Opinion
F073304
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RAMZI TAOFIK HAUTER, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14908108)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Ramzi Taofik Hauter appeals his conviction for assault with a deadly weapon. He argues the trial court prejudicially erred in rejecting a defense request for an instruction on the accident defense and in excluding a defense witness. He further contends the prosecutor committed prejudicial misconduct by misrepresenting, in her closing argument, the mens rea required for assault. Finally, he raises a claim of cumulative error. We reject all of these contentions and affirm the judgment.
PROCEDURAL HISTORY
Hauter was charged with assault with a deadly weapon (his car), in violation of Penal Code section 245, subdivision (a)(1), and carrying a loaded firearm in public, a misdemeanor, in violation of section 25850, subdivision (a). A jury found him guilty of both charges. Hauter was placed on formal felony probation for three years, subject to specified terms and conditions. This appeal concerns only his conviction for assault with a deadly weapon.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTS
Context of the Assault
Hauter was a business owner and college graduate in his late twenties, with no criminal history. He had been dating Tina Lua for over six years; the two lived together. For the last couple of years, Hauter had been working extremely long hours and his relationship with Lua was fraying. At one point, he left on a business trip that lasted several weeks. Upon his return, he sensed that Lua was acting differently towards him. She would not answer his phone calls when he called her from work and was generally more distant. He also found inappropriate text messages on her phone from a man named Anthony McCurn, Jr., a friend of Lua's from church. Hauter felt that something about Lua's interactions with McCurn was wrong.
On August 19, 2014, in the late evening, Hauter called Lua a few times but she did not answer. Hauter decided to drive to spots where Lua tended to hang out with her friends to see if he could find her. He drove to the Manchester Cinemas and a parking lot near Cornerstone Church, but did not see her car at either place. Next, he drove out to the area near Sunnyside High School, where her church friends, including McCurn, lived. He saw Lua's white Dodge Charger parked by Sunnyside Park. Lua and McCurn were in the car, Lua in the driver's seat and McCurn in the passenger seat.
Hauter parked his car, a black BMW sedan, next to Lua's car and attempted to talk to her. At some point, Lua "drove off" and Hauter "followed" her. Hauter testified that he simply wanted an explanation from Lua regarding the status of their relationship. He testified he was ready to accept her wishes if she were to tell him their relationship was over.
The Assault at Issue
Anthony McCurn's Testimony
Lua refused to testify in this case and was found in contempt of court. McCurn also told the court he did not want to testify but reluctantly did so after the court threatened to incarcerate him for contempt. McCurn, called by the prosecution, was a grudging and hostile witness, who mostly said he did not recall the events of the night in question. However, McCurn admitted his memory of events was better at the time they actually occurred.
In the course of McCurn's testimony, the prosecution introduced into evidence a recording of a 911 call he made on the night of the incident, to report Hauter's actions. During the 911 call, McCurn told the dispatcher, "[W]e're at the WinCo ... by Sunnyside High School" and "we keep getting hit by this ... this guy." McCurn noted he was in a white Dodge Charger with Lua and the other "guy" was in a black BMW. McCurn said no one was injured but the other guy was "chasing" them and kept "hitting" them. McCurn concluded: "He hit us at least maybe like eight times."
McCurn's trial testimony was very different. He acknowledged he called 911, but refused to confirm that it was his voice on the recording of the 911 call played for the jury. Furthermore, McCurn testified he did not recall whether Hauter hit the Dodge Charger eight times, nor did he recall saying that to the dispatcher. Rather, he testified: "[Hauter] tried to get our attention and somewhere along the way he may have hit us." McCurn explained that Hauter was driving alongside Lua's car, honking to get her attention. McCurn added: "[Hauter] may or may not have [come] in contact with [Lua's] vehicle."
Guillermo Cervantes's Testimony
The prosecution also called Guillermo Cervantes, who happened to see Hauter's pursuit of Lua that night. Cervantes had since suffered a stroke that affected his memory but, before testifying at trial, he returned to the scene to refresh his recollection. On the night of the incident, Cervantes was driving home from work in his 2003 Chevy Express van. He was at the intersection of Peach and Butler, waiting at a traffic signal to make a left turn to go northbound on Peach. He saw two cars, one white and the other black, approach the intersection on the opposite side of Butler, at high speeds. The white one, which was in the lead, stopped at the signal. It appeared as if the black car bumped it from behind, but Cervantes could not tell whether the black car actually touched the white car.
Eventually, Cervantes turned left onto Peach. The white car and the black car also turned onto Peach, passing Cervantes's van on either side. At the intersection of Peach and Lane, Cervantes saw the black car hit the white one from behind; the white car "lurched forward" and "spun around." Cervantes drove forward and "moved [his] vehicle in between both vehicles," to help the woman in the white car. However, the woman turned her car back around and drove off. The black car tried to hit her car again but missed. Thereafter, "the chase was on again."
At that point, Cervantes called 911; he thought the black car had hit the front bumper of his van. A recording of the 911 call was played for the jury. Cervantes told the 911 dispatcher: "There's a black car bumping into [a] white car. Just ramming the car literally." While speaking to the 911 dispatcher, Cervantes momentarily lost sight of the two cars as he turned, behind them, from Peach onto eastbound Kings Canyon. When he saw the cars again, the white car was in "the air" over the center divider; Cervantes did not see the black car hit the white car or push it over the center divider. The black car was against the edge of the center divider; it subsequently went across to the opposite shoulder. The white car, which ended up on the other side of the center divider, then sped away and disappeared from sight, going eastbound in a westbound lane. The black car, which appeared to be damaged in some way—it was swerving or "zigzagging back and forth" in an odd manner—continued eastbound on Kings Canyon too, eventually turning northbound on Clovis Avenue. The black car ultimately stopped on the side of Clovis Avenue, about "200 feet before the Tulare intersection."
Cervantes clarified that he had made "two assumptions" in analyzing the events of the night: one was that the black car had hit the white one at Peach and Butler and the other was that the black car had hit the white car at Peach and Kings Canyon. Cervantes did not actually see the black car hit the white one at these locations. The only contact between the cars that he actually saw was at Peach and Lane, when "the front [driver's side] corner" of the black car's bumper bumped the "rear [passenger side] corner" of the white car's bumper.
Hauter's Testimony
Hauter testified in his own defense. He said he had actually bumped into Lua's car at Peach and Butler but said the contact was unintentional. He explained that Lua was driving fast and braked suddenly at that intersection. Hauter said he was speeding behind Lua and, while he braked right after she did, he still bumped into Lua's car, albeit lightly. Hauter explained that he continued to follow Lua's car thereafter, screaming through the windows, telling her to stop so they could talk. Hauter said he was looking at Lua rather than the road. At one point his car had veered so it was about to hit the curb on the right side of the road. He "panicked" and overcorrected, which caused him to "run into" Lua's car; the driver side of his car collided with the passenger side of hers in a "big hit."
After the collision, both cars continued northbound on Peach until Lua turned right onto Kings Canyon, climbed over the center divider, and ran into some bushes. Hauter also lost control of his car in making the same turn, because he was speeding. He ran into the left curb, then the right curb. He looked for Lua's car but the car was gone. He denied hitting Lua's car on Kings Canyon. He testified that he hit Lua's car only twice—at Peach and Butler and Peach and Lane—and both times were unintentional.
Hauter testified that he continued driving eastbound on Kings Canyon but "had trouble" on account of damage his car had sustained. He had also hurt his shoulder and back. He called Lua to make sure she was okay but she did not answer. He then called 911 because he was in pain and needed help.
Hauter also explained that a particular dent on Lua's car, specifically on the driver side of the back bumper, did not occur on the night at issue. Rather, that occurred a few months ago, when Lua backed into a pole at a gas station. They had gone to a body shop to have that dent fixed but the shop had advised them to go through their insurance company, as it would be a costly repair.
The Police Investigation
Detective Loren Kasten was dispatched to investigate the car chase on Kings Canyon Road. She contacted Lua and McCurn at an Auto Zone store at Kings Canyon Road and Clovis Avenue. Kasten observed a dent to the white Charger's rear bumper, on the driver side. The bumper was also slightly detached from the frame. The Charger's front passenger door was damaged and not closing properly. There was also damage to the rear passenger side tire, fender well, and bumper areas, including black "paint transfers." The damage to the rear bumper "appeared to be fresh."
Officer Jacob Dellone of the Fresno Police Department contacted Hauter, who had pulled over to the side of Clovis Avenue, between Huntington and Tulare. Dellone described the condition of the black BMW: "There was white paint transfer marks and -- dents along the driver side that I could see as I was walking up on the driver side and I could see the rear driver side tire was damaged or not in place how it should be." The passenger side of the BMW also had damage, including white paint transfer, on the front bumper and quarter panel as well as in the rear passenger area.
The black BMW was impounded, and, during a consequent inventory search, Dellone located a backpack on the passenger side of the rear seat. Dellone unzipped the backpack and found a loaded, semi-automatic handgun inside. Dellone determined the gun was properly registered to Hauter, who also had a handgun safety permit. However, Hauter did not have a concealed weapons permit.
During his testimony, Hauter explained that he bought the gun because he "own[s] two businesses," requiring him frequently to be on the road and "carry a lot of cash" for daily deposits. He said he had planned to get a concealed weapons permit so he would not be limited to carrying the gun in the trunk of his car, but had not yet had the time to get one. He testified he had never fired the gun.
DISCUSSION
I. Pinpoint Instruction on Accident Defense
At trial, Hauter requested the trial court to instruct the jury pursuant to CALCRIM No. 3404, which sets forth the defense of accident, upon which the defense's trial theory was based. Our Supreme Court has clarified that CALCRIM No. 3404 is a pinpoint instruction that is appropriately given at the defense's request. (People v. Anderson (2011) 51 Cal.4th 989, 997 (Anderson).) Here the trial court nonetheless refused to instruct the jury under CALCRIM No. 3404. We need not decide whether the trial court erred in rejecting the defense's request for a CALCRIM. No. 3404 instruction because any error was harmless.
The trial court's reasons for refusing to give CALCRIM No. 3404 as requested by the defense are not entirely clear. The court simply stated: "3404 had been requested by [defense counsel] and we had discussed this off the record, but again I don't see this as being applicable. This is essentially the issue that is presented and whether they are able to find the elements of Count One or not. I mean that's—that's the issue."
Section 26 of the Penal Code delineates the following statutory defense: "All persons are capable of committing crimes except those belonging to the following classes: [¶] ... [¶] Five—Persons who committed the act or made the omission charged through misfortune or by accident, when it appears there was no evil design, intention, or culpable negligence." This defense is encompassed in CALCRIM No. 3404, which explains a defendant is not guilty of a charged crime if he acted "without the intent required for that crime, but acted instead accidentally." Our Supreme Court has pointed out that the accident defense essentially restates, from a defense perspective, "'the culpability requirements of specific offense definitions.'" (Anderson, supra, 51 Cal.4th at p. 997; see People v. Lara (1996) 44 Cal.App.4th 102, 110 ["The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime."].) Anderson further explained that ""'when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties.'"" (Anderson, supra, at p. 996.) "A trial court's responsibility to instruct on accident therefore generally extends no further than the obligation to provide, upon request, a pinpoint instruction relating the evidence to the mental element required for the charged crime." (Id. at p. 997.)
Here, the defense theory at trial acknowledged that Hauter hit Lua's car on at least two occasions but posited that he did not have the requisite mens rea for assault with a deadly weapon. The charging statute, section 245, subdivision (a)(1), provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished." Our Supreme Court explicated the requisite mens rea for an assault crime in People v. Williams (2001) 26 Cal.4th 779, 788 (Williams). Williams held that "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." (Williams, supra, at p. 790.) In other words, in terms of the requisite mens rea, to commit an assault, a defendant "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." (Id. at p. 788.) Williams further noted, "mere recklessness or criminal negligence is still not enough [citation], because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know." (Ibid., fn. omitted.) On the other hand, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur." (Id. at p. 790.)
In a footnote, Williams notes that its reference to recklessness here relies on the "historical" meaning of recklessness "as a synonym for criminal negligence, rather than its more modern conception as a subjective appreciation of the risk of harm to another." (Williams, supra, 26 Cal.4th at p. 788, fn. 4; People v. Wright (2002) 100 Cal.App.4th 703, 712 (Wright) ["[r]ecklessness requires a subjective awareness of the risk of harm," while "[n]egligence requires an objective view of the risk of harm"].) The Williams decision has, however, been criticized on grounds that by defining assault as intentional conduct involving an objective risk of harm, it essentially creates the crime of negligent assault while asserting, at the same time, that criminal negligence is insufficient to establish an assault. (See Wright, supra, at pp. 711-712; also see Williams, supra, 26 Cal.4th at p. 794, dissenting op. of Kennard, J. ["I do not agree that the majority's formulation requires a mental state more culpable than criminal negligence or recklessness."].)
"In the context of assault and battery, the term 'injure' does not require bodily harm and includes any 'least touching' that is wrongful or offensive to the person who receives it." Williams, supra, 26 Cal.4th at p. 792, fn. 1, dissenting op. of Kennard, J., citing People v. Colantuono (1994) 7 Cal.4th 206, 14, fn. 4.)
Here the jury, with respect to the assault with a deadly weapon charge, was instructed:
"The defendant is charged in Count One with assault with a deadly weapon other than a firearm, to wit: a vehicle in violation of Penal Code section 245.
To prove that the defendant is guilty of this crime, the People must prove beyond a reasonable doubt that:
1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
AND
4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person.There is no dispute that the jury was correctly instructed on the elements of the crime of assault with a deadly weapon.
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.
The touching can be done indirectly by causing an object to touch the other person.
The People are not required to prove that the defendant actually touched someone.
The People are not required to prove that the defendant actually intended to use force against someone when he acted.
No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.
A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (See CALCRIM No. 875.)
Regarding the charge of assault with a deadly weapon, the prosecutor argued: "[T]his charge is that Tina Lua was assaulted. The assault was committed with a deadly weapon, to wit, the black BMW, and that Mr. Hauter was driving that black BMW." The prosecutor next spelled out the elements of the offense and then explained: "So ladies and gentlemen, this 245, this assault with the BMW, the assault is the fact that the defendant drove the black BMW, that he was chasing Ms. Lua, that he was speeding, not that he was ramming the vehicle. The fact that he rammed the vehicle helps you with these elements." (Italics added.) The prosecutor added: "But, again, he doesn't ever have to touch. His vehicle never has to touch Ms. Lua's vehicle." The prosecutor continued: "Was Mr. Hauter acting ... willfully? Willfully, in turn, means intentionally. [¶] The willful act is the way in which he drove the car. Let me say that again. The willful act is the way that he drove the car." The prosecutor summed up her argument: "The act is the driving, the road rage, the chasing, speeding, following her. That is the willful act. It is not required that [Hauter] ... hurt someone."
As the prosecutor noted, under the prosecution's theory of the case, the act at issue was Hauter's driving of his car in heedless pursuit of Lua, which act the prosecution had to show was of a nature that would directly and probably result in the application of force to someone (i.e., a battery). In order to establish this conduct constituted an assault, the prosecution also had to prove that, when Hauter engaged in this conduct, he had the requisite mens rea. Under Williams, the mens rea the prosecution was required to prove was that Hauter was aware of the facts that made it objectively foreseeable that a battery would directly, naturally, and probably occur as a result of his high speed, relentless pursuit of Lua.
Turning to the defense theory, defense counsel posited the accident defense and requested an instruction pursuant to CALCRIM No. 3404 to highlight this theory. An instruction pursuant to CALCRIM No. 3404 would state that Hauter was not guilty of assault with a deadly weapon if he acted "without the intent" required for assault with a deadly weapon, "but acted instead accidentally." (See CALCRIM No. 3404.) Although the trial court rejected the defense's request for a CALCRIM No. 3404 instruction on the accident defense, the court properly instructed the jury on the elements of assault with a deadly weapon, including the requisite mens rea. To the extent the defense theory relied on the accident defense or sought to negate the prosecution's proof of mens rea, the defense was free to make the relevant arguments with reference to the instruction on the elements of the offense. Moreover, as we explain below, in light of the prosecution's theory of the case, the accident defense was not particularly helpful to Hauter and, in any event, was largely precluded by his own testimony.
The requested instruction, if given, would have stated: The defendant is not guilty of assault with a deadly weapon if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of assault with a deadly weapon unless you are convinced beyond a reasonable doubt that he acted with the required intent. (See CALCRIM No. 3404.)
As stated above, under the prosecution's theory, the intentional and inherently dangerous act at issue was Hauter's heedless pursuit of Lua and the requisite mens rea was that Hauter was aware of what he was doing as he pursued Lua in this manner (i.e., he was aware of the facts that gave rise to the risk of a battery). (See Williams, supra, 26 Cal.4th at p. 790 ["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"].)
Hauter testified that when Lua drove off, he pursued her in his black BMW; he was speeding; he was facing Lua, not looking at the road; he was "yelling" and gesturing at Lua to stop; and he actually struck Lua's car twice, once because he failed to timely brake and again because he lost control of his car. Hauter explained: "I'm paying attention to [Lua], not to the road. And then actually with the speed I was going [¶] ... [¶] I did ... you know, lose control and I did run into her car." He added: "It was a hard hit because I did hit my - my shoulder [against the inside of the car door]." Hauter said he nonetheless "kept going" after Lua, even as she drove faster, because he "still want[ed] to talk to her." Hauter acknowledged the pursuit stopped only because Lua's car crashed into, and went over, the median on Kings Canyon Road and "disappeared," while his own car became disabled at the same time.
Hauter testified that the second collision between Lua's car and his car had the potential to injure Lua.
Hauter described Lua's car crashing into the median as a "big hit" and said he was concerned for Lua's safety as a result. He called her to make sure she was okay but she did not answer. He testified he also hit the median hard and "was really hurt," banging up his whole body, especially his back.
Hauter's testimony was sufficient, on its own, to establish an assault under the prosecution's theory. In light of the prosecution's theory, moreover, the accident defense would simply amount to an argument that Hauter committed the relevant act (here, the heedless chase) accidentally, a position effectively precluded by his own testimony. Hauter's testimony indicated that, in the course of pursuing Lua, he was aware he was speeding, not looking at the road, and not in control of his car. Indeed, given Hauter's testimony, the prosecutor argued: "The People's theory absolutely is this was not an accident, and Mr. Hauter told you he went after her. He drove his car. He knew exactly what he was doing ... [and his driving] endanger[ed] everyone on the road, even if his rationale is that he just wanted to talk to [Lua]. He admits his own guilt ... in Count One." The prosecutor's argument nailed the point that Hauter's testimony itself demonstrated that he intentionally engaged in inherently dangerous conduct (i.e., chasing Lua's car at high speed, all the while looking at her, yelling and gesturing at her to stop, and ignoring the road) and was aware of the very facts (i.e., the chasing, speeding, yelling, and ignoring the road) that made it objectively foreseeable that his actions would result in a battery.
The prosecutor's argument was consistent with Williams's holding that assault only requires intentional conduct and actual knowledge of the facts that made it objectively foreseeable the conduct would probably result in the battery. Hauter nonetheless contends the prosecutor implied that recklessness was sufficient to establish an assault, thereby misstating the law. This argument is defeated by Williams. Williams expressly states that the mens rea required for assault under its holding is not the same as recklessness or criminal negligence because the defendant must have actual knowledge of the facts making a battery objectively foreseeable. (See Williams, supra, 26 Cal.4th at p. 788, fn. omitted ["mere recklessness or criminal negligence is still not enough [for assault] because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know"].)
The prosecutor argued in her closing argument: "[A]t the point in time when [Hauter] hits [Lua] the first time, doesn't a reasonable person know that what they're doing is dangerous?"
On this record, and in view of the mens rea required for assault, we cannot say that had the trial court instructed the jury on the accident defense pursuant to CALCRIM No. 3404, there is a reasonable probability that Hauter would have obtained a more favorable result. (See People v. Larsen (2012) 205 Cal.App.4th 810, 830 ["failure to give a pinpoint instruction is reviewed for prejudice under the Watson harmless error standard"]; People v. Watson (1956) 46 Cal.2d 818, 836].) In sum, assuming the court erred in failing to instruct the jury with CALCRIM No. 3404, the error was harmless.
We reject Hauter's argument that any error in failing to instruct the jury with CALCRIM No. 3404 was structural, requiring per se reversal. We also reject his argument that the Chapman standard of prejudice applies here. (Chapman v. California (1967) 386 U.S. 18.) In any event, to the extent the trial court erred in failing to instruct the jury with CALCRIM No. 3404, the error would be harmless even under the Chapman standard.
II. Exclusion of Evidence Concerning Preexisting Damage to Lua's Car
Hauter testified that when he "light[ly] bumped" the back of Lua's car at Peach and Butler, it did not result in damage either to his car or Lua's car. In this context, he pointed out that the dent on the driver side of the rear bumper of Lua's car, visible in photographs shown to the jury, had actually occurred "a couple of months before," when Lua had "backed into a gas station pole." Hauter testified about previous efforts he and Lua had made to get that particular dent fixed: "I actually took it to one of my friend's shop with her. We both drove her car over there and we dropped it. [A mechanic] checked it out. He took the bumper out and he said the - the inside [had] been damaged and it would be more than $500 to fix and he recommended us to call the insurance instead."
Gabriel Martinez was the body shop mechanic who evaluated the dent. Hauter wanted to call Martinez as a witness to testify that the dent visible on the driver side of the rear bumper of Lua's car predated the alleged assault. The court excluded Martinez's testimony on grounds that "the relevance of this testimony is outweighed by the undue consumption of time, the limited probative value of the evidence[,] and the distraction that it will create for the jury in the issues that they are going to be asked to decide." Hauter now challenges the court's ruling. Assuming the trial court erred in excluding Martinez as a witness, we conclude the error was harmless under any standard of prejudice.
Detective Loren Kasten had testified that she had observed a dent to the white Charger's rear bumper on the driver side. She also saw damage to the rear passenger side tire, fender well, and bumper areas, including black "paint transfers." Kasten testified that the damage to the rear bumper "appeared to be fresh." She did not clarify whether she was referring to the damage on the driver side of the rear bumper, the passenger side of the rear bumper, or both.
As the prosecutor noted in her closing argument, her theory as to Hauter's guilt on the charge of assault with a deadly weapon did not rely, in any significant measure, on damage sustained by Lua's car. The prosecutor explained: "My theory of this case has nothing to do with any ramming of the vehicle, any dents, any damages comparing the white car to the black car because as I told you, it doesn't matter. I mean, it matters because you know that he had the capability of seriously injuring or killing somebody based on what he was doing out there that night, but ... it's not required to prove this charge." (Italics added.) Furthermore, Lua's car suffered damage in other areas besides the driver side of the rear bumper and also had black paint transfers in a number of areas. Hauter also admitted he hit Lua's car twice, once from the back when he failed timely to brake and another time when he lost control of his car. Under these circumstances, the trial court's exclusion of Martinez's testimony was harmless under any standard of prejudice.
III. Prosecutorial Misconduct
Citing authorities that predate Williams, Hauter argues that in order to commit an assault, "the defendant must have intended to commit the battery and was not merely guilty of reckless driving." He contends the prosecutor misrepresented the law of assault—thereby committing misconduct—when she argued: "The People are not required to prove that Ramzi Hauter actually intended to use force against Tina Lua when he acted." Hauter asserts, "[t]he prosecutor's entire theory [was] not supported by the law" because "[the defendant] must have [had] an intent to strike Lua with his car."
We reject Hauter's argument outright because it has a flawed premise. Specifically, in arguing "the defendant must have intended to commit a battery," Hauter misapprehends the holding of Williams. Under Williams, for an assault conviction, the defendant need not intend to commit a battery, or even be subjectively aware of the risk that a battery might occur; he need only be aware of what he is doing (i.e., of the facts that give rise to the risk). (Williams, supra, 26 Cal.4th at p. 790 ["assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur"].) Furthermore, the foreseeability of the consequences is judged by an objective "reasonable person" standard. (Id. at p. 788; see Wright, supra, 100 Cal.App.4th at p. 706 [under Williams, "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 assault with a deadly weapon"].)
Accordingly, the elements of assault with a deadly weapon are merely: (1) the defendant willfully (i.e., intentionally) did an act with a deadly weapon that by its nature would directly and probably result in a battery; (2) when he acted, the defendant was aware of the facts that made it objectively foreseeable that his conduct would lead to a battery; and (3) the defendant had the present ability to apply force with a deadly weapon. (Williams, supra, 26 Cal.4th at p. 790 ["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"]; see CALCRIM No. 875). Proof of an actual touching, injury, or intent to injure is therefore not essential to support a conviction for assault with a deadly weapon. (People v. Flores (2007) 157 Cal.App.4th 216, 221.) Put simply, Williams construes assault as intentional conduct involving an objective risk of harm. (Williams, supra, 26 Cal.4th at p. 788; Wright, supra, 100 Cal.App.4th at pp. 711-712.)
Indeed, Williams notes, "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to a defendant, would find that the act would directly, naturally and probably result in a battery." (Williams, supra, 26 Cal.4th at p. 788, fn. 3.)
Here the prosecutor argued: "[Hauter's] act is the chase. His act is the driving, and ... he can think that he just wants to talk to her ... [and] didn't want to hurt her, but it doesn't matter." The prosecutor's theory of the case was that Hauter was aware of what he was doing and a reasonable person would have realized that his conduct would directly and probably lead to a battery. Her theory of the case, as well as her closing argument, were entirely consistent with the elements of assault announced in Williams. Accordingly, Hauter's claim that the prosecutor misstated the law, and consequently committed misconduct, has no merit.
Since Hauter's claim fails on the merits, his alternative contention that defense counsel was ineffective in failing to object to the prosecutor's characterization of assault in her closing argument also fails. Furthermore, based on our resolution of Hauter's foregoing claims, we conclude that his final claim of cumulative error fails as well.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.