P. v.Santacruz

Filed 5/10/07 P. v.Santacruz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Ruiz Santacruz.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant Ignacio Erudiel Nieblas.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci, Bradley A. Weinreb and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

On May 6, 2005, defendants led sheriffs deputies and California Highway Patrol (CHP) officers on a high speed chase in two stolen vehicles, a Chevy Avalanche and a Dodge pickup truck. The chase spanned four Southern California counties from the Palmdale area to Fallbrook. Defendant Jesus Ruiz Santacruz was the driver of both vehicles; defendant Ignacio Erudiel Nieblas was the only passenger.

Defendants were tried before the same jury and convicted of numerous offenses stemming from the incident, including carjacking, unlawful driving, receiving a stolen vehicle, and child abuse, two counts of felony evading, and three counts of assault with a deadly weapon. The prosecutions theory of liability was that each defendant either directly perpetrated or aided and abetted the other in the commission of the crimes.

Santacruz was sentenced to 17 years 4 months in prison. Nieblas admitted a prison prior, and received a sentence of 18 years 8 months. Defendants appeal, and Nieblas joins Santacruzs contentions. We consider each defendants contentions to the extent they may benefit the other defendant. We remand the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). In all other respects, we affirm the judgments.

II. SUMMARY OF CONTENTIONS

We first address Nieblass claim that the court erroneously denied his two Faretta^[1] motions. The first motion was made shortly before jury selection began, and the second was made during jury selection. We conclude that both motions were properly denied.

We next consider defendants claims that insufficient evidence supports several of their convictions; that the jury was improperly instructed on the natural and probable consequences doctrine; and that the use of that doctrine violated their right to due process because it permits criminal liability to be based on ordinary negligence. We conclude that substantial evidence supports each of defendants convictions. We agree that the jury was erroneously instructed on the natural and probable consequences doctrine; however, we find the error harmless, and we reject defendants due process claims.

Defendants further contend that their felony evading convictions in counts 4 and 7 were based on an impermissible mandatory presumption affecting the burden of proof on the willful or wanton disregard element of the offense. (Veh. Code,  2800.2, subd. (b).) We reject this contention, following decisions of the Second, Third, and Fifth District Courts of Appeal. We also reject Nieblass claim that the trial court had a duty to instruct sua sponte on the defense of accident in connection with the assault with a deadly weapon charges in counts 3 and 9.

Santacruz claims the trial court erroneously limited his cross-examination of Los Angeles County Sheriffs Deputy Carl Osterthaler regarding the deputys age and weight. Even if Santacruz should have been allowed to ask the deputy these two brief questions, we find the error harmless.

We also reject defendants claim the trial court coerced several of the verdicts by rereading CALJIC No. 17.41 to the jury following the forepersons complaint that one juror was refusing to deliberate. The trial court reasonably concluded that rereading the instruction would assist the jurors in reaching a verdict. Moreover, no reasonable juror would have understood the instruction as pressuring him or her to reach a verdict or change his or her views to conform to the majority jurors views.

Lastly, we address defendants claims of sentencing error. We reject defendants claims their sentences on count 4 (felony evading in the Avalanche) should have been stayed because that crime involved the same intent and objective as count 3 (assault upon Osterthaler with the Avalanche). However, because the trial court sentenced both defendants to the aggravated term of nine years on count 5 (carjacking), the matter must be remanded for resentencing. (Cunningham, supra, 127 S.Ct. 856.)

III. FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

1. The Crimes Involving the Avalanche

On the morning of May 6, 2005, Sergio Calderon discovered that his blue Avalanche was missing from the driveway of his Redlands home. He had not given anyone permission to drive the vehicle. There was broken tinted glass on the driveway, apparently from a break-in. Calderon reported the vehicle stolen.

At around 2:00 p.m. on May 6, Los Angeles County Sheriffs Deputy Jim Jorian, operating out of the Lancaster station, received a call regarding the location in Lancaster of a possibly stolen Avalanche. When Jorian arrived at the location, he saw a blue Avalanche parked on the street, with a Hispanic man standing just inside the open drivers side door. Another man was in the front passenger seat. As Jorian was waiting for a backup unit to arrive, he drove away from where the Avalanche was parked. When he returned, the Avalanche had left. Shortly thereafter, Jorian and another unit began looking for the Avalanche.

Osterthaler was on patrol when he spotted the Avalanche driving eastbound on Highway 138, just inside San Bernardino County. Osterthaler and another uniformed patrol officer, Deputy Mike Rust, pursued the Avalanche in separate patrol vehicles. They followed the Avalanche as it pulled off the highway and drove into the parking lot of a real estate office.

Osterthaler positioned his patrol vehicle at a 45-degree angle to the drivers side of the Avalanche, detained the occupants at gunpoint, and ordered them to show him their hands. As Osterthaler was directing the driver to show his hands, Rust positioned his patrol vehicle on the passenger side of the Avalanche. Rust also drew his weapon. At this point, Osterthaler was within 15 feet of the driver of the Avalanche. In court, he identified the driver as Santacruz.

Santacruz suddenly put the Avalanche in reverse, backed out of the parking space, smiled at his passenger, defendant Nieblas, then shifted into drive and drove between the two patrol vehicles. Santacruz accelerated so quickly that the rear tires of the Avalanche left track marks. Osterthaler jumped back to avoid the Avalanche. If he had not done so, the Avalanche would have hit him or hit the drivers door of his patrol vehicle, pinning him in the doorway of his vehicle. Instead of accelerating and driving through the two patrol vehicles and nearly striking Osterthaler, Santacruz could have gotten out of the realty parking lot by driving in the other direction.

After leaving the realty parking lot, Santacruz drove the Avalanche back onto eastbound Highway 138. Osterthaler and Rust continued to pursue it with their lights and sirens activated. The Avalanche began to drive recklessly in heavy traffic. It passed vehicles on the right shoulder, cut across traffic, and drove eastward in the westbound lanes, causing vehicles to leave the roadway. Osterthaler put out a broadcast that there was a stolen vehicle heading eastbound on Highway 138. After Osterthaler and Rust pursued the Avalanche for several minutes, their watch commander canceled their pursuit.

2. The Carjacking and Pursuit of the Dodge Truck

Los Angeles County Sheriffs Deputy Dale Ryken was searching for the Avalanche in a helicopter when he spotted it in a ditch off Highway 138 near the Mountaintop Cafe.^[2] Ryken also saw two individuals running from the Avalanche and up an embankment toward the Mountaintop Cafe. As Ryken hovered over the area in his helicopter, he saw the two suspects approach a white Dodge truck in the parking lot of the Mountaintop Cafe.

Michael M., Sr. (Michael Sr.) was in the drivers seat of the Dodge truck. His six-year-old son, Michael M., Jr. (Michael Jr.), was in the passenger seat. Michael Sr.s wife and their daughter were in another vehicle parked next to the truck. Michael Sr. had just parked the truck and turned off the ignition when Santacruz opened the drivers side door. Santacruz was holding a knife with a serrated edge, and telling Michael Sr. to get out of the truck. Nieblas opened the passenger door and pointed a collapsible knife with a four-inch blade directly at Michael Jr. Santacruz held his knife within one foot of Michael Sr. Nieblas held his knife approximately 18 inches from Michael Jr.

Michael Sr. begged Santacruz to let his son out of the truck. Santacruz told him to get out and his son would not be hurt. After Michael Jr. got out of the truck, Michael Sr. got out. Santacruz got into the drivers seat and Nieblas got into the passenger seat. As Santacruz started the truck and began to back it up, Michael Jr. ran behind the truck and over to the drivers side, where his father, Michael Sr., was standing. The truck nearly struck Michael Jr. as he ran behind it, but he made it safely to the other side. Michael Sr. and Michael Jr. were frightened by the incident. The truck contained around $600 worth of personal belongings, including clothing, compact discs, a wallet, and spare keys.

From his helicopter, Ryken saw the Dodge truck speed out of the parking lot and proceed onto eastbound Highway 138. Ryken followed the truck and never lost sight of it. As the truck traveled on Highway 138, it reached speeds between 90 and 100 miles per hour.

Osterthaler and Rust joined the pursuit of the truck in their separate patrol vehicles. As the truck traveled southbound on Interstate 15 (I‑15) past Interstates 210 and 10 and approached Interstate 60, it reached speeds in excess of 80 to 100 miles per hour. It also switched back and forth between driving in the center divider and on the right shoulder, while crossing several lanes of traffic.

Eventually, CHP officers took the primary position in the pursuit of the truck. The CHP officers in pursuit were uniformed, and were driving marked patrol vehicles with their lights and sirens activated. Santacruz continued to drive recklessly as he proceeded south on I-15. Again, he drove in the center divider and on the right shoulder, cut off vehicles, made unsafe turning maneuvers, and reached speeds of up to 100 miles per hour. At one point, he sideswiped a vanpool van.

Santacruz evaded two sets of spike strips on I-15. A third set of spike strips was deployed on I-15 near Murietta. Santacruz drove over the third set of spike strips after driving in the center divider and on the right shoulder.

Santacruz exited I-15 at Murietta Hot Springs Road, but failed to stop at the intersection. He ran a stop sign, crossed over both lanes of the road, and got back onto I‑15 south. The pursuit proceeded into Temecula, where the truck veered across several lanes and exited at Rancho California Road. Again, the truck failed to stop at the intersection, crossed several lanes of traffic, and reentered southbound I-15.

At this point, one of the CHP officers noticed that the truck was riding lower on its right side and chunks of tire were flying off. The right tires of the truck were beginning to separate from the rims. On I-15 south of Rainbow, the right tires caught fire from the rims hitting the asphalt. The pursuit continued into San Diego County. Near Highway 76, the truck veered off I-15 to avoid another spike strip. It went over an embankment, rolled over several times, and came to rest at the bottom of the embankment.

Santacruz was found lying face down and unconscious on the passenger side of the truck, approximately five feet from the door. Nieblas attempted to flee on foot, but was apprehended. Both defendants were taken into custody. During a search of Nieblas, a sheath containing a knife with a three-inch blade was found.

B. Defense Case

Neither defendant testified or presented any affirmative evidence.

C. The Verdicts and Findings

The jury found defendants guilty as charged of unlawfully driving the Avalanche (Veh. Code,  10851, subd. (a); count 1); receiving a stolen vehicle, the Avalanche (Pen. Code,  496d, subd. (a); count 2);^[3]carjacking the Dodge truck from Michael Sr. (Pen. Code,  215, subd. (a); count 5); assaulting Osterthaler with a deadly weapon, the Avalanche (Pen. Code,  245, subd. (a)(1); count 3); assaulting Michael Jr. with a deadly weapon, the Dodge truck (Pen. Code,  245, subd. (a)(1); count 9); assaulting Michael Sr. with a deadly weapon, a knife (Pen. Code,  245, subd. (a)(1); count 10); felony evading in the Avalanche and Dodge truck (Veh. Code,  2800.2, subd. (a); counts 4 & 7); and felony child abuse upon Michael Jr. (Pen. Code,  273a, subd. (a); count 8). The jury found that both defendants personally used knives in the commission of the carjacking, and that defendant Nieblas personally used a knife in the commission of the child abuse. (Pen. Code,  12022, subd. (b).)

The jury found defendants not guilty of robbing Michael Sr. of the personal property in the Dodge truck. ( 211; count 11.) The jury deadlocked 11 to 1 in favor of convicting defendants of carjacking the passenger of the truck, Michael Jr. ( 215; count 6), and a mistrial was declared on that count. Nieblas admitted the truth of a prison prior. ( 667.5, subd. (b).) Santacruz was on probation at the time the crimes were committed.

IV. DISCUSSION

A. Nieblass Faretta Motions Were Properly Denied

Nieblas contends the trial court violated his Sixth Amendment right to represent himself by erroneously denying his Faretta motions. Nieblas made two Faretta motions. The first was made on September 1, 2005, immediately before jury selection began. The second was made on the following trial day, September 6, while jury selection was continuing. We conclude that both motions were properly denied.

1. Background

On June 2, 2005, the first amended information was filed, and defendants joint trial was set for July 18. On July 8, trial was reset for August 29, and defendants waived time for trial, plus 60 days. At a pretrial conference on August 19, the court ordered a copy of the preliminary hearing transcript be prepared for Nieblass conflict panel attorney, Brandon Wood, who had defended Nieblas at the preliminary hearing. The August 29 trial date was confirmed, and the matter was set for the August 25 trial readiness calendar.

On August 25, Nieblas made the first of two Marsden^[4]motions to relieve Attorney Wood and replace him with another conflict panel attorney on the ground Attorney Wood had not sufficiently looked into his case. The motion was denied, and trial was reset for August 30, because Attorney Wood was engaged in another trial. The estimated time for defendants joint trial was 30 days.

On August 30, the first day of trial, Attorney Wood was still engaged in the other trial and the matter was trailed to August 31. Both defendants told the court they were in the process of hiring private attorneys. The court ordered that both defendants, who were in custody, be allowed three phone calls each so they could arrange hiring new counsel. Still, the court admonished defendants that the matter would proceed as scheduled unless new counsel appeared the next day, August 31.

On August 31, the second day of trial, both defendants said they had not been allowed to make their phone calls, and the trial court again ordered that defendants be allowed to make the calls. Still, the matter proceeded as scheduled. The district attorney filed a second amended information, and both defendants pled not guilty. The trial court heard motions in limine, and ordered a bifurcated trial on Nieblass prison prior.

On September 1, the third day of trial, Attorney Wood told the court that Nieblas had been refusing to speak with him and that Nieblas wished to make a second Marsden motion followed by a Faretta motion. Both motions were denied. At the hearing on the Marsden/Faretta motion, the following colloquy occurred:

THE DEFENDANT: . . . I would like to try to do something with my case. I would like to do something for myself.

THE COURT: What would you like to do?

THE DEFENDANT: Look into the case and try to do some ‑‑ at least like try to do something about it, try for myself.

THE COURT: Mr. Nieblas, let me ask you a couple of questions, okay? And please dont take this personally. I just need it for information, okay?

Whats the highest education that youve gotten?

THE DEFENDANT: High school graduation.

THE COURT: Have you had any law school training?

THE DEFENDANT: No, sir.

THE COURT: Paralegal training?

THE DEFENDANT: No, sir.

THE COURT: Trial training? Have you ever been like in a mock trial program?

THE DEFENDANT: No, sir.

THE COURT: Okay. Do you understand that . . . under Ferretta [sic], you have the right to represent yourself if the Court determines that it doesnt become a sham or a farce? Have you ever heard the old saying that a doctor that diagnoses himself has a fool for a client? Have you ever heard that?

THE DEFENDANT: No, sir.

THE COURT: So when a doctor thinks that theres something wrong with him and he diagnoses it himself, that its a problem because he doesnt know what hes doing. The same is true in the law. Its actually even worse, especially when youre looking at the significance of the charges for which youre being tried.

Do you know what the elements of a case ‑‑ of a crime is [sic]?

THE DEFENDANT: Im not sure, sir.

THE COURT: Do you know what the elements of the carjacking is [sic]? Do you know what the district attorney has to prove on carjacking?

THE DEFENDANT: Thats the reason that Im trying to ask for that, because as long as Im with ‑‑ that I could, if you would let me go to the law library for myself. Thats all Im trying to do, do something for myself, at least try to do something.

THE COURT: What I would be willing to do, Mr. Nieblas ‑‑ first of all, your Marsden motion is denied and your request for Ferretta [sic] is denied.

But heres what Im willing to do for you, is to allow you law library privileges during the course of this trial for the purposes ‑‑ Im going to grant you for the purposes of law library privileges cocounsel status.

Now, what that means is that you can go to the law library, do the research. . . . Well give you an order to do that. Then you can talk with Mr. Wood regarding things that you read, things that you see, and he can explain them to you and how that works and whatnot. [] . . . []

. . . I have seen young men like yourself go down very hard. Ive seen defendants who have represented themselves just get blasted in court because they dont know what theyre doing. And even though you think this piece of evidence should come in, if you cant present it properly it doesnt come in. So youre even in a worse situation than you were previously.

Thats why the lawyer who knows how to get things in, the evidence that you need or to ask what questions are appropriate to ask of the officers, for example, because . . . when you act as your own attorney youre expected to act as an attorney, not as a defendant. And thats the reason why Im denying your Ferretta [sic] motion at this time. But I will grant you cocounsel status for the law library purposes because I think that your request is legitimate. You want to know more about your case and you want to look at some books and Im going to give you the opportunity to do that. (Italics added.)

Thereafter, defendant told the court he had still not been allowed to make his phone calls (regarding hiring private counsel), and the court issued another order directing that defendant be allowed to make the calls. Jury voir dire was conducted through the remainder of the day.

On September 6, the fourth day of trial, jury voir dire continued. During a break in voir dire, Nieblas renewed his Faretta motion. He told the court, Your Honor, on the record I would like to exercise my constitutional right under [Faretta, supra, 422 U.S. 806]and be granted pro[.] per[.] status. He also said he had hired a private investigator, had not been allowed to use the law library over the weekend, and wanted to go to the law library to do some more research about this. The court denied the renewed Faretta motion, saying Based on the same issues that you brought up at the Marsden, your issue under Ferrata [sic] is denied. On the afternoon of September 6, the trial court put the following additional remarks on the record:

I wanted to put on the record a little bit more regarding the Ferrata [sic] issue. I wanted to put down the fact that Mr. Nieblas has previously told me about his lack of education, he has shown during the course of this time a certain inability to communicate; that hes relying on a criminal handbook and a private investigator who is not a criminal investigator, or at least for the types of charges that were here for; that he has previously stated he had no experience in presenting evidence, picking a jury, or acting as an attorney. And also I will find that it is not timely as we are in our third day of trial.

The Court is citing a 199[0] case [People v. Manago (1990)], 220 Cal.App.3d 982 at [pages] 985 through 9[8]8 where our district [C]ourt of [A]ppeal indicated that the Court has the discretion in not allowing the defendant to represent himself if it became a sham or a farce. And thats what I would find it would do if I were to allow Mr. Nieblas to represent himself.

Further, People v. [C]randall (1988) 46 Cal.3d 833, that this appears [sic] to be and this is in the Courts view an attempt given the number of times that the defendants have sought to seek other counsel, to put the case over and have counsel appear that [sic] this is simply another attempt to delay the trial. And for those reasons the Court is denying the Ferrata [sic].

2. Analysis

A defendant in a criminal trial has a Sixth Amendment right to represent himself. (Faretta, supra, 422 U.S. at p. 836.) A trial court must grant a Faretta motion and has no discretion to deny it provided three conditions are met: The motion is (1) unequivocal, (2) knowing and intelligent, and (3) made a reasonable time before trial. (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch); People v. Windham (1977) 19 Cal.3d 121, 127-128.) Motions made on the eve of trial are addressed in the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.)

Nieblas insists that his September 1 Faretta motion was timely because it was made before jury selection began. He also argues that his September 1 and September 6 Faretta motions were knowing, intelligent, and unequivocal. Thus, he suggests the trial court had no discretion to deny his September 1 motion. Alternatively, he argues the trial court abused its discretion in denying both Faretta motions.

First, it is clear the trial court had discretion to deny both Faretta motions because neither was made a reasonable time before trial. There is no rigid rule that a motion for self-representation is to be deemed timely because it is made before actual commencement of trial. (People v. Clark (1992) 3 Cal.4th 41, 99.) Moreover, the purpose of the timeliness requirement is to prevent a defendant from misusing a Faretta motion to unjustifiably delay trial or obstruct the orderly administration of justice. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Burton (1989) 48 Cal.3d 843, 852.) Here, the timing of both motions certainly raised the possibility that they were designed to delay or obstruct the trial.

It is also clear that Nieblass September 1 Faretta motion, made in the alternative to his Marsden motion, was properly denied on the grounds it was equivocal. (Faretta, supra, 422 U.S. at p. 835.) [T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se. (People v. Marshall (1997) 15 Cal.4th 1, 21, quoting United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 426; see also People v. Valdez (2004) 32 Cal.4th 73, 99 [conditional demand for self-representation was ambivalent and equivocal].)

In making his September 1 motion, Nieblas did not tell the court he wanted to represent himself at trial. Instead, he said he wanted to try to do something for himself, such as investigate the facts and go to the law library. In response, the trial court ordered that Nieblas be given law library access. Nieblas was satisfied with this and did not insist he be allowed to represent himself. Indeed, at the conclusion of the hearing, he complained he had not been allowed to make the phone calls the court had ordered he be allowed to make for the purpose of hiring private counsel.

Nevertheless, on the following trial day, September 6, Nieblas made a clear and unequivocal demand for self-representation. We therefore address whether the trial court abused its discretion in denying the motion. In exercising its discretion, the trial court was required to consider all relevant circumstances, including: (1) the quality of defendants representation; (2) the defendants prior proclivity to substitute counsel; (3) the reasons for the request; (4) the length and stage of the proceedings; and (5) the disruption or delay which might reasonably be expected to follow. (People v. Windham, supra, 19 Cal.3d at pp. 128-129; accord, People v. Jenkins (2000) 22 Cal.4th 900, 959.)

Nieblas argues the trial court abused its discretion in denying the motion because it made no effort to consider any of the Windham factors. Instead, he argues, the court denied the motion based solely on his low education level and his apparent inability to competently represent himself at trial.

A defendants ability to competently represent himself is not a proper factor for a court to consider under Faretta. (Welch, supra, 20 Cal.4th at pp. 732-734.) [T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. (Godinez v. Moran (1993) 509 U.S. 389, 399 [113 S.Ct. 2680, 125 L.Ed.2d 321], fn. omitted; accord, Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529.) Thus, the trial court erred to the extent it relied on Nieblass lack of education or inability to competently represent himself in denying his September 6 motion. (Welch, supra, 20 Cal.4th at p. 734.)^[5]

Although the trial court erred to the extent it relied on Nieblass evident inability to represent himself, the court also based its ruling on evidence that both motions were made for the purpose of delaying the trial. This was a proper reason for denying both Faretta motions (People v. Windham, supra, 19 Cal.3d at p. 128), and the record amply supports it.^[6]

Nieblas waited until August 25, four days before trial was scheduled to begin on August 29, to make his first Marsden motion to relieve Attorney Wood. After the trial court found no grounds to grant the Marsden motion and explained to Nieblas that Attorney Wood was an experienced, competent attorney and a fighter, Nieblas made a second Marsden motion on September 1, the third day of trial, and immediately followed that motion by making an equivocal Faretta motion. The September 1 Faretta motion devolved into a simple request to conduct some legal research at the law library. Still, on the following trial day, September 6, Nieblas made an unequivocal Faretta motion. In the meantime, Nieblas was attempting to hire private counsel.

In view of these circumstances, the trial court reasonably concluded that Nieblas made both his Faretta motions for the purpose of delaying the trial. Indeed, it was reasonable to conclude that on September 6, Nieblas was not serious about representing himself, because on the previous trial day, September 1, he made it clear that all he wanted to do was [l]ook into his case and conduct some of his own legal research.

Moreover, by juggling his Faretta rights with his right to counsel interspersed with Marsden motions, the trial court reasonably concluded that Nieblas was playing the Faretta game, that is, he was playing games with the court in an effort to delay the trial. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1049; People v. Williams (1990) 220 Cal.App.3d 1165, 1168-1170.) Accordingly, both Faretta motions were properly denied.^[7]

Lastly, we note that Nieblass reliance on People v. Nicholson (1994) 24 Cal.App.4th 584 (Nicholson) is misplaced. There, it was held that the trial court abused its discretion in denying the defendants Faretta motions, because they did not request a continuance, they had not demonstrated a proclivity to substitute counsel, and there was no showing that granting the motion would have delayed or disrupted the proceedings. (Nicholson, supra, at p. 592.) Nieblas emphasizes that he never requested a continuance of the trial, either on September 1 or 6. But Nieblass failure to request a continuance does not undermine the trial courts conclusion that he was using his Faretta motions to delay the proceedings, in view of his demonstrated proclivity to substitute counsel and play the Faretta game. As the Nicholson court said, had the defendants suggested or expressed an intent to delay the proceedings, the trial court would have been justified in denying their Faretta motions. (Nicholson, supra, at p. 592.)

B. Substantial Evidence Supports Defendants Convictions in Counts 1, 2, 3, 8, and 9

Defendants challenge the sufficiency of the evidence supporting several of their convictions. Santacruz claims insufficient evidence supports his child abuse conviction (count 8), on the ground this crime was not a natural and probable consequence of the carjacking. He also claims insufficient evidence supports his conviction for assaulting Michael Jr. with the Dodge truck (count 9), on the ground there was no evidence he had the requisite mental state for assault.

We reject these contentions. As we explain, substantial evidence showed that Santacruz directly aided and abetted the child abuse in count 8. It is not necessary, as Santacruz argues, to analyze the sufficiency of the evidence on count 8 solely under the natural and probable consequences doctrine. We also find sufficient evidence to support Santacruzs conviction for assaulting Michael Jr. with the Dodge truck.

Nieblas claims there is insufficient evidence he aided and abetted the driving or taking away of the Avalanche (count 1) or the receipt of the Avalanche as stolen property (count 2). He further claims there is insufficient evidence to support his convictions for assaulting Osterthaler with the Avalanche (count 3) and assaulting Michael Jr. with the Dodge truck (count 9) because neither of these crimes were natural and probable consequences of the underlying target offenses of felony evading and carjacking, respectively. We also find sufficient evidence to support each of Nieblass convictions.

1. Standard of Review

In reviewing a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ that is, evidence which is reasonable, credible, and of solid value ‑‑ from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (Welch, supra, 20 Cal.4th at p. 758.) We presume in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

2. Aider and Abettor Liability

The law imposes criminal liability on all principals to a crime. ( 31; People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) Principals include persons concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission . . . . ( 31.) A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Intent is rarely susceptible of direct proof, but may be inferred from all the facts and circumstances. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) A persons mere presence at the scene of a crime, even if he or she knows or suspects a crime is occurring or is about to occur, is by itself insufficient to sustain a conviction based on aiding and abetting. (People v. Nguyen, supra, at pp. 529-530, citing People v. Durham (1969) 70 Cal.2d 171, 181.)

3. The Natural and Probable Consequences Doctrine

Under the natural and probable consequences doctrine, [An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury. [Citation.] (People v. Prettyman (1996) 14 Cal.4th 248, 261 (Prettyman).)

The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) The question is whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Ibid.)

4. Evidence Supporting Santacruzs Convictions

(a) Child Abuse (Count 8)

Child abuse is committed by willfully placing a child in a situation likely to cause the child great bodily harm and causing the child to suffer. (People v. Odom (1991) 226 Cal.App.3d 1028, 1032-1033;  273a, subd. (a).) Santacruz was convicted of child abuse (count 8), as a result of Nieblass holding a knife to Michael Jr. when Santacruz and Nieblas carjacked the Dodge truck from Michael Sr.

Santacruz argues that insufficient evidence supports his child abuse conviction because Nieblass commission of the crime was not a natural and probable consequence of his (Santacruzs) perpetration of the carjacking. Santacruz argues it was not reasonably foreseeable to him that Nieblas would take out a knife and threaten Michael Jr., because he (Santacruz) already had a knife pointed at Michael Sr., and pointing a knife at Michael Jr. was not necessary to accomplish the carjacking.

We disagree with Santacruzs analysis. It is not necessary to analyze Santacruzs liability for the child abuse based on the natural and probable consequences doctrine, because the evidence showed he directly aided and abetted Nieblass commission of the child abuse. In other words, the People did not have to prove that the child abuse was a natural and probable consequence of the carjacking, because the two crimes were committed by both defendants, acting in concert, and the same conduct underlay both crimes.

Indeed, the carjacking of the Dodge truck from Michael Sr. was accomplished by both defendants, acting in concert. Defendants had just abandoned the Avalanche in the ditch and were running from police on foot. Santacruz went to the drivers door of the Dodge truck and Nieblas went to the passenger door. Together, they pulled knives on the two occupants, Michael Sr. and Michael Jr., and quickly forced them out of the truck. By acting in concert, defendants were likely to realize their goal of escaping from police.

Moreover, the joint conduct underlying the carjacking of Michael Sr. was the same joint conduct underlying the child abuse of Michael Jr. with the knife (count 8). Based on the manner in which the crimes were committed, the jury could have reasonably inferred that Santacruz aided and abetted Nieblass direct commission of the child abuse. Or, the jury could have reasonably inferred that Santacruz aided and assisted Nieblas in pointing a knife at Michael Jr. as a means of facilitating the carjacking of Michael Sr.

(b) Assaulting Michael Jr. With the Dodge Truck (Count 9)

Santacruz challenges the sufficiency of the evidence supporting his conviction for assaulting Michael Jr. with the Dodge truck ( 245, subd. (a)(1)) on the ground there is no evidence he had the mental state required to commit the assault. He specifically argues there is no evidence he knew of the facts necessary to make him aware that, in backing the pickup truck, he almost struck young Michael [Jr.]. In other words, he argues he is not guilty of the assault because there is no evidence he knew that Michael Jr. was either behind the truck or about to run behind the truck.

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240.)^[8] Assault is a general intent crime which has always focused on the nature of the act and not on the perpetrators specific intent. (People v. Williams (2001) 26 Cal.4th 779, 785-786.) The gravamen of the crime [of assault] . . . is the likelihood that the force applied or attempted to be applied will result in great bodily injury. [Citation.] (People v. Colantuono, supra, 7 Cal.4th at p. 217.) Accordingly, specific intent to injure is not an element of assault. (People v. Williams, supra, at p. 786.) Instead, an assault 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.)

More specifically, a defendant is only guilty of assault if he intends to commit an act which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences. [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. (People v. Williams, supra, 26 Cal.4th at pp. 787-788, italics added.)

Thus, to be guilty of assaulting Michael Jr. with the truck, Santacruz had to be aware of the facts that would lead a reasonable person to realize that his act of backing up the truck would directly, naturally and probably result in a battery upon the child. (People v. Williams, supra, 26 Cal.4th at p. 788.) A defendant cannot be guilty of assault based on facts he did not know but should have known, and mere recklessness or criminal negligence is still not enough to constitute an assault. (Ibid., citing People v. Colantuono, supra, 7 Cal.4th at p. 219.) Although, as Santacruz points out, there is no evidence he knew that the child was running behind the truck, the evidence showed he was aware of facts that would lead a reasonable person to realize that his act of backing up the truck was likely to result in a battery upon the child.

The entire incident happened within seconds. There were bushes directly in front of the truck, and little room for a pedestrian to walk in front of the truck. Michael Jr. got out on the passenger side before his father got out on the drivers side. Nieblas had just pointed a knife at Michael Jr. and had forcibly separated him from his father. After Michael Sr. got out of the truck, he began yelling for Michael Jr. and was moving toward the back of the truck. The evidence suggests that Michael Jr. began moving toward the back of the truck while the passenger door was still open. All of these facts were apparent to Santacruz before he began to back up the truck. And as Santacruz began to back up the truck, Michael Sr. began yelling to his son to run faster to avoid being hit.

A reasonable person in Sanacruzs position, knowing these facts, would have realized before beginning to back up the truck, and while doing so, that the child was in danger of being hit by the truck. Under these circumstances, substantial evidence supports the jurys conclusion that Santacruzs action in backing up the truck would directly, naturally, and probably result in a battery upon the child.

5. Evidence Supporting Nieblass Convictions

(a) Unlawful Driving and Receiving (Counts 1 and 2)

Nieblas was a passenger in the Avalanche; Santacruz was the driver. Nieblas claims there is insufficient evidence that he aided and abetted Santacruzs unlawfully taking or driving of the Avalanche (count 1) or that he aided and abetted Santacruzs receipt of the Avalanche as stolen property (count 2). We disagree. We conclude there is substantial evidence that Nieblas aided and abetted these crimes.

Vehicle Code section 10851, subdivision (a) provides that [a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . .

Section 496d, subdivision (a) provides: Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be punished . . . .

A defendant may not be convicted of unlawfully taking and receiving the same stolen vehicle. (People v. Garza (2005) 35 Cal.4th 866, 880-881.) He may, however, be convicted of unlawfully driving and receiving the same stolen vehicle following the taking of the vehicle (i.e., posttheft driving of the vehicle). (Ibid.) Both defendants convictions in count 1 must have been based on the unlawful posttheft driving of the Avalanche. The prosecutor conceded there was no evidence that defendants stole the Avalanche, and argued only that defendants were unlawfully driving the Avalanche, knowing it was stolen.

As Nieblas points out and as the jury was instructed, being a mere passenger in a car, without more, is insufficient to establish a violation of Penal Code section 496d, subdivision (a) or Vehicle Code section 10851. (Special Instruction No. Two.) (People v. Clark (1967) 251 Cal.App.2d 868, 874; People v. Champion (1968) 265 Cal.App.2d 29, 32.) But here, the evidence of Nieblass guilt in counts 1 and 2 was based on more than his status as a mere passenger in the Avalanche. It was based on substantial evidence that Nieblas, knowing the Avalanche was stolen, actively aided and abetted Santacruzs unlawful driving of the Avalanche and jointly possessed the Avalanche with Santacruz.

CALJIC No. 2.15 (Possession of Stolen Property) correctly instructed the jury: If you find that the defendant[s were] in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendants are guilty of the crime of unlawful driving or taking of a motor vehicle and possession of stolen property. Before guilt may be inferred, there must be corroborating evidence tending to prove the defendants [sic] guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. [] As corroboration[,] you may consider the attributes of possession ‑‑ time, place, and manner, that the defendants had an opportunity to commit the crimes charged, and the defendants [sic] conduct and any other evidence which tends to connect the defendants with the crimes charged.

CALJIC No. 2.15 reflects the settled principle that: Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.] . . . [P]ossession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. . . . (People v. McFarland (1962)58 Cal.2d 748, 754, italics added.) This rule applies whether the crime charged is theft, burglary, or knowingly receiving stolen property. (Id. at p. 755; see also People v. Mendoza (2000) 24 Cal.4th 130, 176 [upholding burglary conviction based on adequate corroborating evidence].)

As used in CALJIC No. 2.15, conscious possession means the defendant must knowingly possess the stolen property or exercise knowing dominion and control over it; it does not mean there must be direct evidence the defendant knew the property was stolen. (People v. Williams (2000) 79 Cal.App.4th 1157, 1171-1172.) The requisite possession may be actual or constructive, and it need not be exclusive. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)

Regarding count 2, there is no question that Nieblas was in conscious possession of the Avalanche and that he possessed it jointly with Santacruz. Initially, the Avalanche was observed by Jorian parked on a street with one man in the front passenger seat and the other standing at the open drivers door. When Jorian returned after briefly leaving the area, the truck was no longer present. And, after Osterthaler and Rust pursued the Avalanche on Highway 138, both Santacruz and Nieblas refused to follow Osterthalers order to get out of the Avalanche. Nieblass refusal to follow Osterthalers order showed that he, together with Santacruz, was exercising joint dominion and control over the Avalanche.

Regarding counts 1 and 2, the attributes of Nieblass possession also showed he knew the Avalanche was stolen. He was in possession of the Avalanche shortly after it was stolen, and the Avalanche had a broken window. And he refused to follow Osterthalers order to get out of the truck in the realty parking lot. Together, these facts support a reasonable inference that Nieblas knew the Avalanche was stolen.

Regarding count 1, the evidence also showed that Nieblas encouraged Santacruzs unlawful driving of the Avalanche away from the presence of Osterthaler. His refusal to get out of the Avalanche when he had the opportunity to do so and his subsequent actions in aiding and abetting the carjacking, indicated he actively aided and encouraged Santacruzs unlawful driving of the Avalanche.

(b) Assaults of Osterthaler and Michael Jr. (Counts 3 and 9)

Nieblas claims the evidence is insufficient to support his convictions for aiding and abetting Santacruzs assault on Osterthaler with the Avalanche (count 3) and for aiding and abetting Santacruzs assault on Michael Jr. with the Dodge truck (count 9). He argues there is no evidence that Santacruzs commission of these crimes was a natural and probable consequence of the underlying or target crimes. We disagree.

To have found Nieblas guilty as an aider and abettor to the assaults on Osterthaler and Michael Jr. under the natural and probable consequences doctrine, the jury did not have to find that Nieblas intended to aid, encourage, or facilitate the actual assaults. Instead, the jury only had to find that the assaults were a natural and probable consequence of the underlying target crimes. In the case of the assault on Osterthaler, the underlying target crimes were unlawful driving (count 1), and defendants initial attempt to evade Osterthaler in the realty parking lot (count 4). In the case of the assault with the truck on Michael Jr. (count 9), the underlying target crime was the carjacking of the Dodge truck from Michael Sr. (count 5).

As discussed, [An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . (Prettyman, supra, 14 Cal.4th at p. 261.) Whether the assaults were natural and probable consequences of the underlying offenses is a question of fact for the jury, and requires the application of an objective test. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) The question is whether, in view of all the circumstances, a reasonable person in Nieblass position would have or should have known that the assaults were a reasonably foreseeable consequence of the acts or crimes Nieblas aided and abetted. (Ibid.)

Applying these principles, the jury could have reasonably inferred that the assault on Osterthaler was a reasonably foreseeable consequence of the unlawful driving and attempt to evade police in the Avalanche. Defendants were in the process of committing these crimes when the assault on Osterthaler was committed. And, when defendants disobeyed Osterthalers order to get out of the Avalanche at gunpoint, it was reasonably foreseeable to Nieblas that Santacruz was going to attempt to flee in the Avalanche. A natural and probable consequence of this was that Osterthaler might well be assaulted in the process of defendants continued unlawful driving and escape from the realty parking lot. Although Santacruz did not have to drive between the two police vehicles to get out of the parking lot, a reasonable person in Nieblass position would have realized that, in attempting to escape from the parking lot, Santacruz might strike one of the officers, particularly Osterthaler, who was standing near one of the avenues of escape.

Similarly, in view of the particular circumstances in which the carjacking was committed, the jury could have reasonably inferred that Santacruzs assault on Michael Jr. with the Dodge truck was a reasonably foreseeable consequence of the carjacking. The circumstances of the carjacking were that Michael Jr. was left standing outside the passenger side of the truck, separated from his father, and unaccompanied by an adult, after Nieblas forcibly removed him from the truck at knifepoint. In view of this circumstance, it was reasonably foreseeable to a person in Nieblass position that Michael Jr. would attempt to run to his father and, in backing up the truck, Santacruz would commit an assault upon the child.

C. The Jury WasInadequately Instructed on the Natural and Probable Consequences Doctrine Regarding Nieblass Liability in Counts 3 and 9, But the Errors Were Harmless

Santacruz and Nieblas contend the jury was inadequately instructed on the natural and probable consequences doctrine relative to several of the charged crimes. Nieblas claims the trial court prejudicially erred in failing to instruct the jury to specifically determine whether the charged crimes of Santacruzs assaults on Osterthaler and Michael Jr. (counts 3 and 9, respectively) were natural and probable consequences of the unlawful driving (count 1) and felony evading (count 4) in the case of the assault on Osterhaler, or the carjacking (count 5), in the case of the assault on Michael Jr. Regarding Nieblass claims, we agree that the instructions on the natural and probable consequences doctrine relative to counts 3 and 9 were erroneous. Nevertheless, we find the errors harmless.

Santacruz claims the trial court prejudicially erred in failing to instruct the jury to specifically determine whether the charged crime of Nieblass child abuse (count 8) was a natural and probable consequence of Santacruzs carjacking of the truck from Michael Sr. (count 5). He also claims the trial court had a duty to instruct the jury to determine whether his assault on Michael Jr. with the Dodge truck (count 9) was a natural and probable consequence of the commission of carjacking (count 5) or the felony evading in the Dodge truck (count 7). We need not address these claims in light of our conclusion that Santacruz directly perpetrated the assault on Michael Jr. with the truck (count 9) and that he aided and abetted Nieblass commission of the child abuse upon Michael Jr. (count 8).