Opinion
B319269
05-10-2023
THE PEOPLE, Plaintiff and Respondent, v. IVAN ALEJANDRO CARAVANTES, Defendant and Appellant.
Adrian Dresel-Velasquez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. TA154647 Tammy Chung Ryu, Judge.
Adrian Dresel-Velasquez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Ivan Alejandro Caravantes (defendant) appeals from his convictions of assault with a deadly weapon (counts 3 and 4) and assault with a deadly weapon upon a peace officer (counts 1 and 2). He contends that counts 3 and 4 must be reversed as lesser included offenses of counts 1 and 2. He also contends that the trial court erred in failing to give a sua sponte instruction regarding simple assault. We reverse counts 3 and 4, assault with a deadly weapon, but finding no instructional error, we otherwise affirm the judgment.
BACKGROUND
Defendant was charged in counts 1 and 2 with assault with a deadly weapon on a peace officer with force likely to cause great bodily injury, in violation of Penal Code section 245, subdivision (c). Prior to instructing the jury, the trial court granted the prosecution's motion to amend the information to add counts 3 and 4, each alleging assault with a deadly weapon in violation of section 245, subdivision (a)(1) as to the same victims as alleged in counts 1 and 2. The jury convicted defendant of all counts. On March 21, 2022, the trial court sentenced defendant on each of counts 1 and 2 to four years in prison, to run concurrently. As to counts 3 and 4, the court imposed the high term of four years, and stayed the sentence pursuant to section 654.
All further unattributed code sections are to the Penal Code unless otherwise stated.
Defendant filed a timely notice of appeal from the judgment.
Defendant did not present any evidence.
On June 6, 2021, at about 10:40 p.m., Los Angeles County Sheriff's Deputies Christian Sanchez and Dean Buttar were on patrol duty at the Long Beach Boulevard Metro Station, a known high crime area. The deputies were in uniform, sitting in their marked black-and-white patrol vehicle with their lights off, motor running. They were parked against a fence and observing the nearly empty parking lot of the station for any criminal activity. While there, a person later identified as defendant drove up and parked in front of them in a stall 10 to 15 feet away. Defendant turned on his high beams, which shone directly toward the deputies, blinding them. Deputy Sanchez testified that it seemed strange to him because there were so few cars in the parking lot, yet "out of the whole parking lot, [defendant] decided to park right directly in front of us."
Deputy Buttar felt targeted and turned on his high beams in a counter attempt to blind defendant. As there had been shootings in the area, and another deputy had been recently ambushed in the lot, he decided to move to a safe distance and out of the line of fire. The patrol car's flashing lights were not activated and neither of the deputies drew a weapon. As Deputy Buttar drove toward the other side of the parking lot defendant shined a light into the rear window of the patrol vehicle. Deputy Buttar activated his spotlight in an effort to obstruct defendant's view. Defendant nevertheless followed them and continued to shine the light into the patrol car, obstructing the deputies' vision.
The deputies considered that defendant might need help and was attempting to flag them down or that defendant might have been under the influence of alcohol or drugs. Pedestrians were in the area and their safety and defendant's safety were of concern. Deputy Buttar made a U-turn to get behind defendant's car, but then defendant made a U-turn right behind the patrol car and they ended up facing head-on. Prior to defendant making a U-turn there was nothing to prevent him from leaving the parking lot, even after having shined the light at the deputies. When defendant faced the deputies after the U-turn, the deputies decided to conduct a traffic stop. Deputy Buttar activated the patrol vehicle's red and blue lights.
Deputy Sanchez approached the driver's side door of defendant's car while Deputy Buttar approached the front passenger side where he stood within inches of defendant's car as Deputy Sanchez tapped on defendant's window and told him to lower the window. Refusing to comply, defendant yelled, "Fuck you," and "Fuck you, bitch," at the deputies multiple times while displaying his middle finger ("flipping [them] off"). When he did this to Deputy Buttar, defendant turned his body toward the passenger window, leaned close to it, and placed his hand directly against the window. Defendant also shined his handheld spotlight back and forth into the deputies' faces. Defendant did not appear to be in fear, but aggressive. Deputy Buttar felt vulnerable and threatened. Following Sheriff Department policy when a person has become uncooperative or aggressive, Deputy Buttar called for a supervisor to attend.
Defendant repeatedly said, "F you, I'm leaving." Detective Sanchez testified that he did not believe defendant because the patrol car's lights were still flashing, and defendant was not told he was free to leave. Deputy Sanchez also testified that he did not think defendant would leave because the deputies were still standing within inches of defendant's car, and he would hit him, Deputy Buttar, or their patrol vehicle if he tried to leave. Deputy Buttar did not think defendant was going to leave either.
To their surprise, defendant started to drive away after putting his car in gear and saying, "Bye, bye." Deputy Buttar, who was leaning over defendant's car looking for weapons when defendant pulled away, did not agree it was "a slow movement," but defendant "didn't speed off." Defendant's car struck Deputy Buttar's left hip and knee, and then moved left, running over Deputy Sanchez's foot with the rear driver's side tire. Deputy Sanchez screamed and tapped defendant's car twice because his foot was stuck. Although he was wearing hard shelled boots, the pain was unbearable. Deputy Sanchez lost balance and almost fell, but the tire on his foot held him up. Both deputies were treated at a hospital after the incident, and their pain lasted one to three days. Deputy Buttar had pain in his hip and thigh and a sprained knee. He was prescribed a soft sleeve brace which he wore for one or two days to help with the pain.
After striking the deputies defendant kept driving and the deputies pursued him with their lights and siren activated. Defendant drove around the parking lot at a slow speed, doing large "figure 8's" as the deputies followed. After the Sergeant and other Sheriff's vehicles arrived, a pursuit intervention technique was used to disable defendant's vehicle by striking the rear of defendant's car with a patrol vehicle. By that time defendant had led the deputies around the parking lot 11 times.
When defendant's car was stopped defendant was commanded to exit the car, but defendant did not comply. He sat in his car wearing an N95 mask, flipping off the deputies with both fingers and saying something they could not understand. Eventually a team sprayed pepper powder into defendant's car. After waiting 10 minutes for it to take effect, defendant remained in the car despite repeated orders to exit his vehicle and continued to display his middle finger. He was then arrested.
Defendant's car was equipped with a dash camera which was used to record the incident. The video and audio recording were played for the jury. The recording begins with the two vehicles facing each other with spotlights and flashing lights visible, making it nearly impossible to see the action. Defendant is heard narrating the action, and a transcript of defendant's narration was admitted into evidence. Defendant begins with the following introduction: "This is where that fucker used to-came over here to fuck with me just so that they could get the little- their little spot. See that? Illegally doing that shit."
Defendant said, "I already got a picture of you," and then continued with his narration: "See that? See that; right? Ha, ha, ha, ha. See? They could've just left but they came back. I don't know why. [¶] Ha, ha, ha. Now they got outta their car. See? They couldn't leave things alone. They have to escalate shit." When the two deputies are at defendant's windows and one knocks, defendant describes his attempts to read their name plates while a deputy is heard saying, "Roll down your window." Defendant is heard replying, "Fuck you" and making such comments as, "They're the only suspicious ones. See? They're still trying to open my door and unlock and everything." As defendant's car moves away from the patrol vehicle, defendant says, "Then he puts his foot under my tire. You see that tactic? . . . Haha. [¶] It's called 'escalation ....' They escalate shit and they wonder why. Haha."
When other Sheriff's units arrived on the scene, defendant is heard saying, "Look, the whole troop is coming. Haha. Here's [sic] comes the undercover, the one that fucked with me the first time; the one that illegally detained me and-pulled me out of my car; the one in the white SUV." As parts of a deputy's orders are heard, such as, "Put your hands out -" and "vehicle," defendant says, "This is why I come here." In other comments, defendant claimed the deputies were illegally detaining him "for no reason," that he was "doing the same shit they do to us," that it was "not illegal, simple as that," and, "They're crooked."
DISCUSSION
I. Counts 3 and 4 (Assault with a deadly weapon)
Defendant contends that counts 3 and 4 must be reversed because they are lesser included offenses of counts 1 and 2. The People agree, as do we.
Defendant was convicted in counts 1 and 2 of assault with a deadly weapon on a peace officer (§ 245, subd. (c)) and in counts 3 and 4 of assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court imposed sentences as to counts 3 and 4 and stayed execution pursuant to section 654. Section 954 generally allows multiple convictions but section 654 prohibits multiple punishment for the same act or omission, and in such cases, the trial court is required by section 654 to stay execution of sentence on such convictions. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) However, "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.'" (Id. at p. 1227.) Assault with a deadly weapon is a lesser included offense of assault with a deadly weapon on a peace officer. (People v. McElheny (1982) 137 Cal.App.3d 396, 406.) Where the defendant is convicted of the greater offense, the conviction of the lesser included offense must be stricken. (People v. Medina (2007) 41 Cal.4th 685, 700, 702-703.)
II. Automobile as a deadly weapon
Defendant contends that the trial court erred by failing to instruct sua sponte on simple assault upon a peace officer as a lesser included offense of assault on a peace officer with a deadly weapon.
" 'A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence," 'that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted," 'would absolve [the] defendant from guilt of the greater offense'" [citation] but not the lesser" [citation].'" (People v. Licas (2007) 41 Cal.4th 362, 366.) "Although instruction on a lesser included offense 'is not required when the evidence supporting such an instruction is weak' [citation] or based on speculation [citation], it is required when the lesser included offense is supported by' "evidence that a reasonable jury could find persuasive" '" (People v. Steskal (2021) 11 Cal.5th 332, 345.) We do not resolve conflicts or issues of credibility (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137-1138), and"' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." '" (People v. Steskal, supra, at p. 345.)
"Assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "[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." (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) Simple assault, as defined by section 240, is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
Section 241, subdivision (c) provides greater punishment for a violation of section 240 where the victim is a peace officer.
Defendant acknowledges that driving away while the deputies were just inches from his doors was an act likely to result in the application of physical force, i.e. an assault, and he does not claim that he was ignorant to facts sufficient to know such a likelihood. Thus defendant effectively concedes he knew facts that would lead a reasonable person to realize the act would probably and directly result in the application of force. (See Williams, supra, 26 Cal.4th at p. 790.)
"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.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Actual physical contact with the victim is not a necessary element of an assault with a deadly weapon, and whether the victim in fact suffers any harm is immaterial, as the statute focuses on the use of a deadly weapon. (Id. at p. 1028.) Some "objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Ibid.)
Defendant also complains that the trial court did not give an instruction defining great bodily injury, but he does not assign this omission as error or claim that he requested such an instruction. The trial court had no sua sponte duty to do so. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872-873.)
"Whether an object is a deadly weapon under section 245 does not turn on whether the defendant intended it to be used as a deadly weapon; a finding that he or she willfully used the object in a manner that he or she knew would probably and directly result in physical force against another is sufficient to establish the required mens rea." (People v. Perez (2018) 4 Cal.5th 1055, 1066.) Traditionally, automobiles can be deadly weapons. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 458.) And" 'any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon.'" (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1189.)
Defendant asserts that substantial evidence supported a finding that the manner in which he drove away was likely to cause at most only moderate harm. He reasons that because he warned the deputies he was leaving, drove slowly away, and the deputies suffered what he describes as minor injuries, the jury could find that driving in this manner was not likely to cause great bodily injury. Defendant argues that because he was not moving at a high rate of speed or driving recklessly and was surprised that he ran over Deputy Sanchez's foot, he was not using his car as a deadly weapon.
Clearly where a driver speeds, drives recklessly and" 'purposely aims his car at a pedestrian, he must know perfectly well that such use of the automobile is capable of grave harm. In that case, therefore, a car fits the definition of a deadly weapon.'" (People v. Bipialaka, supra, 34 Cal.App.5th at p. 458.) However, it is unnecessary to aim the car at the victim or to travel at a high rate of speed to find that a car is a deadly weapon. For example, in People v. Perez, supra, 4 Cal.5th 1055, a store clerk followed a suspected thief into a parking lot where the thief got into the defendant's truck. (Id. at p. 1060.) When the clerk reached into the truck for the stolen item, the thief prevented him from pulling it out while the defendant, knowing the clerk's arm was inside the truck, reversed out of the parking space at about 10 miles per hour, dragging the clerk and causing him to have to run a few steps to maintain his balance until he was able to pull his arm free, which he managed when the defendant sped up and drove forward. (Ibid.) There was no high-speed driving or aiming toward the victim and the clerk suffered only a few scrapes. (Ibid.) The appellate court concluded that the record supported the defendant's conviction for assault by means likely to produce great bodily injury, and thus concluded that the truck was used as a deadly weapon. (Id. at p. 1066.)
Although a minor injury may suggest that the way an object was used was not likely to cause serious harm, "it is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used." (In re B.M. (2018) 6 Cal.5th 528, 535, italics added.) A fractured bone is a substantial injury (see People v. Medellin (2020) 45 Cal.App.5th 519, 528), and not every shoe or boot has reinforced toes. We note that Deputy Sanchez suffered "unbearable" pain in his foot for two or three days after the event and Deputy Buttar suffered pain in his hip, thigh and a sprained knee, which lasted at least one or two days. Physical pain can constitute great bodily injury. (People v. Quinonez (2020) 46 Cal.App.5th 457, 464.) "[A] 'significant or substantial physical injury' need not meet any particular standard for severity or duration, but need only be 'a substantial injury beyond that inherent in the offense itself[.]'" (People v. Le (2006) 137 Cal.App.4th 54, 58-59, quoting People v. Escobar (1992) 3 Cal.4th 740, 746-747 [addressing the definition of great bodily injury under section 12022.7, subd. (f)].) Pain that lasts into the next day can be evidence of great bodily injury. (See People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [child's bruises and shoulder hurt the day after mother hit her with a stick].) We conclude that substantial evidence supported a jury's finding that the deputies suffered great bodily injury, and thus showed that defendant used his car as a deadly weapon. (See In re B.M., supra, at p. 535.) In turn, defendant has failed to demonstrate substantial evidence that would support a finding that he committed the lesser offense of simple assault but not the greater offense of assault with a deadly weapon.
Defendant has also not demonstrated a reasonable probability that the result would have been different had the trial court given an instruction regarding simple assault upon a peace officer. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is . . . not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; [People v.] Watson [(1956)] 46 Cal.2d 818, 836." (People v. Breverman (1998) 19 Cal.4th 142, 165.)
The deputies' testimony and defendant's own narrated video provide ample evidence that defendant targeted the deputies. In a large, nearly empty parking lot defendant parked directly opposite the patrol vehicle just 10 or 15 feet from it, blinding them with his high beams. The deputies then tried to leave the area but as Deputy Buttar was driving away, defendant shined a spotlight into their patrol car. Concerned for their safety, the deputies shined their spotlight into defendant's car, but when unable to see anything, they turned off the spotlight and continued to the opposite side of the parking lot. When defendant followed them, the deputies made a U-turn to get behind him, but defendant made a U-turn and faced them head-on, spotlight still shining. The traffic stop with lights flashing ensued. Defendant's narrated video began at this point.
The circumstances, including defendant's narration and his laughter in the video, strongly suggest a vindictive motive and preplanned actions. When the deputies approached defendant's windows, defendant said, "This is where that fucker used to- came over here to fuck with me just so that they could get the little-their little spot. See that? Illegally doing that shit." Defendant described the traffic stop as escalation and suspicious. When other deputies arrived and defendant recognized a deputy in a white SUV as the one he thought had illegally detained him by pulling him out of his car, he said, "This is why I come here," and claimed the deputies were illegally detaining him.
We note that defendant's behavior was aggressive and threatening. By following and blinding the deputies, defendant obstructed and delayed their efforts to keep away from him and made it necessary to investigate him. Defendant then delayed the deputies in their effort to detain him by refusing their commands, injuring them, and leading them on a chase around the parking lot. (See § 148, subd. (a); Veh. Code, § 2800.1.) Section 148, subdivision (a), obstructing or delaying an officer, is punishable as a misdemeanor or felony. (People v. Matthews (1999) 70 Cal.App.4th 164, 171.)
The jury was instructed to consider all the circumstances in determining whether defendant's car was a deadly weapon. Defendant's acknowledgment that his acts constituted a battery when driving away from Deputies Sanchez and Buttar is essentially a concession that defendant operated his car knowing facts that would lead a reasonable person to realize the application of force would probably and directly result. Knowing his driving would probably result in battery meant that defendant must have known that his car was capable of grave harm. (See People v. Bipialaka, supra, 34 Cal.App.5th at p. 458.) Moreover, when defendant drove too close to the deputies to avoid contact and in fact struck Deputy Buttar, he then turned before being clear of Deputy Sanchez, a maneuver that would surely have caused his car to go directly toward the deputy placing him at greater risk. "[T]here is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (People v. Golde (2008) 163 Cal.App.4th 101, 117.)
We conclude that the evidence did not support the offense of simple assault upon a peace officer. Furthermore, after an examination of the entire record, we discern no reasonable probability that the absence of an instruction regarding simple assault affected the outcome.
DISPOSITION
Defendant's conviction of counts 3 and 4 is reversed and the judgment is to be modified by striking those counts. The superior court is directed to prepare an amended abstract judgment reflecting the modification and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. As to counts 1 and 2 and in all other respects, the judgment is affirmed.
We concur: ASHMANN-GERST, Acting P. J. HOFFSTADT, J.