Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF0032, William Lee Evans, Judge. Affirmed and remanded for resentencing pursuant to the consolidated petition for writ of habeas corpus.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
IKOLA, J.
On December 31, 2006, several weeks of domestic conflict between and amongst defendant, his girlfriend, his mother, and his stepfather came to a climax. Defendant’s vehicle made contact with his mother’s minivan (in which his mother, stepfather, and three-year-old son were travelling) on the 405 freeway. Fortunately, mother kept control of her vehicle and its occupants emerged unscathed from the incident; defendant suffered relatively minor injuries after his car crashed into the median divider. Fountain Valley police took defendant into custody following the incident and he was ultimately charged with various crimes based on his conduct during the month of December 2006.
A jury found defendant guilty of four of the five counts alleged against him: felony assault with a deadly weapon, a vehicle (Pen. Code, § 245, subd. (a)(1)); felony child abuse (§ 273a, subd. (a)); misdemeanor domestic violence battery (§ 243, subd. (e)(1)); and misdemeanor vandalism causing damage of less than $400 (§ 594, subd. (a), (b)(2)(A)). Immediately following the jury verdicts, defendant admitted he had sustained a prior serious felony and strike conviction for assault with caustic chemicals under section 244. The court also found defendant had served a 1999 prior prison term constituting an enhancement under section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise specified.
The jury returned a not guilty verdict on an additional charge of misdemeanor domestic violence.
The court sentenced defendant to a total prison term of 10 years, comprised of the low term of two years for the assault with a deadly weapon count, doubled pursuant to the “Three Strikes” law; the low term of two years for the felony child abuse count, doubled pursuant to the Three Strikes law but to be served concurrently with count one; a five-year enhancement pursuant to section 667, subdivision (a)(1), to be served consecutively; and a one-year enhancement pursuant to section 667.5, subdivision (b), to be served consecutively. As to the two misdemeanor count convictions, the court sentenced defendant to time served at the county jail of 10 days and one day, respectively.
In this consolidated appeal and petition for writ of habeas corpus, defendant raises six issues. First, he claims there is insufficient evidence to support a finding of criminal intent in his felony assault with a deadly weapon conviction. Second, he contends there is insufficient evidence to support the finding he had care and custody of his son, a necessary element of felony child abuse. Third, he asserts the court’s refusal to exclude testimony regarding the condition of the vehicle used to commit the assault violated his due process rights, as the vehicle had been released to a third party lienholder and was not available for inspection during trial. Fourth, he argues the court failed to properly instruct the jury because it did not include an instruction on the defense of accident. Fifth, he posits the five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1) must be reversed because the charged assault does not qualify as a serious felony unless the jury expressly finds a deadly weapon was used in the commission of the assault, and the jury did not make that finding. Finally, defendant’s petition for writ of habeas corpus is based on perceived ineffective assistance of counsel as to defendant’s decision to admit the commission of a prior serious felony. We reject each of defendant’s contentions as to his underlying convictions. However, we grant defendant’s petition for writ of habeas corpus and remand for resentencing on the ground defendant has not suffered a prior “serious felony” under section 1192.7, subdivision (c), and therefore several of his sentencing enhancements were improper.
FACTS
Background to December 31, 2006
From 2003 until the end of 2006, defendant, his girlfriend, and their son lived with defendant’s mother and stepfather in a Huntington Beach condominium. Over the years, defendant and his girlfriend repeatedly engaged in domestic disputes; the police were called to intervene on several occasions. The girlfriend testified that, on one occasion in October 2006, defendant screamed at her while driving recklessly and erratically because she would not provide him with gambling money.
In early December 2006, defendant’s mother and stepfather ordered defendant to leave their residence. Defendant’s girlfriend and son were allowed to remain at the residence. However, defendant repeatedly returned to the condominium throughout the month, and several disputes occurred. For instance, defendant’s girlfriend testified that, on December 14, defendant yelled at her, tossed a cup of urine on her, slapped her, banged her head against the ground, and cut her hair. On December 29, defendant broke a window after his girlfriend and his stepfather refused to open the locked front door for him, then later sprayed water inside the house with a garden hose. Defendant was sleeping in his car at the end of December 2006.
The Events of December 31, 2006
On the morning of December 31, 2006, defendant’s mother drove his girlfriend to work in the family minivan. Defendant’s mother sat in the driver’s seat, and his stepfather and son rode in the backseat. After defendant’s girlfriend departed from the minivan in a mall parking lot, his mother and stepfather noticed defendant driving toward them in his car. Defendant’s mother and stepfather testified at trial that defendant simply drove past the minivan. However, they stated to a police officer on the morning of December 31 that defendant swerved in front of the minivan’s path and, according to the mother, “his eyes looked like the devil.” Defendant’s mother explained to the officer that defendant was angry because his mother and his girlfriend were preventing him from seeing his son. In fact, defendant admitted he called 911 earlier in the morning with the intention of complaining about his lack of access to his son, before reconsidering during the call and hanging up. Defendant’s mother did not stop to talk with defendant, but instead, at the suggestion of his stepfather, continued driving out of the parking lot and headed toward the 405 freeway. Defendant’s mother and stepfather stated to the police officer that defendant made a u-turn and continued driving erratically in the parking lot.
After entering the freeway, defendant’s mother drove at approximately 55 to 60 miles per hour. Although they denied it at trial, defendant’s mother and stepfather told the police officer on December 31 that they saw defendant approach her car from the rear at approximately 80 or 90 miles per hour. Defendant gestured to his mother to pull over; she did not do so. At trial, defendant’s mother and stepfather testified they felt a “bump” or “hit” caused by defendant’s car. On the day of the collision, they both claimed defendant “rammed” the minivan with his car. Defendant testified he lost control of his car prior to the collision and he did not intentionally make contact with the minivan. Following the collision, defendant’s car spun out of control and “slammed into the center divider.” Defendant’s mother almost lost control of her vehicle, but managed to guide it to safety. Defendant’s mother and stepfather located a highway patrol officer on the freeway shoulder. They provided statements to the police, and defendant was taken into custody.
DISCUSSION
As noted above, defendant raises six separate issues in this combined appeal and habeas petition. We address each argument in turn.
Sufficiency of Evidence To Support Assault With a Deadly Weapon Conviction
Defendant claims the jury’s verdict finding him guilty of assault with a deadly weapon is based on insufficient evidence of his intent. Defendant concedes in his brief that the “overwhelming evidence is [defendant] drove his car in a gross[ly] reckless manner.” However, defendant asserts his conduct amounted to mere reckless driving under Vehicle Code section 23103, and did not rise to the level of assault with a deadly weapon under section 245.
In evaluating the sufficiency of the evidence, we must review the entire record in the light most favorable to the prosecution, and decide whether there exists substantial evidence from which any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562, 576-577.) Where the evidence of guilt is primarily circumstantial, the standard of review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668.)
Section 245, subdivision (a)(1), provides in relevant part: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished . . . .” “[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; see People v. Wright (2002) 100 Cal.App.4th 703, 706 [applying rule to case involving assault with vehicle as deadly weapon].)
There is substantial evidence in the record to support the finding defendant intentionally drove his car into his mother’s minivan. And the jury’s finding that the act of driving into another car at 55 to 60 miles per hour will probably and directly result in the application of physical force to the occupants of the other car is justified. We will not secondguess the jury’s decision to believe evidence indicating defendant “rammed” his mother’s car, rather than defendant’s explanation that he spun out of control prior to the collision.
Sufficiency of Evidence to Support Felony Child Abuse Conviction
Defendant also suggests there is insufficient evidence to support a felony child abuse conviction under section 273a, subdivision (a), because the evidence demonstrates he did not have care and custody of the child (an element of the offense) on the day of the vehicle collision. Section 273a, subdivision (a), provides in relevant part: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, . . . having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished . . . .”
Defendant contends, because he was denied access to his son in the days leading up to the incident and was therefore not actually exercising care and custody of his son on those particular days, he is not in the class of individuals subject to section 273a, subdivision (a). Defendant does not challenge on appeal any of the other findings necessarily made by the jury to support his conviction for felony child abuse, i.e., under circumstances or conditions likely to produce great bodily harm or death, he willfully caused or permitted his son to be placed in a situation where his person or health was endangered.
“No special meaning attaches to [the phrase “care or custody” as used in section 273a, subdivision (a)] ‘beyond the plain meaning of the terms themselves. The terms “care or custody” do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.’” (People v. Toney (1999) 76 Cal.App.4th 618, 621-622.) “The language of the statute does not suggest that only one person at a time can have the care or custody of a child.” (People v. Perez (2008) 164 Cal.App.4th 1462, 1472 [interpreting identical “care and custody” clause in section 273a, subdivision (b).)
There is substantial evidence supporting the finding defendant had care or custody of his son. Defendant lived with and cared for his son since his girlfriend was pregnant with the son. Defendant worked to provide for family expenses. Defendant testified he was the legal father and “custodial parent” as of December 31, 2006. We reject the proposition that, for the purposes of section 273a, a father does not have “care or custody” of his child merely because domestic conflict precludes him from peacefully exercising his parental rights on the day of the incident giving rise to the charge of abuse. Indeed, the record lends support to the notion that defendant’s illegal conduct was motivated at least in part by a desire to establish the terms of his control over the care and custody of his son.
Admissibility of Police Testimony Related to Inspection of Defendant’s Vehicle
Defendant argues he was denied due process by the court’s refusal to exclude testimony pertaining to a police officer’s post-collision examination of defendant’s car. The day after the collision, an officer inspected defendant’s vehicle at the tow yard where it was impounded. The officer, although not a certified mechanic, had performed numerous similar inspections in the past. Based on his inspection and test drive, he testified there was sufficient brake fluid for the vehicle to operate properly, the steering system functioned correctly, there were no leaks in the braking system, and the brakes operated properly during his test drive. He further testified the wheel slightly pulled to one side during braking, and agreed this tendency could be magnified at higher speeds.
The prosecutor was unable to produce defendant’s vehicle for inspection at the time of trial. The tow yard company had released the vehicle to a lienholder (the party who sold the car to defendant). The court, finding law enforcement did not intentionally dispose of the evidence, declined to exclude evidence related to the January 1, 2007 inspection by the police officer. Defendant contends it violates his due process rights to allow the prosecution to put on evidence of the police inspection despite the fact the “deadly weapon” at issue was no longer available for inspection at the time of trial.
There is a duty on the part of law enforcement officers, pursuant to constitutional principles of due process, to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta (1984) 467 U.S. 479, 488 (Trombetta).) “To meet this standard of constitutional materiality, [Citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) Furthermore, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Arizona v. Youngblood (1988) 488 U.S. 51, 58, italics added (Youngblood).)
Our Supreme Court has expressly adopted the holdings of Trombetta and Youngblood. (People v. Frye (1998) 18 Cal.4th 894, 942-943; People v. Zapien (1993) 4 Cal.4th 929, 964; People v. Cooper (1991) 53 Cal.3d 771, 810-811.) We review a trial court’s factual findings for substantial evidence as to whether the police acted in bad faith or good faith in failing to preserve potentially useful evidence. (People v. Memro (1995) 11 Cal.4th 786, 831.)
It is obvious the car was potentially exculpatory, as it was the “deadly weapon” utilized in the alleged assault and child abuse. Indeed, the importance of the condition of the car is apparent in light of the police inspection of its condition the day after the collision. However, there is nothing in the record to suggest the police acted in bad faith in this case. The inspection revealed the braking and steering mechanisms were functioning properly, facts tending to support the conclusion that defendant intentionally rammed his mother’s minivan (and tending not to exculpate defendant). The police did not actively dispose of the evidence, but rather stored it at a tow yard in accordance with ordinary procedures. Certainly, additional measures to maintain possession of the vehicle could have been taken. But substantial evidence supports the court’s finding that the police did not act in bad faith by neglecting to maintain possession of the vehicle through trial.
In addition, the court’s ruling did not leave defendant “helpless” to challenge the perceived deficiencies in the police investigation. (People v. Cooper, supra, 53 Cal.3d at p. 811.) Defendant was able to contest the prosecution’s evidence. Defendant cross-examined the officer, pointing out to the jury potential shortcomings in his experience and inspection methods (he did not test drive the vehicle above 20 miles per hour, he did not take the wheels off the car, and he did not use a lift or jack to position himself directly under the vehicle). Furthermore, defendant offered the testimony of a certified Honda mechanic as to the proper methodology for conducting a thorough brake inspection, and to the fact a failure in the braking system could cause a car to pull to one side. Defendant himself testified he lost control of the car because his brakes locked up. The unavailability of the vehicle at trial did not preclude defendant from challenging the evidence put forth by the prosecution pertaining to the condition of the vehicle.
Finally, it appears defendant squandered the opportunity to develop additional relevant testing evidence. There is nothing in the record to indicate defendant attempted to conduct tests on the vehicle until the trial began in September 2007, more than eight months after the collision. Defendant suggests tracking the car down through the lienholder would have been pointless, as the condition of the car would have been changed since the time of the accident. However, Defendant could have conducted tests prior to the time the car was released to the lienholder, or questioned the lienholder as to any inspections or repairs conducted upon its acquisition of the vehicle. It is questionable whether the condition of the car in September 2007 would match the condition of the car on December 31, 2006, even if the car had simply remained on the lot collecting dust. Defendant’s due process rights were not violated by the police failing to maintain possession of the vehicle through trial.
Lack of Jury Instruction Pertaining to Defense of Accident
Defendant also argues his due process right to a fair trial was violated by the court’s failure to instruct the jury, sua sponte, on the defense of accident. The relevant form jury instruction provides, in relevant part, that a defendant is not guilty of a crime if he or she does not act with “the intent required for that crime, but acted instead accidentally.” (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 3404.) “The court has a sua sponte duty to instruct on a defense if there is substantial evidence supporting it and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case.” (Bench Notes to CALCRIM No. 3404 supra; see People v. Felix (2001) 92 Cal.App.4th 905, 911.)
Even assuming the court should have provided this instruction, any error was harmless. (People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315 (Jones).) In Jones, the “primary thrust of the defense mounted by defendant” at trial was that his gun accidentally discharged, excusing him from criminal liability. (Id. at p. 1314.) The trial court did not sua sponte provide an instruction relating to the defense of accident. (Ibid.) The Jones court found any error was not prejudicial because the “jury necessarily rejected the evidence adduced at trial that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense . . . was valid, thus implicitly resolving the question of that defense adversely to defendant.” (Id. at 1315-1316.)
Here, similarly, the court properly instructed the jury on the elements of the alleged crimes. The jury necessarily found defendant to have had the requisite mental states to commit the crimes for which he was convicted. Thus, the omission of an instruction on an accident defense is harmless under the circumstances.
Habeas Petition
Defendant’s habeas petition asserts he was deprived of the effective assistance of counsel because of representation he received relating to his admission of a prior felony at sentencing. Defendant’s trial counsel advised him to admit a prior conviction for violating section 244, which was alleged as a strike and as a prior serious felony conviction in the information. Although trial counsel argued the court should exercise its discretion, under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss the prior strike based on equitable considerations, counsel did not respond to the court’s invitation to address “whether the [section 244 conviction] constituted a strike.” During this colloquy, the court indicated defendant’s conduct under section 244 “certainly is listed in the code section under 1192.7.”
Section 244 provides, in relevant part: “Any person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of that person, is punishable by imprisonment . . . .” In pleading guilty to a violation of section 244 in 1997, defendant attested to the following: “On 4/16/97 in Orange Co. I willfully and unlawfully manufactured & possessed a controlled substance (methamphetamine) and maliciously threw a caustic liquid at Officers Seitz and O’Brien with the intent to injure the flesh and disfigure the body of the victims.”
Section 244 defines “flammable substance” as “gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.” The Penal Code does not define vitriol, corrosive acid, or caustic chemical. One dictionary definition of “vitriol” is “a sulfate of any of various metals (as copper, iron, or zinc); esp : a glassy hydrate of such a sulfate.” (Merriam Webster’s Collegiate Dict. (10th ed. 1999) p. 1332.) One dictionary definition of “acid” is “a sour substance; specif: any of various typically water-soluble and sour compounds that in solution are capable of reacting with a base to form a salt, redden litmus, and have a pH less than 7, that are hydrogen-containing molecules or ions able to give up a proton to a base, or that are substances able to accept an unshared pair of electrons from a base.” (Merriam Webster’s Collegiate Dict. (10th ed. 1999) p. 10.) One dictionary definition of “caustic” is “capable of destroying or eating away by chemical action: CORROSIVE.” (Merriam Webster’s Collegiate Dict. (10th ed. 1999) p. 182.)
The crux of defendant’s argument is that he pleaded guilty in 1997 to conduct sufficient to establish a violation of section 244, but insufficient to qualify as a “serious felony” in 2007 — a classification mandating certain sentence enhancements for defendant. Section 667 provides that an individual convicted of a “serious felony” is subject to a mandatory five-year consecutive sentence enhancement for each prior conviction of a “serious felony.” (§ 667, subd. (a)(1).) As used in section 667, subdivision (a), “‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.” (§ 667, subd. (a)(4).) In addition, the Three Strikes Law also provides: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e)(1).) A “serious felony” under section 1192.7, subdivision (c), qualifies as a “prior felony conviction” under section 667, subdivision (e)(1). (§ 667, subd. (d)(1).) Thus, when the doubling of defendant’s two-year sentences for assault and child abuse felonies is combined with his section 667, subdivision (a)(1), five-year enhancement, the classification of defendant’s prior conviction under section 244 as a “serious felony” is responsible for seven of the 10 years on his total sentence.
Section 1192.7, subdivision (c), is comprised of a list of “serious felon[ies].” One such “serious felony” is “throwing acid or flammable substances, in violation of Section 244.” (§ 1192.7, subd. (c)(30).) Defendant asserts his section 244 conviction was based on throwing a “caustic liquid” and not on “throwing acid or flammable substances.” Thus, reasons defendant, he should not have admitted he suffered a prior strike/serious felony conviction. Had the court found his conviction was based solely on throwing “caustic liquid” and not acid or a flammable substance, he would not have been subject to the sentencing enhancements added by the court.
Defendant’s reasoning is sound. Section 1192.7, subdivision (c)(30), easily could be written to include as “serious felon[ies]” all violations of section 244. Indeed, section 1192.7, subdivision (c)(40), illustrates this observation: “any violation of Section 12022.53” amounts to a “serious felony.” (§ 1192.7, subdivision (c)(40).) Even more telling is the recent statutory history of section 1192.7, subdivision (c)(30). Prior to the codification of Proposition 21 in 2000, former section 1192.7, subdivision (c)(30), provided “any violation of section 244” constituted a serious felony. (Stats. 1999, ch. 298, § 1, p. 1; see People v. Garrett (2001) 92 Cal.App.4th 1417, 1427-1430 [chart describing Proposition 21’s changes to section 1192.7, subdivision (c)].) This change in language was not meaningless; the present phrasing of section 1192.7, subdivision (c)(30), does not classify all section 244 violations as “serious felon[ies].”
Ironically, defendant’s section 244 conviction clearly qualified as a “serious felony” from 1997 (when he pleaded guilty) to 2000 (with the approval of Proposition 21). None of the parties, however, contend that the pre-2001 version of section 1192.7, subdivision (c)(30), applies to the determination of whether defendant committed a prior “serious felony.” We agree defendant’s sentence should be evaluated with reference to the current version of section 1192.7, subdivision (c)(30).
A similar issue of statutory interpretation arose in Williams v. Superior Court (2001) 92 Cal.App.4th 612 (Williams). The Williams defendant had a prior conviction under section 245, which was the result of an incident in which the defendant struck an individual with his fist. (Williams, at pp. 615-616.) Section 1192.7, subdivision (c)(31), designates as serious felonies “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of section 245.” The Williams court rejected the notion it could classify any violation of section 245 (to wit, the use of a fist) as a “serious felony” in light of the unambiguous language of the statute limiting its applicability to section 245 convictions involving particular fact patterns. (Williams, at pp. 622-624; accord People v. Haykel (2002) 96 Cal.App.4th 146, 149-151; People v. Winters (2001) 93 Cal.App.4th 273, 277-280.) We agree with defendant that cases interpreting section 1192.7, subdivision (c)(31), apply with equal force to section 1192.7, subdivision (c)(30).
We will not entertain the People’s invitation to expand the scope of section 1192.7, subdivision (c)(30), to include throwing any “caustic” substance as a “serious felony.” The statute unambiguously classifies some section 244 convictions as serious felonies, and thereby excludes the remainder of such convictions. “‘“[T]he judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the [P]eople and the political branches of government . . . .’ [Citation.] . . . ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.”‘“ (Williams, supra, 92 Cal.App.4th at p. 624.) Given the unambiguous language of section 1192.7, subdivision (c)(30), there is no need for us to examine possible rationales or justifications for the distinction between acid and flammable substances on the one hand (serious felonies), and caustic chemicals and vitriol on the other (not serious felonies). (Compare §§ 244, subd. (a), 1192.7, subd. (c)(30).)
The People also suggest (without citation to relevant authority) any error was harmless because the conduct underlying the conviction would satisfy section 1192.7, subdivision (c)(31). However, defendant was not actually convicted of section 245 for his conduct with regard to the caustic liquid. Section 1192.7, subdivision (c)(31), does not authorize a free-ranging search for prior conduct that can satisfy the elements of the underlying section 245 offense. Instead, it classifies as serious felonies any prior convictions of section 245 meeting the specified weapon or victim specific requirements. Furthermore, section 245 is not a “lesser offense . . . necessarily included” in a section 244 conviction. (People v. Warren (1963) 223 Cal.App.2d 798, 800-801; see People v. Day (1926) 199 Cal. 78, 85-86 [explaining that section 244 conviction does not require use of substance capable of causing great bodily injury, whereas section 245 conviction requires proof “that the means or force used must be likely to produce great bodily injury”].)
To prevail on an ineffective assistance of counsel claim, defendant must show trial counsel’s performance was deficient under an objective standard of reasonableness, and that there is a reasonable probability that but for counsel’s errors he would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A failure to investigate and put forth arguments likely to reduce a defendant’s sentence may constitute ineffective assistance of counsel. (See People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213.)
In light of the importance of this issue to defendant’s sentence, and in light of the court highlighting the issue for trial counsel at the sentencing hearing, we find there was ineffective assistance of counsel. Further, prejudice to defendant is obvious, as his sentence could have been significantly reduced had trial counsel made the argument to the court that has been made in this habeas petition. It appears the court based its finding of the existence of a prior “serious felony” entirely on defendant’s guilty plea, in which he admitted he threw an unspecified “caustic liquid.” There is no evidence in the record before us to suggest defendant utilized either acid or a flammable substance in committing his violation of section 244. We grant defendant’s petition for writ of habeas corpus, and remand for resentencing in conformity with this opinion.
Five Year Prior Serious Felony Enhancement
Defendant, citing Apprendi v. New Jersey (2000), 530 U.S. 466 (Apprendi), puts forth an alternative ground in his appeal to invalidate the section 667, subdivision (a)(1), five-year sentencing enhancement imposed by the court. He claims the jury did not explicitly find in its verdict that defendant used a deadly weapon to commit his section 245, subdivision (a)(1), offense. As explained above, only certain section 245 convictions qualify as “serious felon[ies]” under section 1192.7, subdivision (c)(31). (Compare §§ 245, 1192.7, subd. (c)(31).) Here, because firearms were not involved, the factual issue for determination is whether defendant violated section 245, subdivision (a)(1), by means of a “deadly weapon” or “by any means of force likely to produce great bodily injury.” If the vehicle is deemed a “deadly weapon,” then the section 245 conviction is a “serious felony.” Otherwise, the section 245 conviction is not a “serious felony.”
The record belies defendant’s contention on appeal. The jury’s verdict on count one states: “We the Jury in the above-entitled action find the Defendant, BRIAN ALVA, GUILTY of the crime of FELONY, to-wit: Violation of Section 245(a)(1) of the Penal Code of the State of California (Aggravated Assault) as charged in COUNT 1 of the Information.” Count one of the information states: “On or about December 31, 2006, in violation of Section 245(a)(1) of the Penal Code (AGGRAVATED ASSAULT), a FELONY, BRIAN ALVA did willfully and unlawfully commit an assault upon the person of JEANNI AVALOS with a deadly weapon and instrument, VEHICLE.”
The jury was instructed orally and in writing with CALCRIM No. 875, modified to instruct the jury that they were required to find the use of a deadly weapon in the commission of count one: “The defendant is charged in Count 1 with assault with a deadly weapon. [¶] 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 that by its nature would directly and probably result in the application of force to a person.” The modified jury instruction eliminated reference to an alternative conviction based on use of “force likely to produce great bodily injury.” (See CALCRIM No. 875.) Thus, the jury did make a finding that defendant utilized a deadly weapon. This finding was supported by case law and the facts of this case. (People v. Russell (2005) 129 Cal.App.4th 776, 782 [“The law makes clear a person who operates or drives a vehicle in an attempt to injure another person has committed assault with a deadly weapon, to wit, the car”]; People v. Wright (2002) 100 Cal.App.4th 703, 706.)
In light of the jury’s finding, the court acted appropriately in designating the section 245 conviction as a “serious felony” at the sentencing hearing. (See People v. Equarte (1986) 42 Cal.3d 456, 466-467; People v. Yarbrough (1997) 57 Cal.App.4th 469, 474-478.) Apprendi and its progeny do not require a jury determination that a section 245 conviction constitutes a “serious felony” when a defendant requests a bifurcated trial and waives the right to a jury determination of sentencing issues. (People v. Arnett (2006) 139 Cal.App.4th 1609, 1614 [“the waiver of his right to a jury trial on his prior conviction encompassed his right to a jury determination of whether his current offense was a serious felony for purposes of section 667, subdivision (a)”].) We also note there is no record of an objection at the trial court from defendant relating to the finding that he used a “deadly weapon” in the commission of his offense. (Id. at p. 1616 [defendant’s claim “that he did not intend to waive his right to a jury determination on whether the current offense was a serious felony [rings hollow], as he made no objection at the time of sentencing to the trial court making this determination”].)
DISPOSITION
Defendant’s petition for writ of habeas corpus is granted. The matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.,O’LEARY, J.