Opinion
2d Crim. No. B228181 Super. Ct. No. 2009001883
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. KAYSHON ANTIONETTE GALLOWAY, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Kayshon Antionette Galloway appeals from judgment after conviction by jury of one count of robbery upon three store employees (Pen. Code, § 211) and two counts of assault with a deadly weapon or by force likely to create great bodily injury: one upon a store employee and the other upon appellant's accomplice (§ 245, subd. (a)(1)). Appellant admitted that she had served three prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced her to six years in state prison, consisting of a three-year midterm for the robbery, a consecutive one-year term for each of the three prior prison terms, and two concurrent three-year terms for the two assaults.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends (1) that her sentence for the assault on a store employee must be stayed pursuant to section 654 because it was incidental to her commission of the robbery of a group that included the same employee; and (2) that her conviction for assaulting her accomplice must be reversed because she ran over her accomplice's foot accidentally, because her accomplice impliedly consented to the assault, and because the court did not instruct on accident or consent. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Dana Clemons walked out of a Fry's Electronics store with an MP3 player for which they had not paid. Loss prevention officers Joe Navarro and Aaron Clarke watched them on a surveillance monitor. Navarro and Clarke followed them outside and told them they were loss prevention officers. Appellant and Clemons went in different directions. Navarro and Clarke chased Clemons, who had the MP3 player in a bag. A third employee, Eduardo Campos, joined the chase.
Clarke caught Clemons and put a handcuff onto one of her wrists. While she struggled and screamed, appellant got into her car and yelled, "Hold on, baby. I'm going to run them over with my car."
Appellant revved the engine three times and then drove straight at the officers, who were holding Clemons. Clarke let go and moved out of the way. Navarro hung onto Clemons. Campos tried to move away, but the car hit his knee.
After passing through the group, appellant backed her car up. Navarro held Clemons in front of him as a shield. Appellant once again drove her car head-on toward the group. Navarro continued to hold onto Clemons.
Appellant drove over Clemons' foot, making her scream. Clemons jumped into appellant's car through an open window and they drove away. Clemons had dropped the bag with the MP3 player.
Count one charged appellant with robbery of Campos, Navarro, and Clark. Count two charged appellant with assault with a deadly weapon on Campos and count three charged assault with a deadly weapon on Clemons.
In closing, the prosecutor relied upon appellant's assaultive driving to escalate the theft to a robbery. (People v. Estes (1983) 147 Cal.App.3d 23.) Defense counsel argued that appellant did not know Clemons had stolen the MP3 player, did not intent to hit anyone, and probably threatened to run over the employees because she believed that Clemons was being assaulted by strangers.
DISCUSSION
Double Punishment (§ 654)
Appellant contends the trial court violated section 654 by punishing her for both the robbery and the assault on the store employee, Campos. We reject the contention because appellant's endangerment of multiple victims precludes application of section 654.
Section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885.) Whether an act is divisible depends on the intent and objective of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Where, as here, an assault is the means of perpetrating a robbery, the acts are indivisible because they are incident to the single objective of robbing the victim. (People v. Ridley (1965) 63 Cal.2d 671, 678; In re Henry (1966) 65 Cal.2d 330, 332.)
But where multiple victims of violent crime are involved, even indivisible crimes may be punished separately. (People v. Miller, supra, 18 Cal.3d at pp. 885-886.) Separate punishment is permitted because the defendant increases her culpability when she endangers more than one person. (People v. McFarland(1989) 47 Cal.3d 798, 803.)
The multiple victim exception applies "so long as each violent offense involves at least one different victim." (People v. Felix (2009) 172 Cal.App.4th 1618, 1631.) Here, each offense involved at least one separate victim because Navarro and Clarke were victims of the robbery and were not victims of the assault on Campos.
The fact that Campos was a victim of both offenses is immaterial. In People v. Felix, supra, 172 Cal.App.4th 1618, one person was a victim of both attempted murder and shooting into an inhabited dwelling. The two crimes were indivisible because the shooting was the means by which the murder was attempted. Nevertheless, the defendant could be punished for both crimes because he knew that there was more than one person in the house when he shot at it. Similarly, in People v. Centers (1999) 73 Cal.App.4th 84, one person was a victim of both a burglary and a kidnapping, but the defendant could be punished for both crimes because there was at least one other person in the house that he burglarized who was not the victim of the kidnapping. (Id. at p. 102.)
Appellant's conduct in this case endangered three store employees, as well as her own accomplice, and she may be punished for each of her crimes.
Assault, Accident & Consent
Appellant argues that there was insufficient evidence to prove assault upon her accomplice because she did not intend to run over her accomplice's foot and her accomplice consented to her assaultive driving. She also argues that the court should have instructed the jury sua sponte that accident and consent are defenses to assault with a deadly weapon. We disagree. Appellant may have run over her accomplice's foot accidentally, but she willfully drove her car into a group that she knew included her accomplice, as evidenced by her battle cry, "Hold on, baby. I'm going to run them over with my car." The defense of accident was not supported by substantial evidence, and consent is not a defense to assault with a deadly weapon. (People v. Alfaro (1976) 61 Cal.App.3d 414, 429.)
Assault with a deadly weapon is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 215-216). It requires a willful act with a deadly weapon while in possession of actual knowledge of facts that would lead a reasonable person to realize that the act, by its nature, would probably and directly result in the application of force to someone. (§ 245, subd. (a)(1); People v. Williams (2001) 26 Cal.4th 779, 782; CALCRIM No. 875.)
Assault with a deadly weapon does not require intent to cause specific harm, or even a subjective awareness of the risk that an injury might occur. (People v. Williams, supra, 26 Cal.4th at pp. 785, 790.) "[T]he crime of assault has always focused on the nature of the act and not the perpetrator's specific intent." (Id. at p. 786.) "[A]ssault criminalizes conduct based on what might have happened -- and not what actually happened . . . ." (Id. at p. 787.)
Substantial evidence supported a finding that appellant willfully drove her car into a group of people that included her accomplice, an act which any reasonable person would realize would directly and probably result in the application of force to someone in the group. The fact that appellant intended to run over the employees, but not her accomplice, is immaterial because she knew they were all in the endangered group. (People v. Riva (2003) 112 Cal.App.4th 981, 999.) In Riva, the defendant was guilty of assaulting a non-targeted member of a group with a firearm. As the court explained, "[t]he defendant need not intend to strike any particular person to be guilty of such an assault. Rather, when the defendant shoots into a group of persons primarily targeting only one of them, the defendant can be convicted of assault with a deadly weapon as to the nontargeted members of the group." (Ibid.)
Appellant is correct that assault cannot be accidental, because the act must be willful. But willfulness simply requires a "purpose or willingness to commit the act" and "does not require any intent to . . . to injure another . . . ." (§ 7, subd. (1).) Appellant demonstrated her willingness to drive her car into the group when, according to each eyewitness who testified, she said she would "run them over," did so, and then backed up and did it again.
Appellant is also correct that mere recklessness or criminal negligence is not sufficient to prove assault, because a jury cannot find a defendant guilty of assault based on facts that she should have known, but did not know. (People v. Williams, supra, 26 Cal.4th at p. 788.) However, the unequivocal evidence here established that appellant actually knew that her accomplice was within the endangered group.
Appellant also argues that her accomplice impliedly consented to appellant's assaultive conduct and that the court should have instructed on consent as a defense. Consent is not a defense to most crimes and only applies when lack of consent is an element of the offense. (People v. Carr (2000) 81 Cal.App.4th 837, 842.) Consent is not a defense to assault with a deadly weapon. (People v. Alfaro, supra, 61 Cal.App.3d at p. 429.) Appellant's reliance on People v. Riviera (1984) 157 Cal.App.3d 736, is misplaced because the defendant in Riviera was charged with assault to commit rape, an element of which is lack of consent. (§§ 220, 261.)
The trial court must instruct on particular defenses when the defense relies on them or when they are not inconsistent with the defense theory of the case and are supported by substantial evidence. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424).) But here, no substantial evidence supported the defense of accident and consent was not a defense to the charged offense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.
John E. Dobroth, Judge
Superior Court County of Ventura
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.