Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MC RD CRF 050001011
DAVIS, J.
Following a bench trial, the court convicted defendant Amber Bartholomew of assault with a deadly weapon, reduced the offense to a misdemeanor, and placed her on probation. On appeal, she contends that there is insufficient evidence of the mental state necessary for assault, and the minutes of the sentencing hearing could be interpreted as imposing fines that are not applicable. We shall affirm.
According to the court reporter’s index of proceedings, this hearing was “Not reported due to felony being reduced to a misdemeanor . . . . Court reporter was excused at the time of sentencing.”
The defendant’s contentions do not require a separate recitation of the facts. Instead, we will incorporate them in the Discussion.
Discussion
I
A
Consistent with fundamental standards of appellate review, we accept the facts that are most favorable to the judgment. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 359, p. 408.)
The victim’s vehicle was stopped at a red light. The defendant’s car collided with his from behind. When she approached his window on foot, he told her to follow him into a nearby parking lot. She parked next to him.
They got out of their respective vehicles. The victim saw that his recently repaired rear bumper was diagonally askew. The defendant disputed whether his brake lights had been working, despite the victim’s wife demonstrating (by stepping on the brake pedal from the passenger’s seat) that they were in fact operational. As the defendant continued to insist that the accident was not her fault, the victim’s wife got out of the car and directed profanity at the defendant. The two women also argued about the significance of each of their children being present in the two vehicles. Annoyed with the defendant’s attitude, the victim came within arm’s length and made a rude gesture with his middle finger. In response, the defendant said that she was leaving, and got back into her vehicle.
The victim told her that she could not leave the scene of an accident without exchanging the pertinent information. He did not have the money to repair the bumper again, and wanted to make sure that he would be able to get compensation. He decided to stand behind her car to prevent her from leaving. He knocked on her trunk to get her attention, and told her that he was not moving.
The victim caught the defendant’s eyes in her rearview mirror. Nonetheless, she began to back her car slowly toward him, hitting the brakes and causing the car to bounce. The victim thought she was simply trying to intimidate him into moving. At that point, when she was less than a foot away, she began to speed up. She hit the victim, who estimated her speed at “a few miles-an-hour.” He felt the car begin to roll onto him, so he grabbed onto the trunk. She continued to back up. When she finally came to a stop, the victim let go and pushed himself away a few feet. She backed into him again, somewhat harder than previously. He again grabbed onto the trunk. She finished pulling out of the parking space. The victim let go, and the defendant drove off. The victim was sore for a couple of weeks afterward.
When a detective interviewed the defendant later that evening, she claimed to have acted out of fear because the victim and his wife were attacking her car. She resisted the detective’s efforts to handcuff her and take her into custody, claiming that she had not done anything wrong.
B
People v. Williams (2001) 26 Cal.4th 779 overruled sub silentio two of the Supreme Court’s early decisions construing the mental state for assault as requiring an intent to commit an injury, both of which were cited in the 1872 codification of the definition of assault. (See People v. Wright (2002) 100 Cal.App.4th 703, 714-716.) It substituted a mental state akin to negligence in which a defendant can be guilty of an assault where there is an act, committed under circumstances known to the defendant that would alert a reasonable observer to the probable and direct result of an application of force to another, whether or not this was the defendant’s subjective motivation. (Id. at pp. 706, 711-712.) A fortiori, conduct that reaches the level of recklessness is sufficient for purposes of assault. (Id. at p. 725 [driving car in close proximity to victims is reckless and therefore an assault].)
The defendant contends that she never intended to commit a battery. As we have just stated, this is irrelevant under the Supreme Court’s revision of the law of assault.
She also disputes whether the circumstances known to her would make a reasonable observer aware of a probable direct application of force to the victim. She poses a query of “whether a reasonable person would anticipate that a person would deliberately stand behind a vehicle moving in reverse and [not] take [any] action to move out of the way.” In the first place, the victim was standing there before she decided to move her car in reverse. Moreover, one might also ask whether a reasonable person could anticipate that a car would continue to back into a visible pedestrian who was not moving out of the way. In any event, when she continued to back her car toward the unmoving victim, and in fact picked up speed after initially failing to stir him into evasive action, she acted at least recklessly with respect to the likelihood of applying force to his person. This is more than sufficient.
To the extent the defendant is suggesting that the victim was contributorily negligent, we have stated that it is “well established” that this is not a defense. (People v. Marlin (2004) 124 Cal.App.4th 559, 569.) To the extent she suggests that the victim’s reaction negated causation, her action in backing a car toward a pedestrian was not so remote from the resulting forbidden result that his failure to move was the sole proximate cause of the assault. (Id. at p. 570.) Having put an unlawful force into play, much like throwing a rock or knife at a victim, it is not for her to invoke the victim’s failure to get out of the way.
II
The defendant contends the minutes of her sentencing, which are the only record, are unclear regarding the fines that the court imposed and therefore we should remand for clarification. This alleged “ambiguity” is beheld only in the defendant’s eye.
The defendant does not dispute the propriety of the four boxes actually marked with elongated slashes on the preprinted form under the heading for fines. She believes that the tails of these slashes, which extend into the boxes for two other fines, somehow have the effect of imposing these fines as well. This is an unreasonable interpretation, and in any event our opinion will confirm that these fines are not part of the sentence and judgment in this matter without any need to remand to clarify any ambiguity.
She further claims that the unmarked preprinted boxes for four other fines somehow have the effect of imposing these fines because they include preset amounts. This argument is frivolous, and does not merit any further analysis.
Disposition
The judgment is affirmed.
We concur: BLEASE , Acting P.J. NICHOLSON , J.