Filed 8/8/14 P. v. De La Cruz CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B249650

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA392691)
         v.

JACKIE MARIE DE LA CRUZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Upinder
S. Kalra, Judge. Affirmed as modified with directions.
         Mark J. Shusted, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                                    I. INTRODUCTION


       A jury convicted defendant, Jackie Marie De La Cruz, of assault with a deadly
weapon, a knife, in violation of Penal Code section 245, subdivision (a)(1).1 Defendant
admitted she served a prior separate prison term within the meaning of section 667.5,
subdivision (b). The trial court struck the prior conviction allegation pursuant to section
1385, subdivision (a). Defendant was sentenced to two years in state prison. We affirm
the judgment.


                                    II. THE EVIDENCE


       On January 9, 2012, defendant stabbed the victim, Edward or Edgar Rodriguez, in
the face with a steak knife. Defendant was standing on the sidewalk at the entranceway
to Mr. Rodriguez’s apartment building. She was partially blocking the walkway.
Mr. Rodriguez had to walk around defendant to reach the entrance. As he did so,
defendant reached into a shopping cart and pulled out a steak knife. Defendant raised her
right arm to shoulder level, swung back with her right hand and stabbed Mr. Rodriguez.
Defendant was not facing Mr. Rodriguez as he walked towards her. Her back was to
him.
       When Officer Michael Geitheim arrived, defendant was in front of a nearby
market. Officer Geitheim found the knife in a trash can in front of the market. Officer
Geitheim described defendant’s demeanor: “[V]ery spastic movements, very talkative,
fast, rapid speech, real fidgety, appeared to be under the influence.”
       Ronald Byrd lived next door to Mr. Rodriguez’s building. Mr. Byrd had first seen
defendant in the neighborhood four or five days prior to the stabbing. She would walk
back and forth on the street yelling at people. Mr. Byrd described defendant’s demeanor
just prior to the stabbing: “[S]he was angry[.] [S]he was throwing things at different cars

       1
           Further statutory references are to the Penal Code unless otherwise stated.


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passing by.” Mr. Byrd further testified: “[S]he was like she was upset, . . . just talking,
talking, just angrily talking, just upset. She wasn’t really talking to anybody. She was
just talking.” Mr. Byrd could not hear anything defendant said. Mr. Byrd could not tell
whether defendant and Mr. Rodriguez had any conversation in the moments before the
stabbing. It did not appear to Mr. Byrd that they spoke to each other. Mr. Byrd did not
see defendant and Mr. Rodriguez interact in any way on that day or on any previous day.
Following the attack, defendant walked down the block to a corner store. Defendant was
still there when police officers arrived.
       On cross-examination, Mr. Byrd explained that he did not think the shopping cart
belonged to defendant: “Q. . . . You said something about a buggy? [¶] A. Yes, it was
a shopping cart. You know how the homeless have the shopping carts out there. It was a
sho[pp]ing cart. [¶] Q. So [defendant] had a shopping cart? [¶] A. No, I don’t think
she had a shopping cart. She was standing by a shopping cart. [¶] Q. Had you seen her
with that shopping cart earlier? [¶] A. I didn’t see her - - she was not somebody that I
have seen pushing a shopping cart up and down the street. I didn’t see her with
personally that that’s her shopping cart, no. I just saw her standing by the shopping cart.”
Defendant was standing in such a way that if she had been pushing the cart, she would
have done so in the direction of Mr. Byrd’s building.


                                     III. DISCUSSION


                          A. The Requested Accident Instruction


       It is well established that assault with a deadly weapon is a general intent crime.
(People v. Chance (2008) 44 Cal.4th 1164, 1167; People v. Williams (2001) 26 Cal.4th
779, 782; People v. Colantuono (1994) 7 Cal.4th 206, 215-216; People v. Rocha (1971) 3
Cal.3d 893, 897-900; People v. Hood (1969) 1 Cal.3d 444, 452-458.) In People v.
Williams, supra, 26 Cal.4th at pages 787-788, the court explained: “[A] defendant is only
guilty of assault if he intends to commit an act ‘which would be indictable [as a battery],

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if done, either from its own character or that of its natural and probable consequences.’
(1 Bouvier’s Law Dict. [(1872)] at p. 166.) Logically, a defendant cannot have such an
intent unless he actually knows those facts sufficient to establish that his act by its nature
will probably and directly result in physical force being applied to another, i.e., a battery.
[Citation.] In other words, a 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.” (See People v. Wyatt (2010) 48 Cal.4th 776, 781.) In a
footnote, our Supreme Court further explained in Williams: “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.” (People v. Williams,
supra, 26 Cal.4th at p. 788, fn. 3; accord, People v. Wyatt, supra, 48 Cal.4th at p. 781.)
Our Supreme Court also noted: “[A]ssault does not require a specific intent to injure the
victim. [Citation.]” (People v. Williams, supra, 26 Cal.4th at p. 788; see People v.
Wyatt, supra, 48 Cal.4th at p. 786.) Our Supreme Court concluded: “[W]e hold that
assault 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.” (People v. Williams,
supra, 26 Cal.4th at p. 790; see People v. Wyatt, supra, 48 Cal.4th at p. 786.)2

       2
           Here, the jury was instructed in part: “The crime[] charged in Count[] 1[,
assault with a deadly weapon other than a firearm] and the lesser crime of simple
assault . . . require proof of the union, or joint operation, of act and wrongful intent. [¶]
For you to find a person guilty of these crimes, that person must not only commit the
prohibited act, but must do so with wrongful intent. A person acts with wrongful intent
when she intentionally does a prohibited act on purpose, however, it is not required that
she intend to break the law. The act required is explained in the instruction for that
crime.” The jury was further instructed: “The defendant is charged in count 1 with
assault with a deadly weapon in violation of Penal Code section 245[, subdivision (a)(1)].

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       Defendant’s trial attorney, Deputy Public Defender Ronald Tripp, requested an
instruction on accident as a defense. Mr. Tripp argued in connection with the instruction
on accident: “Based on the testimony of Mr. Byrd, it seems that there is some evidence
that Ms. De La Cruz might have accidentally stabbed [Mr. Rodriguez] in the face,
apparently, through his gestures he showed that he –” The trial court interrupted. The
trial court explained: “[T]he act that would be accidental would be the - - in element one,
the defendant did an act that by its nature would directly and probably result in the
application of force. [¶] The act as has been presented is that [defendant] reached into
the shopping cart, pulled out the knife and swung it. Where was there substantial
evidence that that act was accidental? Making contact with a face, that may not have
been her intent, but that’s not required. The act is the swinging of the knife. [¶] The
next act is that it would be, by its nature, would directly and probably result in the
application of force to a person. What part is accidental? That she accidentally hit his
face or she just - - she didn’t mean to hit his face. . . . It is not required that she intended


To prove that the defendant is guilty of this crime, 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, the defendant was
aware of facts that would lead a reasonable person to realize that the defendant’s act by
its nature would directly and probably result in the application of force to someone; [¶]
AND [¶] 4. When the defendant acted, the defendant had the present ability to apply
force with [a] deadly weapon other than a firearm to a person. [¶] Assault in violation of
Penal Code section 241[, subdivision (a)] is a lesser crime to the crime charged in count
1. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant did an act 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, she was aware of facts that would lead a reasonable person to
realize that her act by its nature would directly and probably result in the application of
force to someone; [¶] AND [¶] 4. When the defendant acted, she had the present ability
to apply force to a person. [¶] 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 People are not required to prove that
the defendant actually intended to use force against someone when the defendant acted.
[¶] . . . [¶] Voluntary intoxication is not a defense to assault.”


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to cause injury.” Mr. Tripp responded, “I see what you are saying.” The trial court
continued: “It is required - - if you are telling me the act of swinging the knife is
accidental, and substantial evidence of it, direct me to it. [¶] You are free to argue that
the act would - - what she was doing would not directly and probably result in the
application of force. You are free to argue that it was not done willfully. You are free to
argue that they could only show that she had the present ability. But the ‘accident’ part is
just referring to just swinging the knife. I didn’t hear substantial evidence that that was
accidental. I heard evidence that that was intentional.” Mr. Tripp responded, “I will
submit, your Honor.” Section 26 creates the statutory defense of accident: “All persons
are capable of committing crimes except those belonging to the following classes: [¶]
. . . [¶] Five—Persons who committed the act . . . through misfortune or by accident,
when it appears that there was no evil design, intention, or culpable negligence.”
CALCRIM No. 3404 reflects the statutory defense. (People v. Anderson (2011) 51
Cal.4th 989, 996; see People v. Villanueva (2008) 169 Cal.App.4th 41, 53.) As
applicable to a general intent crime, CALCRIM No. 3404 explains: “The defendant is
not guilty of [assault with a deadly weapon] if (he or she) acted . . . without the intent
required for that crime, but acted instead accidentally. You may not find the defendant
guilty of [assault with a deadly weapon] unless you are convinced beyond a reasonable
doubt that (he or she) acted with the required intent.” (See People v. Anderson, supra, 51
Cal.4th at p. 996.)
       The trial court was not required to instruct with CALCRIM No. 3404 absent
substantial evidence supporting it. (People v. Hartsch (2010) 49 Cal.4th 472, 500;
People v. Bolden (2002) 29 Cal.4th 515, 558.) Our Supreme Court has explained: “It is
well settled that a defendant has a right to have the trial court . . . give a jury instruction
on any affirmative defense for which the record contains substantial evidence [citation]—
evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—
unless the defense is inconsistent with the defendant’s theory of the case [citation]. In
determining whether the evidence is sufficient to warrant a jury instruction, the trial court
does not determine the credibility of the defense evidence, but only whether ‘there was

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evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’
[Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983; accord, People v. Mentch
(2008) 45 Cal.4th 274, 288.)
       On appeal, defendant asserts substantial evidence supported an accident
instruction. Defendant argues: “[Defendant] was agitated on the day of the incident, and
appeared to be under the influence of some type of intoxicant. [Defendant] also had
behaved in this manner on the days preceding the accident. She had directed her
invectives at various passersby, and hurled a few items, but not at [Mr.] Rodriguez.
There was evidence [defendant] was unaware of [Mr. Rodriguez’s] presence prior to the
stabbing. [Defendant] was digging through the contents of a shopping cart that did not
belong to her. Finding a knife, she pulled it out of the cart, swinging it backwards for no
apparent reason.” Defendant asserts: “All of these facts tended to undermine any motive
for [defendant’s] act. Why would [defendant] blindly swing a knife backwards? The key
bit of evidence the [trial] court overlooked was Officer Geitheim’s testimony as to
[defendant’s] physical condition. [Officer Geitheim] described [defendant] as having
‘very spastic movements, very talkative, fast, rapid speech, real fidgety, appeared to be
under the influence.’ [Record citation.] [¶] The principal definition of ‘spastic is: ‘1. a:
of, relating to, characterized by, or affected with or as if with spasm <a spastic
patient>[.]’ (Webster’s New Third Internat. Dict. (3d ed. 1981).) original italics.) The
same work’s principal definition of ‘spasm’ is ‘1: an involuntary and abnormal muscular
contraction[.]’ (Ibid.) Applied to Officer Geitheim’s testimony, it is fair to say the
evidence showed [defendant] was suffering from ongoing involuntary and abnormal
muscular contractions. [¶] This testimony is consistent with and supportive of the view
that [defendant’s] wild flailing of the knife was simply one instance of her involuntary
and abnormal muscular contractions. This view of the evidence could reasonably explain
why [defendant] would make what appeared to be an aggressive and unjustified physical
assault for no apparent reason. While she had been vocally abusing others in the days
preceding the incident, there was no evidence suggesting she had touched anyone or
possessed any type of weapon. At the time of the incident, she was rummaging through

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someone else’s belongings when she discovered a knife, which she pulled from the cart,
and then jerked to the rear. In short, there was substantial evidence supporting the
defense of accident, and the court erred by refusing the instruction.”
       There was no substantial evidence defendant swung the knife accidentally. There
was no evidence defendant was rummaging in the shopping cart and pulled out the knife.
Instead, the evidence was that as Mr. Rodriguez passed behind her, defendant reached
into the cart and pulled out the knife. Further, defendant had been walking back and forth
along the sidewalk yelling at people for several previous days. Prior to the assault,
defendant was angry. She was throwing things at passing cars. Moreover, even if
defendant stabbed Mr. Rodriguez by accident, she pulled the knife from the shopping cart
and swung it in his presence. Following the attack, defendant walked away and tossed
the knife into a trash can.
       In the days preceding the stabbing, Mr. Byrd had seen defendant walking back and
forth in the street yelling at people. A reasonable person knowing what defendant knew
would realize that swinging a knife in such circumstances would directly, naturally and
probably result in a battery. The prosecutor was not required to prove defendant was
subjectively aware of the risk that an injury might occur. (People v. Wyatt, supra, 48
Cal.4th at p. 781; People v. Williams, supra, 26 Cal.4th at pp. 788, 790.)
       It is true that Officer Geitheim described defendant’s movements as spastic and
fidgety. But he attributed her condition to drug use. There was no evidence that
defendant suffered from involuntary, abnormal muscle contractions that could have
caused her to accidentally swing her arm back.
       Our Supreme Court has not yet determined the test of prejudice applicable to a
failure to instruct on an affirmative defense. (People v. Salas, supra, 37 Cal.4th at p. 984;
People v. Williams (2009) 176 Cal.App.4th 1521, 1530.) But even if the trial court had
erred, we would hold any error was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 502-503
[failure to instruct on an element, raising an improper presumption or directing a verdict
or finding subject to Chapman review for prejudice].) Mr. Tripp never argued to the jury

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that defendant swung the knife accidentally as a result of an involuntary muscle
contraction. Further, the jury was instructed with CALCRIM No. 252, concurrence of act
and general criminal intent, and CALCRIM No. 875, defining assault and deadly weapon
assault. As instructed, and in finding defendant guilty, the jury necessary concluded she
intended to swing the knife.


                               B. Presentence Custody Credit


       Defendant was arrested on January 9, 2012. She was declared mentally
incompetent to stand trial on July 13, 2012. Defendant was transferred from the county
jail to Patton State Hospital on October 1, 2012. A section 1370, subdivision (a) court
report dated December 19, 2012 was prepared. In that report, a licensed clinical social
worker and staff psychiatrist recommended defendant be returned to court as competent
to stand trial pursuant to section 1372, subdivision (a). An undated Certificate of Mental
Competence was issued. The parties agree, however, that the undated certificate was
issued on December 19, 2012. Defendant was not returned to the county jail until
January 7, 2013. Defendant was sentenced on May 20, 2013. Because defendant’s
presentence custody and conduct credit award exceeded the length of her two-year
sentence, she was released. The trial court awarded defendant 401 days of presentence
custody credit, 400 days of conduct credit, and 98 days of credit for time spent at Patton
State Hospital.
       The parties agree that defendant remained at the state hospital for 19 days after she
was found competent to stand trial. Between December 19, 2012, and January 7, 2013,
the authorities simply delayed returning defendant to the county jail. Defendant was
entitled to presentence custody credit for all days of confinement in the county jail and in
the state hospital. (§ 1375.5; People v. Mendez (2007) 151 Cal.App.4th 861, 864-865.)
Defendant was in custody for 498 days, from her arrest on January 9, 2012, through her
sentencing on May 20, 2013. Defendant was not entitled to conduct credit from October
1, 2012, when she was transferred to Patton State Hospital, to December 19, 2012, when

                                             9
she was certified competent to stand trial. (People v. Bryant (2009) 174 Cal.App.4th 175,
177, 182-184.) Therefore, defendant should have received 498 days of presentence
custody credit and 418 days of conduct credit. The question of credits is not moot as
applied to a defendant released on parole. (§ 1170, subd. (a)(3); People v. Lara (1988)
206 Cal.App.3d 1297, 1303; In re Carter (1988) 199 Cal.App.3d 271, 273; In re Vargas
(1985) 172 Cal.App.3d 316, 320, fn. 4; In re Reina (1985) 171 Cal.App.3d 638, 642; In
re Ballard (1981) 115 Cal.App.3d 647, 650; see People v. Valencia (2014) 226
Cal.App.4th 326, 329; In re Bush (2008) 161 Cal.App.4th 133, 140-141.) The judgment
must be modified to award defendant additional conduct credit.


                                     C. Restitution Fine


       We asked the parties to brief the question whether the trial court’s imposition of a
$280 restitution fine (§ 1202.4, subd. (b)) and a $280 parole revocation restitution fine
(§ 1202.45) violated ex post facto principles. The imposition of restitution fines
constitutes punishment and is thus subject to the ex post facto clauses of the state and
federal Constitutions. (People v. Souza (2012) 54 Cal.4th 90, 143; People v. Avila (2009)
46 Cal.4th 680, 729.) Defendant committed the present crime on January 9, 2012, and
was sentenced on May 13, 2013. When defendant committed the present crime, former
section 1202.4, subdivision (b) authorized a restitution fine set in the trial court’s
discretion in an amount between $240 and $10,000. (Stats. 2011, ch. 358, § 1.) The
section 1202.45 parole revocation restitution fine is to be in the same amount as that
imposed pursuant to section 1202.4, subdivision (b). (§ 1202.45; People v. Villalobos
(2012) 54 Cal.4th 177, 181; People v. Soria (2010) 48 Cal.4th 58, 62.) The $280
restitution fine imposed in this case was within the mandated range. We presume the trial
court applied the law in effect at the time defendant committed the present offense and
chose, in its discretion, to impose a $280 fine. (Evid. Code, § 664; In re Jacob J. (2005)
130 Cal.App.4th 429, 437-438, disapproved on another point in In re Julian R. (2009) 47



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Cal.4th 487, 499; People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The $280
restitution fine imposed in this case was within the statutory range. There was no error.


                                   IV. DISPOSITION


       The judgment is modified to award defendant 498 days of custody credit and 418
days of conduct credit. The judgment is affirmed in all other respects. Upon remittitur
issuance, the clerk of the superior court is to prepare an amended abstract of judgment
and deliver a copy to the Department of Corrections and Rehabilitation.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P. J.




We concur:




       KRIEGLER, J.




       MINK, J.*




       *
         Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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