (2001) 26 Cal.4th 779, 788.) "For example, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.)
Thus, an assault does not require a subjective intent on the part of the defendant to commit a battery. Rather, if the evidence shows the defendant was aware of facts which would lead a reasonable person to realize an injury, i.e., a battery, would naturally and probably result from the conduct, the mens rea necessary for an assault is shown. Here, the requisite facts are present. Appellant willfully fired several shots in the direction of and close to the victim's body. Such acts are inherently dangerous, regardless of appellant's subjective intent only to frighten, and carried with them a strong possibility for harm, even if unintended, to the victim. (People v. Parks (1971) 4 Cal.3d 955, 961-962 [pointing and firing a weapon in the victim's direction supports an inference of an intent to injure and not merely an intent to frighten]; People v. Laya (1954) 123 Cal.App.2d 7, 16; see also People v. Lathus (1973) 35 Cal.App.3d 466, 471.) Put differently, a reasonable person would not engage in the conduct precisely because of the high likelihood of injury. Had the victim moved or had appellant for whatever reason failed in his aim -- no human being, even the best marksman, is infallible -- an injury would probably have occurred.
In any event, appellant and respondent both overlook the fact that appellant's violent conduct did result in a battery. (People v. Rocha, supra, 3 Cal.3d at p. 899-900, fn. 12 [battery does not require bodily harm; the least touching may constitute a battery]; (People v. Martinez (1970) 3 Cal.App.3d 886, 889 [barefooted kick to the booted shin of an officer sufficient to support charge of battery on a police officer].) Appellant's shots to either side of the victim's head from a distance of two to three feet caused the victim's left ear to "r ng for about a week," an injury which the jury could have considered in determining whether appellant was guilty of the crime. (Pen. Code, § 245, subd. (b); People v.
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