Filed 12/20/19 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN MANUEL REYES,

Defendant and Appellant.

G055896

(Super. Ct. No. 12HF2659)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed and remanded with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Matthew Mulford Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Juan Manuel Reyes of one count of assault with a deadly weapon and one count of simple assault, as lesser included offenses to the charged offenses of assault with a deadly weapon on a peace officer (Pen. Code, §§ 245, subd. (a)(1), 240; counts 1 and 2), one count of evading while driving recklessly (Veh. Code, § 2800.2; count 3), and one count of misdemeanor hit-and-run driving (§ Veh. Code, § 20002, subd. (a); count 4).

The court found true allegations that defendant had suffered two or more prior strike convictions, one of which was a serious felony, (§§ 667, subds. (d), (e)(2)(A), 1170.12), but it found a prior prison allegation was not true. The court also struck one of the prior strikes and sentenced defendant to an aggregate term of 15 years in state prison as follows: (1) the upper term of four years on count 1, which was doubled to eight years; (2) one year on count 2, which was doubled to two years; (3) the upper term of three years on count 3, which was doubled to six years, concurrent to count 1 and stayed pursuant to section 654; and (4) 180 days on count 4, concurrent to count 1, plus five years for the prior serious felony conviction.

Defendant raises three issues on appeal. First, he contends there was insufficient evidence to support his conviction on count 2. Second, he argues the court committed instructional error by instructing the jury that a deadly weapon can be “inherently deadly” because the weapon at issue (a car) is not “inherently deadly.” Third, he argues the matter should be remanded to permit the court to exercise its discretion to strike the 5-year prior serious felony enhancement in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.). We agree with defendant’s latter contention. In all other respects, we affirm the judgment.

FACTS

In September 2012, defendant, who was wanted for a crime, did not stop his car even though Police Officer William Adams, Jr., turned on the lights and sirens of his patrol car. A pursuit ensued, and defendant sped away into a gas station. Adams blocked the driveway exit from the gas station with his car while another police car followed defendant through the gas station and struck defendant’s car causing it to spin. Adams and another officer got out of their cars with their guns drawn. They ordered defendant to stop, but defendant drove toward Adams who retreated back into his car. Another officer fired at defendant’s car. According to a bystander, it appeared as if defendant’s car had made a sudden movement toward Adams, and she believed Adams’ safety was jeopardized.

After fleeing from the gas station, defendant drove at speeds that exceeded 80 miles per hour and hit and damaged a car. Four police cars, including Adams, continued to pursue defendant who struck other cars during the pursuit. At one point, Adams drove slowly, around five miles per hour, into oncoming traffic. Other cars on the road stopped or slowed down. Defendant made a U-turn and accelerated toward Adams who drove slowly in an attempt to block defendant’s path. As defendant neared, defendant turned his car away from Adams, and Adams turned his car to meet defendant’s car. The cars collided, and Adams got out of his car with his gun drawn. He ordered defendant to stop, but defendant drove away. Defendant eventually stopped his car and was arrested.

At trial, Adams acknowledged he previously told an Internal Affairs investigator that he did not think he was in any danger at one point during the gas station incident. He further acknowledged he had testified at the preliminary hearing that defendant was trying to avoid a collision on the street when he turned his car away from Adams’ car. Defendant also introduced evidence that a detective had retrieved video tapes from the gas station but they were not located or booked into evidence by any police officer. Instead, the jury viewed video and photographs from Adams’ patrol car and another patrol car. They also heard audio recordings from police radios during the pursuit.

DISCUSSION

Defendant contends the evidence is insufficient to sustain his conviction under count 2 for assault with a deadly weapon in violation of section 245, subdivision (a)(1). Count 2 concerned defendant’s collision with Adams’ car on the street following the gas station incident. Because Adams drove on the wrong side of the road and defendant turned his car away from Adams right before the collision, he claims his actions “did not amount to an intentional act that by its nature would directly and probably result in a battery.” We disagree. Ample evidence supports the assault with a deadly weapon conviction. Defendant also argues the court erred by instructing the jury that a “‘deadly weapon’ includes an ‘inherently deadly’ weapon, because a car does not fall within such category.” We agree the court erred, but any error was harmless beyond a reasonable doubt.

Defendant’s Conviction for Assault with a Deadly Weapon

“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The elements of assault with a deadly weapon, as applied to the facts presented herein, are as follows: “(1) The defendant did an act with [a deadly weapon] that by its nature would directly and probably result in the application of force to a person;” “(2) the defendant did the act willfully; [¶] (3) [w]hen the defendant acted, [h]e was aware of facts that would lead a reasonable person to realize that [his] act . . . would directly and probably result in the application of force to someone;” and “(4) [w]hen the defendant acted, [he] had the . . . ability to apply force” likely to produce great bodily injury. (CALCRIM No. 875; §§ 240, 245, subd. (a)(1).)

Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788 (Williams).) An “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)

Here, substantial evidence showed defendant made a U-turn and drove toward Adams at an accelerated speed. Adams testified he drove slowly toward defendant and turned his car toward defendant to stop him. Rather than stop like other cars on the road, defendant continued to drive and eventually collided with Adams’ car. This collision occurred after the gas station incident and defendant’s reckless driving that caused damage to other cars on the road. When viewing the record in the light most favorable to the judgment, the evidence shows defendant “‘willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.’” (Williams, supra, 26 Cal.4th at p. 782.)

Defendant claims he was merely reckless and that Adams caused the collision by driving on the wrong side of the road and turning his car toward defendant’s car. Because defendant turned his car away from the oncoming patrol car, he argues “a reasonable person would not realize that the act of driving and turning away from an oncoming car driving the wrong way would likely result in the application of force to another.” But this ignores how defendant was generally driving prior to the collision and how he made a U-turn and drove at an accelerated speed toward Adams.

Defendant’s reliance on People v. Cotton (1980) 113 Cal.App.3d 294 (Cotton) and People v. Jones (1981) 123 Cal.App.3d 83 (Jones) is misplaced. In both of these cases, the defendant struck a car while evading the police in a high speed chase. (Cotton, at p. 297; Jones, at p. 87.) Both cases held these facts did not support a conviction for assault with a deadly weapon because there was no evidence from which the jury could have inferred the defendants deliberately drove into the car with which they collided. (Cotton, at p. 301; Jones, at p. 96.) Cotton relied on the now rejected notion the defendant must have the “intent to commit a battery.” (Cotton, at pp. 302-303.) But our Supreme Court has since restated the elements of assault, which undermines the continuing viability of Cotton and Jones. (Williams, supra, 26 Cal.4th at pp. 788-790; see People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1190 [noting that Williams “fatally undermines” Cotton and Jones and explaining that “a defendant need not intend to commit a battery, or even be subjectively aware of the risk that a battery might occur”].)

Jury Instructions on the Definition of a Deadly Weapon

The court instructed the jury with CALCRIM No. 875, which stated among other things: “A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” Defendant contends the court erred by instructing that a weapon could be either inherently deadly or deadly in the way it is used because a car is not an “inherently deadly” weapon. “We review defendant’s claims of instructional error de novo.” (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)

At the outset, we note that defendant did not object to the instructions he now challenges on appeal. Although the People argue defendant forfeited the issue on appeal, there is an exception “if the substantial rights of the defendant were affected thereby.” (§ 1259.) Because defendant claims the error resulted in the violation of his constitutional rights, we reach the claim on its merits without deciding whether the forfeiture doctrine applies.

In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), the defendant used a box cutter by thrusting the blade at another man. (Id. at p. 4.) The court instructed the jury with CALCRIM No. 875, which defined a deadly weapon as one that is inherently deadly or used in such a way that it is capable of causing and likely to cause death or great bodily injury. (Ibid.) Our Supreme Court held that “[b]ecause a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently dangerous weapons.” (Id. at 6.) The Supreme Court accordingly held the jury instruction was erroneous but found the error was harmless beyond a reasonable doubt. (Id. at pp. 7, 15.)

Likewise, here, a car is not an inherently deadly weapon. (People v. Montes (1999) 74 Cal.App.4th 1050, 1054 [noting that a car is not inherently dangerous but can be found to be a deadly weapon].) The court accordingly erred by referring to an inherently deadly weapon in the jury instructions. We next consider whether the instructional error was prejudicial. The “usual ‘beyond a reasonable doubt’ standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for federal constitutional error applies. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 3; see id. at p. 13.)

Here, the record shows the instructional error was harmless beyond a reasonable doubt. At trial, no party argued that simply using a car was “inherently deadly.” During closing argument, the People generally argued defendant’s car was a “deadly weapon” and noted that “a deadly weapon has to be inherently deadly, capable of causing death or great bodily injury, and in this case that is the car.” But, the People focused on the way in which defendant used the car rather than its “inherently deadly” nature. The People argued “that act [defendant] is doing with the car, would directly and probably result in the application of force to a person.” The People emphasized on defendant’s actions during the gas station incident: “We have the defendant backing up, stepping on the gas, driving at . . . Adams at the driver’s side door and narrowly missing him.” The People also noted defendant was “speeding,” made “unsafe lane changes,” and was “weaving in and out of traffic.” The People further argued: Defendant “drove the car in a manner that was willful. He is stepping on the gas. He is splitting traffic. He is going directly at the officer . . . And he did use that car as a deadly weapon.”

As in Aledamat, we conclude the jury necessarily found: “(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th at p. 15.) It is unlikely the jury would have found these above elements without considering how defendant used his car. The error accordingly was harmless beyond a reasonable doubt.

The Five-year Prior Serious Felony Enhancement

Defendant’s sentence in this case includes a five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1). At the time of defendant’s sentencing, the court had no power to strike or dismiss the five-year serious felony prior. While this appeal was pending, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) into law, which took effect on January 1, 2019. Senate Bill No. 1393 amends sections 667, subdivision (a) and section 1385, subdivision (b) so the court may now, in its discretion, strike or dismiss a prior serious felony conviction for sentencing purposes.

The People concede the rule of retroactivity under In re Estrada (1965) 63 Cal.2d 740 applies to Senate Bill No. 1393 and that the matter should be remanded to permit the court to exercise its discretion to strike the 5-year prior serious felony enhancement. We agree. We are not suggesting how the court should exercise its discretion, but rather giving it the opportunity to do so in the first instance.

DISPOSITION

The judgment of conviction is affirmed, but the matter is remanded for the court to consider whether to dismiss or strike the 5-year prior serious felony enhancement in the furtherance of justice.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.