Modification: People v. Cruz-Partida

THE PEOPLE,

Plaintiff and Respondent,

v.

CRISTIAN CRUZ-PARTIDA,

Defendant and Appellant.

No. A160334

(San Mateo County

Super. Ct. No. 16-NF-004951A)

California Court of Appeal

First Appellate District

Division One

Filed May 26, 2022

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on April 28, 2022, be modified as follows:

1. On page 5, after the second full sentence on the page that begins "At the time of the sound," add as footnote 4 the following footnote, which will require the renumbering of all subsequent footnotes.

⁴ Detective Mark Kosta later testified that he measured the distance from the closed gate to the curb of the sidewalk as approximately 52 feet and the distance from the gate to the beginning of a brick area between the pathway and the sidewalk as approximately 28 feet. He did not measure the length of the brick area.

2. On page 6, delete footnote 4, which begins "We reject," and replace it with the following footnote 5, which will require the renumbering of all subsequent footnotes:

⁵ As discussed below, we reject Cruz-Partida's argument that the trial court misapplied the law here by confusing the present ability to commit an assault with the actus reus necessary to uphold an assault conviction.

3. On page 16, at the end of the first paragraph, after the citation to "(Rivera, at p. 333.)," add as footnote 12 the following footnote, which will require renumbering of all subsequent footnotes:

¹² Given this case law, we reject Cruz-Partida's argument that the trial court erred in denying his motion for judgment of acquittal, brought at the close of the prosecution's case, by conflating present ability with the actus reus necessary for an assault. In support of his acquittal motion, Cruz-Partida argued there was no evidence that he was shooting at either Nicholas or Steven, and the prosecution failed to provide evidence regarding the location of either brother at the time of the single gunshot. The court initially expressed concern with respect to the facts of this case given that assault requires an act that would directly and probably result in the application of force to Steven or Nicholas. The prosecutor responded by citing Chance and McMakin for the proposition that it does not matter whether Cruz-Partida was aiming at either victim. The court reviewed both cases, concluding that Chance discussed different fact situations focused on present ability but that it did not "think there's any question here that there was a present ability to inflict injury." The court then discussed the facts of Chance, noting that there was "no showing that the gun was ever trained on" the purported victim. When the prosecutor next mentioned that, in McMakin, the defendant pointed the gun so that the ball would strike the ground before it hit the purported victim but never discharged the weapon, the court responded, "that's the idea, which is more than we have here." The court then concluded: "[Cruz-Partida is] in the breezeway with the gun . . . prominently displayed so it can be seen from 60 to 70 feet away, which is what it sounds like the approximate distance was based on the measurements that were brought out during the testimony. The gun can be seen, and we know the gun was loaded at the time. And that moment---putting aside the discharge of the weapon, that moment is an assault as I understand it from Chance. So with that, your [section] 1118 [motion] is denied." While the facts were not directly at issue in Chance because the defendant conceded his behavior established intent, it seems clear that the court was considering the facts of both Chance and McMakin in determining there was sufficient evidence of intent in this case. Regardless, even if the trial court misspoke or was confused, " 'we review the ruling, not the court's reasoning, and, if the ruling was correct on any ground, we affirm.' " (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) And we conclude that there was substantial evidence of intent before the trial court when it denied Cruz-Partida's acquittal motion. (See McMakin, supra, 8 Cal. at p. 548 ["When there is any competent evidence before the jury to show the intent to commit an assault, it is for them to determine the question of intention."].)

4. On page 17, after the fifth full sentence on the page, which begins "We conclude" and ends with "one of the two brothers," add as footnote 13 the following footnote, which will require renumbering of all subsequent footnotes:

¹³ In his petition for rehearing, Cruz-Partida argued that this analysis misstates the evidence because he never pointed the gun "in the direction" of the brothers or in their "general vicinity." It is true that there is no evidence that Cruz-Partida ever aimed the gun directly at either brother. However, Cruz-Partida, himself, testified that that he shot with his right arm across his torso to the left at about a 30-degree angle downward from parallel to the ground so that Steven "could back up." He also testified that Nicholas was about 21 feet away and Steven was 16 feet away and "slow rolling" towards him when he fired the shot into the dirt on the street side of the gate. Thus, the evidence clearly establishes that Cruz-Partida pointed the gun in the general vicinity of the brothers. Moreover, he also pointed the gun in the direction of the brothers as opposed to, for example, behind him.

5. On page 17, at the end of the carryover paragraph, after the last sentence, which begins "In other words" and ends with "mens rea for assault in this case," add as footnote 14 the following footnote:

¹⁴ In his petition for rehearing, Cruz-Partida unsurprisingly objected to the general rule we have articulated for determining whether a defendant's actions in displaying a firearm are sufficient to supply the mens rea necessary for assault. His argument that our analysis turns nearly every instance of brandishing a gun (§ 417, subd. (a)(2)) into the more serious crime of assault ignores the fact that displaying an unloaded gun without the present ability to apply force would not qualify as the more serious offense. We can also envision a scenario where a gun is displayed in a rude or angry manner, but other circumstances show that the armed individual has no intent to actually discharge it. In the end, our touchstone is McMakin, which, over a century ago, explained: "The drawing of a weapon is generally evidence of an intention to use it. Though the drawing itself is evidence of the intent, yet that evidence may be rebutted when the act is accompanied with a declaration, or circumstances, showing no intention to use it." (McMakin, supra, 8 Cal. at p. 549.) On the other hand, "presenting a gun at a person who is within its range . . . . accompanied by such circumstances as denote an intention existing at the time" is sufficient to provide the mens rea for assault, even when the gun is not directly aimed at the victim. (Id. at pp. 548-549.) While we recognize that these cases will always be fact-specific, we have simply attempted to identify here some of the "circumstances . . . denot[ing] an intention." (Id. at p. 548.) Thus, in McMakin, displaying a gun at an individual with whom he had a property dispute, along with a conditional threat to use it, was sufficient. In this case, Cruz-Partida's dangerous conduct in displaying and/or firing the gun, along with the bad blood between him and Nicholas and the other surrounding circumstances provide substantial evidence of the mens rea for assault, even though there is no evidence Cruz-Partida actually aimed at either brother.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

Dated:

Margulies, Acting P. J.