Filed 10/27/15
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                        DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B259137
                                                        (Super. Ct. No. 2014010819)
    Plaintiff and Respondent,                                (Ventura County)

v.

HILLARY TRAVON WHITE,

    Defendant and Appellant.



                 Hillary Travon White has a strong arm. He threw a metal showerhead at
reinforced glass with sufficient force to shatter the glass, causing particles to hit peace
officers on the other side As we shall explain, this conduct may constitute assault by
force likely to produce great bodily injury. It is not "open season" for prisoners to throw
missles at prison guards, even when they are protected by reinforced glass.
                 Appellant was convicted by jury of two counts of assault on a peace officer
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with force likely to produce great bodily harm. (Pen. Code, § 245, subd. (c).) He was
sentenced to prison for five years four months. He contends that he was not aware of
facts that would lead a reasonable person to realize that a battery would probably and
directly result from his conduct. (People v. Williams (2001) 26 Cal.4th 779, 782.) We
affirm.
                 On December 3, 2013, appellant was incarcerated at a CYA facility and got
into a fist fight with another inmate. Appellant refused to stop fighting and was "pepper
1
    All statutory references are to the Penal Code.
sprayed" by CYA Correctional Counselor Elmore. Angry, appellant called Elmore a
"bitch" because he was the only one "pepper sprayed."
              Appellant was permitted to wash off in a shower that had a window facing
the control desk where Elmore and Parole Agent Zavala were seated. The desk was six
feet away from the shower window, which was a multi-paned partition constructed of
wire-reinforced glass. Some glass panes were missing.
              Appellant broke off the metal showerhead and threw it in the direction of
the window. Elmore heard a "loud thud and shattering glass." The showerhead bounced
back but broke a window pane, spraying glass particles on Elmore and the desk
countertop. Elmore felt a sliver of glass hit her eye, alerted her coworkers, and went to
the restroom to treat her eye.
              Appellant moved to within one or two feet from the window, picked up the
showerhead, and threw it again. Zavala heard "another loud bang" and felt a shower of
glass particles hit her. A piece of glass cut her lip. The showerhead penetrated the
window and landed near the desk.
                                 Sufficiency of the Evidence
              Appellant argues that the evidence does not support the finding that he
knew that throwing the showerhead would probably and directly result in the application
of force to another person. As in every sufficiency of the evidence case, we "consider the
evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the judgment. . . .
The test is whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2
Cal.4th 408, 432.)
              In order to convict on the charged offenses, the jury had to find that
appellant (1) willfully committed an act which by its nature would probably and directly
result in injury to another; and (2) was aware of facts that would lead a reasonable person
to realize that a battery would directly, naturally, and probably result from appellant's
conduct. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) Section 245 "is directed


                                              2
at the force used, and it is immaterial whether the force actually results in any injury.
The focus is on force likely to produce great bodily injury. [Citation.]" (People v.
                                                2
Parrish (1985) 170 Cal.App.3d 336, 343.)
               Appellant argues that a reasonable person would assume the window was
unbreakable because it was wire-reinforced glass. He amplifies the argument stating that
if he wanted to harm the victims, he could have thrown the showerhead through a
window pane that had no glass. That appellant had a poor aim or that the window had a
safety feature are not defenses. The assault charges did not require a specific intent to
injure the victims or a substantial certainty that an application of physical force will
result. (People v. Williams, supra, 26 Cal.4th at p. 788.)
               Appellant also argues that he could not be convicted based on facts he did
not personally know, i.e., that reinforced glass could be broken. But that is not the test.
(Ibid.) The test is whether a reasonable person would reasonably believe that a metal
object, if thrown with great force, would directly and probably injure a person on the
other side of the window. (Ibid.) "[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.)
               Shooting a firearm at a victim who is protected by bulletproof glass is an
assault. (People v. Valdez (1985) 175 Cal.App.3d 103, 108.) This is akin to what

2
  The jury was instructioed with CALCRIM 860 which provides: "the People must
prove that: [¶] 1A. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and [¶] 1B. The force used was
likely to produce great bodily injury; [¶] 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 likely to produce great bodily injury to a person; [¶] 5. When the defendant acted,
the person assaulted was lawfully performing her duties as a peace officer; [¶] AND
[¶] 6. When the defendant acted, he knew, or reasonably should have known, that the
person assaulted was a peace office who was performing her duties."


                                                    3
happened here. Appellant broke off the showerhead and positioned himself within
striking distance of the victims. The fact that external circumstances, glass with a safety
feature, hampered the attack does not exonerate appellant. (Id., at p. 112.) "This
proposition would make even less sense where a defendant has actually launched his
attack - as in the present case - but failed only because of some unforeseen circumstance
which made success impossible." (Ibid.) The trier of fact may look to the completed
battery to determine whether the defendant committed an assault or assault with a deadly
weapon. (People v. Colantuono (1994) 7 Cal.4th 206, 218, fn. 9.) Here, the metal
showerhead cracked the window on the first throw, causing glass particles to hit Elmore.
The second throw penetrated the window, causing glass fragments to cut Zavala's lip.
              Appellant argues there is no evidence that he "expected" Elmore and Zavala
to be hit by the showerhead or glass fragments. Both were seated at the control desk, in a
narrow corridor about six feet from the window. Lieutenant Chestnut testified that a
person standing in the shower could see the head and torso of people at the control desk.
The jury reasonably inferred that the metal showerhead, if thrown with enough force,
would harm Elmore and Zavala. Appellant did not have to specifically intend to inflict a
particular injury to be guilty of assault. (People v. Williams, supra, 26 Cal.4th 779, 784.)
"[T]he crime of assault has always focused on the nature of the action and not of the
perpetrator's specific intent." (Id., at p. 786.) There is no requirement that the defendant
be subjectively aware of the risk that a battery might occur. (Id., at p. 788.)
              "Although it is the jury's duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of which
suggests guilt and the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" (People v.
Kraft (2000) 23 Cal.4th 978, 1053-1054.) It took no leap in logic for the jury to find that
throwing a metal showerhead at a person seated behind a glass window is an assault.
Appellant did it twice. "One may commit an assault without making actual physical
contact with the person of the victim; because [section 245] focuses on use of a deadly
weapon or instrument or, alternatively, on force likely to produce great bodily injury,


                                              4
whether the victim in fact suffers any harm is immaterial. [Citation.]" (People v. Aguilar
(1997) 16 Cal.4th 1023, 1036, fn. 9.)
             The judgment is affirmed.
             CERTIFIED FOR PUBLICATION




                                                       YEGAN, J.

We concur:



             GILBERT, P.J.



             PERREN, J.




                                            5
                               Manuel Covarrubias, Judge

                           Superior Court County of Ventura

                          ______________________________


             Greg May, under appointment by the Court of Appeal, for Defendant and
Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney
General, for Plaintiff and Respondent.




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