P. v. Lee

Filed 9/7/07 P. v. Lee CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

Michael Lee appeals from the judgment entered following a jury trial in which he was convicted of involuntary manslaughter, count 1 (Pen. Code,  192, subd. (b)), evading an officer causing death, count 3 (Veh. Code,  2800.3), two counts of assault upon a peace officer, counts 4 and 5 (Pen. Code,  245, subd. (c)) and child abuse, count 6 (Pen. Code,  273a, subd. (a)). He admitted he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a) - (d) and 667, subd. (b) - (i)) and within the meaning of Penal Code section 667, subdivision (a)(1) and served four prior prison terms within the meaning of Penal Code section 667.5. He was sentenced to prison for a total of 27 years[1]and contends there is a lack of substantial evidence to support his convictions for assaulting a peace officer and that his sentence is prohibited under Cunningham v. California.[2] For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On May 14, 2005 at approximately 11:25 p.m., Hawthorne Police Officer Rex Vian was on patrol in his marked patrol car when he saw a white van and a silver 4Runner run the stop sign at 132nd Street and Hawthorne Boulevard in Hawthorne. Officer Vian pursued the two vehicles, which ran stop signs, crossed into on-coming traffic and failed to stop at a red light. When the silver vehicle stopped at 135th Street, the female driver exited and screamed hysterically that the person in the white van had taken her son. Officer Vian broadcast the possible kidnapping and continued to pursue the white van, while a police helicopter and other police cars joined the pursuit. Officer Vian estimated the white van was traveling approximately 75 miles per hour.

Hawthorne Police Officer Shawn Shimono and his partner Officer Garton heard the radio broadcast about the pursuit and drove to the 13600 block of Yukon, where they stopped their marked patrol car in the middle of the street to set up a roadblock.[3] The patrol vehicles red lights were shining or flashing and the headlights as well as the spotlights were on. Officer Shimono opened his passenger side door, and while seated and keeping his feet inside the vehicle, hung his upper torso outside of the vehicle and drew his gun. Officer Garton was in the process of assuming the same position on the driver side of the vehicle when Officer Shimono observed a large white Chevy van coming towards the front of the patrol vehicle.[4] The van slowed down to approximately 10 to 15 miles per hour and the driver of the van looked directly at the officers. Rather than stopping as Officer Shimono expected, when the van was about 50 feet away, the driver of the van accelerated and drove toward the drivers side of the patrol vehicle. Realizing the driver was going to ram the patrol car, Officer Shimono immediately exited the police car and tried to get cover on the east side of the street between parked vehicles. Officer Garton, rather than running into the path of the charging vehicle, climbed back into the drivers side of the patrol vehicle, shut the door and began bracing for impact. Officer Shimono did not believe Officer Garton could have exited the patrol car and made it to clearance before being hit. The van continued toward the patrol vehicle and was able to drive between the police car and the vehicle parked on the west side of Yukon. Officer Shimono estimated there was approximately 12 inches between Officer Gartons door and the van when it passed. If Officer Garton had not closed the door and dove for cover inside his vehicle, he would have been hit by the van. Officer Garton was in uniform. After the van squeezed through, the officers got back into the patrol car and joined the pursuit, following Officer Vians car.

At the intersection of Sepulveda and Cabrillo, still traveling 70 to 80 miles an hour, the van failed to stop for a red light and collided with a dark colored Honda. When Officer Vian approached the van, he saw appellant, the driver, attempting to manipulate the steering column lever used to put the car in park, reverse, neutral [or] drive . . . [as though] trying to continue fleeing. Appellants 15-year-old son was lying down in the back of the van without a seat belt on.

The occupants of the Honda vehicle, Wei Huang and his wife Annie Cai, were unresponsive. Annie Cai died from multiple blunt force traumatic injuries caused by the traffic collision and Wei Huang spent 27 days in a coma. After recovering from the coma, he was hospitalized for another month. He had two brain surgeries and suffered speech problems.

Officer Vian estimated the entire pursuit took approximately nine minutes. It was seven and one-half minutes from the time the woman stopped in the silver 4Runner vehicle. Officer Vian estimated the van ran 15 stop signs and 13 red lights.

DISCUSSION

I

Appellant contends there was a lack of substantial evidence to support the two convictions for assault on a peace officer with a deadly weapon.[5] He challenges the sufficiency of evidence to support the requisite intent.

The standard of review on a claim of insufficiency of evidence is settled. A reviewing court faced with such a claim determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] We examine the record to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Moon (2005) 37 Cal.4th 1, 22.) Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 370.)

The same standard applies to the review of circumstantial evidence. [Citation.] . . . Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jurys findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.] (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, fn. omitted.)

Assault is a general intent crime. [It]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. (People v. Williams (2001) 26 Cal.4th 779,788, 790.)

Appellant argues that when he was about 50 feet from the police car and accelerated, instead of staying on its course directly towards the car, the van tried to avoid it by going towards the drivers side of the patrol car. While it is plausible appellant merely intended to avoid the police car, we must not disturb the jurys factual findings unless the evidence is wholly lacking. (People v. Russell (2005) 129 Cal.App.4th 776, 786.)

In the instant case, the jury could have found that appellant initiated the assault by accelerating his vehicle toward the patrol car that was blocking the road with its doors open and with its officers leaning on the open doors. Further the jury could have found appellant realized there was not enough space for his van to safely pass between the parked cars on the street and the patrol cars opened doors and that his actions would directly and probably result in a collision resulting in the application of force to the two police officers. The fact that the officers fortuitously avoided the collision does not allow appellant to avoid the assault convictions. (See People v. Craig (1991) 227 Cal.App.3d 644, 651.)

II

The court chose count 6, child abuse, as the base term and selected the upper term of six years. It stated it was imposing the upper term, because the crime involved great violence and acts disclosing a high degree of callousness and cruelty and because appellants convictions were numerous.[6] Appellant contends imposition of the upper term is prohibited by Cunningham v. California.

Respondent asserts appellant has forfeited this claim by failing to object at trial under Apprendi, Blakely,[7]or the right to jury trial. We disagree. At the time of the sentencing hearing in this case, November 8, 2006, the California Supreme Court had already decided People v. Black (2005) 35 Cal.4th 1238. In light of Black, it would have been futile for appellant to object on the grounds that the jury, rather than the trial court, must find aggravating facts and that those facts must be found beyond a reasonable doubt. Appellant has not forfeited his claim. (People v. Sandoval (2007) 41 Cal.4th 825.)

In Cunningham v. California, supra, 549 U.S. ___, ___ [127 S .Ct. 856], the United States Supreme Court concluded Californias determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey, supra, 530 U.S. 466, 490 and the Sixth Amendment. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] (People v. Black (2007) 41 Cal.4th 799, 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendants recidivism. (See People v. Black, supra, 41 Cal.4th 799, ___; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)

[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted; see also People v. Sandoval, supra, 41 Cal.4th 825.) Thus, as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black,supra, 41 Cal.4th at p. 812.) Here, as the trial court relied upon appellants recidivism, we need not consider whether reliance on the violence, cruelty and callousness of the crime was error. [T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. (People v. Sandoval, supra, 41Cal.4th at p. 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)[8]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P.J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] The sentence was composed of the high term of six years, doubled to 12 years by reason of the strike prior for count 6. For counts 3, 4 and 5, he received consecutive sentences of one-third the middle term of four years, one year and four months, doubled to two years and eight months. For count 1, appellant was sentenced to the middle term of three years, which was stayed pursuant to Penal Code section 654. Appellant was sentenced to an additional five years for one enhancement pursuant to Penal Code section 667, subdivision (a)(1) and to two additional years pursuant to two prior prison term enhancements.

[2]Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 ___ U.S. ___ [127 S.Ct. 856].

[3] The patrol vehicle was in the middle of the street parallel and between two parked cars. Yukon runs in a north/south direction and one parked car was on the east side of Yukon and the other was on the west side.

[4] Officer Shimono had heard in the broadcast that a large white van was fleeing from Officer Vian.

[5] Penal Code section 245, subdivision (c) provides in pertinent part, Any person who commits an assault with a deadly weapon or instrument . . . or by any means likely to produce great bodily injury upon the person of a peace officer . . . and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer . . . is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

[6] The court listed appellants convictions as follows: In 1990, he was convicted of disturbing the peace. In 1991, he was convicted of corporal injury to a spouse. In 1992, he was convicted of assault, two counts of receiving stolen property, driving with a suspended license, disturbing the peace, and assault with a deadly weapon. In 1993, he was convicted of two counts of driving with a suspended license, receiving stolen property, and failing to yield to law enforcement. In 1994, he was convicted of driving with a suspended license. In 1995 he was convicted of attempted car theft and burglary. In 1997, he was convicted of robbery and possession of drugs in prison. In 2003, he was convicted of possession of drugs and a switchblade.

[7]Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296.

[8] To the extent appellant is claiming the recidivism factor is not a valid aggravating circumstance because the court used three of the prior convictions to impose a second strike sentence and to enhance the sentence, the record shows appellant had numerous other convictions apart from the subject three.