Filed 6/23/15 In re B. W. CA3

                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




In re B. W., a Person Coming Under the Juvenile                                              C075965
Court Law.

THE PEOPLE,                                                                         (Super. Ct. No. 70175)

                   Plaintiff and Respondent,

          v.

B. W.,

                   Defendant and Appellant.




          In this case, the minor, B. W., contends the evidence did not support the trial
court’s finding that he committed assault with a deadly weapon because he did not
engage in “any assaultive conduct . . . toward the alleged victim.” We disagree and
affirm.



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                    FACTUAL AND PROCEDURAL BACKGROUND
       During the fall of 2013, Alexis C., the victim, got into an argument with the minor
and his friend, Daniella R., at their high school. After the argument began to escalate,
Daniella pulled the minor away and another student, Brittney B., pulled Alexis away.
Alexis testified that her purse had fallen to the ground and she “went back to go get [it].”
While Alexis approached, the minor “reach[ed] inside his backpack.” When Alexis
reached for her purse, she saw a gun in the minor’s hand. After pulling out the gun, he
“[f]lashed it[ and] waved it,” and pointed it in Alexis’s direction. The minor said, “ ‘If
anybody wants it, they can get it,’ ” while looking directly at Alexis. Alexis told the
minor to put the gun away. The minor put the gun into his backpack and Alexis left.
       The minor gave C. M. his backpack and told C. that it had “heat” in it. C. moved
the gun from the minor’s backpack to his own. Alexis and her boyfriend encountered the
minor again and the three started talking. Stockton Police Officer Chris Anisko arrived,
as did the principal and security. The principal escorted the minor away. Officer Anisko
was walking Alexis and her boyfriend to the office when he overheard Alexis say that the
minor had pointed a gun at her. Officer Anisko then spoke to the minor and asked the
minor if he had a handgun on him. The minor said that he did not. Officer Anisko asked
him where his backpack was. The minor told Officer Anisko that he had given his
backpack to C. Officer Anisko went to C.’s class, had C. pulled out, and searched him.
In response to Officer Anisko’s questioning, C. revealed that he had a gun in his
backpack. Officer Anisko handcuffed C., took C. to his office, and secured the gun.
Officer Anisko returned to the minor and read him his Miranda1 rights, questioned him,
and arrested him.




1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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       A petition was filed alleging that the minor committed assault with a deadly
weapon (among other offenses). The trial court found most of the allegations, including
the allegation of assault with a deadly weapon, true. The minor was committed to
juvenile hall for 22 days and ordered to serve 23 additional days of house arrest and 100
hours of community service. This appeal followed.
                                       DISCUSSION
       On appeal, the minor contends the trial court’s finding that he committed assault
with a deadly weapon is not supported by substantial evidence. He argues Alexis’s
testimony did not describe conduct that “amount[s] to an assault with a firearm.” We
disagree.
       To the extent the minor suggests the evidence against him was insufficient because
“according to every . . . witness called to testify [other than Alexis], absolutely no one
observed [the minor] point a gun at [Alexis],” that argument is without merit because
“ ‘unless the testimony is physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.’ ” (People v. Brown (2014) 59
Cal.4th 86, 106.) Alexis’s testimony is therefore sufficient to sustain the trial court’s
finding, provided the conduct she described constituted an assault.
       We “view the [record on appeal] in the light most favorable to the respondent . . .
and [we do] not disturb the finding of the trier of fact if there is substantial evidence in
the record in support thereof” (Estate of Isenberg’s (1944) 63 Cal.App.2d 214, 216-217)
to determine that the minor made “ ‘an unlawful attempt, coupled with a present ability,
to commit a violent injury upon the person of another with a deadly weapon’ ” (People v.
Rocha (1971) 3 Cal.3d 893, 900, fn. 13). Alexis testified that she bent down to retrieve
her purse following the argument with the minor and, as she did so, she saw a gun in the
minor’s hand. She testified that the minor “[f]lashed it[ and] waved it,” pointed it in her
direction, and said, “ ‘If anybody wants it, they can get it.’ ” The minor argues “[t]his
conduct does not amount to an assault with a firearm,” because he “did not pull out [the]

                                               3
gun during the altercation,” but only afterward; he “did not confront [Alexis] with the
firearm”; he did not “use [the] gun in any threatening manner”; and he did not display
“any assaultive conduct . . . toward [Alexis].” Stated another way, he contends he “did
not knowingly commit an intentional act, with knowledge of facts sufficient to lead a
reasonable [child] to realize that the act by its nature would probably and directly result
in the application of physical force against another.”
       The conduct Alexis described constitutes assault with a deadly weapon. In People
v. Chance (2008) 44 Cal.4th 1164, our Supreme Court affirmed a conviction for assault
with a deadly weapon (id. at p. 1176) when the defendant attempted to point a gun at a
pursuing police officer but failed because the officer managed to get behind the defendant
(id. at p. 1168). “[I]t is a defendant’s action enabling him to inflict a present injury that
constitutes the actus reus of assault. . . . [¶] [W]hen a defendant equips and positions
himself to carry out a battery, he has the ‘present ability’ required [for assault] if he is
capable of inflicting injury on the given occasion, even if some steps remain to be taken,
and even if the victim or surrounding circumstances thwart the infliction of injury.” (Id.
at p. 1172.) “[I]t [i]s not necessary that the prosecution . . . show that the [minor] actually
made an attempt to . . . use the [firearm] upon [the victim].” (People v. McCoy (1944) 25
Cal.2d 177, 189, italics omitted.) “The drawing of a weapon is generally evidence of an
intention to use it . . . . [W]hen the party draws the weapon . . . [and] holds it in such a
position as enables him to use it before the other party could defend [her]self, at the same
time declaring his determination to use it . . . , the jury are fully warranted in finding that
such was his intention.” (People v. McMakin (1857) 8 Cal. 547, 549.) The minor here,
according to Alexis’s testimony, drew a loaded gun, pointed it at Alexis, and made
threatening statements. The trial court did not err in finding that the minor committed
assault with a deadly weapon.




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                                 DISPOSITION
     The judgment is affirmed.



                                               ROBIE   , Acting P. J.



We concur:



     MAURO              , J.



     HOCH               , J.




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