P. v. Fredrickson

Filed 5/16/07 P. v. Fredrickson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to Art. VI,  6 of the Cal. Const.) Affirmed.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

On September 8, 2005, a jury found Erik Russell Fredrickson (defendant) guilty of one count of assault with a deadly weapon in violation of Penal Code^[1]section 245, subdivision (a)(1). In a bifurcated trial, the court found true the allegation that defendant had two prior felony convictions for which he had served prison time under section 667.5, subdivision (b). The trial court sentenced defendant to three years for the assault charge and one year each for the two prior felony convictions, totaling five years in state prison.

Defendant appeals, contending (1) the evidence is insufficient to sustain the jurys verdict because defendant did not commit an assault and never used the vehicle as a deadly weapon, and (2) the trial court committed prejudicial error in failing to instruct the jury on the lawfulness of a condition in the crime of assault by conditional threats. We reject both of these contentions.

II. STATEMENT OF FACTS

On the morning of January 11, 2005, Sandra Walker went to the King Arthur Trailer Park in the City of Riverside to finish clearing out a mobile home she had recently inherited. Walker testified that she had left the property in excellent condition when she last saw it, almost two weeks earlier. On this day, Walker saw a red Ford Focus (Ford) backed into her mobile homes driveway, underneath the awning. Walker had told her next door neighbor, Beverly Ensminger, that her son could park his pickup truck in that spot, but Walker had not given anyone else permission. Walker also noticed there was trash around, cigarette butts, candy wrappers, all sorts of miscellaneous type trash, [and] a milk jug which appeared to have urine in it.

Walker parked her car in a position that blocked the Ford from exiting her driveway. She telephoned the trailer parks security but was told security did not work during the day. Walker then decided to finish cleaning out the mobile home, and transferred some remaining cleaning supplies from inside the mobile home to next to her vehicle.

As Walker moved the cleaning supplies, she was approached by Mayra Arencibia, girlfriend of Defendant. Arencibia told Walker, Youve got to move your car. I need to get my car out. In response, Walker told Arencibia to clean up the mess in the driveway while Walker finished loading her car. Walker said that the conversation was not angry and neither party raised her voice. Walker said that she never mentioned the car being towed, but she did tell Arencibia that she had called security.

Walker continued to load supplies from the mobile home into her car when defendant hurr[iedly] approached her from across the street. Defendant told Walker to [m]ove your fucking car and said, Listen, bitch, Im going to run that car over. Walker told defendant to settle down and start cleaning up the mess while she finished loading her car. Defendant responded by yelling that if she did not move her car he was going to run over her and the car.

While yelling, defendant got into the Ford and started the engine. Defendant again told Walker that he was going to run her and her car over. In response, Walker pulled out her badge from her pocket, showed it to him, and identified herself as a peace officer for the Department of Social Services. She told defendant to turn off the engine and get out of the car. Defendant then told Walker, Youre not a real cop, and Im going to run your fucking ass over.

Defendant then put the Ford into gear and drove forward approximately five to eight feet, towards Walker. Walker was standing between defendant and her own car, which was still blocking the exit to the driveway. When the Ford came to a stop in front of Walker, she put her hand on the hood of the car and yelled at defendant that she was a police officer and told him, [y]ou need to shut the car off and get out of the vehicle now. Defendant then backed the Ford up and drove over the curb and onto the street, going between Walkers car and the mobile home. Walker said she was frightened during the encounter and stated, I realized that at that point I was in a position where I was either going to be paralyzed or dead.

After defendant left, Walker looked down and noticed a one and one-half inch waterline across the front of her jeans. It had rained the night before and the Fords front bumper was wet. Walker never felt the Ford make contact with her as it drove forward, but she believed the car left the waterline across her legs.

Walker went across the street to the mobile home where she believed defendant lived. There, Walker spoke to Arencibia and another woman, telling them she was going to call the police. Within a few moments, defendant pulled up to the mobile home where Walker and Arencibia were talking. Defendant got out of the Ford and approached Walker. Defendant yelled profanities at Walker, accused her of not being a real police officer, and said she had a fake badge. Feeling threatened, Walker retreated to her mobile home and called 911. The police responded and then arrested defendant after Walker signed a citizens arrest form.

At trial, defendant claimed that Arencibia had permission from Beverly Ensmingers son to park in Walkers driveway.

Other facts are set forth in the discussion of the issue to which they pertain.

III. DISCUSSION

A. Sufficiency of the Evidence of Committing Assault with a Deadly Weapon

Defendant contends that the evidence presented to the jury was insufficient to sustain the jurys verdict. First, defendant claims the evidence did not show that a deadly weapon was used when the Ford made contact with Walkers leg. Second, defendant claims that an assault did not take place when defendant repeatedly threatened to run Walker over with his car and then proceeded to touch her with the car.

For setting aside a criminal conviction for insufficiency of the evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Further, if the trier of facts findings are reasonable, a reversal is not warranted when the reviewing court determines that the circumstances could justify alternate findings. This means the defense bears an enormous burden when challenging the sufficiency of the evidence [Citations.]. (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)

1. Sufficiency of the Evidence of the Deadly Weapon Element

As used in section 245, subdivision (a)(1), a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029) If an object is not deadly per se, the trier of fact may determine the object is used as a deadly weapon by considering the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.] (Id. at p. 1029) An automobile, under the circumstances, can constitute a deadly weapon under section 245, subdivision (a)(1). (See, e.g., People v. Wright (2002) 100 Cal.App.4th 703, 705 [pickup truck constituted a deadly weapon when intentionally driven at two people]; People v. Claborn (1964) 224 Cal.App.2d 38, 42 [car found to be a deadly weapon when driven directly at a parked police vehicle].)^[2]

When viewed in a light most favorable to the verdict, the evidence shows that defendant stated his intent to run over Walker with the Ford, and then proceeded to drive toward her. In a profanity-laced tirade, defendant repeatedly told Walker that he would run her and her car over if she did not move her vehicle out of his way. Defendant then drove his vehicle directly at Walker. By the time Defendant stopped, the Ford had made contact with Walker, as made evident by the water stripe across her pants.

A vehicle is indisputably capable of becoming a deadly weapon and becomes a deadly weapon when the defendant harbors an intent to use it as such. (People v. Claborn, supra, 224 Cal.App.2d at p. 42.) When defendant drove forward nearly hitting Walker, the Ford became a deadly weapon.

The Ford did not stop being a deadly weapon just because defendant decided to brake at the last moment. First, defendant still made contact with Walker, despite braking. Second, and more importantly, a vehicle does not lose its character as a deadly weapon if the driver brakes, or even veers off. (People v. Claborn, supra, 224 Cal.App.2d at p. 42 [defendants attempt to brake resulted in car sliding into police vehicle]; See also People v. Wright, supra, 100 Cal.App.4th at p. 707 [intentionally driving at pedestrian, but missing by two to three feet].) The Ford would only lose its character as a deadly weapon if the attempt to commit the crime [was] freely and voluntarily abandoned before the act [was] put in the process of final execution. (People v. Claborn, supra, 224 Cal.App.2d at p. 41.) In this case, defendant decided to stop only after driving five to eight feet toward Walker and making contact with her. The jury could reasonably conclude that the Ford was a deadly weapon under section 245, subsection (a)(1).

2. Sufficiency of the Evidence of the Assault Element

By its plain language, section 245, subdivision (a)(1) requires that an assault take place, and assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240.) Defendant claims that the requisite intent for an assault was lacking.

The Supreme Court, in People v. Williams (2001) 26 Cal.4th 779, stated exactly what an assault entails: [A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (Id. at p. 790.) This means an objective standard is used to determine the awareness needed for an assault to occur. Finally, the Supreme Courts holding also confirms that an assault does not require an actual injury to the victim. (Id. at p. 790.)

The defendant erroneously argues that his conduct amounted to recklessness and did not constitute the intent needed to satisfy an assault. Defendant states that reckless conduct cannot amount to an assault, citing People v. Colantuono (1994) 7 Cal.4th 206, 217. However, in People v. Williams, supra, 26 Cal.4th 779, the court explained People v.Colantuono, supra, by stating that the term recklessness used in that decision referred to recklessness in the historical context. Recklessness used to be a synonym for criminal negligence, rather than its more modern conception as a subjective appreciation of the risk of harm to another. [Citations.] (People v. Williams, supra, 26 Cal.4th at p. 788, fn. 4.) This now means, for example, that a defendant who thinks his or her actions will not result in a battery, is still guilty of assault if a reasonable person, viewing the facts known to defendant, finds that those actions would result in the application of physical force against another. (Id. at p. 788, fn 3.) Recklessness, in the sense of criminal negligence, will still not constitute an assault, but that assumes facts unknown to the perpetrator, which is not the case for this defendant. (Id. at p. 788).

The trier of fact could reasonably have found that the act by its nature [would] probably and directly result in the application of physical force against [Walker]. (People v. Williams, supra, 26 Cal.4th at p. 790.) The jury had to consider that defendant was irate and had threatened Walker with physical injury both before and after he entered the Ford and started the engine. Thus, when defendant drove at Walker, it was reasonable to believe that he would probably hit her, especially because the Ford and Walker were only five to eight feet apart when defendant started the engine.

Defendant may have honestly thought he could brake in time not to touch Walker, but that is immaterial in committing an assault. Defendants awareness of the facts makes his intent to brake immaterial. Defendant knew the position of his vehicle in relation to Walker when he drove at her, which makes the probability of physical contact a question for the jury. The jury reasonably concluded that probability to be high enough to convict defendant of an assault.

3. The Evidence Is Sufficient to Uphold the Jurys Guilty Verdict

Given both the facts and the high standard of review for this inquiry, the evidence was sufficient to convict defendant of assault with a deadly weapon under section 245, subdivision (a)(1). The Ford constituted a deadly weapon for purposes of section 245, and defendants actions satisfy the requisite intent required for an assault under section 240.

B. The Courts Decision Not to Instruct the Jury on the Lawfulness of a Condition in the Crime of Assault By Conditional Threats

After the presentation of the case, both parties discussed jury instructions with the judge. Counsel for defendant objected to the inclusion of CALJIC No. 9.00.1^[3]in the instructions to the jury. The specific argument dealt with the use of threat in the instruction. However, on appeal, defendant argues that the judge prejudicially excluded instructions to supplement CALJIC No. 9.00.1. Specifically, defendant claims that the jury needed further instructions regarding defendants legal right to demand that Walker remove her car from the bottom of the driveway. Defendants argument stems from the language used in the requirement of CALJIC No. 9.00.1 that instructs the jury to consider a conditional threat theory of assault only if defendant had no legal right to command performance. (CALJIC No. 9.00.1 (2006 Revision).) Thus, defendant claims that the element of illegality in the crime of assault by conditional threat was omitted in the CALJIC No. 9.00.1 instruction.

When an element of an offense is left out of the jurys instructions, the court uses a harmless-error analysis to determine if the faulty instruction requires reversal of the verdict. (Neder v. United States (1999) 527 U.S. 1, 15.) The analysis asks if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[.] (Id. at p. 18.)

Assuming, without deciding, that the trial court erred in omitting a jury instruction as to the legality of defendants threat, the incomplete jury instructions would only amount to a harmless error, which does not require a reversal of the jurys verdict. (Neder v. United States, supra, 527 U.S. at p. 15.) Had the jurys instructions included an explanation regarding the legality of defendants demand, a reasonable jury still would have found defendant guilty beyond a reasonable doubt. The judge blacked out a portion of CALJIC No. 9.00.1 before giving it to the jury. The blacked-out portion states the following: [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].] (CALJIC No. 9.00.1 (2006 Revision).) A command of unreasonable force to induce action is unlawful, so any right defendant had to move his vehicle carried limited weight.

A reasonable jury would have found beyond a reasonable doubt that defendant threatened unreasonable force upon Walker. Defendant told Walker that if she did not move her car, he would run [her] fucking ass over. It is unreasonable to run someone over for not moving a car, because it is unreasonable to use violence in response to a nonviolent act such as blocking in someones car. The fact that defendant could move the Ford out of the driveway by merely driving around Walkers car further shows that defendants threat was unreasonable. Defendants threat of violence was unnecessary and unreasonable given the surrounding circumstances. Had the judge included the blacked-out portion of CALJIC No. 9.00.1, the jury still would have found defendant guilty of assault with a deadly weapon in violation of section 245, subdivision (a)(1).

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise indicated.

^[2] In People v.Claborn, supra, 224 Cal.App.2d 38, defendant, during a police pursuit, drove his vehicle directly at an officers parked car. (Id.at p. 41.) With less than 75 feet separating the two vehicles, defendant made a last-ditch effort to avoid hitting the officers vehicle. However, defendant slid into the vehicle. (Ibid.) The jury found defendant guilty of using his vehicle as a deadly weapon under section 245, and the ruling was upheld on appeal as to the sufficiency of the evidence. (People v. Claborn, supra, at pp. 42, 45.)

^[3] As presented to the jury, the instruction stated:

An 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] intention