Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA701135, Jon D. Ferguson, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Heather Crawford and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury convicted defendant and appellant Martha Gatewood of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1), driving under the influence, as a lesser offense of driving under the influence causing injury (Veh. Code, § 23152, subd. (a), count 2), driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b), count 3), and leaving the scene of an accident (Veh. Code, § 20002, subd. (a), count 4). The jury also found true the allegation that defendant had served a prior prison term for driving under the influence and causing injury, within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to state prison for five years, which included the upper term of four years on count 1, plus one year consecutive on the prison prior. (The court imposed county jail time on counts 2 through 4, which were misdemeanors.))
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends: 1) there was insufficient evidence to support the conviction in count 1; and 2) the court abused its discretion in imposing the upper term on count 1, based on the same factor used to impose the prior prison enhancement, and because the aggravating factors did not outweigh the mitigating factors. We affirm.
FACTUAL BACKGROUND
Lafayette Taylor (the victim) was driving his car and turned left into a parking lot, when defendant hit his bumper with her car. Defendant pulled over to the side of the road. The victim approached defendant and asked for her license and insurance information, and defendant said, “No, let me see yours.” When the victim told defendant she hit him, defendant said, “No, my son hit you.” The victim looked, but there was no one else in the car. Defendant then started her car and slowly moved it forward. The victim walked next to the car, asked where she was going, and told her to stop. Defendant stopped the car at an angle against the curb. The victim told her to get out of the car, but defendant refused and said, “You’re not my son.” The victim was standing next to defendant’s car with his right hand resting on the open window, when defendant quickly drove off. Since defendant’s car was parked at such an angle that the victim believed he was going to be run over, his first reaction was to grab onto the car. His hand went into the car and then his entire right arm. When defendant took off, the victim started yelling “stop” continuously, but she ignored him. Defendant drove down the road at approximately 60 miles per hour, while the victim hung on, with his feet dragging. The victim tried to reach inside the car to turn the steering wheel in order to try to get defendant to stop. He also tried to grab defendant and touched her neck with his hand. Defendant swerved the car from side to side, and the victim thought defendant was “[t]rying to get [him] off.” Defendant also braked suddenly and then started back up again. When defendant stopped a second time at a stop sign, the victim released himself from the car safely.
A police officer spotted defendant’s car, which matched the description of a car involved in a hit-and-run collision, and started to pursue it. When defendant finally pulled over, the police officer approached her car and smelled an odor of alcohol coming from her breath and person. After defendant was arrested, her blood alcohol level was tested and registered at .30 percent.
ANALYSIS
I. There Was Sufficient Evidence to Support the Assault with a Deadly Weapon Conviction
Defendant contends there was insufficient evidence to convict her of assault with a deadly weapon. Specifically, she argues the evidence did not show that she did an “act with her car that would directly and probably result in the application of force to [the victim].” She also claims there was no evidence presented to demonstrate that she was even aware the victim was holding onto her car as she drove away. Thus, the evidence was insufficient to show she was “aware of facts that would lead a reasonable person to realize the battery would directly[,] naturally and probably result from her conduct[.]” As such, her conviction should now be reversed. She further claims the court erred in denying her section 1118.1 motion to dismiss count 1. We disagree.
Both trial counsel and appellate counsel mistakenly referred to the motion as being under section 1118. Section 1118 applies only in a case tried by the court without a jury.
A. Standard of Review
“In deciding the sufficiency of the evidence, we ask whether ‘“after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ [Citation.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
B. The Evidence Was Sufficient
Section 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault is a general intent crime which “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 (Williams).) “In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (Id. at p. 788.) A car can be a deadly weapon. “Thus, any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon.” (People v. Wright (2002) 100 Cal.App.4th 703, 706.)
Here, the evidence established that while defendant was drunk, she drove her car at a very high rate of speed in an erratic and swerving manner, while defendant was hanging from her car window. Any reasonable person would realize that driving a car while intoxicated, at an unsafe speed and in a reckless or negligent manner, would probably result in a battery.
Defendant asserts there was no evidence that she was aware the victim was holding onto her car as she drove away. However, in contrast to her claim, the evidence shows the victim was resting his arm on her car when she suddenly drove off. The evidence also shows that the victim initially and continuously yelled at defendant to stop the car, but she ignored him. Although victim testified defendant did not turn her head toward him, that does not mean defendant did not know the victim was there. In fact, the evidence shows that the victim reached inside the car and attempted to grab the steering wheel, and that he touched defendant’s neck. Moreover, the evidence shows that defendant drove at a high speed, swerved from side to side, and braked suddenly, indicating that she was trying to get the victim to let go of the car. All of this evidence indicates that defendant knew the victim was holding onto her car, as the jury apparently concluded.
Defendant further argues she did not actually do any act that would constitute assault with a deadly weapon, since the victim’s “own action put [him] in danger[.]” She asserts that she did not “grab [the victim] or attach him to her car in any way or try to run him over[.]” Instead, the victim decided to grab onto her car as she drove away. However, the “contributory negligence” of the victim is not a defense in criminal prosecutions. (People v. Armitage (1987) 194 Cal.App.3d 405, 420; see also People v. Harris (1975) 52 Cal.App.3d 419, 427 [“A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause”].)
Defendant also contends the victim’s testimony that he believed he had to grab onto her car to avoid being struck was inherently implausible, since he was standing next to her car and only had to step back. She argues that the victim “was simply trying to prevent [her] from leaving the scene of the accident . . . and he chose to grab onto her car in an effort to get her to stop.” We reiterate that it “is the exclusive province of the trial judge or jury to determine the credibility of a witness” and that we cannot reevaluate his testimony. (People v. Maury, supra, 30 Cal.4th at p. 403.) Moreover, defendant’s subjective belief that the victim could have successfully avoided the collision by stepping back does not exonerate her. A reasonable person in defendant’s position would have been aware of the impending battery, and Williams teaches that such an objective measure of intent is sufficient to sustain a finding of assault. (Williams, supra, 26 Cal.4th at p. 786.)
Viewing the evidence in a light most favorable to the prosecution, as we must, we conclude there was sufficient evidence to support the conviction of assault with a deadly weapon. Accordingly, the court properly denied the section 1118.1 motion to dismiss.
II. The Trial Court Properly Imposed the Upper Term on Count 1
Defendant argues the court improperly imposed the upper term on count 1, because it relied on the same fact to impose the prior prison sentence enhancement—that defendant had a prior conviction for driving under the influence causing injury. Defendant further claims the aggravating factors did not outweigh the mitigating factors. We conclude that the court properly sentenced defendant to the upper term.
“‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’ [Citations.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
Section 1170, subdivision (b), provides that “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”
Here, the court stated numerous reasons for imposing the upper term on count 1. The court first noted the fact that the prior prison commitment was for the offense of driving under the influence causing injury; the court additionally observed that defendant had “experience injuring others while under the influence of alcohol and while behind the wheel of a vehicle . . . [and had] certainly not learned from that”; the court then specified defendant’s other convictions for the same offense. In addition, the court stated that: 1) the victim was particularly vulnerable; 2) defendant had a prior record of criminal conduct; 3) she had violated probation in the past, and her performance on probation and parole were unsatisfactory; 4) she had not indicated a willingness to comply with her probation grant; and 5) she had not shown remorse for the offense. The court found no mitigating factors.
It is clear from the statement of reasons set forth above that the court did not use “the fact” of defendant’s prior conviction as an aggravating circumstance. The court merely noted that defendant had been convicted of the same offense—driving under the influence causing injury—numerous times. Thus, the court did not improperly rely on a dual use of facts.
In any case, “a court needs only one factor to impose the aggravated term. [Citation.]” (People v. Kelley (1997) 52 Cal.App.4th 568, 581; People v. Osband (1996) 13 Cal.4th 622, 730.) The court listed not only one, but several other factors that adequately supported the imposition of the aggravated term (see ante). We further note that the court heard and considered defense counsel’s argument regarding mitigating circumstances. In view of the numerous aggravating factors, we cannot say the court’s decision to impose the upper term was arbitrary.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, .J., MCKINSTER, J.