Is Intent for Assault Proven if Man Points Loaded Gun?

A jury in San Mateo County Superior Court found Defendant Cristian Cruz-Partida guilty of the murder of Nicolas G. (Penal Code § 187(a)); the attempted murder of Steven G. (Penal Code § 664, 187(a)); felony assault of Steven G. with a semiautomatic firearm (Penal Code § 245(b)) and felony assault of Steven G. and / or Nicolas G. with a semiautomatic firearm.  The murder and attempted murder counts were enhanced by allegation of intentional discharge of a firearm with great bodily injury (Penal Code § 1203.075(a), 12022.7).  The assault allegation was enhanced by a special allegation claiming personal use of a firearm (Penal Code § 12022.5(a)).

The charges stemmed from two different altercations.  The first three charges related to the shooting of Nicolas G. and Steven G. in San Francisco, which led to Nicolas G.’s death and injured Steven G.

The last count of assault with a semiautomatic weapon related to conduct outside Cruz-Partida’s apartment before the shooting of Nicolas G. and Steven G.

Cruz-Partida appealed the verdict to the First Appellate District on many grounds, but this article’s scope will narrow to the argument that the jury’s verdict of assault with a semiautomatic weapon was based on insufficient evidence because there was no evidence his conduct was likely to produce injurious consequences.  He also argued that there was insufficient evidence to support the jury’s finding that he did not act in self-defense. 

 

The murder and attempted murder and assaults arose over a fight about a girl.  Cruz-Partida and Melissa L. were boyfriend-girlfriend from 2009 to 2015, starting when Melissa L. was thirteen.  At age 16 in 2012, she had a baby girl from Cruz-Partida, but in 2015, she began seeing Nicolas G. instead.

Cruz-Partida learned of Melissa’s new boyfriend when Nicolas G. found out about Cruz-Partida and challenged him to a fight.

Cruz-Partida agreed to fight and Nicolas G. came to Cruz-Partida’s apartment, but the entrance was locked and there were two security gates that Cruz-Partida stood behind.  A neighbor heard Nicolas G.: “You think you’re big shit because you have a gun.”  Later, Nicolas G. said, “I don’t care if you have a gun.”  At some point, Cruz-Partida discharged a round into the ground and Nicolas G. and his brother ran away. 

In trial, Cruz-Partida argued there was insufficient evidence as to assault because there was no evidence that he was shooting at either Nicolas G. or Steven G and the prosecution failed to provide evidence regarding the location of either brother at the time of the single gunshot.

In response, the prosecution argued that for purposes of assault, it did not matter where a defendant was aiming or it the possible targets were out of range, citing People v. Chance (2008) 44 Cal. 4th 1164 and People v McMakin (1857) 8 Cal. 547.  The judge responded by denying Cruz-Partida’s motion, stating, “The gun could be seen and we known that the gun was loaded at the time.  And that moment – putting aside the discharge of the weapon – that moment is an assault.”

On his appeal, the First Appellate District explained that assault is a general intent crime, not a specific intent crime.  Therefore, “a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally, and probably result in a battery.” 

 

Put another way, the “test for assault is whether a reasonable person, viewing the facts known to defendant, would find that the act in question would directly, naturally and probably result in physical force being applied to another, i.e., a battery.” People v. Bipialaka (2019) 34 Cal. App. 455, 459.  No specific intent to cause an injury is required.  Rather, the focus in on the “offensive or dangerous character of the defendant’s conduct.”  People v. Colantuono (1994) 7 Cal. 4th 206, 214-215. 

As to self-defense, Cruz-Partida had testified at trial that he thought Nicolas only wanted to engage in a fist fight with him.  However, when he pulled out a gun and fired a warning shot into the ground, this exceeded the scope of a response to the threat and he was standing behind two locked security gates, so it was not self-defense.

Therefore, the appellate court affirmed the verdicts.

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