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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Lebarron Keith WILLIAMS, Defendant and Appellant.

No. C025458.

Decided: December 09, 1998

Arthur L. Bowie, Antelope, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe, David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Lebarron Keith Williams of assault with a firearm on Gregory King (Pen.Code, § 245, subd. (a)(2)) and found he personally used a firearm in the commission of the offense (Pen.Code, § 12022.5, subd. (a)(1)).   The jury deadlocked and a mistrial was declared on two counts of assault with a firearm (on King's sons) and one count of discharging a firearm at an occupied vehicle (Pen.Code, § 246).   Imposition of sentence was suspended and defendant was placed on probation for five years on the condition he serve nine months incarceration.

At our request, the parties submitted supplemental briefs discussing the impact of People v. Smith (1997) 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604 on the resolution of this case.  Smith effectively holds that the previous CALJIC instruction on assault (CALJIC No. 9.00 (1994 rev.)(5th ed. pocket pt.)) 1 incorrectly stated the mental element required for the offense.  (Smith, supra, at p. 1474, fn. 2, 67 Cal.Rptr.2d 604.) In the published portion of this opinion we hold that use of the instruction was prejudicial in this case, and we shall reverse defendant's assault with a firearm conviction.2


 Prosecution case

King married Deborah Nicholson in September 1989.   They divorced 13 days later after King was sent to prison.   Following his release from custody, they resumed their sexual relationship and lived together a portion of the time.   Beginning in 1992, Nicholson also had a sexual relationship with defendant.   In late 1994, she gave birth to a child but she did not know which of the men was the father.

Defendant and King were antagonists competing for Nicholson's favors.   They had several confrontations, at least one of which developed into a fist fight.   On another occasion, King pretended to aim a handgun at defendant as he was leaving Nicholson's apartment.

On August 5, 1995, King telephoned Nicholson several times to confirm their plan to go skating with his teenage sons and her baby.   However, defendant was with Nicholson at the time.   Each time King called, Nicholson told him she was busy.   Eventually she unplugged the telephone.

Shortly thereafter, King and his sons drove in his small pickup truck to Nicholson's apartment.   King parked at the curb, right in front of her house.   A 15 foot lawn separated the sidewalk from the house.   King noticed that defendant's pickup truck was parked in the driveway.

King went to the front door and knocked.   When no one answered, he returned to his truck and got some paper and a pen.   He wrote Nicholson a note which he placed by the front door.   He then walked back toward his truck.

Defendant answered the door and yelled out to King, “What are you doing here?”   Defendant returned briefly to the inside of the apartment, put on a shirt, opened the front door and walked outside toward his truck.   By this time, King had returned to his own truck and was standing next to it.   His sons were standing nearby.   Defendant unlocked and opened his truck, retrieved a shotgun from behind the seat and loaded two shotgun shells.   King told his sons to get into his truck;  he attempted to do likewise.   As King entered the truck, defendant fired one shot which hit its right rear tire.   King drove away.   Defendant left soon after.

Defendant was arrested on August 23, 1995.   A loaded 12 gauge shotgun was found behind the seat of his truck.


Defendant testified to the ongoing hostility between himself and King. King had made physical and verbal threats toward defendant and Nicholson.   King had told defendant he intended to kill him.   Nicholson also described acts of violence by King. During arguments he spat on her twice and once ripped her blouse.   He frequently sat outside her apartment and stalked her.   He once wrote graffiti on her walls.   On another occasion he choked her.   About a week before the assault in this case, he left a message on her answering machine stating he was going to “bring” her and defendant “down.”

On the date of the incident, King announced his presence at Nicholson's apartment by banging loudly on the door.   Defendant thought “somebody was trying to kick the door in.”   Through the peephole he saw that the banger was King, who had since retreated and was kneeling on the opposite side of his truck.   In light of the previous threats, defendant felt threatened by King's behavior.   He believed King had a gun.   Defendant was concerned for his safety and the safety of Nicholson and the baby.

King yelled at defendant, “You better get your gun.”   Defendant did so.   He had a good view of the bed and cab of King's truck;  there was no one inside.   When defendant fired his shot, King was outside the truck approximately one and one-half feet away.   Defendant did not see either of King's sons until after the shot was fired.   Defendant testified he fired the shotgun as a warning shot, without intending to hit King or his sons.   Defendant did so in order to protect himself, Nicholson and the baby.   The shotgun pellets struck the truck's rear wheel well because “[t]hat's because where [he] aimed the gun.”

Nicholson testified that, before the shooting, King taunted defendant, seemingly to goad him into using the weapon.   After defendant fired the shot, King had a smirk on his face.



Former CALJIC No. 9.00 (1994 rev.)(fn.1, post ) told the jury that, in order to prove assault, it only must be proved that “[a] person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person․”  (Italics added.)   The italicized language is essentially equivalent to the language at issue in Smith.   The People invite us to confine Smith to “the narrow facts before the court in that case.”   In effect we are asked to repudiate Smith.   We decline the invitation because we find no principled basis for distinction between this case and Smith.   Contrary to the assertion in the People's letter brief, defendant did not admit “willfully pointing a 12 gauge shotgun at [King] and intentionally firing the shotgun․”

Smith holds that the “ ‘natural and probable consequence’ of an intended act cannot be equated with the required intention for assault with a deadly weapon, i.e., an intended forcible and unlawful touching as a desired consequence or one that is known to be substantially certain to result.   The natural and probable consequence of an intended act is a negligence standard-and this differs in two respects.   First, it is objective;  it does not proceed from the correct coign of vantage, what the defendant knew about the consequences of moving the vehicle forward.   Second, it embodies an incorrect measure of the risk of injury;  it looks to reasonably foreseeable consequences, not to consequences which are desired or which are substantially certain to result from the defendant's conduct.”  (Smith, supra, 57 Cal.App.4th at p. 1488, 67 Cal.Rptr.2d 604.)

 Because former CALJIC No. 9.00 did not require the jury to consider “what the defendant knew about the consequences” of his act, the jury was not compelled to evaluate the essence of defendant's defense, i.e., that he believed the truck's cab and bed were empty, that King's children were not present, that King was standing away from the truck, and that the shotgun was purposely fired at the truck's rear wheel and not at King.   The jury was not required to consider defendant's defense that he did not desire or know his act would result in a forcible and unlawful touching of a person.  (See Smith, supra, 57 Cal.App.4th at p. 1488, 67 Cal.Rptr.2d 604.)

 Because the jury was not required to consider defendant's belief that his act would not result in a forcible or unlawful touching of a person, it could not have properly evaluated whether he desired such touching or whether he was substantially certain such touching would result.   In fact, CALJIC No. 9.00 did not even require the jury to address that issue.  (Smith, supra, 57 Cal.App.4th at p. 1488, 67 Cal.Rptr.2d 604.)   Rather, the jury was permitted to convict defendant of assault if it determined, under an objective view of the facts, that an application of physical force on another person was reasonably foreseeable.  (Smith, supra, 57 Cal.App.4th at p. 1488, 67 Cal.Rptr.2d 604.)   Given the proximity of King and his children at the time the shot was fired, the jury could have reasoned that a forcible and unlawful touching was reasonably foreseeable (see, e.g., People v. Carmen (1951) 36 Cal.2d 768, 776, 228 P.2d 281) regardless whether defendant desired that result or knew that it was substantially certain it would occur.

The prosecutor's closing summation compounded the instructional error by inviting the jury to disregard defendant's subjective intent and to apply an objective negligence standard.   The prosecutor argued:  “Why he did fire the shot in that direction?   Maybe he didn't expect to hit them.   There's no allegation that this is an attempt[ed] murder, but it was shooting at an occupied vehicle.  [¶] And then with regard to just shooting in the rear tire well area on the right, there is the defense saying that that is not an act that by its nature would probably and directly result in the application of physical force.   I mean, that's ridiculous.   Of course, it is, absolutely it is.  [¶] There's no requirement that the shotgun had been pointed directly at a person, and miraculously, the pellets just went elsewhere.   This is a shotgun that we're talking about, and this is what the defendant fired at the vehicle.  [¶] So clearly, clearly it's assault.”  (Italics added.)   But, assuming this were a shooting at an occupied vehicle, a point on which the jury could not agree, such a shooting does not entail an assault with a deadly weapon.  (In re Daniel R. (1993) 20 Cal.App.4th 239, 24 Cal.Rptr.2d 414.)

If the jury had been properly instructed, it could have concluded, in light of the short distances involved and the zone of impact of the shotgun pellets, that the defendant did not desire to hit King and that the pellets were not substantially certain to hit him in acting as he did.   Because the assault instruction omitted the subjective mental element of the offense and may have short-circuited the jury's consideration of the gist of defendant's defense, the error was not harmless beyond a reasonable doubt.  (See People v. Kobrin (1995) 11 Cal.4th 416, 428, 45 Cal.Rptr.2d 895, 903 P.2d 1027;  c.f., e.g., People v. Flood (1998) 18 Cal.4th 470, 502-503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)



The judgment is reversed.


1.   Former CALJIC No. 9.00 (1994 rev.) told the jury:  “In order to prove an assault, each of the following elements must be proved:  [¶] One, a person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person;  and [¶] Two, at the time the act was committed, such person had the present ability to apply physical force to the person of another.  [¶] ‘Willfully’ means a person committed the act intentionally.  [¶] To constitute an assault, it is not necessary that any actual injury be inflicted.   However, if an injury is inflicted, it may be considered in connection with other evidence in determining whether an assault was committed, and if so, the nature of the assault.  [¶] Willful application of physical force upon the person of another is not unlawful when done in lawful self-defense or defense of others.   The People have the burden to prove that the application of physical force was not in lawful self-defense or self-defense of others.   If you have a reasonable doubt that such was unlawful, you must find the defendant not guilty.”The pattern instruction has been modified following Smith to add the following paragraph between the paragraph numbered one and the paragraph formerly numbered two:  “At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person.”  (CALJIC 9.00 (1998 rev.)(6th ed. pocket pt.).)  The better practice would be to omit the paragraph numbered one.

2.   The Reporter of Decisions is directed to publish the opinion except for Parts II, III and IV of the Discussion.

FOOTNOTE.   See footnote 2, ante.

BLEASE, Acting P.J.

DAVIS and PUGLIA, JJ., concur.**

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