P. v. McNamee
On August 2, 2005, for some unknown reason, defendant went berserk. He drove a truck (which did not belong to him) toward victim Kathern Rodriguez; according to Rodriguez, he hit her with it, knocking her down. He then deliberately smashed the truck into a parked car. Next, he got out of the truck, got a hammer, and ran toward Rodriguez, who was hiding behind a shipping container. Because she turned and ran, she did not actually see him swing the hammer, but it hit the shipping container, close enough to make her ears ring. A jury found defendant guilty of unlawful taking or driving of a vehicle. (Veh. Code, 10851, subd. (a).) It found him not guilty of assault with a deadly weapon, to wit, [h]ammer (Pen. Code, 245, subd. (a)(1)), but guilty of the lesser included offense of simple assault (Pen. Code, 240). It was unable to reach a verdict on another count of assault with a deadly weapon, to wit, [m]otor [v]ehicle, and this count was dismissed. Defendant admitted one 1-year prior prison term enhancement (Pen. Code, 667.5, subd. (b)) and one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12). As a result, he was sentenced to a total of four years in prison.
Defendant contends there was insufficient evidence that he swung the hammer toward Rodriguez to support his conviction of assault. He also contends that the trial court misunderstood a question from the jury, which was confused about whether it had to find that defendant swung the hammer toward Rodriguez, and, as a result, it failed to respond adequately to the question. Court hold that there was sufficient evidence that defendant did swing the hammer toward Rodriguez. Court also hold that any error in the trial courts response to the jurys question was waived by defense counsels failure to object.
Comments on P. v. McNamee