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Count 17, if not dismissed for want of overt action, should be dismissed on the alternative basis that the prosecutor failed to present evidence on the element of specific intent.  Count 17 alleges a conspiracy to assault with a firearm in violation of Penal Code § 245(a)(2).[1]  (Indictment at p. 9.)  It is hard to conceive of the target crime being possible without the procurement of a gun, this being an assault with a firearm charge and all, but it was charged this way and an indictment was handed down nonetheless.

Conspiracy, a specific intent crime, requires proof “not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.”  (People v. Horn (1974) 12 Cal.3d 290, 296.)  The elements of assault[2] are: the defendant (1) willfully committed an act which by its nature would probably and directly result in the application of physical force on another person; (2) the defendant was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result physical force would be applied to another person; and (3) at the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.[3]  (See People v. Miller (2008) 164 Cal.App.4th 653, 662-663.)  Further, when the charge is assault with a firearm, the prosecution must also prove that a foreseeable consequence of the act is the infliction of great bodily injury on the subject of the assault.  (People v. Cook (2002) 91 Cal.App.4th 910, 920.)


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At best, the evidence demonstrates that the defendants agreed to issue a conditional threat to De Los Santos: pay up, or we hurt you.  While some conditional threats are punishable as assaults, the class of such threats is narrow.  Imposing assault liability for making a conditional threat requires that “[1] the condition imposed must be performed immediately, [2] the defendant has no right to impose the condition, [3] the intent is to immediately enforce performance by violence and [4] defendant places himself in a position to do so and proceeds as far as is then necessary.”  (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1161 [citing People v. McCoy (1944) 25 Cal.2d 177, which upheld an assault conviction where defendant held a knife to victim’s throat and threatened to use it if victim made noise].)  To further impose conspiracy assault liability for an agreement to issue a conditional threat requires evidence that the co-conspirators had the specific intent to meet these four requirements.  (Horn, supra, 12 Cal.3d at p. 296.)  Here, the People have presented no such evidence.  Whatever agreement the defendants had, it cannot be punished as a conspiracy to assault with a firearm.  Count 17 must be dismissed.

[1] That subsection reads: “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”  (Penal Code § 245(a)(2).)

[2] “An assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.”  (Penal Code § 240.)

[3] CALCRIM 875 largely harmonizes this statement, though it uses slightly different verbiage.

[4] Evidence was adduced that “toy” was code for a gun.


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