Filed 10/4/16 P. v. Hernandez CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B261486

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA061681)
         v.

CHRISTIAN HERNANDEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Frank M. Tavelman, Judge. Affirmed.


         Thien Houng Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.


                                               _________________
       Defendant Christian Hernandez appeals from his conviction of assault with a
deadly weapon. He contends: (1) he was denied due process and a fair trial by the trial
court’s response to a jury question during deliberations; and (2) it was error to deny his
motion for new trial brought on those same grounds. We affirm.
                           PROCEDURAL BACKGROUND
       Defendant was charged by information with attempted premeditated murder and
assault with a deadly weapon of Michael Massari. Enhancements for personal infliction
of great bodily injury (Pen. Code, § 12022.7. subd. (a)), use of a deadly weapon (Pen.
Code, § 12022, subd. (b)(1)), and a prior conviction (Pen. Code, § 667.5, subd. (b)) were
also alleged.1
       After the jury reported that it was hopelessly deadlocked on attempted murder the
trial court declared a mistrial as to that count.2 But the jury convicted defendant of
assault with a deadly weapon (count 2) and found true the great bodily injury and deadly
weapon enhancements.
       On December 1, 2014, after it denied defendant’s motion for new trial and to
continue the sentencing hearing, the trial court struck the deadly weapon enhancement
(§ 12022, subd. (b)) and sentenced defendant to eight years in prison on count 2,
comprised of the four-year high term, plus a consecutive three years for the great bodily
injury enhancement (§ 12022.7, subd. (a)), plus a consecutive one year for the prior
conviction enhancement (§ 667.5, subd. (b)).
       Defendant timely appealed.




1      All undesignated statutory references are to the Penal Code.

2      Count 1 was subsequently dismissed pursuant to section 1382 for failure to timely
bring to trial.


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                                          FACTS
A.     The People’s Case
       In November 2013, Schooner’s Bar in Lancaster was the location of an annual
unofficial reunion of past and present local residents. On November 27, the day before
Thanksgiving, witness Adam Price went to Schooner’s Bar to meet with several friends,
including victim Mike Massari. The bar was crowded and it took Price almost half an
hour to make it through the crowd to the patio. Price first noticed defendant when
defendant bumped into one of Price’s friends, Vinnie. Price and Massari were still at the
bar patio at about 1:30 a.m. when “last call” was announced and bar security began
herding people from the patio into the bar. In the ensuing “traffic jam,” Price was about
one arm-length behind Massari. Defendant, both drunk and surly, squeezed between
Price and Massari. Massari had his back to defendant when defendant “leaned into
[Massari] and made a fast motion four, five times. Quick in-and-out motion four or five
times.” Defendant then ran away. Massari turned around, looked at Price and asked
what had happened. Price told Massari it looked like he was just stabbed. When Massari
pulled up his sweatshirt, Price saw blood gushing out of a back wound.
       Victim Massari testified that he had taken an Adderall and smoked some
marijuana before arriving at the bar at about 11:00 p.m. He spent the next few hours with
friends in the patio area. During that time, he had about three drinks. Massari recalled
moving from the patio back into the bar at about 1:30 or 2:00 a.m. Just as he entered the
bar, it felt as if someone had punched him in the back. Price said, “Hey, I think you
might have gotten stabbed.” Massari lifted his shirt and saw he was bleeding. Massari
lay on the ground and waited for the ambulance to arrive. Massari survived the attack.
B.     The Defense Case
       Defendant testified and admitted stabbing Massari, but claimed it was an accident.
He testified that he was at the bar that night with his brother. He was part of a large
crowd trying to “funnel in” from the patio to the bar after last call. He was about 10 feet
from the door when someone pushed him from behind, causing him to fall onto the
person in front of him and then onto the ground. As he tried to get up, someone grabbed

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him from behind in a “bear hug.” While he struggled to get free, defendant saw a knife
fall to the ground about a foot away. Believing he was in danger, defendant grabbed the
knife. But then someone grabbed his wrist. Defendant testified that, as he struggled, he
“accidentally struck somebody in front of me, and I was still trying to free this person off
of me, and I didn’t want to let go of the knife because I didn’t want them to hurt me; so I
think that the gentleman in front of me got struck.” Defendant did not know the person
he stabbed. When defendant was able to break free, he ran away but saw that he was
being chased. Defendant ran into a residential neighborhood and hid; he called his
brother to come and get him. Defendant came out of hiding when he saw a police car.
                                       DISCUSSION
A.     The Trial Court’s Response to a Jury Question was Proper
       Defendant contends he was denied due process under the state and federal
constitutions by the trial court’s response to a jury question during deliberations. He
argues the response improperly lowered the prosecution’s burden of proof. Defendant is
incorrect.
       It is well settled that assault is a general intent crime which “does not require a
specific intent to injure the victim.” (People v. Williams (2001) 26 Cal.4th 779, 788,
citing People v. Rocha (1971) 3 Cal.3d 893, 899.) Consistent with Williams and Rocha,
the pattern jury instruction for assault with a deadly weapon other than a firearm,
CALCRIM No. 875, reads:
              “To prove that the defendant is guilty of [assault with a deadly weapon], the
              People must prove that:
              1. The defendant did an act with a deadly weapon other than a firearm that
              by its nature would directly and probably result in the application of force
              to a person;
              2. The defendant did that act willfully;
              3. When the defendant acted, he was aware of facts that would lead a
              reasonable person to realize that his act by its nature would directly and
              probably result in the application of force to someone;
              4. When the defendant acted, he had the present ability to apply force with
              a deadly weapon other than a firearm to a person; [¶] AND
              5. The defendant did not act in self-defense.” (Italics added.)


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       In People v. Velasquez (2012) 211 Cal.App.4th 1170, the appellate court found
CALCRIM No. 875 was a correct statement of the law, but under the circumstances of
that case it improperly reduced the prosecution’s burden of proof. In Velasquez, the
defendant was convicted of five counts of assault with a firearm based on evidence five
people were at home when the defendants drove by and fired into the residence.
Velasquez was convicted of one assault count for each person in the house at the time of
the shooting. The appellate court reversed the conviction on four of the five counts
because the jury may have misunderstood CALCRIM No. 875 to mean that the
prosecution did not need to prove the elements of the crime as to each named victim.
“[B]y following the letter of the instruction, the jury may have found Velasquez guilty of
assaulting the other four individuals because firing the shots resulted in a direct and
probable application of force to” just one of the victims. Velasquez stands for the
unremarkable proposition that the named victim must have been subject to the application
of force. Velasquez did not change the well-established rule that the defendant need not
have a specific intent to injure the named victim. (Williams, supra, 26 Cal.4th at p. 788.)
       Here, the jury was given CALCRIM No. 875, as above quoted.3 During
deliberations, the jury submitted the following question:


3      CALCRIM No. 875 further instructs: “Someone commits an act willfully when he
or she does it willingly or on purpose. It is not required that he or she intend to break the
law, hurt someone else, or gain any advantage. [¶] The terms application of force and
apply force mean to touch in a harmful or offensive manner. The slightest touching can
be enough if it is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not have to cause
pain or injury of any kind. [¶] The People are not required to prove that the defendant
actually touched someone. [¶] The People are not required to prove that the defendant
actually intended to use force against someone when he acted. [¶] No one needs to
actually have been injured by defendant's act. But if someone was injured, you may
consider that fact, along with all the other evidence, in deciding whether the defendant
committed an assault, and if so, what kind of assault it was. [¶] Voluntary intoxication is
not a defense to assault. [¶] Great bodily injury means significant or substantial physical
injury. It is an injury that is greater than minor or moderate harm. [¶] The term deadly
weapon other than a firearm is defined in another instruction to which you should refer.”


                                              5
              “Ask the judge to clarify if the jury needs to decide whether Count 2 with
              assault was intended directly to Mike Massari or if the defendant is guilty
              of assaulting anyone?”

The trial court responded in writing:
              “The law governing Assault with a Deadly Weapon is set forth in
              instruction 875. Please refer to that instruction.”

Defendant objected to this response. Referring the trial court to Velasquez, defendant
argued it was “directly on point that the court . . . must clarify 875 to indicate that the law
requires the People to prove that each named victim has to be the subject of the
application of force . . . I can see why jurors might want some clarification on the record,
at the bar with other people around my client. My client intended to apply force to
someone else, and Mr. Massari got stabbed inadvertently.” The trial court found
Velasquez “completely distinguishable” because it had to do with multiple victims while
this case involved just one victim.4
       The trial court was correct and its response to the jury’s question did not reduce
the People’s burden of proof on any element of the offense. Contrary to defendant’s
argument, the People did not have to prove defendant stabbed Massari intentionally,
rather than inadvertently while trying to stab someone else, because a specific intent to
injure the victim is not an element of the offense. Defendant’s reliance on Velasquez for
a contrary result is misplaced. Velasquez stands only for the rule that the named victim
must have been subject to the application of force. There is no dispute that Massari was
stabbed. Velasquez did not change the well-established rule that the defendant need not
have a specific intent to injure the actual victim. (Williams, supra, 26 Cal.4th at p. 788.)
       Finally, we observe that defendant testified that the stabbing was an accident, that
he did not even intend the acts that resulted in the stabbing. The jury obviously rejected




4      There are references in the briefs to “transferred intent” and “kill zone” theories,
but neither is applicable to this straight forward assault with a deadly weapon.


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that testimony but nothing in CALCRIM No. 875 lessened the prosecution’s burden to
show the stabbing was not an accident.
B.     The Motion for New Trial
       Defendant contends the trial court erred in denying his motion for new trial, which
was based on his objection to the trial court’s response to the jury’s question. Having
found no error in that response, the challenge to the ruling on his new trial motion
necessarily fails.
                                     DISPOSITION
       The judgment is affirmed.



                                                 RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.



              FLIER, J




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