Brief Bank # B-652b
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, NO. H004199
Plaintiff and Respondent, Santa Clara
County No. 116478
Defendant and Appellant.
APPELLANT’S REPLY BRIEF
On Appeal from the Judgment of the Superior Court
Of the State of California
In and For the County of Santa Clara
HONORABLE JACK KOMAR, JUDGE
Attorney at Law
37 Old Courthouse Sq., Suite 304
Santa Rosa, California 95404
Telephone: (707) 523‑7515
Attorney for Appellant
…taints respondent’s analysis of the prejudicial effect of the error. The Attorney General simply cites Watson without any attempt to analyze the evidence or the evidentiary balance of the case. (See, AOB 29‑30.)
RESPONDENT ERRONEOUSLY CONTENDS THAT A CONDITIONAL ASSAULT MAY BE ESTABLISHED WITHOUT AN EXPRESS STATEMENT OF THE CONDITION
In his opening brief appellant established that the doctrine of “conditional assault” effectively removes one element of the offense of assault with a deadly weapon by permitting such an offense to be found even if there was no actual attempt to commit a battery. (AOB 51.) Appellant further established that in every case which has recognized the conditional assault doctrine there has been an express or stated condition. (AOB 52‑53.) The requirement of such an express or stated condition, appellant contended, was necessary since the conditional assault doctrine had eliminated the attempt element from the crime of assault. That is, the statement or expression of condition in effect takes the place of the attempt element.
Respondent, however, fails to discuss the cases cited by appellant and, as a result, sees no need for the expression or statement of the condition. However, the cases relied upon by respondent never considered the point raised by appellant. In both People v. Orr (1974) 43 Cal.App.3d 666 and People v. Glover (1985) 171 Cal.App.3d 496 the existence of a conditional assault was never contested. For example, in Orr the only question addressed by the court was whether or not there was sufficient evidence to support the jury’s conclusion that the rifle was loaded. (People v. Orr, supra, 43 Cal.App.3d at 671‑672.) In People v. Glover, supra, the only issue considered by the court was whether or not the instruction which failed to require the jury to specify that the deadly weapon was a firearm was reversible error. (People v. Glover, supra, 171 Cal.App.3d 506‑507.) Therefore, since cases are not authority for matters not considered (People v. Dillon (1983) 34 Cal.3d 441, 473‑474), Glover and Orr cannot support respondent’s position.