Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. GA068676, Dorothy L. Shubin, Judge.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Victor Manuel Meza of felony evading of a police officer (Veh. Code, § 2800.2, subd. (a), count 1), assault on a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c), count 5), felony vandalism (§ 594, subd. (a)), and two misdemeanors, hit and run driving (Veh. Code, § 20002, subd. (a), count 4), and driving without a license (Veh. Code, § 12500, subd. (a), count 11). Following his admission of one prior strike allegation (§ 667, subds. (b) –(i), 1170.12, subds. (a) – (d)), one prior serious felony conviction (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)), the court sentenced him to a total term of 17 years, 4 months. He appeals, contending: (1) the trial court erred in defining the term “deadly weapon,” requiring reversal of his conviction for assault on a peace officer with a deadly weapon in count 5; (2) the one-year terms imposed for each of his section 667.5, subdivision (b) priors must be vacated, because his admission of those enhancements was defective; (3) the trial court violated section 654 by imposing separate sentences on his convictions for felony evading, felony vandalism, and misdemeanor hit and run driving; and (4) imposition of the upper term on count 5 violated Cunningham v. California (2007) 549 U.S. 270, and Blakely v. Washington (2004) 542 U.S. 296. We affirm the judgment.
All undesignated section references are to the Penal Code.
The jury acquitted him of one count of assault with a deadly weapon on a peace officer, battery on a peace officer, felony hit and run driving.
FACTUAL BACKGROUND
On February 6, 2007, around 9:30 a.m. defendant, driving a late model Datsun 280ZX at 40 to 45 miles an hour, ran a stop sign at Fairoaks Avenue and Mariposa in Altadena. Los Angeles County Sheriff’s Deputy Ronnie Manier observed the violation, and followed defendant, intending to cite him.
Near the intersection of Altadena Drive and Lincoln Avenue, Deputy Manier caught up with defendant, and honked his horn to try to get defendant’s attention. The Deputy continued to pursue defendant until they came to a dead end. Defendant made a three-point turn at the dead end. Deputy Manier pulled up, facing defendant’s vehicle about 20 feet away. He was not blocking defendant’s car.
Defendant revved his engine, accelerated, and drove directly at Deputy Manier’s vehicle. Deputy Manier turned left to avoid being struck head-on. Defendant’s vehicle struck the push bar on the right front bumper of the patrol vehicle, spun to the right, and stalled. Defendant started the engine. Fearing for his safety, Deputy Manier drew his service revolver. Defendant accelerated and drove past. The deputy holstered his weapon and followed in pursuit, turning on his siren and revolving red and blue lights. In the collision, Deputy Manier’s knees struck the windshield and he slightly injured his back.
Defendant was traveling approximately 70 to 80 miles per hour, running stop signs and passing other vehicles, narrowly missing one. He ultimately turned into a parking lot at the Jet Propulsion Laboratory, where he zig-zagged through the lot and drove under a chain suspended from two poles, preventing Deputy Manier from following because the light bar on the patrol car was too high to pass under the chain.
Responding to Deputy Manier’s call for assistance, Deputy Jose Carbajal drove up a hill near the Jet Propulsion Laboratory gate house to try to intercept defendant. As he was accelerating up the hill, he saw defendant’s vehicle coming around a curve traveling around 60 to 75 miles an hour, the momentum causing defendant to swing into the deputy’s lane. Although defendant was perhaps one and a half city blocks in distance from Deputy Carbajal, he did not correct his direction of travel, but rather headed directly toward Deputy Carbajal. Deputy Carbajal released the gas pedal, and as defendant neared, jerked his steering wheel to the left and slammed on his brakes. Defendant narrowly missed him, coming within about two feet of his right front bumper. Had the deputy not taken evasive action, they would have had a head-on collision.
Thereafter, Deputy James Wolfhope in a helicopter observed defendant travelling on the 210 freeway in excess of 110 miles an hour. Defendant drove onto other connecting freeways (traversing five freeways in all) and numerous city streets, sometimes losing control of his vehicle, narrowly avoiding collisions, and striking at least one parked car. Finally, as he was driving on a city street, a woman and two children were crossing an intersection. Defendant slammed on his brakes and spun into the intersection. As defendant tried to restart his vehicle, Deputy Manier, who had picked up the pursuit, was able to use the push bars of his patrol vehicle to push defendant’s vehicle onto the sidewalk so that it could travel no further.
Three news clips of the end of the pursuit taken from helicopters were played for the jury.
Another unit took defendant into custody. The entire pursuit lasted around 45 minutes.
DISCUSSION
I. Definition of Deadly Weapon
Defendant contends that the trial court erred in instructing on the definition of “deadly weapon,” requiring reversal of his conviction of assaulting Deputy Carbajal with a deadly weapon (count 5, § 245, subd. (c)). We disagree.
The jury was instructed in relevant part that in order to prove a violation of section 245, subdivision (c), the prosecution had to prove that “[a] person committed an assault with a deadly weapon.” The instructions stated that in order to prove the commission of an “assault,” the prosecution must prove: “1. A person willfully committed an act which by its nature would probably and directly result in the application of physical force on another person; 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.”
The instructions defined “willfully” as meaning “that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.”
As used in a charge of assault with a deadly weapon, “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.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) But here, the instructions defined “deadly weapon” as “any weapon, instrument or object that is capable of being used to inflict death or great bodily injury, and it can be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, and any other relevant facts, that the possessor intended on that or those occasions to use it as a weapon should the circumstances require. It is not necessary that a weapon in fact be used or be visible.” (Italics added.)
The trial court’s instructions to the jury came from CALJIC. The definition of “deadly weapon” is from CALJIC No. 12.42, which is intended to be used in offenses relating to possession of deadly weapons. For purposes of assault with a deadly weapon, CALJIC 9.02 defines “deadly weapon” as “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.”
Relying on the portions of the definition of a deadly weapon italicized above, defendant contends that the instructions failed to communicate that section 245, subdivision (c), required proof that he “committed an intentional act, consisting of the actual use of the Datsun in a manner likely to cause death or great bodily injury.” (Italics in original.) He asserts that the court’s instructions “relieved the prosecution of the burden of proving... that a deadly weapon be used to commit the assault.” He also asserts that the court’s instructions “contradict[ed] the requirement that the defendant perform an intentional act, the natural and probable consequences of which will probably and directly result in the application of physical force against another.”
We agree that the definition of “deadly weapon” was somewhat confusing. But we conclude that there is no substantial likelihood that the jury applied the instruction so as to find that defendant need not intentionally use his car in a manner likely to cause death or great bodily injury. (See People v. Welch (1999) 20 Cal.4th 701, 766 (Welch); People v. Avena (1996) 13 Cal.4th 394, 417.) In the alternative, we find any error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
First, by virtue of its weight and power, when a motor vehicle being driven at high rate of speed is used to commit an assault, the vehicle is necessarily being used “‘in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.]” (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) In other words, in terms of the assault instructions given in the instant case, when the driver of a motor vehicle (1) intentionally drives fast in a manner that will probably and directly result in the application of physical force on another person, (2) and is aware of facts that would lead a reasonable person to realize that the application of such physical force will likely result, then (3) the vehicle, given its inherent characteristics, is necessarily being used as a deadly weapon – an instrument “‘capable of producing and likely to produce, death or great bodily injury.’ [Citation.]” (Aguilar, supra, 16 Cal.4th at p. 1029.)
Here, the act underlying the charge of assault with a deadly weapon on Deputy Carbajal was defendant’s driving his vehicle at a high rate of speed directly at the deputy, never varying his direction of travel, and narrowly missing the deputy’s vehicle. There was no dispute that defendant was driving fast, around 60 to 75 miles an hour. Under these circumstances, in convicting defendant of assaulting Deputy Carbajal with a deadly weapon, the jury necessarily found, under the assault instructions, that he intentionally drove his vehicle in a manner likely to result in the application of physical force on the deputy, with knowledge of facts that would lead a reasonable person to understand that the application of such force was probable. Implicit in these findings is the additional finding that defendant intentionally used a deadly weapon, because the vehicle was inherently likely in that situation to cause death or great bodily injury. In short, because defendant used his vehicle as the instrumentality of the assault, he necessarily used a deadly weapon, and the jury implicitly so found.
Second, the definition of “deadly weapon” was two-fold, requiring: (1) that the instrument charged as the deadly weapon be “capable of being used to inflict death or great bodily injury,” and (2) “it can be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, and any other relevant facts, that the possessor intended on that or those occasions to use it as a weapon should the circumstances require.” As applied to defendant’s car, this portion of the instruction, though not artfully phrased, conveyed the concept that to be a deadly weapon, the car must be capable of being used to produce death or great bodily injury, and, on the occasion at issue here, when defendant drove directly toward Deputy Carbajal, defendant (the “possessor” of the car) intended to use the car as a deadly weapon should the circumstances require. From this portion of the instruction, therefore, there is no substantial likelihood that the jury concluded that defendant’s car could be a deadly weapon even if he did not intentionally use it as such when driving in Deputy Carbajal’s direction.
It is true that the final sentence of the instruction stated: “It is not necessary that a weapon in fact be used or be visible.” But here, the charged weapon – the car – was indisputably used. The only issue was whether it was used intentionally in a manner that would probably cause death or great bodily injury, a fact implicit in the jury’s finding that defendant used the vehicle to commit the assault.
Third, nothing in the prosecutor’s argument suggested that defendant could be guilty of assaulting Deputy Carbajal with a deadly weapon even if he did not intentionally use his car in a manner likely to cause death or great bodily injury. In discussing the elements of assault with a deadly weapon, the prosecutor stated: “The deadly weapon in this case is the defendant’s vehicle. Vehicles can be deadly weapons. Are, in fact, deadly weapons. Think about a deadly weapon such as the car committing any sort of injury.” She later added: “There’s a definition in the jury instructions as to what a deadly weapon is. You can refer to that if you have any questions. It is clear that a vehicle can be used as a deadly weapon as it was use[d] in this instance.” (Italics added.) Similarly, when referring to the charge of assaulting deputy Carbajal with a deadly weapon, she argued that defendant intentionally used his car to assault the deputy: “The defendant... accelerates even faster playing chicken again, playing chicken once more as he did with Deputy Manier.”
Finally, nothing in the definition of “deadly weapon” could have misled the jury as to the viability of the defense theory of the case. Defense counsel’s argument centered on the willfulness element of assault – that is, whether defendant willfully, meaning intentionally, drove his vehicle in a manner likely to result in physical force being applied to Deputy Carbajal. Defense counsel argued that defendant “came around the corner because he was going too fast and slid over on to his [Deputy Carbajal’s] side of the road. [Defendant] didn’t do anything willfully at that time. He wasn’t trying to do anything as far as the assault with a deadly weapon goes. There was no collision because there was never supposed to be a collision and he wasn’t supposed to hit anybody. He was just trying to get away.” This argument was tailored to the willfulness element of assault, and there is little possibility that the jury would have been misled by the definition of a deadly weapon into believing that the defense theory was immaterial – that is, misled into believing that defendant could be convicted even if he did not intentionally drive his vehicle in a manner likely to result in death or great bodily injury to Deputy Carbajal.
For these reasons, we conclude that there is no reasonable likelihood that the jury applied the definition of “deadly weapon” so as not to require a finding defendant intentionally used his car in a manner likely to cause death or great bodily injury. (Welch, supra, 20 Cal.4th at p. 766.) In the alternative, for the same reasons we conclude, beyond a reasonable doubt, that any error in the definition of “deadly weapon” did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
II. Prior Prison Terms
Relying on People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson) and People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez), defendant contends that his section 667.5, subdivision (b) enhancements must be vacated, because he did not admit (and the prosecution did not prove) that he had served a separate prison term for each. We disagree.
The amended information alleged one prior strike conviction, two prior serious felony convictions, four prior convictions under section 1203, subdivision (e)(4), and two prior prison term enhancements pursuant to section 667.5, subdivision (b). In the prior prison term allegations, the information listed the prior convictions, and further alleged “that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.”
After the jury’s verdict, defense counsel stated that defendant wished to admit the priors. Defendant had already waived his right to a jury trial on those allegations, after the close of evidence.
In taking defendant’s admissions, the prosecutor informed defendant, as relevant to the section 667.5, subdivision (b) prior prison terms, that “there are a number of prior convictions that it is alleged you have sustained and they’re being used against you in a number of different ways. One of the ways is pursuant to Penal Code section 667.5(b), there are two prior convictions alleged pursuant to that section of the Penal Code.” The prosecutor informed defendant that each such allegation could add one year to his sentence.
After advising defendant of the other prior convictions alleged against him, the prosecutor then took waivers of defendant’s rights. The prosecutor then stated: “I told you before there are two prior convictions alleged against you pursuant to section 667.5(b) of the Penal Code. I’m going to ask you whether or not you admit or deny the truth of these prior convictions within the meaning of that Penal Code section. The first one is as follows. The information that’s alleged on page 6 thereof. It’s actually the amended information. Accuses you of being convicted of the crime in violation of section 245(a)(1) of the Penal Code on March 17 of the year 2000 in case GA037371.... Do you admit or deny the truth of that prior conviction?” Defendant replied, “Admit.”
The prosecutor then stated: “The second prior conviction alleges that you were convicted of a violation of the Health and Safety Code section 11377(a) on March 17, 2000, in case GA040575.... Do you admit or deny the truth of that prior conviction?” Defendant replied, “Admit.” The prosecutor then took defendant’s admissions to the remaining prior conviction allegations, defense counsel joined in the waivers and admissions, and the court accepted the admissions and found “all of the allegations... of the prior convictions” to be true.
When a defendant is convicted of a felony (other than a violent felony specified in § 667, subd. (c)) and sentenced to state prison, section 667.5, subdivision (b), mandates imposition of a one-year enhancement for each prior separate prison term served by the defendant for a felony conviction unless the prison term was served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction (frequently referred to as the “five-year washout period”). The enhancement may not be imposed for any prior felony for which the defendant did not serve a prior separate prison term. (§ 667.5, subd. (e).) A prior separate prison term is “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (§ 667.5, subd. (g).)
Proof of an enhancement under section 667.5, subdivision (b), therefore, requires the prosecution establish the defendant: “(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed [the] term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) Due process requires the prosecution prove beyond a reasonable doubt every element of a sentencing enhancement allegation. (Id. at p. 566.)
In Epperson, the court concluded the defendant’s admission of his prior convictions, which did not include an explicit admission of the separate prison term element, could not be construed “as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b).” (Epperson, supra, 168 Cal.App.3d at p. 865.) In Lopez, the court stated: “[T]he record does not indicate that the amendment to the felony complaint was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions.” (Lopez, supra, 163 Cal.App.3d at p. 951.)
We decline to follow Epperson or Lopez to the extent they may be understood to require per se reversal of a prior prison term enhancement where the defendant’s admission of a prior prison term allegation under section 667.5 does not include his express admission of the separate prison term element. Rather, we are persuaded that whether a defendant admitted to having served the requisite separate prison term turns on the totality of the circumstances, a test reaffirmed by our Supreme Court in People v. Mosby (2004) 33 Cal.4th 353 (Mosby), which we find equally applicable in this context.
Here, the entire point of the proceeding was for defendant to admit the enhancement allegations relating to prior convictions as alleged in the information. As to the section 667.5, subdivision (b) allegations, the amended information alleged that defendant had suffered two specific felony convictions, and that he had served a prison term as described in section 667.5 for each offense. The prosecutor informed defendant that there were two prior convictions alleged against him under section 667.5, subdivision (b), and that he was “going to ask... whether or not you admit or deny the truth of these prior convictions within the meaning of that Penal Code section.” (Italics added.) The prosecutor, in advising defendant of the section 667.5, subdivision (b) priors, then referred to that portion of the amended information by the specific page.
Viewing defendant’s post-trial admissions in the context of the entire proceedings (Mosby, supra, 33 Cal.4th at p. 356), it is clear defendant was admitting the allegations set forth in the information, which included all elements necessary to support an enhancement under section 667.5, subdivision (b). (See People v. Ebner (1966) 64 Cal.2d 297, 303 [“[d]efendant’s admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information”]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623 [“admission of prior convictions cannot be construed as an admission that separate terms were served therefor, in the absence of an allegation in the information or complaint that the defendant served separate terms on the prior convictions”].) Therefore, the section 667.5, subdivision (b) enhancements were properly imposed.
III. Section 654
Defendant contends under section 654, that the trial court erred by imposing separate sentences on his convictions for felony evading, felony vandalism, and misdemeanor hit and run driving. The counts related to defendant’s flight from pursuing deputies (felony evading), his later colliding with the Deputy Manier’s vehicle, and his leaving the scene of that accident.
The court made count 5, assault with a deadly weapon of Deputy Carbajal, the principal term, and imposed a total sentence of 16 years on that count (the upper term of 5 years, doubled under the Three Strikes Law, plus 5 years for a serious prior felony, and 1 year for a prior prison term). For felony evading (count 1), the court imposed a consecutive term of 1 year, 4 months (one-third the middle term, doubled); for the felony vandalism (count 12), the court imposed a concurrent term of 4 years (double the middle term); and for misdemeanor hit and run (count 10) and driving without a license (count 11), the court imposed concurrent terms of 6 months, each.
When offenses arise from a single course of conduct, the permissibility of multiple punishment under section 654 depends on whether the defendant harbored separate intents and objectives. (People v. Britt (2004) 32 Cal.4th 944, 952.) Separate objectives may exist “when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous.” (Ibid.) We review the issue for substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
It is true that throughout the entire incident defendant possessed the objective of escaping, and drove with wanton and reckless disregard resulting in his conviction of felony evading. But that does not mean that he did not also harbor subsidiary, separate intents and objectives with respect to the felony vandalism, and misdemeanor hit and run. Substantial evidence supports the conclusion that when defendant collided with Deputy Manier’s vehicle (resulting in the felony vandalism), his intent was not simply to escape, but also to cause damage to the vehicle in doing so. According to Deputy Manier’s testimony, he was not positioned so as to block defendant’s path, from which it may be inferred that defendant went out of his way to strike the patrol vehicle. Thereafter, defendant’s vehicle stalled. He restarted it, and drove off. From this evidence, it may reasonably be inferred that defendant not only intended to escape, but in doing so also intended not to comply with his reporting obligations at the scene of the accident. Because substantial evidence supports the conclusion that defendant harbored separate though concurrent intents and objectives, the imposition of sentences on the evading, vandalism, and hit and run convictions was proper.
IV. Imposition of the Upper Term on Count 5
Defendant contends that the imposition of the upper term on count 5, assault with a deadly weapon on Deputy Carbajal, violated his federal constitutional rights to a jury trial and due process under Cunningham v. California, supra, 549 U.S. 270, and Blakely v. Washington, supra, 542 U.S. 296. He concedes that his contentions are foreclosed in this court by People v. Black (2007) 41 Cal.4th 799 (Black II). For purposes of preserving the issue for potential federal habeas corpus review, he argues that Black II was wrongly decided. As defendant acknowledges, we are bound by Black II, and we therefore reject his challenges to the sentence on count 5.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. MANELLA, J.