Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Inyo County No. SICRF050040485. Patrick K. Canfield, Judge. (Retired judge of the Inyo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Arlene Aquintey Sevidal, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Rebecca P. Jones for Defendant and Appellant.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Jonathon Patzer appeals from his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and failure to obey the lawful order of a peace officer (Veh. Code, § 2800). Defendant contends: (1) the trial court’s instruction to the jury on the requisite intent for assault with a deadly weapon was erroneous and unconstitutional; (2) the trial court’s failure to give a necessity instruction rendered the trial unfair; (3) the trial court had a sua sponte duty to define “lawful order” in its instructions; and (4) cumulative instructional error warrants a reversal. We find no reversible error and we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. PROCEDURAL BACKGROUND AND FACTS
A. Prosecution Case
On December 10, 2005, the City of Bishop held its annual holiday parade. Officer Doug Mairs was positioned at the intersection of Yaney Street and North Main Street, directing traffic. He was given explicit instructions not to allow any vehicle, except emergency vehicles, to drive southbound on Main Street. Traffic was to be diverted northbound on Main Street.
Driving westbound on Yaney Street, defendant approached the Main Street intersection. Defendant was driving a “parade vehicle,” a 1946 Jeep with an attached trailer, and he had three passengers with him.
As defendant approached the intersection, Officer Mairs used arm signals and verbal commands to instruct him to turn right (north) onto Main Street. Defendant instead pulled into the left lane and stopped at the crosswalk. Officer Mairs yelled at defendant to turn right, exaggerated his hand signals, elevated his voice, and approached the vehicle. Defendant said, “No, I am going to J Diamond [trailer park], it is right there,” and explained that he was a parade vehicle. Defendant did not mention any emergency.
Defendant accelerated to execute his left turn and drove toward Officer Mairs, who was about five feet in front of the driver’s side of the Jeep. Officer Mairs testified that he had to jump to the left (driver’s side) of the Jeep to avoid being hit. The officer took hold of the roll bar and the windshield of the Jeep as it was in motion and yelled repeatedly for defendant to stop. The passengers in the Jeep also urged defendant to stop. After completing his turn, defendant pulled the Jeep over on the west curb of North Main Street.
Valdon Cameron, a passenger in the Jeep, testified that Officer Mairs moved out of the way of the Jeep and ran alongside it. Cameron said that although he did not see it, he believed the officer had grabbed onto the steering wheel of the Jeep, causing the Jeep to jerk further left. Cameron also claimed that Officer Mairs was not in any danger of being run over; however, Cameron did think that if the officer had not moved out of the Jeep’s path, he might have been brushed by the left front fender.
B. Defense Case
Defendant testified that he did not intend to run over or strike Officer Mairs with his Jeep. He claimed that the officer was never in danger. Defendant testified that he disobeyed Officer Mairs’s commands partly because he was concerned because his passenger, Maurice Davis, was diabetic. Davis had asked for food multiple times on the trip, although he never claimed to be having a diabetic attack.
Defendant also stated he felt that taking a right turn onto Main Street would be unsafe. The Jeep was not running well and the passengers were not seat belted. When asked why he did not stop his vehicle after hearing the officer’s command, defendant said he thought that it would be unsafe to stop in the middle of the intersection because of the Jeep’s mechanical problems.
C. Rebuttal
Officer David Todd Jepson was positioned at the intersection of North Main and Sierra Streets, about 150 yards from the incident. He testified that he saw the Jeep proceeding through the intersection at eight to 10 miles per hour, with Officer Mairs apparently hanging onto the Jeep and yelling for it to stop.
D. Jury Verdict and Sentence
The jury found defendant guilty of misdemeanor assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)) and misdemeanor failure to obey the lawful order of a peace officer (Veh. Code, § 2800). Defendant was sentenced to three years of probation.
III. DISCUSSION
A. Standard of Review
We review the trial court’s ruling de novo when a claimed instructional error implicates the proper application of legal principles. (People v. Berryman (1994) 6 Cal.4th 1048, 1089, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
B. Instructions on the Requisite Intent for Assault with a Deadly Weapon
Defendant contends Judicial Council of California Jury Instruction, CALCRIM No. 875, on which the trial court instructed the jury regarding the elements of assault with a deadly weapon, did not properly convey to the jurors that they must find some level of criminal intent. In particular, defendant contends the language in CALCRIM No. 875 that “[t]he People are not required to prove that the defendant actually intended to use force against someone when he acted[,]” allowed defendant to be convicted of assault based on accidental or reckless behavior because that language deleted all requirement of intent.
Section 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Settled case law and legislative history have confirmed that assault is a general intent crime, meaning that a conviction for assault requires only a “general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (Rocha, supra, 3 Cal.3d at p. 899.) Thus, “[t]he intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.” (Id. at p. 899, fns. omitted.)
“The legislative history of Penal Code section 245 indicates that the Legislature differentiated assault with a deadly weapon from specific intent crimes. When the Penal Code was adopted in 1872 section 245 read, ‘Every person who, with intent to do bodily harm,’ commits an assault with a deadly weapon is guilty of a felony. All reference to intent was deleted from the section in 1873 when it was amended to its present form.” (People v. Rocha (1971) 3 Cal.3d 893, 898, fn. omitted.)
The trial court instructed the jury with CALCRIM No. 875 as to elements of assault with a deadly weapon as follows: “[T]he People must prove that, one, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] Two, the defendant did that act willfully; [¶] Three, 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; [¶] Four, when the defendant acted, he had the present ability to apply force with a deadly weapon to a person. . . .” The instruction further clarified the mental state required by stating, “The People are not required to prove that the defendant actually intended to use force against someone when he acted.” This last statement is the language that defendant contests.
The trial court did not instruct the jury with CALJIC No. 9.00, which provides that “an assault does not require an intent to cause injury to another person . . . .” Defendant contends that language is fundamentally different from the language of CALCRIM No. 875 that a defendant need not have any intent to use force against someone. CALJIC No. 900 stresses there need not be a specific intent to harm, while CALCRIM No. 875, defendant argues, implies that no intent to use force is needed. Defendant contends CALCRIM No. 875 therefore allowed the jurors to convict him of “negligent assault.”
Even if there is a distinction between intent to cause injury and intent to use force against someone, both concepts are superfluous to the definition of assault because the People are required to prove only that defendant willfully engaged in an act likely to produce harmful contact. “In other words, ‘[t]he use of the described force is what counts, not the intent with which same is employed.’ [Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 214-215 (Colantuono).) The assaultive act itself subsumes such intents. (People v. Williams (2001) 26 Cal.4th 779, 786 (Williams).)
Furthermore, other language of CALCRIM No. 875 ensures that a defendant is not convicted in the absence of any finding of criminal intent. The instruction states both that the defendant must have acted willfully and that the defendant must have been aware of all the facts sufficient to establish that the act, by objective standards, would naturally and probably lead to harmful contact. Thus, defendant’s contention that the prosecutor did not have to prove a mens rea, contravening the Due Process Clause of the Fourteenth Amendment, is baseless. Indeed, as the court stated in Colantuono, “[t]he mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another . . . .” (Colantuono, supra, 7 Cal.4th at p. 214.)
In Williams, the California Supreme Court reaffirmed that an assault conviction may not be based on merely negligent or reckless conduct. (Williams, supra, 26 Cal.4th at pp. 788-789.) In that case, the defendant fired a “warning shot” into the rear passenger’s side wheel well of the victim’s truck. (Id. at pp. 782-783.) The victim was standing behind the truck, and his children—whom the defendant allegedly did not see—were, by the victim’s account, getting into the truck. (Id. at p. 783.) Nobody was hurt. (Ibid.) The jury was instructed with a version of CALJIC No. 9.00, which stated that two elements had to be met to convict the defendant of assault: (1) willful commission of “an act that by its nature would probably and directly result in the application of physical force on another person”; and (2) present ability, at the time of commission, to apply physical force to the person of another. (Williams, supra,at p. 783.)
The Williams court recognized that this formulation of the assault instruction “may permit a conviction premised on facts the defendant should have known but did not actually know.” (Williams, supra,26 Cal.4th at p. 790.) Thus, the jury could have conceivably convicted the defendant of assault directed at the victim’s children, even if he did not know they were in the immediate vicinity—or, put another way, even if he did not know the facts sufficient to establish that his act would probably result in the application of force. (Ibid.)
The Williams court held that assault “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.” (Williams, supra, 26 Cal.4th at p. 790, italics added.) However, although a defendant must be aware of the facts which premise his conviction, he “need not be subjectively aware of the risk that a battery might occur.” (Id. at p. 788, fn. omitted, italics added.)
Defendant argues that despite Williams’s addition of a knowledge requirement, the fact that a defendant need not be subjectively aware of the risk that a battery might occur still implies a negligence standard. Citing People v. Wright (2002) 100 Cal.App.4th 703 (Wright), defendant argues that Williams should therefore be disregarded. We decline to accept defendant’s invitation to challenge Williams, which has received widespread approval.
CALJIC No. 9.00 was amended following Williams to add the required mental state for assault pursuant to section 240. (See People v. Miller (2008) 164 Cal.App.4th 653, 663.) CALCRIM No. 875 subsequently adopted essentially the same formulation. If Williams was incorrectly decided, it would necessarily implicate its predecessors, Rocha and Colantuono, as their formulations for assault did not include a knowledge requirement. Even if the intent requirement in those cases was misguided, the Legislature has endorsed their holdings: “[T]he Legislature has had 30 years to amend section 240 and overturn Rocha,[supra, 3 Cal.3d 893,] but has not done so. While legislative inaction is not necessarily conclusive, the longevity of our holding in Rocha, our subsequent reaffirmation of Rocha seven years ago in Colantuono, [supra, 7 Cal.4th 206,] and the existence of other legislative enactments implicitly approving Rocha indicate that the Legislature has acquiesced in our conclusion that assault does not require a specific intent. [Citation.] [¶] Accordingly, we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. . . .” (Williams, supra, 26 Cal.4th at pp. 789-790.) Also, Wright recognized that it was bound by Williams under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. (See Wright, supra, 100 Cal.App.4th at p. 706.)
Here, the jury was instructed that it must be convinced beyond a reasonable doubt that defendant performed the disputed act willfully. That instruction avoided the danger of convicting without any finding of criminal intent. The jury was additionally instructed that when defendant acted, he must have been “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. . . .” This language is consistent with Williams and avoids any confusion that might have led jurors to erroneously convict defendant based on facts of which he was unaware.
It is evident defendant was fully aware of the circumstances and facts that surrounded the incident. Defendant had a verbal exchange with the officer, whom defendant knew was standing in front of him. Defendant was aware that he was prohibited from turning left onto Main Street. Defendant willfully disobeyed the officer’s commands and purposefully accelerated his vehicle in the direction of Officer Mairs. By a passenger’s account, the officer might have been brushed by the fender if he had not jumped out of the way. Defendant also did not immediately comply with the officer’s commands to stop the vehicle while the officer ran alongside it and held onto the roll bar.
The jury’s function was to decide whether a reasonable person in defendant’s situation would realize that the act by its nature might result in the application of force to someone. Even if defendant might not have realized the risk of battery, the jury found that a reasonable person would have.
We conclude that CALCRIM No. 875 does not misrepresent assault jurisprudence, and the jury was given proper instructions on assault with a deadly weapon.
C. Court’s Duty to Instruct Jurors on Necessity Defense
Defendant argues the trial was rendered fundamentally unfair because the trial court failed to instruct the jurors sua sponte on the necessity defense. Defendant claims the medical emergency defense was warranted by evidence that (1) Davis was a diabetic who had been asking for food during the ride; (2) Davis did not have his diabetes medicine with him; (3) defendant had prior experience around diabetics and was very worried about Davis’s health; (4) defendant felt it was unsafe to take his Jeep up Route 395; (5) defendant felt it was unsafe to stop his vehicle in the intersection; (6) defendant allegedly told the officer that they “needed” to take a left, not that they “wanted” to; and finally (7) defendant’s only option was to park his vehicle in a “safe harbor” along the curb.
“[T]he court has a duty to give instructions on the general principles of law governing the case, even though not requested by the parties, but it need not instruct on specific points developed at the trial unless requested. [Citation.]” (People v. Wade (1959) 53 Cal.2d 322, 334 (Wade), disapproved on other grounds by People v. Carpenter (1997) 15 Cal.4th 312, 381.)
Necessity is an affirmative defense, and unless the crime includes lack of necessity as an element, it is not considered a general principle of law governing the case. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 (Kearns).) “To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that she violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which she did not substantially contribute to the emergency. [Citations.]” (Ibid.)
Defendant’s evidence was insufficient to permit a reasonable jury to find that these elements were established. First, the testimony of other passengers in the vehicle did not support defendant’s story that Davis was in imminent danger of having a diabetic attack. Cameron testified that Davis had jokingly made comments about stopping for food when they passed several food establishments on the parade route. Davis, according to Cameron, appeared to be in good health. Second, no reasonable jury could find that defendant had no other legal alternative; defendant could have let Davis out of the car or, at the very least, communicated the emergency situation to Officer Mairs. Defendant merely saying that he “needed” rather than “wanted” to go to J Diamond did not adequately communicate the purported gravity of the situation to Officer Mairs. Also, defendant himself admitted the existence of other, legal alternatives. Third, defendant cannot establish that the harm from the illegal act was not disproportionate to the harm avoided. After all, Davis still did not get his medication, and Officer Mairs’s well-being was imperiled. Finally, even if defendant truly believed Davis’s requests for food were symptomatic of a looming diabetic attack, defendant himself contributed to the emergency by not stopping for food earlier in the trip.
Defendant nonetheless argues that despite his suggestion on cross-examination that he could have obtained food for Davis and complied with Mairs’s traffic directions, “the jury should have been allowed to weigh [defendant’s] credibility against Mairs’[s] credibility.” This contention is lacking force since there is no need to weigh credibility—a necessity defense requires that a defendant have no other legal alternatives. (Kearns, supra, 55 Cal.App.4th at p. 1135.) Furthermore, for the purposes of the necessity defense, the significant facts of this case are largely uncontroverted.
Thus, defendant’s evidence did not reasonably support a finding of necessity. Because “the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly,” and because “[d]efendant’s theory of the case was not one that the evidence would strongly illuminate and place before the trial court,” we conclude the trial court was not required to give defendant’s necessity instructions sua sponte. (Wade, supra, 53 Cal.2d at pp. 334-335.)
D. Meaning of the Term “Lawful Order”
Defendant argues the trial court’s failure to define the term “lawful order” withdrew an element of the offense of failing to obey a police officer from the jury’s consideration. Put another way, defendant claims that if the jury were convinced the actions of Officer Mairs were not within the scope of his duties, it might have found that defendant did not disobey a lawful order.
Vehicle Code section 2800, subdivision (a), states in part: “It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer . . . when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code . . . .” The jury was instructed that to prove defendant was guilty of this charge, “the People must prove that . . . the defendant willfully failed or refused to comply with a lawful order,signal, or direction of a peace officer; [¶] That the peace officer was in uniform; [¶] That the peace officer was in the performance of his duties directing traffic under the vehicle code.” (Italics added.)
When “a phrase ‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.’ [Citation.]” (People v. Rowland (1992) 4 Cal.4th 238, 270 -271 (Rowland).) Defendant did not request such an instruction.
As the People correctly point out, “lawful order” has no technical or legal meaning. Indeed, as defendant argues, all lawful orders and laws are bound by the constraints of reasonableness. (See People v. Ritter (1980) 115 Cal.App.3d Supp.1, p. 5.)
Moreover, defendant had ample opportunity to argue the unlawfulness or unreasonableness of Officer Mairs’s command during trial. Instead, defendant failed to dispute the legality of Officer Mairs’s command and never broached the subject of Davis’s health when he spoke to the officer. Officer Mairs was never even informed of Davis’s condition, precluding defendant from arguing that Officer Mairs unreasonably denied Davis medical attention.
We find defendant’s analogy to People v. Castain (1981) 122 Cal.App.3d 138 (Castain), unconvincing. In Castain, the court remanded a case and directed the trial court to instruct the jurors that an officer who uses excessive force in making an arrest is not engaged in the performance of his duties. (Id. at p. 145.) Here, in contrast, the lawfulness of Officer Mairs’s command was never disputed at the trial level.
Because ordinary words, such as “lawful order” are presumed to be understood by jurors, because defendant did not request clarification of those terms during trial, and because defendant had ample opportunity to argue the unlawfulness of Officer Mairs’s traffic commands at trial, we conclude that the court did not err in failing to define “lawful order” sua sponte. (See Rowland, supra, 4 Cal.4th at pp. 270-271.)
E. Does Cumulative Error Warrant Reversal?
Defendant contends that the cumulative effect of the instructional errors deprived him of a fair trial in accordance with due process. Because we have found no error, defendant’s argument is moot.
IV. DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.