Filed 3/29/16 In re A.B. CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

In re A.B., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                            G051283

     Plaintiff and Respondent,                                         (Super. Ct. No. DL050069)

         v.                                                      OPINION

A.B.,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Julian W.
Bailey, Judge. Reversed and remanded.
                   Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton, Seth Friedman, Heidi Salerno and Samantha Begovich, Deputy
Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              The juvenile court adjudicated 17-year-old A.B. a ward of the court (Welf.
& Inst. Code, § 602) based on its findings he committed aggravated assault (Pen. Code,
§ 245, subd. (a)(1); all further statutory references are to this code), and misdemeanor
assault (§ 240), battery (§ 242), and brandishing a knife (§ 417, subd. (a)(1)). After
striking the misdemeanor assault count, the court set a“maximum term” of confinement
for A.B. though it did not place him in custody, and instead required probation with 120
days of house arrest.
              A.B. challenges the sufficiency of the evidence to support the finding he
committed aggravated assault when he cut his mother’s arm with an unfolded knife as she
stepped with outstretched arms between A.B. and her boyfriend. A.B. and the boyfriend
argued while several feet aparton a stairway, but the record does not bear out the
prosecutor’s assertion A.B. was “waving a knife around.” The juvenile court based its
assault finding on evidence A.B. brandished the knife. But as we explain, brandishing is
not equivalent to an assault because it does not necessarily involve waving, gesturing, or
striking with a knife, or otherwise using a weapon in a manner likely to result in a battery
as a natural and probable consequence. Instead, brandishing may be accomplished
merely by exhibiting the weapon (§ 417, subd. (a)(1)), and there was no evidence A.B.
did anything more here. The only testifying eyewitness stated that A.B. did not gesture in
any manner with the knife; indeed, she did not even see it. On this record, we must
reverse the judgment and remand for a new wardship hearing.
                                             I
                  FACTUAL AND PROCEDURAL BACKGROUND
              A.B. and his mother’s boyfriend, Amin, lived together in mother’s home
for three years before the incident in October 2014. Around 9:00 a.m., A.B. slammed the
front door and Amin came downstairs to ask what happened. Mother explained that A.B.
was “in a bad mood,” and the couple went upstairsto discuss A.B.’s behavior behind
closed doors in the master bedroom. A.B., however, barged into the room shouting and

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upset that they “were talking about him,” just as Amin complained that A.B. was “being
irritating.”According to mother, A.B. was not angry and did not argue with her, but only
Amin.
              When A.B. continued yelling, Amin departed the room, A.B. returned
briefly to his own room and then continued “calling [Amin] names” as Amin descended
the stairs. As Amin proceeded down, he stopped and commented to A.B. in Farsi that
“whatever you’re saying reflects [on] you.” Meanwhile, mother also had moved onto or
near the stairs, “just like on the tip of the first step going down.” A.B. was above her“up
the stairs,”but still on the second floor and “still cussing away” at Amin, who stoodbelow
her near the middle of the stairs. Mother described the stairway as “normal-size,” about
20 feet long, and she stood closer to A.B. than to Amin. She estimated variously that A.B.
was about five feet away from her or “[t]he extent of my hand reaching out.”
              As mother looked down the stairs at Amin, she told him “we should leave
or you should stop talking, you know, don’t shout at each other.” She lifted both her
arms, her right arm up and extended out towards A.B. and her left arm similarly up and
out towards Amin, and as she did so, she felt a sharp cut on her right hand “about halfway
up from the base of the palm toward the little finger.”
              She had not seen anything in A.B.’s hand. She had not been trying to touch
him, but rather her “arm movements essentially were part of [her] expression.” A.B. had
not “been moving toward” her before she felt the cut, nor had he “raised his hands in any
way.” He “wasn’t making any arm movements,” but instead engaged in a “mutual verbal
argument” with Amin. Mother noted A.B.’s mood changed and he “became concerned”
when he realized he had cut her. The trial court expressly found mother a credible witness
who “c[a]me to court and in a very difficult situation she truthfully testified.”
              The cut was not deep, but she bled “a lot because I have — I take anti-
coagulant.” Amin came up to her and held her hand tight to stop the bleeding. As they
proceeded down the stairs, A.B. followed them, still angry and upset at Amin, and as

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mother and Amin exited into the garage, A.B. slammed the door to the garage on Amin’s
leg, causing a cut and a bruise on one of Amin’s toes. Mother and Amin departed in her
car and returned later in the day.
              In the evening, A.B. called the sheriff’s department, expressing concern
that he would not have a place to sleep that night. A.B. met the deputy outside his home,
and after the deputy placed him in her patrol car, she went inside the home, spoke to
mother, and then returned and read A.B. his Miranda rights. The deputy testified at the
wardship hearing as follows: “The minor told me that he doesn’t like his mother’s
boyfriend, her boyfriend at the time, and that he heard his mom and the boyfriend talking
about him in their bedroom this morning. And he got extremely angry, went into that
bedroom, yelled at them, left the bedroom, went back into his own room, [and] retrieved
a knife. And he told me that he, quote, ‘threatened the hell out of him,’ meaning the
boyfriend.”
              After A.B. told the deputy it was “the biggest knife he had,” she retrieved it
and found it was a “folding knife” with a four-inch blade. She elaborated that A.B. “said
that he went and got the knife and began threatening the mom’s boyfriend with it. And
during the altercation, his mom stepped in between him and her boyfriend to protect her
boyfriend and that he must have stabbed her with it.”
              In argument on the wardship petition, the prosecutor summarized his case
this way: “Here the minor has confessed to grabbing a knife with the intent to threaten
Amin, the boyfriend. So he basically has confessed to count 4, which would be the
brandishing. . . . [¶] And as for the 245(A)(1) [aggravated assault], . . . the evidence here
shows the minor committed an act that would likely and probably have resolved [sic] in a
battery by grabbing a knife. With [sic: garbled] the evidence established by the mom’s
testimony is that she put her arm up. As she put her arm up, the minor had the knife out,
resulting in a cutting motion — well, strike that. Not a cutting motion, but resulting in a
cut. [¶] Based on all of the evidence presented to[] the court and based on the minor’s

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admissions and the testimony of the mother, the case has been proven beyond a
reasonable doubt.” (Italics added.)
              The prosecutor later added: “And as the court is aware, you don’t have to
intend to commit a battery. You just have to commit an act that could likely and
probably result in a battery. I should say, you don’t have to intend to commit an assault.
So whether or not the minor intended to cut his mom, the fact that he was waving a knife
around in such close proximity to his mom was an act that satisfies the elements of
assault with a deadly weapon.” (Italics added.)
              The juvenile court observed that A.B.’s “own statements” established the
brandishing allegation because “threatening the hell out of somebody with a knife is sort
of the essence of a brandishing, as alleged in count 4.” The court also concluded:
“Whether or not it’s an assault, I think, is also proven sufficiently by the youth’s
statement that he ‘threatened the hell out of’ the boyfriend and that we have either a
natural and probable consequence of that threatening, with his mother being there to
defend, that she would become a victim, or we have, I think — and I think it really better
fits this theory of just the transferred intent in that the assault was really occurring on
Amin at that time, but the mother jumping in between and holding her arms out. And I
think it’s apparent [that when] she was trying to keep the two of them apart, from her
testimony, that the assault occurred.” The trial court sustained the wardship petition, and
A.B. now appeals.
                                               II
                                        DISCUSSION
              A.B. challenges the sufficiency of the evidence to support the finding he
committed aggravated assault against his mother.Substantial evidence is defined as
evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005)
37 Cal.4th 453, 466.) A reviewing court must accept logical inferences the trier of fact
may have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th

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342, 396.) “‘A reasonable inference, however, “may not be based on suspicion alone, or
on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A
finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.”’ [Citation.]” (People v. Cluff (2001)
87 Cal.App.4th 991, 1002.)
              Here, the prosecutor assumed A.B. cut his mother while “waving a knife
around” to threaten Amin, and it appears the trial court was swayed by that
characterization to conclude A.B. committed an aggravated assault on his mother in the
process of assaulting Amin. The evidence, however, does not support a finding of
aggravated assault.
                  Section 240 defines “assault” as “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.” The injury may be
accomplished by the “least touching,” and the evidence must “demonstrate that the
defendant willfully or purposely attempted a ‘violent injury’ or ‘the least touching,’ i.e.,
‘any wrongful act committed by means of physical force against the person of another.’”
(People v. Coluntuono (1994) 7 Cal.4th 206, 214 (Coluntuono).) An assault is
aggravated when the defendant uses a deadly weapon to commit it. (§ 245, subd. (a)(1).)
              Assault is a general intent offense. “‘[A] general intent to attempt to
commit the violence is sufficient to establish the crime.’” (People v. Lee (1994)
28 Cal.App.4th 1724, 1737 (Lee).) Put another way, “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 (2001) 26 Cal.4th 779, 790 (Williams).)
              A defendant need not connect the dots from his act and knowledge of the
underlying facts to a subjective realization his act likely will result in injury. Assault
“does not require a specific intent to cause injury or a subjective awareness of the risk
that an injury might occur.” (Williams, supra, 26 Cal.4th at p. 790.) Consequently, the

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doctrine of transferred intent developed to meet the requirement of a specific intent to kill
in murder and attempted murder cases involving unintended victims does not apply in
assault cases. (Lee, supra, 28 Cal.4th at p. 1737 [“the doctrine of transferred intent does
not apply at all in an assault case”].) This follows because “there is no specific intent to
transfer.” (Ibid.)
              Instead, the defendant commits assault “if he intended to commit a
successfully completed act, such as firing a gun, the direct, natural and probable
consequences of which applied physical force upon or injury to another.” (Lee, supra,
28 Cal.4th at p. 1738.) Accordingly, a defendant committing assault may have
unintended or nontargeted victims. “The defendant need not intend to strike any
particular person to be guilty of . . . assault. Rather, when the defendant shoots into a
group of persons primarily targeting only one of them, the defendant can be convicted of
assault with a deadly weapon as to the nontargeted members of the group.” (People v.
Riva (2003) 112 Cal.App.4th 981, 999, fns. omitted.)
              The same applies for unintended victims of a knife assault, as illustrated in
People v. Tran (1996) 47 Cal.App.4th 253. There,a knife-wielding defendant chased a
man who fled with his infant son in his arms. The jury convicted the defendant of two
counts of assault with a deadly weapon, and the reviewing court affirmed, explaining:
“We read Colantuono to mean that an intent to do an act which will injure any reasonably
foreseeable person is a sufficient intent for an assault charge. Defendant need not have
specifically intended to injure baby Jackson; chasing Sang Ngoc Tang (who was carrying
Jackson) and wielding a large knife conveyed an intent to cause injury with the knife. It is
not reasonable to insist that defendant desired only to injure the father, and thus was not
liable for the assault on the son. Surely a knife attack on the father could foreseeably have
wounded the baby.” (Id. at p. 262.)
              But a potential for “‘the least touching’” resulting in “violent injury”
necessary for assault (Coluntuono, supra, 7 Cal.4th at p. 214; § 240) is not a natural and

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probable consequence of mere brandishing. As noted, the prosecutor assumed
brandishing involved “waving” or otherwise moving a knife or gesturing with it. Such
motions foreseeably could result in contact and injury to a nearby person in some
circumstances. But contrary to the prosecutor’s assumption, brandishing actually applies
to “[e]very person who, except in self-defense, in the presence of any other person, draws
or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or
threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a
firearm in any fight or quarrel . . . .” (§ 417, subd. (a)(1), italics added.)
               Merely exhibiting a knife, even in a threatening manner, does not by itself
support an inference that, as a natural and probable consequence, the knife will puncture
or slice someone’s body. To assume otherwise would be unwarranted and transform an
accidental knife injury into a crime. Only in Hollywood and some literature could one
make this inference. (See Dershowitz, Life is Not a Dramatic Narrative, in Law’s
Stories: Narrative and Rhetoric in the Law (Peter Brooks & Paul Gewirtz eds., Yale
University Press, 1996), at p. 100 [suggesting that Anton Chekhov once told a writer, “If
in the first chapter you say that a gun hung on the wall, in the second or third chapter it
must without fail be discharged”].)1
               The Attorney General acknowledges that brandishing is not enough. But
like the prosecutor, she surmises facts that are not in the record and speculative
inferences that do not support the judgment. She notes correctly that after A.B.
“intentionally grabbed the knife to threaten Amin with it, [A.B.] followed Amin to the
staircase and continued to threaten him with it[.]” But the Attorney General without
basis suggests mother interrupted an ongoing assault A.B. committed against Amin. She

       1      Dershowitz thus observed, “In Chekhovian drama, chest pains are followed
by heart attacks, coughs by consumption, life insurance policies by murders, [and]
telephone rings by dramatic messages. [But] [i]n real life, most chest pains are
indigestion, coughs are colds, insurance policies are followed by years of premium
payments, and telephone calls are from marketing services.” (Id. at pp. 100-101.)

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states: “While striking his mother was unintended, his assault [on Amin?] was
intentional [because] he was heading for Amin with his knife, which he knew would
probably result in the application of physical force against Amin when his mother
jumped in the way.” (Italics added.)
               But mother testified unequivocally that A.B. was not moving at the time
she received her wound. The prosecutor elicited that mother loved her son and did not
want him prosecuted, but neither the prosecutor nor the court could infer from these
sentiments that A.B. was moving towards Amin, let alone that he was doing so with the
intent to assault Amin. The court relied on A.B.’s admission he “threatened the hell out
of” Amin, but there was no evidence A.B. did so physically or did so at the time mother
was cut. Mother testified the altercation was verbal, not physical, and that, in the
moments before she was stabbed, she had not seen A.B.’s arms raised, nor a knife in his
hand.
               While displaying a knife is a physical act, even when coupled with threats,
the act constitutes brandishing (§ 417, subd. (a)(1)), not assault. Without motion, there
was simply no “present ability” for A.B.’s knife to contact Amin to cause the touching
and “violent injury” that would support an assault. (§ 240.) A.B. did not put mother’s
arm in motion or make any motion with the knife when she was cut. While the knife did
contact A.B.’s mother, he did not move it to strike her and cause her injury. It is a
speculative leap to assume that when A.B. displayed his knife — but stopped pursuing
Amin and remained on the second floor, engaging only in a verbal argument as Amin
descended the stairs — that as a direct, natural and probable consequence someone would
be stabbed. Life is not a Chekhov play. A series of several further events and actions
had to occur after A.B. exhibited the knife, coalescing in an unfortunate result. A.B.
admitted he displayed the knife and threatened Amin with it, but that was brandishing,
not assault.



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                                       III
                                 DISPOSITION
           The judgment is reversed and remanded for a new wardship hearing.




                                             ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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