Filed 1/27/20 P. v. Burrell CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KANDRIQUA DESIREE BURRELL,

Defendant and Appellant.

D075581

(Super. Ct. No. SCD277624)

APPEAL from a judgment of the Superior Court of San Diego County, Laura Birkmeyer, Judge. Affirmed as modified and remanded with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Robin Urbanski and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Kandriqua Desiree Burrell of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); one count of resisting an officer (§ 69); and one count of misdemeanor vandalism under $400 (§ 594, subd. (a)(b)(2)(A)). Burrell was sentenced to a term of four years eight months in prison.

Burrell appeals contending that the evidence is insufficient to support the conviction for assault with a deadly weapon and that she is entitled to have the prison prior struck in light of new legislation. The Attorney General concedes the evidence of the nature of any weapon used is not sufficient to prove Burrell used a deadly weapon. Thus, the People contend we should reduce the offense to a misdemeanor and remand for resentencing. The People also agree we should strike the prison prior alleged under section 667.5, subdivision (b). After reviewing the record, we agree there in insufficient evidence of the use of a deadly weapon. We will reduce the assault with a deadly weapon conviction to simple assault. We will strike the prison prior and remand for resentencing.

STATEMENT OF THE FACTS

Given the agreement of the parties to reduce the conviction, we will adopt the statement of facts in the respondent’s brief as a convenient summary.

Burrell attacked Greg R. while he was working as a farm manager and then resisted, spat on, and head-butted a police officer.

On July 12, 2018, Greg R. was working as a farm manager for Urban Life Ministries and Urban Life Farms in San Diego when he noticed that Burrell was inside the greenhouse. He watched Burrell, who was carrying a small bag, walk out of the greenhouse and toward the exit of the farm. Burrell left the property through an open gate. At some point, Greg closed the gate’s latch and walked back to where he had been working.

As Greg was looking down at some tomato plants, Burrell kicked the gate open from outside. Greg looked up and then back down again. As Greg was looking down, he heard an object whiz past his head and hit the greenhouse behind him to his right. Greg did not see the object Burrell threw. He was not sure how close the object got to him, but he believed the object may have been one to six feet away from him.

Greg called 911. As he was on the phone, Burrell picked up a large oval-shaped boulder, about ten inches in diameter, and held it at chest height. She began walking toward Greg and got within 20 feet of him. Greg hopped a fence out of the garden and ran to his car in the nearby parking lot. Burrell pursued Greg, running towards him with a two-by-four piece of wood.

After Greg got into his car and locked the doors, Burrell hit the front passenger windshield with the two-by-four, shattering the glass. As Greg backed the car out, he heard Burrell continue to hit his car with the two-by-four.

Police arrived at the scene shortly thereafter. During the course of arresting Burrell, she struggled with the officers and spat on an officer’s face. She continued to try to spit on the officers even after they placed a spit sock on her. As one officer attempted to buckle Burrell’s seat belt in the backseat of the patrol vehicle, Burrell head-butted the officer so hard that he had trouble seeing. Eventually the officers had to place Burrell in a maximum restraint.

DISCUSSION

To prove a person guilty of assault with a deadly weapon, the prosecution must establish, beyond a reasonable doubt that the defendant used a deadly weapon, or some object used as a deadly weapon. (CALCRIM No. 875.) We review a claim of insufficient evidence under the substantial evidence standard. We seek to determine if there is sufficient substantial evidence from which a reasonable jury could find the elements proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Speculation about the nature of the weapon is not substantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1133.)

In the present case the prosecution did not prove the nature of the object which Burrell threw at the victim. It did no damage to the plastic greenhouse material it struck. The object certainly could have been a rock-or something else.

The People correctly concede there is not enough evidence to support a finding that the assault in this case was accomplished with any form of deadly weapon. Both parties agree the proper remedy is to reduce the conviction to simple assault and to remand for resentencing.

With regard to the one-year prison prior alleged under section 667.5, subdivision (b), the parties correctly agree the prior conviction no longer qualifies as an enhancement. Accordingly, we will strike the alleged prior conviction.

DISPOSITION

The conviction for assault with a deadly weapon is reduced to simple assault, a misdemeanor. We strike the alleged prison prior (§ 667.5, subd. (b)). The case is remanded to the superior court for resentencing. Following resentencing the trial court is directed to amend the abstract of judgment and to forward the abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.