P. v. Ramirez

Filed 7/19/06 P. v. Ramirez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant David Ramirez was convicted after jury trial of two counts of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)),[1] reckless driving while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a)), and four related misdemeanors. After denying defendant's motion for new trial, the trial court sentenced defendant to four years in state prison. On appeal defendant contends that there is insufficient evidence to support the two felony assault convictions and that the trial court prejudicially erred in denying his request for a pinpoint instruction. As we disagree with all of defendant's contentions, we will affirm the judgment.

BACKGROUND

Defendant was charged by information with three counts of assault with a deadly weapon on a peace officer (§ 245, subd. (c); counts 1 – 3), reckless driving while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a); count 5) and the following misdemeanors: vandalism (§ 594, subds. (a), (b)(1); count 4);[2] two counts of hit and run driving causing property damage (Veh. Code, § 20002, subd. (a); counts 6 & 7); and obstructing a peace officer (§ 148, subd. (a)(1); count 8). The information further alleged that defendant personally used a dangerous and deadly weapon, a motor vehicle, in the commission of the assault counts within the meaning of sections 667 and 1192.7, and that defendant had served a prior prison term (§ 667.5, subd. (b)). Prior to trial, the court denied defendant's motion to dismiss counts 2 and 3 of the information pursuant to section 995 on the grounds that the evidence at the preliminary hearing was insufficient to support them. The court granted defendant's request to bifurcate trial on the prior allegation.

The prosecution's case

At approximately 12:45 a.m. on December 25, 2004, when Alejandro Bravo arrived home to his apartment complex on North Third Street in San Jose, he found a Jeep Cherokee parked in one of his two parking spots. He parked his van in the driveway and walked over to the Cherokee. Inside the Cherokee was a man who appeared to be asleep. Because Bravo did not recognize either the Cherokee or the man, he called the police and reported the Cherokee's license plate number.

At approximately 12:45 a.m. on December 25, 2004, San Jose Police Officer Maria Solomon was dispatched to an apartment complex on North Third Street on the report of a suspicious vehicle with a man inside. Officers Raymond Vaughn, Chris Jolliff and Jaren Fowler also responded to the call.[3] Officers Vaughn and Jolliff parked their patrol cars down the street from the apartment complex, but Officer Fowler parked his patrol car on the street in front of the complex with his yellow caution lights on. All of the officers were in uniform.

An older Ford Ranger pickup belonging to Bravo was parked in the apartment complex parking area, with the Cherokee parked next to it. The officers received information that the Cherokee was reported stolen, so they blocked the vehicle. Officer Solomon positioned her patrol car directly behind the Cherokee, perpendicular to it, and used her spotlight to illuminate the outside of the driver's side of it. The street light in front of the complex was also illuminated.

Officers Jolliff and Solomon walked around the pickup and approached the front of the driver's side of the Cherokee. They had their weapons drawn but not pointed at the man inside. Officers Fowler and Vaughn approached the front passenger door. They all used their flashlights to illuminate the inside of the Cherokee and could see that the man inside, defendant, was sleeping. They tried to open the vehicle's doors but found that they were locked. Officers Jolliff and Vaughn yelled out their identities as police officers and told defendant to put his hands in the air. Defendant woke up, looked around at the officers, started to put his hands up, and then brought them back down. The officers again told defendant to keep his hands in the air. Officer Fowler swung his baton at the window of the front passenger door of the Cherokee when defendant did not comply, but the window did not break. Defendant reached toward the ignition, started the Cherokee, turned the steering wheel so that the vehicle's wheels were turned toward Officer Jolliff, and placed the vehicle in gear. The Cherokee lurched forward about one and one-half feet, striking Officer Jolliff on the left knee. The officer started to lose his balance, caught himself, and retreated behind the pickup.

Defendant put the Cherokee in reverse and backed into Officer Solomon's patrol car at about 10 miles per hour, denting the patrol car. He then turned the steering wheel of the Cherokee to the left, toward Officer Jolliff, and drove forward, striking the pickup's front side bumper and pushing the pickup one to three feet and into Officers Jolliff and Solomon. Officer Solomon was struck on her leg by the front bumper of the pickup, knocking her off balance. Officer Jolliff was struck on the right leg, lost his balance and fell to the ground. At the time, defendant's vehicle was going up to 15 miles per hour. The tires spun and the rear end of the vehicle fishtailed. Defendant put the vehicle in reverse again, and rapidly backed out of the complex and onto the street, hitting a tree, a pole, and the rear side of Officer Fowler's car on the way out. Officer Fowler himself might have been hit had he not run out of the way.

The street in front of the apartment complex is one way, northbound. Defendant drove southbound down the street. The officers reported that they had been assaulted. They and other officers pursued defendant with their sirens on and red lights flashing. Defendant reached speeds of up to 65 miles per hour on Third Street, and did not stop or slow down at intersections. Defendant turned off Third Street and eventually drove southbound on northbound Monterey Highway, reaching speeds of between 60 and 70 miles per hour. Traffic on Monterey Highway had to pull over to avoid being hit. Defendant drove over a curb from northbound to southbound Monterey Highway, and turned eastbound on Tully. The chase ended around I-280 when defendant blew a tire, lost control of the Cherokee, and drove through a chain-link fence.

Defendant ran from the vehicle. Officers found defendant hiding in bushes in the backyard of a house in the area. When defendant did not comply with the officers' orders to put his hands up, Officer Solomon used her taser gun on him. Defendant was then taken into custody. Officer Solomon was treated at the hospital for minor bruises on her leg as a result of the incident. Officer Jolliff received treatment for injuries on both legs. Because of the age and dented condition of the Ford pickup, Bravo could not tell whether it sustained any damage as a result of the incident. The two hit patrol cars did sustain damage.

The defense case

San Jose public safety dispatcher Kellie Carroll testified that the event chronology for the case indicates that a call was made to dispatch at 12:43 a.m., the officers were dispatched at 12:46 a.m., and officers Jolliff and Vaughn arrived at 12:47 a.m. The license plate given by the reporting party was checked and came back as stolen. Officer Vaughn reported at 12:49 a.m. that he was approaching the suspect vehicle, and at 12:51 a.m. another officer reported that somebody tried to run over that officer. The pursuit began at 12:52 a.m. Officer Fowler first reported his location to dispatch at 12:55 a.m.

Susan Cox lives three buildings north of the parking lot of Bravo's apartment complex on North Third Street. Around 12:45 a.m. on December 25, 2004, she was standing in her front yard when she saw two patrol cars traveling southbound, against the flow of traffic, on Third Street without their overhead lights or sirens on. The two uniformed officers parked their patrol cars in the street and walked to the apartment complex, one carrying a flashlight. The officers approached a private vehicle in the complex from either side of it, identifying themselves and yelling â€