Opinion Bank # O-189
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, No. H004199
Plaintiff and Respondent,
(Santa Clara County
Defendant and Appellant.
A jury convicted defendant Jonathan T of first degree murder, two counts of assault with a deadly weapon, and brandishing a firearm. The jury also found that he personally used a firearm in the murder and inflicted great bodily injury in one of the assaults.
On appeal defendant contends that the jury instructions were erroneous in several respects and that the evidence did not support one of the convictions for assault. We affirm.
On Memorial Day, 1987, some volunteers were doing cement work on the sidewalk in front of the Holy Trinity Catholic Church in San Jose. Eddie L was supervising the group, which included his friends and family.
The workers stopped to eat lunch while the cement dried. Farther down the sidewalk, Nanette C was taking her…
…that asks for the written instructions should receive them without discouragement or delay. But section 2093 also expressly permits the court to wait for a request. Since the jurors in this case actually received the instructions they asked for, defendant’s argument simply lacks a factual basis.
D. Assault with a Deadly Weapon
Defendant argues that the evidence does not support the jury’s determination that he assaulted George S with a deadly weapon. This was the evidence: After defendant shot Eddie he started to chase Tino, firing the Uzi as he ran. Tino ran across the street towards the S family’s home. Concerned about his family, George S ran towards defendant to cut him off. They met, and both stopped. Defendant turned and pointed the rifle at S. When S remained still, defendant turned and walked calmly away.
The Penal Code defines an assault as “an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) But more than a century ago the judiciary expanded the crime to include a so‑called “conditional assault” ‑‑ threatening an assault to force submission or compliance with a demand. (People v. McMakin (1857) 8 Cal. 547, 548‑549; see also People v. Fain (1983) 34 Cal.3d 350, 356‑357.) “Your money or your life” is the paradigm.
Most of the reported cases involve verbalized threats. From this circumstance defendant tries to derive the rule that conditional assault requires a verbalized threat. Thus, to complete the argument, defendant cannot have assaulted S. because no words were exchanged.
But there have been convictions for assault that were not predicated upon verbalized threats. In People v. Glover (1985) 171 Cal.App.3d 496, the defendant was attempting to avoid service of process. As a letter carrier “was about to deposit the mail in the mail slot, he looked at defendant and saw defendant’s hand come up toward him holding a gun. The gun came all the way up, ‘tracking’ on [the letter carrier] as [he] turned away and started to return to his vehicle.” (Id. at p. 500.) In People v. Orr (1974) 43 Cal.App.3d 666, a deputy sheriff was investigating a crime. Seeing the defendant in a van linked to the crime, the deputy approached in his car. The defendant “got out of the van and pointed a rifle at [the deputy] who was still in his car. [The deputy] backed up quickly into a ditch. Defendant got back into the van and it drove off.” (Id. at p. 669.)
As these cases show, context often imparts very specific meaning to nonverbal behavior. What bank teller, faced with the barrel of a gun and a container suitable for money, would not understand what the person on the other side of the counter expected?
Defendant argues that we should ignore cases such as Glover and Orr because those opinions do not discuss the question and Orr because those opinions do not discuss the question whether a verbalized threat is required. Defendant reminds us that cases are not authority for matters not considered. But this is too simplistic. Under the same principle, the cases which defendant has cited, which do involve verbalized threats but do not discuss whether one is required, do not establish such a requirement. The truth of the matter is, neither we, the defendant, nor the attorney general has found a case which takes a position on the issue one way or another.
We believe that a verbalized threat is not required. What is necessary is that the defendant communicate an intention to use force, conditionally. The difference between a verbalized and a nonverbalized threat goes to the weight of the evidence: by verbalizing his mental state, the defendant makes his crime much easier to prove. But his failure to verbalize does not make proof impossible when actions speak as clearly as words.
In this case defendant was chasing a potential victim, firing as he ran. S’s conduct could only be interpreted as an attempt to interfere. Indeed, S wanted to “cut [defendant] off.” Defendant leveled his weapon at S. At that point S, in his own words, stopped because defendant “had a bigger gun. I had nothing.” With a body already on the ground there could be no mistaking defendant’s readiness to fire. And defendant achieved his apparent goal: S did not interfere. Because defendant had the requisite intent and ability to use force and effectively communicated that message, the evidence supported the conviction for assault. (People v. Fain, supra, 34 Cal.3d at p. 356.)
 Defendant does not challenge the sufficiency of the evidence as to the assault on Tino M.