P. v. Sandoval

Filed 4/10/07 P. v. Sandoval 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Kelly MacEachern, Judge. Affirmed.

Richard Schwartzberg for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant John Jairo Sandoval appeals from the judgment entered after a jury found him guilty of two counts of misdemeanor assault in violation of Penal Code section 240. (All further statutory references are to the Penal Code.) Defendant contends substantial evidence does not support the judgment. We affirm.

FACTS[1]

Defendant and Michelle Mucklow lived together with their three children, along with Mucklows other two children from a previous relationship. Defendant and Mucklow were never married.

In March 2004, defendant and Mucklow formed a mortgage business together. During the late afternoon on August 5, 2004, Mucklow told defendant that she had planned a trip to a casino in Temecula the following day (a work day) to celebrate coworker Paula Lovealls birthday. Defendant said no because Loveall was a lazy employee whom they should have gotten rid of . . . a long time ago. He also said that he did not get to take many vacations so it wasnt fair, and that work should always come first. Later that evening, defendant told Mucklow he was going to fire Loveall. Mucklow said they should talk about it after the children were bathed. While Mucklow was bathing the children, defendant paced back and forth. At one point, defendant told Mucklow he had fired Loveall.

As Mucklow dressed the children for bed, defendant kept mentioning things, like Im gonna flip out and my bloods boiling. He told Mucklow, Im gonna kill you and the kids and you dont know what Im capable of doing. Mucklow told defendant to let her get the children to bed.

After the children fell asleep, at about 10:00 p.m. defendant and Mucklow were talking when the doorbell rang. Angelina Johnson, who performed notary services for defendant and Mucklows business, was there to drop off documents. Mucklow asked defendant to go to their office (a few houses down the street) to get a check to pay Johnson. Johnson thought Mucklows request was odd because Mucklow had already paid Johnson. Mucklow winked at Johnson. Johnson interpreted the wink to mean that Mucklow did not want Johnson to question the request. Defendant left the residence to retrieve a check for Johnson.

After defendant left, Mucklow told Johnson that defendant had threatened her life, as well as the childrens li[ves]. Johnson testified that Mucklows hands were shaking and she appeared frantic. Johnson did not know what to believe because she did not know defendant or Mucklow on a personal level. Mucklow told Johnson not to call the police, but to call Loveall because she would know what to do. Mucklow did not want the police called because she thought that they probably would not do anything, and because there was a warrant out for her arrest as a result of some unresolved traffic tickets.

Defendant returned to the residence about 10 or 15 minutes later and gave Johnson a check. Johnson left, drove her car down the street a little bit, pulled over, and parked. She called Loveall, as Mucklow had requested, and told her Mucklow said defendant had threatened her life and the childrens lives. Loveall asked Johnson to stay where she was until Loveall arrived. Johnson moved her car across the street from defendant and Mucklows residence and waited.

Shortly thereafter, Johnson heard initially just some screeching sounds coming from somewhere, and then [she] saw [Mucklow] running down the driveway . . . [and] across the street. Mucklow was screaming for help. Mucklow testified that after Johnson left, she and defendant resumed discussing the casino trip. During their conversation, defendant got up, came at Mucklow, and started choking her. Mucklow tried to scream, but only a gurgle came out. When defendant jumped off her, Mucklow ran away from defendant, out of the residence, through the front gate and down the driveway, while yelling for help.

Johnson saw defendant running behind [Mucklow], gaining on her, actually with his arms swinging, trying to . . . grab her. When defendant got close to Johnsons car, he stopped pursuing Mucklow and walked back to the residence. Mucklow initially ran past Johnsons car. Johnson honked the horn and told Mucklow to get into the car; Mucklow complied. Mucklow was out of breath, very frantic, and shaking. Johnson dialed 911 on her cell phone while she drove down the street to a cul‑de‑sac where she made a U‑turn. As she again approached defendant and Mucklows residence, she stopped her car at the bottom of the driveway so as to block defendants ability to drive away and to keep him detained for the police.

Sitting with Mucklow in her car, Johnson saw defendant exit the front gate and walk to his car which was parked in the driveway. He was holding Mucklows purse in his hand. He opened the car door, threw the purse in the car, got in the car, and started to rev the engine. He backed up a little at the top of the driveway. Mucklow told Johnson that defendant was going to hit them with his car so they needed to move. Johnson, who was on the phone with the 911 operator, ignored Mucklow.

Defendant continued to rev the engine, then backed up the car and moved it forward at the top of the driveway for about a minute. Johnson estimated the driveway was about 60 feet long. Defendants car was jerking, and then came barreling down the driveway at approximately 20 miles per hour; Mucklow and Johnson screamed. Johnson hit the gas and moved her car forward as defendants car came within 10 feet of striking Johnsons car, while pulling out of the driveway. Johnson testified she thought defendants car would have hit her car if she had not moved it because he didnt show any indication that he was going to stop. Mucklow testified that defendants car would have hit Johnsons car had Johnson not pulled it forward.

Johnson drove her car in front of defendants car to slow him down until the police arrived. Defendants car started to speed up and it appeared to Johnson that he was going to run into the back of her car. She testified defendant stomped on his brakes, screeched his brakes. And then, you know, did it again as if he was like warning me to move out of the way. And [the] second time he did that, it didnt look [like] he was going to stop, so I quickly . . . moved over to the curb and let him pass. Defendant drove past Johnsons car and sped away.

PROCEDURAL BACKGROUND

In an amended information, defendant was charged with violating a protective order (a misdemeanor) in violation of section 273.6, subdivision (a), second degree commercial burglary (a misdemeanor) in violation of sections 459 and 460, subdivision (b), and two felony counts of aggravated assault in violation of section 245, subdivision (a)(1).

The jury found defendant guilty of two counts of misdemeanor assault, each of which is a lesser included offense of the charged offense of aggravated assault. Defendant was found not guilty of violating a protective order and of second degree commercial burglary.

The trial court suspended imposition of sentence, and placed defendant on three years informal probation on terms which included that defendant serve 30 days in county jail. Defendant appealed.

DISCUSSION

Defendant contends substantial evidence does not support the jurys verdict finding him guilty of two counts of misdemeanor assault based on the doctrine of conditional assault. In reviewing a claim of insufficiency of evidence in a criminal case, [t]he standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66.)

The jury was instructed on the general elements for the crime of assault as a lesser included offense of the charged offense of aggravated assault.[2] The jury also was given a modified version of CALJIC No. 9.00.1, which states, [a]n assault includes a conditional threat to apply physical force upon another, providing that: [] 1. The threat commands the immediate performance of some act which the threatening party has no legal right to demand; [] 2. The threat is made with the intention of compelling performance of that act by the application of physical force; [] 3. The person making the threat has placed himself physically in a position to inflict such physical force; and [] 4. That person has proceeded as far as it is necessary to go in order to carry out his or her intention. [] A person may have a legal right to insist that another person act or refrain from acting in a certain way. However, that person makes an unlawful demand if he or she threatens the use of unreasonable force to command the immediate performance of that act or the other person to refrain from acting.[3]

Substantial evidence shows defendant committed an assault upon Johnson and Mucklow by threatening to use his car to strike Johnsons car if it was not immediately moved out of his way. The evidence showed defendant got into his car which was parked in the driveway. Johnsons car blocked the bottom of the driveway. Defendant revved the engine of his car, and moved the car forward and backward a little at the top of the driveway. After Johnson failed to move her car, defendant started to back his car down the driveway at 20 miles per hour. Johnson testified that he didnt show any indication that he was going to stop. She also testified that defendants car would have struck her car if she had not moved it. She moved her car when defendants car came within 10 feet of striking Johnsons car.

In his opening brief, defendant argues, [t]he issue presented is simple and straightforward: Where the charged victim has intentionally sought to block the egress of a car by blocking the driveway, does driving a car down the driveway and stopping ten feet away constitute misdemeanor assault? Here it does not and the convictions obtained must be dismissed. Defendant further argues, [h]ere the issue was not whether [defendant] had the ability to carry out an assault since had he driven at Mucklow and Johnson and had they escaped a collision only by their swift action of moving out of the way there clearly would have been an assault. Rather the issue is whether [defendant], by twice driving down the driveway and stopping a full ten feet from Mucklow and Johnson, therefore willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person when the evidence clearly and unequivocally demonstrated that [defendant] never intended to apply force.[4]

Defendants argument is entirely based on a single fact that is not in the recordthat defendant stopped his car once he came within 10 feet of Johnsons car. In his opening brief, defendant cites Mucklows testimony as establishing this fact. Mucklow, however, testified that when defendant backed his car down the driveway, [i]t came barreling down the driveway and was skidding and then we screamed. And I remember [Johnson] hit the gas and moved forward, and he just barely missed us and he pulled out of the driveway. The fact defendants car skidded does not mean defendant applied the brakes, much less brought the car to a complete stop, when his car got within 10 feet of Johnsons car. Mucklow also testified that she believed defendants car would have struck Johnsons car had Johnson not pulled her car forward. In any event, the jury reasonably could have believed Johnsons testimony that defendant never gave any indication he was going to stop his car, and that his car would have struck her car if she had not pulled it forward when she did. Johnson testified she never heard defendant apply the brakes.

Substantial evidence supports the jurys findings.

DISPOSITION

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

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[1] The facts presented in this section are based on trial testimony and limited to those facts relevant to the issue presented in this appeal.

[2] The modified version of CALJIC No. 9.00 that was given in this case states in part, [i]n order to prove an assault, each of the following elements must be proved: [] 1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that 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] In his opening brief, defendant points out that CALJIC No. 9.00.1 was given to the jury over defendants objection. On appeal, however, defendant does not argue that CALJIC No. 9.00.1 was given to the jury in error.

[4] In his reply brief, defendant similarly articulates the single argument he raises in this appeal: [I]f the defendant drives towards a person or persons but volitionally stops, in this case brings his car to a stop ten feet away from those persons, is that a misdemeanor assault? . . . Once [defendant] stopped his actions such that it was clear no application of force would occur, no assault occurred. The two counts of conviction should be dismissed.