Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03800
RAYE, J.Defendant Reginald Allan Dodson was tried by jury and convicted of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). Defendant waived jury trial on a special allegation that he had previously served one prior prison term, an allegation the trial court found to be true. The trial court sentenced defendant to three years in state prison and imposed other orders.
All further statutory references are to the Penal Code.
Defendant raises three issues on appeal. He contends 1) that the trial court prejudicially erred in failing to instruct the jury sua sponte on the defense of accident, 2) that the trial court prejudicially erred in failing to instruct the jury sua sponte that it was required to reach a unanimous agreement as to which specific act constituted the crime of assault with a deadly weapon, and 3) that the trial court lacked the authority to impose a no-contact order prohibiting contact between defendant and the victim.
As explained more fully below, we will modify the judgment to strike the no-contact order and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
Defendant and Yolanda Dodson were separated and in the throes of a bitterly contested divorce when defendant arrived at Yolanda’s place of employment on the morning of April 19, 2006. Defendant’s purpose that morning was to confiscate a 2003 BMW automobile the court had previously awarded to Yolanda. Yolanda watched from the lobby as defendant’s girlfriend pulled into the parking lot in a green Buick with defendant in the passenger seat. As the Buick stopped next to the BMW, defendant emerged from the vehicle, got into the BMW, and started the engine.
Yolanda sprinted to the parking lot to block defendant’s escape. She also had court papers she wanted served on defendant. She handed the papers to a coworker, Kathy Braswell, who was already in the parking lot, and asked Kathy to serve defendant. With Yolanda standing steadfast in front of the BMW and Kathy attempting to hand defendant the papers through a small gap in the driver’s side window, defendant pulled forward, a few feet at a time, causing Yolanda to backpedal to avoid being hit. Defendant continued to pull forward, striking Yolanda with the front of the car and causing her to fall forward onto the hood.
With Yolanda on the hood of the BMW, her boots scraping the pavement as she clung to the top of the hood near the windshield wipers, defendant continued forward. Defendant and his hood-top passenger exited the parking lot and made a left turn. The BMW stopped after a short distance. Yolanda remained on the hood. Defendant then put the BMW in reverse and drove backwards for roughly 75 to 80 feet. The BMW stopped a second time. This time, Yolanda rolled off the hood and was clipped by the BMW’s left front tire as defendant drove away.
Defendant was tried by jury and convicted of assault with a deadly weapon. He waived jury trial on a special allegation that he had previously served one prior prison term, an allegation the trial court found to be true. The trial court sentenced defendant to three years in state prison (the lower term of two years on the assault plus an additional year for the prior prison term) and imposed other orders.
DISCUSSION
I
Defendant claims the trial court had a sua sponte duty to instruct the jury on the defense of accident. We disagree.
The trial court has a sua sponte duty to instruct on a defense only where there is substantial evidence to support the defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Felix (2001) 92 Cal.App.4th 905, 911.) “The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime. [Citation.]” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
“‘The 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, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.’” (People v. Golde (2008) 163 Cal.App.4th 101, 108, quoting People v. Colantuono (1994) 7 Cal.4th 206, 214-215.) “[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.)
Defendant’s theory of the case was that “Yolanda jumped on the car and that [defendant], who simply wanted to repossess the car and leave the parking lot, did not intend to harm her.” He cites various pieces of testimony offered throughout the trial that he claims would have allowed the jury to conclude the following: (1) defendant was moving the BMW forward as Yolanda was moving backward, which is consistent with defendant’s intent to “leave the scene without causing anyone injury”; (2) Yolanda was not struck by the BMW, but leaped onto the hood in an attempt to stop defendant from absconding with the vehicle; and (3) after the car traveled in reverse for 75 to 80 feet and Yolanda ended up on the ground, she was not struck by the left front tire as the BMW drove away.
Defendant misunderstands the nature of the defense of accident. Defendant’s assaultive conduct was only an “accident” if he acted without forming the requisite mens rea. Whether he intended to hit Yolanda with the BMW is irrelevant. Moving the BMW toward her as she stood directly in front of the vehicle was an act that by its nature would probably and directly result in injury to another. Consequently, in order for defendant to possess the requisite mens rea in this case, he need only have intended to move the BMW forward while Yolanda stood in front of the vehicle. There is no evidence in the record, substantial or otherwise, indicating that defendant did not intend to move the BMW forward while Yolanda stood directly in its path. On this point, all testimony agreed. Indeed, an argument to the contrary runs counter to defendant’s theory of the case, i.e., that defendant’s intent was to leave the parking lot with the BMW regardless of the fact that Yolanda was in his way.
Moreover, driving the BMW in reverse for 75 to 80 feet with Yolanda on the hood, regardless of how she got there, was an act that by its nature would probably and directly result in the application of physical force against Yolanda’s person, i.e., the physical force of the pavement against her body as she was thrown from the hood. Again, unless defendant did not intend to drive the vehicle in reverse, or was not aware of Yolanda’s presence on the hood, he acted with the requisite mens rea for assault. His subjective intent to cause her injury is irrelevant. There is simply no evidence that would have allowed the jury to conclude defendant did not intend to drive the BMW in reverse with full knowledge of Yolanda’s presence on the hood.
As for the final alleged contact between Yolanda and the BMW, defendant did not raise a claim of accident. He did not claim that he accidentally struck Yolanda with the left front tire. He denied striking her with the tire at all. However, the only testimony on this point came from Yolanda, who clearly recalled being struck by the tire as defendant drove away. Defendant failed to provide any evidence contradicting Yolanda’s testimony in this regard. Nor did he provide any evidence that he struck her with the tire accidentally, i.e., without forming the requisite general intent to floor the gas pedal with Yolanda mere inches from the left front tire.
While “[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused” (People v. Wilson (1967) 66 Cal.2d 749, 763), here there is no evidence indicating defendant did not intend to drive the BMW in a manner that would probably and directly result in the application of physical force against Yolanda. Consequently, the trial court had no sua sponte duty to instruct the jury on the defense of accident.
II
Defendant next contends the trial court had a sua sponte duty to instruct the jury that it was required to unanimously agree on which specific act constituted the crime of assault with a deadly weapon. We disagree.
“Generally, where evidence shows more than one act which could constitute the charged offense and the prosecutor does not elect to rely on any one such act, a unanimity instruction may be required.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294 (Haynes); see People v. Diedrich (1982) 31 Cal.3d 263, 281.) The purpose of the unanimity instruction is to protect the defendant’s constitutional right to have the jury unanimously agree on the criminal conduct that supports his conviction. (People v. Sutherland (1993) 17 Cal.App.4th 602, 611.) However, “[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see People v. Harris (1994) 9 Cal.4th 407, 431-432, fn. 14 (Harris); People v. Mota (1981) 115 Cal.App.3d 227, 233 (Mota); Haynes, supra, 61 Cal.App.4th at p. 1295.)
In this case, defendant claims that a unanimity instruction was required because the prosecution argued multiple acts that could have constituted the charged offense of assault with a deadly weapon, but did not elect to rely on any one such act. The prosecution’s multiple theories of assault with a deadly weapon were as follows: (1) initially pulling the BMW forward with Yolanda standing directly in front of the car, causing her to backpedal, constituted assault with a deadly weapon because such action, by its very nature, would probably and directly result in the application of physical force against another; (2) hitting Yolanda in the leg with the front of the BMW, causing her to fall forward onto the hood, constituted assault with a deadly weapon; (3) driving the BMW with Yolanda on the hood constituted assault with a deadly weapon because such action, by its very nature, would probably and directly result in the application of physical force against another, i.e., Yolanda’s falling off the hood and hitting the pavement; and (4) hitting Yolanda with the left front tire after she rolled off the hood constituted assault with a deadly weapon.
Defendant claims that a unanimity instruction was required “because the jurors could have rationally differed as to which act constituted the underlying basis to support a conviction for assault with a deadly weapon.” The Attorney General responds that no unanimity instruction was required because defendant’s actions “were part of a continuous course of conduct which occurred in a very short period of time.” The Attorney General has the better argument.
In Haynes, supra, 61 Cal.App.4th 1282, the unapprehended robber, assisted by Haynes, struggled with the victim in a parking lot through the victim’s open car window and took a portion of the victim’s money before the victim was able to drive away. (Id. at p. 1286.) Haynes and the robber then followed the victim until he stopped a couple of blocks away, where the robber struggled with the victim a second time, ultimately securing the remainder of the cash. (Ibid.) Convicted of one count of robbery on a theory of aiding and abetting, Haynes argued there were two separate acts that could constitute the robbery offense, giving rise to a sua sponte duty to provide the jury with a unanimity instruction. (Id. at p. 1291.)
The Court of Appeal disagreed, holding that no unanimity instruction was required because the two encounters with the victim “were ‘so closely connected in time’ [citation] that the [continuous course of conduct] exception applied.” (Haynes, supra, 61 Cal.App.4th at p. 1295.) As the court explained: “The two encounters were just minutes and blocks apart and involved the same property. The acts were successive, compounding, part of a single objective of getting all the victim’s cash, charged as a single robbery, and arguably barred from multiple punishment by Penal Code section 654.” (Id. at p. 1296; see also Harris, supra, 9 Cal.4th at pp. 431-432, fn. 14 [counseling trial court for purposes of remand that continuous course of conduct exception would likely apply where the victim was held captive over the span of two days and the robbers transported him to two separate locations, his home and office, in order to take all of his property]; Mota, supra, 115 Cal.App.3d at p. 233 [holding the continuous course of conduct exception applied where the victim was repeatedly raped by Mota and two others in a van within the span of an hour].)
In this case, defendant decided to take from Yolanda a BMW he believed he had the right to possess despite the existence of a court order to the contrary. He was going to take the vehicle regardless of who was standing in his way. And with Yolanda directly in front of the car, steadfast in her resolve to stop him from absconding with the BMW, defendant drove forward, hitting Yolanda with the front of the vehicle and causing her to fall forward onto the hood. Defendant continued driving, with Yolanda clinging to the top of the hood, turning left out of the parking lot, then stopping and driving in reverse for 75 to 80 feet until Yolanda rolled off of the hood to suffer the final indignity of being hit by the left front tire as defendant, finally clear of his nemesis, drove away. The entire event spanned the course of several seconds. The individual contacts between Yolanda and the BMW were successive, compounding, part of a single objective of escaping with the BMW, charged as a single assault with a deadly weapon, and arguably barred from multiple punishment by section 654.
Even more than the conduct held to fall within the continuous course of conduct exception in Haynes, Harris, and Mota, defendant’s conduct in this case constituted one continuous course of conduct from start to finish. Consequently, the trial court had no sua sponte duty to give the jury a unanimity instruction.
III
Defendant’s final contention on appeal is that the trial court lacked the authority to impose a no-contact order prohibiting contact between defendant and the victim. The Attorney General agrees, and we concur.
“A claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) “Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. [Citation.]” (People v. Scott (1994) 9 Cal.4th 331, 354.)
In this case, the prosecution requested, and the trial court imposed, a no-contact order prohibiting contact between defendant and Yolanda. Because a no-contact order is a form of punishment imposed for the commission of a crime, it must have a statutory basis in order to be valid. As section 12 provides: “The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed.” Thus, while the imposition of sentence and the exercise of sentencing discretion are judicial functions (People v. Navarro (1972) 7 Cal.3d 248, 258), the Legislature possesses the exclusive power to define criminal offenses and prescribe penalties for violations thereof (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3).
The trial court did not state a statutory basis for imposing the no-contact order in this case. Nor are we aware of any statute that would provide a basis for the trial court to issue such an order. As we explained in People v. Lara (1984) 155 Cal.App.3d 570, 574: “A sentencing court has no discretion to deviate from the punishment prescribed by statute.” Consequently, we must strike the trial court’s no-contact order as an unauthorized sentence.
DISPOSITION
The no-contact order is stricken from the judgment. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., BUTZ, J.