Lead Opinion
On appeal, defendant contends that there is insufficient record evidence to support his conviction of assault with a deadly weapon; that the court
FACTUAL OVERVIEW
Alex P., a Navy SEAL, testified he drove a Jeep Grand Cherokee to a fitness club located in Pacific Beach at about 7:00 a.m. on June 21, 2017. Alex parked his vehicle in the back of the fitness club, near a few other vehicles including a white van. As he parked, Alex noticed a man was
A little over an hour later, Alex left the club. As he approached his vehicle, Alex saw "two puddles" near the front tires, which he found "strange" because his car had been parked while he exercised inside the club. As part of his SEAL training, Alex testified they sometimes "introduce[d] malfunctions" into various vehicles in order to learn how to spot and/or repair them. One such malfunction involved the "brake lines" of a vehicle. Because it was sunny that day, Alex saw a "sheen" under the vehicle caused by the puddles.
On investigation, Alex found an "oily" liquid that was inconsistent with just water. While on the ground under the vehicle, he looked up near the tire on the driver's side and found the brake fluid line and the antilock brake system sensor had both been "cut" or "severed" at the "same spot." Concerned that this was not an accident, Alex stood up, looked around, and noticed the same man was still sitting in the driver's seat of the white van parked near his vehicle.
Alex contacted the man, hoping to find out what had happened to his vehicle. That man was defendant, who Alex identified in court. Until that day, Alex had never seen or met defendant. Alex approached the man and stated, "Hey, man. Who cut my brake lines?" Alex testified he then was "pretty upset" by what had happened, as he was concerned not only for his safety, but the safety of his wife and their "baby."
Alex testified the man's demeanor was "standoffish" as the man responded, "I don't know what you're talking about." Alex became even more upset as a result of the man's response, inasmuch as the man had been sitting in his van before Alex went inside to exercise and was still sitting in his van over an
After again imploring the man to tell him what had happened to his vehicle, Alex said, "All right, man. I'm just going to call the police." The man in the van appeared unfazed. Alex next used his phone to take a picture of the van's license plate. He then checked the rest of his vehicle and found the brake lines on the passenger side also had been severed in the "same linear fashion" as the driver's side. Once he got to his feet, Alex noticed a "bunch" of surveillance cameras in the area, including one facing the parking lot. Alex went back inside the club and contacted a manager, seeking help in determining who had intentionally damaged his vehicle.
Alex went back outside and called police on the nonemergency number. Alex testified he was "pretty heated" when reporting the incident to police. Shortly thereafter, the man in the white van drove away, ostensibly because the man overheard Alex reporting the crime.
Alex then tested his brakes by pushing on the vehicle's brake pedal. Alex found there "was a little bit of pressure or pushback, which is what you want in a brake, but there wasn't a whole lot." He then got
The police responded to the scene about 10 or 15 minutes after Alex's call. Alex gave a statement. The vehicle was towed to a dealership for repair, as Alex did not want to risk driving the vehicle and experiencing "possible catastrophic brake failure."
During Alex's testimony, the jury was shown a portion of the surveillance video from the parking lot camera. The video showed the white van described by Alex; Alex pulling into the lot in the Cherokee; Alex getting out of the vehicle, going inside to get his parking validated, and coming back outside to put the parking ticket on the dashboard of his vehicle; and Alex exiting the fitness club about an hour later, and shortly thereafter, engaging the man in the white van.
Regarding the instant case, Rubin stated sometime in September 2017 a detective from the San Diego Police Department inquired about video footage from June 21 in connection with "someone tampering with some[one] else's car." Rubin watched the parking lot video from June 21 and then contacted another individual "who actually pulls the video and burns it to send to the detective."
Rubin testified that when she watched the video she saw "an individual slide under a car ... like shimmy under the car on both sides"; that video from inside the fitness club showed this same individual entered the club and checked in; that the individual who "went under the car had the same physique and body type and was also wearing the same clothes as the individual who walked in the facility"; that in response to information provided by the detective, Rubin generated a "check-in record" and determined this individual was a club member; and that this member's name was "Spencer Marsh." Prior to the incident, Rubin had never seen or met either defendant or Alex.
The records from the fitness club showed defendant checked in at the club at "7:05 and 13 seconds in the morning." Additional video from the fitness club's surveillance system was shown to the jury. Rubin testified the video of a man at the front desk "holding [a] coffee cup" was the same "individual with the same clothes and the same frame as the individual who went under the car"; that video from the outdoor surveillance camera showed this same individual "go under somebody else's car"; and that thereafter this individual just sat in his car for about 38 more minutes until Alex returned to his car.
Perez testified that if the brake pedal went to the floorboard with no resistance, it would be a "dead-given" that the brakes were not functioning properly. Perez further testified the vehicle model driven by Alex also had a "cable-actuated emergency brake" that is activated by a brake pedal on the floorboard that connects to the rear brakes of the vehicle. Perez testified no repairs were made to the rear emergency brake of Alex's vehicle. Perez also testified that, in a hypothetical situation, if the brake lines of Alex's vehicle model were cut, there would "probably" be enough "pressure buildup on the brake system" to allow the brake pedal to be depressed in order to start the car, unless "every last bit of that fluid is drained out."
Detective Christopher Luce testified he was assigned to investigate the June 21 incident. He conducted a computer check of the license plate of the white van and found the van was registered to an individual named Spencer Marsh. Next, he examined this individual's driver's license photo and found it "closely resembled, by age, weight, and height, the suspect as described by the victim in the initial [police] report"; that using this information, he created a photographic lineup that was used to identify the individual as defendant; and that he also obtained video footage from a surveillance camera located in the parking lot behind the fitness club. After reviewing that footage, Detective Luce saw the individual exit the white van and go inside the club. Detective Luce contacted the manager at the fitness club a second time and confirmed that an individual named Spencer Marsh was a member of the club and that defendant had in fact checked in at the club on the morning of the incident.
Detective Luce described what he saw on the video footage from the camera overlooking the parking lot: "From the video, I - I saw a van parked in one of the stalls right in the middle of the screen. There was a person that was sitting in it and - in the driver seat, and he was occasionally getting out of the vehicle, walking around, and doing odd things just around the vehicle. The victim's vehicle, a Jeep Cherokee, pulled up two stalls down. And the victim, [Alex], exited his car, walked into the gym for a couple minutes before coming back to his car to collect something else, like a gym bag or something, and then he went back into the gym for approximately an hour.
"During that hour period where [Alex] was away from his car, I saw the person that was sitting in the van, Mr. Marsh's van, get out of the driver seat. He walked around ... [Alex's] car a couple times. He stood between the two vehicles facing the direction of the gym, and he kind of paced back and forth
Detective Luce estimated that defendant sat in his van for about 35 or 40 more minutes until Alex returned to his vehicle. Detective Luce noted when he initially interviewed Alex as part of the investigation, Alex stated there had been no issue between him and defendant before Alex went inside the club. Alex also told the detective that after seeing the pool of fluid under this car, he got inside, turned the car to the "on" position, and immediately saw the brake light from the dashboard illuminated, suggesting there was a problem with the brakes. According to Detective Luce, Alex then pressed on the brake pedal and found the pedal went "all the way to the floor[board]."
DISCUSSION
I
Assault with a Deadly Weapon
A. Additional Background
Here, the court instructed the jury as follows with a modified version of CALCRIM No. 875 : "The defendant is charged in Count 1 with assault with a deadly weapon other than a firearm in violation of Penal Code section 245. [¶] To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [AND]
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object or someone else to touch the other person.
"The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
"Present ability means that, at the time of the act which by its nature would probably and directly result in the application of physical force upon the person of another, the perpetrator of the act must have the
The court also instructed the jury that, if it was to find defendant guilty of assault with a deadly weapon, it should then consider whether the prosecution had proved the additional allegation that he used a deadly or dangerous weapon (i.e., a vehicle) in the commission of the crime. In this context, the court instructed the jury under CALCRIM No. 3145 in part as follows: "A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
As noted, defendant argues he did not commit an assault with a deadly weapon within the meaning of sections 245, subdivision (a)(1) (245(a)(1)) and 1192.7, subdivision (c)(23) (1192.7(c)(23)) because he did not "use" Alex's vehicle "in a manner capable of producing and likely to produce death or great bodily injury." Specifically, defendant argues that Alex's vehicle with the severed brake lines did not qualify as a "deadly weapon" under sections 245(a)(1) and 1192.7(c)(23) because Alex fortunately discovered the damage and never drove his vehicle-assuming it would even start-in that condition.
B. Guiding Principles
In determining claims of insufficient evidence, we review the entire record in the light most favorable to the prosecution "to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Silva (2001)
Section 245(a)(1) punishes assaults committed "with a deadly weapon or instrument other than a firearm."
"[F]or an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury." ( In re B.M. (2018)
Whether an object is a deadly weapon is a question of fact. ( People v. Moran (1973)
Our analysis on this issue is guided by our high court's recent decision of B.M. , supra ,
The juvenile court found that B.M.'s use of the butter knife violated section 245(a)(1), which finding was affirmed on appeal. In reversing, our high court determined there was insufficient evidence to sustain the finding that the butter knife was used as a deadly weapon. ( B.M. , supra ,
B.M. thus teaches that the "object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also ' "likely to produce death or great bodily injury" ' " ( B.M. , supra ,
B.M. also teaches that the "determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually 'used' the object" rather than on conjecture as to how the object could have been used ( B.M. , supra ,
C. Analysis
We conclude a jury could reasonable conclude that defendant's willful act of cutting the brake lines on Alex's vehicle was one that, by its nature, was not only " 'capable of producing' but also 'likely to produce death or great bodily injury' " (see B.M. , supra ,
Defendant nonetheless argues that a vehicle with severed brake lines is not a deadly weapon because he neither drove the car at Alex or, "more importantly, [he] did not use the car as a deadly weapon." We disagree. That defendant did not control or possess Alex's vehicle does not mean the vehicle was not a dangerous weapon under section 245(a)(1). The case
In Russell , the court decided an issue of first impression when it ruled that a defendant who willfully pushed another person into the path of an oncoming vehicle had "used" that vehicle as a deadly weapon for purposes of (former) section 245(a)(1). ( Russell , supra ,
In rejecting this argument, the Russell court declined to "distinguish between the actions of one who, while driving or controlling a car, intentionally runs down a victim, and one who opportunistically utilizes, for the purpose of injuring a victim, the force of a moving car driven by an unwitting third party." ( Russell , supra ,
"Several jurisdictions have addressed the issue of whether a defendant can be charged for assault with a deadly weapon when the defendant did not possess or control the instrumentality at the time of the assault. Often this situation arises when a defendant intentionally strikes a part of the victim's body against a stationary object such as a wall or building fixture, or when an assailant adds to his human strength by utilizing the force of another object. We find these cases helpful because they involve an assailant intentionally 'taking advantage' of an object's intrinsic qualities in a way likely to cause the victim great bodily harm, but without taking possession or control of that object." ( Russell , supra , 129 Cal.App.4th at pp. 782-783,
Similarly, defendant in the instant case "used" Alex's own vehicle as a deadly weapon when defendant purposely severed both of its brake lines. Like the Russell court, we decline to distinguish between one who controls or drives a vehicle in such a manner that the vehicle constitutes a deadly weapon for purposes of section 245(a)(1), and one who "intentionally utilizes" a vehicle's potential deadly properties in a way likely to cause the victim great bodily harm, despite not taking possession or control of the vehicle him- or herself. (See Russell , supra , 129 Cal.App.4th at pp. 782-785,
II
Instructional Error
Defendant next contends his conviction for assault with a deadly weapon must be reversed because CALCRIM No. 875 and/or CALCRIM No. 3145 included two alternatives for establishing a deadly weapon. Specifically, he contends that it was reversible error for the court in this case to include in these instructions that a "deadly weapon other than a firearm" could be an object that is "inherently deadly," as opposed to one that "is used in such a way that it is capable of causing [and] likely to cause death or great bodily injury," because it provided jurors with two legal theories, one of which was valid (the latter) and one of which was not (the former).
We review an assertion of instructional error de novo. ( People v. Hernandez (2013)
An instruction contains a legal error if it includes an incorrect statement of law; a factual error exists if an otherwise valid legal theory is not supported by the facts or evidence in a case. ( People v. Guiton (1993)
Although the portion of the jury instructions referencing inherently deadly objects was erroneous, we conclude that
Our high court recently found that an error in instructions on the elements of a crime is harmless "so long as the error does not vitiate all of
Turning to the instant case, we have carefully reviewed the record including the closing arguments of counsel. It shows the prosecutor only presented the theory that Alex's vehicle was a deadly weapon due to its manner of "use," namely defendant's intentional act of severing the vehicle's brake lines.
III
Counsel's Alleged Concession of Guilt on Count 2
Finally, defendant contends his conviction on count 2 must be reversed because his counsel's concession at the beginning of closing argument that defendant was
As correctly noted by the Lopez II court (
Lopez II discussed the issue as follows: "In Cain , defense counsel told the jury during argument that the defendant was guilty of burglary and multiple felony murder. ( [ Cain , supra , 10 Cal.4th] at pp. 29-30 [
Here, as was the case in Lopez II , there was no stipulation admitting the elements of count 2 "as an evidentiary matter. Instead, the jury was instructed that the prosecution had to prove guilt on all counts beyond a reasonable doubt and that statements by counsel were not evidence. Thus, the prosecution was still required to present 'competent, admissible evidence establishing
DISPOSITION
The judgment is affirmed.
I CONCUR:
NARES, J.
Notes
Unless noted otherwise, all further statutory references are to the Penal Code.
Section 254(a)(1) provides in full: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
Both B.M. and Sophia described the knife, which was about six inches long with a three-inch blade, a dull tip, and a slightly serrated edge, as a "butter knife." (B.M. , supra , 6 Cal.5th at pp. 530-531,
Our high court granted review in Aledamat to address the standard for evaluating prejudice resulting from a legal error. While we agree with Aledamat that this type of error is legal in nature, as noted, we disagree on the appropriate standard for prejudice, and we cite Aledamat solely for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).)
In stark contrast to the instant case, in Aledamat the prosecutor argued the weapon, a box cutter, was both inherently dangerous, contrary to case law (see McCoy , supra ,
In light of our decision, we deem it unnecessary to reach the People's alternate contention that defendant on appeal forfeited this claim of error by failing to request a pinpoint instruction on the "proper legal characterization of the vehicle or to define the phrase 'inherently deadly.' "
Although noting these supreme court cases were capital cases, the Lopez II court found "no basis to limit the holding to capital cases, nor has appellant suggested any." (Lopez II , supra ,
Concurrence Opinion
I would conclude instead that an automobile that has had its brake lines severed constitutes an inherently deadly weapon and, on that basis, I would reject Marsh's contentions on appeal.
I specifically disagree with the majority's rejection of the standard of harmlessness set forth in People v. Aledamat (2018)