Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF02134
HULL, J.A jury convicted defendant Phillip Arasa of assault with a deadly weapon on a police officer (Pen. Code, § 245, subd. (c)--count 1; unspecified section references that follow are to the Penal Code), resisting an officer by means of force or violence (§ 69--count 2), and reckless driving to evade a peace officer (Veh. Code, § 2800.2--count 3). The jury also found that defendant used a deadly weapon in the commission of count 2 (§ 12022, subd. (b)(1)), and rejected defendant’s plea of not guilty by reason of insanity. The trial court found charged prior enhancements to be true (§§ 667, subd. (a)(1); 667, subd. (e)(2); 667.5, subd. (b)) and sentenced defendant to an aggregate prison term of 34 years to life.
On appeal, defendant raises several claims of instructional error. He asserts that the court (1) misdefined “deadly weapon,” (2) erroneously refused to instruct on lesser included offenses, (3) misinstructed on an officer’s legal performance of duties, (4) incorrectly explained the requirements for a “distinctively marked” police car, and (5) misread an instruction in the sanity phase of the trial. We affirm the judgment.
Facts and Proceedings
At 4:00 a.m. in December, Deputy Sheriff Fidel Taylor and Sergeant James Wolff responded in two marked patrol cars to a casino where a woman had gone to retrieve her car pursuant to a court order. The woman, Lisa B., appeared to be under the influence of narcotics. The officers did not want her to drive and they asked her who had brought her to the casino. She responded that a friend had driven her and she thought he was still in the parking lot. The officers, accompanied by Lisa, drove their vehicles into the lot to try to find her companion.
Lisa identified a car as one that might be her friend’s. The car windows were foggy, as if someone might be inside. Sergeant Wolff approached the car and saw defendant lying across the front seat. Defendant leaned up, surprised, and yelled, “I just gave Lisa a ride.” Defendant was extremely agitated and upset, and he continued to yell at Sergeant Wolff. Wolff suspected that defendant might also be under the influence and he opened the car door and asked defendant for his identification.
Deputy Taylor, who had parked his marked car in front of defendant’s, was approaching Sergeant Wolff and defendant’s car when he heard defendant yell, “Why are you messing with me[?] Leave me alone.” Sergeant Wolff responded by telling defendant to relax, that he just wanted to talk to him, and he asked defendant to turn off his ignition.
Defendant agreed, but instead put the car into gear and accelerated, with his car door still open. Deputy Taylor saw the car coming toward him but he had nowhere to go. Defendant hit Taylor with the open car door as he drove forward. Taylor was knocked five feet but somehow managed to keep his balance. As he was hit, Taylor swung at the car and shattered the driver’s window with his flashlight.
Defendant sped out of the parking lot and a chase ensued at speeds of up to 100 miles per hour over a distance of 50 miles.
As noted, the jury convicted defendant of assault with a deadly weapon on a police officer, resisting an executive officer by means of force or violence, and reckless driving to evade a peace officer, and found a charged deadly weapon enhancement to be true. The jury also rejected defendant’s plea of not guilty by reason of insanity.
Discussion
I
Definition of “Deadly Weapon”
The trial court’s instructions on count 1, assault with a deadly weapon, included the following definition: “A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (CALCRIM No. 860.)
Defendant contends that this instruction was erroneous because a car is not an inherently dangerous instrument; it can be considered a deadly weapon only if it is used in the manner described in the second prong of the instruction. Defendant asserts that because the case was presented to the jury on alternative legal theories and one of those theories was legally incorrect, his conviction must be reversed. We disagree.
Defendant correctly notes that People v. Green (1980) 27 Cal.3d 1, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 and People v. Martinez (1999) 20 Cal.4th 225, 233-237, held that “when the prosecution presents its case to the jury on alternative theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilty rested, the conviction cannot stand.” (Green, at p. 69.) The same rule applies “when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.” (Id. at p. 70.)
Here, the requisite predicate is absent. The prosecution relied on only one theory to support the charges, namely, that defendant used his car in a manner that qualified it as a deadly weapon. At no time did the prosecutor suggest that a car is inherently dangerous.
In his argument on the charge of assault with a deadly weapon, the prosecutor stated, “Well, as defined in the jury instruction[,] a deadly weapon is something that is either inherently deadly, such as a knife, a sword, a gun, or something that, used in such a way, is capable of causing death or great bodily injury. A car is such an instrument that, if used in such a way, can indeed cause death or great bodily injury to a person. Striking somebody with a car would certainly kill them. [¶] In this case the defendant struck Deputy Taylor with his car, so he did an act with a deadly weapon. By driving your car forward and striking somebody with that car would directly result in the application of force.”
Similarly, in discussing the weapons enhancement charged in conjunction with count 2, the prosecutor said: “There’s an additional allegation that--in which he used a deadly weapon in this case. He struck the deputy with the car, again, a deadly weapon.”
The prosecutor presented his case under one theory: that defendant’s car was used in a manner that qualified it as a deadly weapon, and the evidence bears out that theory. Defendant accelerated his car, causing the open car door to hit Office Taylor. The car was used in a manner that was capable of causing and likely to cause death or great bodily injury, and it therefore qualified as a deadly weapon. The fact that Officer Taylor suffered only minor injuries was a matter of pure luck. The court’s instruction correctly stated the law.
II
Lesser Included Offenses
Defendant contends that the trial court erred in refusing to give requested instructions on lesser included offenses to counts 1 and 2. We disagree.
A. Lesser included offense to count 1
Count 1 charged defendant with assault with a deadly weapon on a peace officer (§ 245, subd. (c).) Defendant also asked the court to instruct on simple assault as a lesser included offense. The court refused, concluding that if an offense occurred, it was assault with a deadly weapon, not simple assault. The court’s ruling was correct.
A trial court must instruct on lesser included offenses “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” (People v. Breverman (1998) 19 Cal.4th 142, 154; see also People v. Birks (1998) 19 Cal.4th 108, 118.)
Here, if defendant assaulted Officer Taylor at all, he did so by hitting him with his car. Such conduct constitutes assault with a deadly weapon. Defendant reiterates his claim that because Officer Taylor was not seriously injured, the jury could have concluded that the car was used in a way that was not likely to cause death or great bodily injury and thus did not constitute a deadly weapon. We need not repeat our earlier analysis. By driving in a manner that was certain to cause the car door to hit Officer Taylor, defendant’s car became a deadly weapon. The fact that more serious injury did not result does not mean that defendant was entitled to an instruction on simple assault.
The court properly concluded that if defendant was guilty of any crime, he was guilty of the charged offense and there was thus no basis to instruct on the lesser included offense of simple assault. Contrary to defendant’s claim, that decision in no way infringed on his constitutional right to present a complete defense.
B. Lesser included offense to count 2
Defendant contends that the trial court erred in refusing to instruct on resisting arrest (§ 148, subd. (a)(1)) as a lesser included offense to the charged offense in count 2, resisting an executive officer by use of force or violence (§ 69). He asserts that such an instruction was appropriate because a jury might have concluded that although defendant did not know the officer was performing his duties (an element of section 69), he reasonably should have known so (a theory of liability under section 148, subdivision (a)(1)). (Compare CALCRIM No. 2652 with CALCRIM No. 2656.) There was no error.
Courts are divided on the question of whether section 148, subdivision (a)(1) is a lesser included offense of 69. (See generally People v. Lacefield (2007) 157 Cal.App.4th 249, 254-259 and cases cited therein.) However, we need not weigh in on this debate because there was no evidence warranting such an instruction in this case.
Defendant focuses on his interaction with Sergeant Wolff, the officer who first approached defendant’s car, and argues that his statements to this officer (e.g., “Why are you messing with me[?] Leave me alone.”) suggested that he believed he was being harassed and did not know that Sergeant Wolff was performing his lawful duties. Defendant’s argument is misplaced. Count 2 of the information did not relate to defendant’s verbal interactions with Sergeant Wolff. Rather, count 2 charged defendant with using force or violence to resist Deputy Taylor in the performance of his duties, and the information included an allegation that defendant used a deadly weapon (his car) in the commission of this offense.
There is no evidence from which a jury could conclude that defendant did not know that Deputy Taylor was performing his duties when he approached defendant’s car. Deputy Taylor emerged from his marked police car in full uniform, and defendant hit Taylor with his car door as he accelerated toward him, before Taylor had even spoken with him. Under these circumstances, there was no basis to instruct the jury on the lesser offense of resisting arrest. Again, the absence of any such instruction did not preclude a meaningful opportunity to present a full defense. There was no error.
III
Lawful Performance of Officer’s Duties
Defendant raises several other challenges to the court’s instructions relating to count 2, resisting an executive officer by force or violence. None has merit.
The court instructed the jury pursuant to CALCRIM No. 2670, which provided in relevant part:
“The People have the burden of proving beyond a reasonable doubt that Officer Taylor was lawfully performing his duties as a peace officer.... [¶] A peace officer is not lawfully performing his duties if he is unlawfully detaining someone.
“A peace officer may lawfully detain someone if:
“1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime;
“AND
“2. A reasonable officer who knew the same facts would have the same suspicion.
“Any other detention is unlawful.”
Defendant challenges the two numbered clauses that outline the requirements for a lawful detention. He contends that the first numbered clause is erroneous because it focuses on the officer’s subjective good faith, an irrelevant factor in determining the lawfulness of a detention, and is therefore contrary to principles enunciated in cases such as Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 98]. He misreads the instruction.
The challenged language (a detention is lawful if “specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime”) simply focuses on the need for specific and articulable facts to support the officer’s suspicions. It does not implicate improper concerns such as the officer’s good faith.
Defendant’s challenge to the second clause is equally unavailing. He asserts that this provision (“a reasonable officer who knew the same facts would have the same suspicion”) fails to explain the need for an objective standard to establish reasonable suspicion. Again, the instruction properly states the law: an officer’s suspicion must be reasonable.
Defendant also faults the court’s instruction for failing to define the term “detention.” The Use Notes to CALCRIM No. 2670 explain that such a definition should be given “if there is a factual issue about whether the person was in fact ‘detained.’”
Here, there was no such dispute. The prosecutor acknowledged that the officers detained defendant. The parties’ disagreement centered on whether that detention was lawful, not on whether a detention occurred. Under these circumstances, the court was under no obligation to utilize that part of CALCRIM No. 2670 defining the term “detention.”
IV
“Distinctively Marked” Vehicle
Count 3 of the information charged defendant with reckless driving to evade a peace officer. In order to prove intentional evasion, the prosecution had to establish that law enforcement officers were in a “distinctively marked” vehicle. (See People v. Hudson (2006) 38 Cal.4th 1002, 1013.) Defendant asserts that the trial court erred in defining this term. We agree, but conclude that the error was harmless.
The trial court instructed the jury pursuant to CALCRIM No. 2181 as follows: “The defendant is charged in Count Three with evading a peace officer with wanton disregard for safety. [¶] To prove that the defendant is guilty of this crime, the People must [prove] that: one, a peace officer driving a motor vehicle was pursing the defendant; two, the defendant was also driving a motor vehicle which willfully fled from or tried to [elude] the officer intending to evade the officer; three, during the pursuit the defendant drove with willful or wanton disregard for the safety of persons or property; And, four, all of the following are true:
“A, there as at least one lighted red lamp visible from the front of the peace officer’s vehicle; B, the defendant either saw or reasonably should have seen the lamp; C, the peace officer’s vehicle was sounding a siren as reasonably necessary; D, the peace officer’s vehicle was distinctly marked; and E, the peace officer was wearing a distinctive uniform.”
The court also instructed, “A vehicle is distinctively marked, if it has a red lamp and siren. It may also have additional markings or devices in addition the red lamp and siren that identify it as a peace officer’s vehicle. The vehicle’s appearance must be sufficient that a person would know or reasonably should know that it is a law enforcement vehicle.” (Italics added.)
Defendant contends that the italicized language erroneously defined a “distinctively marked vehicle.” We agree.
“In common parlance, the phrase ‘distinctively marked,’ when used to describe a police car, could include such distinguishing features as a red light or siren. [Citation.] [Vehicle Code sections] 2800.1, 2800.2, and 2800.3, however, require markings in addition to the presence of a red light and siren, because... [these statutes] expressly require[] the peace officer’s vehicle to have a red light [citation], a siren [citation], and to be distinctively marked [citation]....
“Accordingly, a trial court must tell the jury that in determining whether the statutory requirement that the pursuing police officer’s vehicle be distinctively marked is met, it should consider the physical features of the vehicle itself that distinguish it from vehicles not used for law enforcement. To be distinctively marked, a vehicle must have, in addition to a red light and siren, one or more distinguishing physical features that are reasonably visible to other drivers during the pursuit.” (People v. Hudson, supra, 38 Cal.4th at pp. 1012-1013.)
As defendant notes, the court erred in instructing the jury that a vehicle is distinctively marked “if it has a red lamp and siren,” and that it “may also have additional markings or devices.” Those additional markings are a necessary element for a “distinctively marked” vehicle.
However, the court’s error was harmless. The officers’ vehicles had light bars with flashing red, white, and blue lights. The cars also bore decals indicating “Sheriff” and “Call 911.” The uncontradicted evidence established that these vehicles were “distinctively marked,” and the erroneous instruction therefore did not prejudice defendant.
Moreover, the court gave the proper definition of “distinctively marked” when instructing the jury on the lesser included offense of misdemeanor evading arrest. In this context, the court explained, “A vehicle is distinctively marked, if it has features that are reasonably noticeable to other drivers, including a red lamp, siren, and at least one other feature that makes it look different from vehicles that are not used for law enforcement purposes.” The court added that the only difference between the charged offense and the lesser included is that in the charged offense, “the People have to prove beyond a reasonable doubt that during the pursuit the defendant drove with willful or wanton disregard for the safety of persons or property. In all other respects these two charges are exactly the same. [¶] So there is one additional element to the charged offense than there is to the lesser included offense.” (Italics added.)
Given these circumstances, defendant cannot demonstrate prejudice. The court’s error was harmless.
V
Sanity Instruction
Defendant contends that the trial court’s error in reading CALCRIM No. 3450 relating to an insanity defense compels reversal. We disagree.
CALCRIM No. 3450 provides in relevant part, “Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity.
“If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect combined with another mental disease or defect may qualify as legal insanity. A settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off.” (Brackets omitted, italics added.)
As our emphasis makes clear, this instruction refers four times to a “settled” mental disease or defect. According to the reporter’s transcript, the trial court misspoke each time and referred to a “subtle” mental disease or defect. Defendant contends that this error requires reversal. We do not agree.
We suspect that this misreading reflects an error on the part of the court reporter rather than the trial court, particularly since the record contains other apparent errors in transcription, such as “supposition” for “supplemental,” “allude” for “elude,” and “proof” for “prove.” It is unlikely that the trial court misread the same word each time it appeared in the instruction.
But even if the court in fact said “subtle” each time it read the word “settled,” the fact remains that the correctly worded, written instructions were given to the jury. “To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.” (People v. Wilson (2008) 44 Cal.4th 758, 803; see also People v. Osband (1996) 13 Cal.4th 622, 717.) Defendant’s claim of reversible error is unfounded.
Disposition
The judgment is affirmed.
We concur: RAYE , Acting P. J., ROBIE , J.