“Element No. 1 of [CC 875] requires that the prosecution prove that ‘The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.’ But Element 2 merely requires that ‘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.’”(People v. Velasquez (2012) 211 Cal. App. 4th 1170.)
As the Velasquez court observed, “[T]he potential for jury confusion is obvious. One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant’s aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that by its nature would directly and probably result in application of force to John Doe.” (Ibid.)
Accordingly, the reviewing court reversed the defendant’s multiple convictions with a firearm.