Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 0734449
ROBIE, J.
Defendant Gerald Lee Kenyon pled no contest to several charges related to a drunk driving incident, and a jury found him guilty of assault with a deadly weapon on a peace officer and driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer. The court sentenced him to a total term of 13 years 8 months in state prison.
On appeal, defendant contends the trial court’s failure to instruct the jury sua sponte on the defense of accident was reversible error as to the assault conviction. In the alternative, defendant contends his trial counsel was ineffective for failing to request an accident instruction. Finally, defendant argues the sentence for the felony evasion conviction must be stayed because his intent in assaulting the officer was the same as his intent in attempting to evade the officers. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, Plumas County Sheriff’s Deputy Matthew Beatley was on patrol in a marked police vehicle. Around 10:50 p.m., Deputy Beatley saw a dark pickup truck -- driven by defendant -- swerve, nearly hit the sidewalk, then correct itself. Thinking defendant might be intoxicated, Deputy Beatley began following the pickup, noting that it continued to swerve in its lane. After seeing the pickup cross the white fog line approximately three times, Deputy Beatley decided he should pull defendant over and he activated his lights and radioed a request for backup.
After Deputy Beatley turned on his siren, defendant pulled over onto the shoulder, but before Deputy Beatley could stop him, defendant rapidly accelerated and made a U-turn back onto the street. With his lights and siren still on, Deputy Beatley continued his pursuit of the pickup. Traveling at around 60 miles per hour, defendant made a left turn, nearly losing control of the pickup and almost colliding with a parked car.
A short time later Deputy Beatley was joined by California Highway Patrol Officer Robert Story, who was driving in a marked patrol car with his siren and lights on. When defendant made a hard right turn into the second entrance of an apartment complex, Deputy Beatley and Officer Story continued following him as he drove through the parking lot at 35 to 40 miles per hour. Defendant left the apartment complex by the first entrance and drove back into the apartment complex through the second entrance. Defendant repeated his loop, leaving through the first entrance and reentering through the second entrance of the apartment complex. Deputy Beatley contacted Officer Story by radio and suggested Officer Story break off from the chase and attempt to block the first entrance with his vehicle.
As defendant continued his circuit through the apartment complex, Officer Story circled back, attempting to block defendant’s route at the first entrance. Defendant failed to slow down as he drove through the first entrance, and he sideswiped Officer Story’s vehicle. Officer Story avoided a head-on collision by pulling to the left. Following the collision, defendant continued driving for roughly 100 yards (in the direction of the second entrance), then slammed on his brakes and got out of the pickup truck. Deputy Beatley had been following defendant and got out of his vehicle as well. Defendant began running toward Deputy Beatley, but quickly ran in the opposite direction when Deputy Beatley removed his handgun and ordered defendant to stop. Deputy Beatley gave chase, and as defendant was looking back over his shoulder at Deputy Beatley, his knee collided with Officer Story’s front left headlight. Defendant fell to the ground, and the officers handcuffed him. Defendant was combative, belligerent, and smelled of alcohol. A breath test revealed he had a blood alcohol content of .12 percent to .14 percent.
Defendant was charged with assault with a deadly weapon on a peace officer, driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer, driving under the influence of alcohol, driving with .08 percent or more blood alcohol level, and driving with a suspended license. The information also alleged defendant had a prior serious felony conviction that qualified as a strike, that within the past 10 years defendant had been convicted twice for driving under the influence, and that defendant had been convicted for driving after his license was suspended.
Defendant pled no contest to driving under the influence, driving with .08 percent or more blood alcohol level, and driving with a suspended license. He also admitted the prior serious felony and strike allegations, as well as the prior convictions for driving under the influence and driving with a suspended license. A jury found him guilty of the assault charge and the evading charge. The trial court sentenced him to 12 years 4 months in prison and imposed a consecutive sentence of 16 months for a prior conviction of escape.
DISCUSSION
I
Instruction On The Accident Defense
Defendant contends the court was required to instruct the jury on the defense of accident because he relied on that defense and because there was substantial evidence to support it.
The People respond that the trial court had no duty to instruct the jury on accident or misfortune as a defense because neither qualify as an affirmative defense. Even if there was such a duty, the People contend, it was inapplicable here because there was no substantial evidence defendant rammed Officer Story’s vehicle accidentally and in any event any error that resulted was harmless.
On the evidence here, we conclude the trial court did not have a sua sponte duty to instruct on accident as a defense. “The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390; see also Pen. Code, § 26, class Five [“All persons are capable of committing crimes except those . . . [¶] . . . [¶] . . . [p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence”].)
“It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]--evidence sufficient for a reasonable jury to find in favor of the defendant [citation]--unless the defense is inconsistent with the defendant’s theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 982.) Similarly, “even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
In urging that the trial court had a sua sponte duty to instruct on the accident defense here, defendant points to testimony from Deputy Beatley and Officer Story that he claims supported such a defense, including the short (three to five second) period of time defendant had to avoid colliding with Officer Story, the elevated speed of the chase (35 to 40 miles per hour), and that the corner of the first entrance to the apartment complex afforded reduced visibility to defendant. He also points to his trial counsel’s reliance on the accident defense in closing argument. Although defense counsel did not explicitly argue that the collision was an accident, it was clear from closing argument that the theory being urged upon the jury was that defendant did not willingly collide with Officer Story and therefore he could not be found guilty of assault with a deadly weapon upon a peace officer.
Defendant’s argument fails because he misunderstands how the accident defense operates in an assault case such as this. Essentially defendant believes he was entitled to an instruction on the accident defense because “there was sufficient circumstantial evidence from which a jury could have found that the collision was . . . accidental.” But whether the collision between defendant’s vehicle and Officer Story’s vehicle was an accident, in the colloquial sense, has no real bearing on whether defendant was entitled to a jury instruction on accident as a defense to the crime of assault. As we have noted, “[t]he accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales, supra, 74 Cal.App.4th at p. 390.) Assault is a general intent crime that “does not require a specific intent to injure the victim.” (People v. Williams (2001) 26 Cal.4th 779, 788.) Thus, to be guilty of assault, defendant need not have intended to collide his vehicle with Officer Story’s. All that was necessary was that he willfully did an act that, by its nature, would directly and probably result in the application of force to Officer Story. (See id. at p. 790.) Here, the assaultive act was driving his vehicle at a reckless speed out of an apartment parking lot. Since defendant cites no evidence that he drove his vehicle in this manner by accident (such as evidence that he stepped on the accelerator when he meant to step on the brake), there was no evidentiary basis for an instruction on the accident defense in this case, and the trial court had no sua sponte duty to give such an instruction.
II
Ineffective Assistance Of Counsel
In the alternative, defendant argues that if it was his “burden to request an instruction on the accident defense, . . . trial counsel’s failure to request such an instruction constituted ineffective assistance of counsel.” We disagree. To show ineffective assistance, defendant must show that his attorney’s performance fell below an objective standard of reasonableness. (People v. Prieto (2003) 30 Cal.4th 226, 261.) Defendant has not made that showing here. A reasonably competent attorney will not request instructions on a defense for which there is no substantial evidence because “[a] trial court has no duty to instruct the jury on a defense--even at the defendant’s request--unless the defense is supported by substantial evidence.” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) We have noted already that there was no evidentiary basis for an instruction on the accident defense in this case, and therefore defendant’s trial counsel was not ineffective for failing to request such an instruction.
III
Penal Code Section 654Penal Code section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .”
“‘The initial inquiry in any [Penal Code] section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.” (People v. Porter (1987) 194 Cal.App.3d 34, 38.)
Defendant claims his intention all along was to evade capture by the police, and his vehicular assault on Officer Story’s vehicle was intended to further that objective. There was substantial evidence in the record, however, to support the trial court’s implicit finding that the vehicular assault served a separate objective from evading the police, namely, assaulting those pursuing him.
Deputy Beatley stated that before the collision, defendant had plenty of room to pass Officer Story’s vehicle; that he saw Officer Story attempt to move to avoid the collision; and that defendant did not brake until after he had collided with Officer Story. Furthermore, Officer Story testified there was room for defendant to have passed him without colliding, and that if he had not attempted to avoid the collision, defendant would have struck his vehicle head-on. Given these facts, the trial court could have reasonably concluded that defendant initially intended to escape from the police, but later, when escape appeared unlikely, formed the intent to assault Officer Story’s vehicle -- an objective separate from escaping from the police. The term for felony evading was therefore properly imposed.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J. BUTZ, J.