Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County Super. Ct. Nos. SCN199343-01, SCN199343-02, Marguerite L. Wagner, Judge.
BENKE, Acting P. J.
After a joint trial, Troy Matthew Knight and Aveena Ann Lewis were convicted of various offenses. Knight was found guilty of assault with a firearm, assault with a deadly weapon on a peace officer, resisting arrest, being a felon in possession of a firearm, unlawful possession of ammunition, first degree burglary, vehicle taking and having a concealed firearm in a vehicle. Various armed and weapon use allegations were found true as to some of the convictions. He was sentenced to a term of 13 years, 4 months in prison. Knight appeals, arguing there was insufficient evidence to support the finding that he knew or had reason to believe the weapon he concealed was stolen, that the trial court failed to instruct concerning the defense of accident with regard to the charge of assault on a peace officer and the trial court erred in failing to stay the vehicle taking charge pursuant to Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise specified.
Lewis was found guilty of assault, assault with a deadly weapon on a peace officer, resisting arrest, being an accessory after the fact, having a concealed firearm in a vehicle and evading a police officer. Various armed and weapon use allegations were found true as to some of the convictions. She was granted probation. Lewis appeals, arguing the trial court erred in failing to instruct concerning the defense of accident with regard to the charge of assault on a peace officer.
FACTS
After midnight on April 3, 2005, Jeffrey Johnson, Jesse Ybarra and three female friends were outside a bar in Oceanside. Johnson was told Knight punched a girl in the face. As Knight walked past Johnson, a black person, Knight stated: "I ain't scared to hit a bitch or a nigger." Knight crossed the street and got into a car with Lewis.
Johnson and his friends got into Johnson's car and started to leave. Lewis parked her car behind Johnson's, blocking his path. Knight got out of Lewis's car and said to Johnson: "Wassup, you gonna . . . do something?" Johnson walked toward Knight and asked if he was trying to start something. Knight reached into Lewis's car, pulled out a handgun, pointed it at Johnson and said: "I'll fucking shoot you."
Officer Anis Trabelsi noticed Lewis's car blocking the street and heard Knight threaten Johnson. As the officer walked toward him, Knight got back in Lewis's car. Trabelsi told Knight to get out of the car. Johnson yelled that Knight had a gun. As Knight reached for his waistband, the officer reached through the open window of the car and grabbed his arm. Knight pushed the officer away.
As Trabelsi opened the car door and grabbed Knight, Knight told Lewis: "Go, go, get out of here." Lewis accelerated, then slammed on the brakes. Trabelsi, who was still holding Knight, was hit by the metal frame separating the front and rear doors of Lewis's car. Lewis accelerated, then slammed on the brakes again. Trabelsi was hit by the frame again and fell to the ground. Lewis then accelerated away.
Trabelsi got into his patrol car and pursued the pair. Eventually, Lewis stopped in a dead end alley. Knight got out of the car and ran. Trabelsi placed Lewis under arrest. In the front seat of the car, he found a fully loaded magazine for a .45 pistol and a single round in a compartment on the passenger door. A .45 caliber handgun, stolen in January 2005 from a house in Hayward, was found in a planter near where Knight ran from Lewis's car.
Later that morning, several blocks from where Lewis was arrested, Lawrence Smith was awakened by Knight stealing his truck. Knight entered Smith's house and took the keys to the truck. Smith's truck was recovered an hour later near the home of Knight's mother. Knight was found in a bedroom at the house with the keys to Smith's truck in his pocket.
While they were in custody, Lewis and Knight corresponded. In their missives, the two made various admissions concerning the theft of Smith's truck and the possession of the gun.
DISCUSSION
A. Sufficiency of Evidence
Knight argues the evidence was insufficient to support a true finding on the allegation in count 9 that he knew or had reason to believe the firearm he concealed in Lewis's vehicle was stolen.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
As to count 9 Knight was convicted of having a concealed firearm in a vehicle. (§ 12025, subd. (a)(1).) It was found true as to that offense that the firearm was stolen and that Knight knew or had reasonable cause to believe it was stolen. (§ 12025, subd. (b)(2).) The finding elevated the offense from a misdemeanor to a felony.
The Attorney General argues the evidence was sufficient to find that Knight knew or had reasonable cause to believe the gun in his possession was stolen. He notes the gun was stolen from a house in Hayward three months before the incident and that Lewis lived in Hayward. The Attorney General argues that as a convicted felon Knight was forbidden from purchasing or possessing a gun. (§ 12021.) The only way Knight could get a gun was on the black market or for someone to give it to him. The jury could reasonably conclude that Lewis was involved in the theft of the gun−apparently because she lived in Hayward−which she then gave to Knight. The Attorney General states it is unlikely Lewis would not have told Knight the gun was stolen.
There are two problems with this argument. First, it is utter speculation. Second, while the jury also convicted Lewis of concealing the gun in her car, it returned a not true finding on the allegation that she knew or had reasonable cause to know that the gun was stolen. Lewis could not have told Knight the gun was stolen if she did not know it was stolen. There was insufficient evidence to support a finding that Knight knew or had reasonable cause to know the gun he possessed was stolen, and the true finding on the section 12025, subdivision (b)(2), allegation as to count 9 is reversed. Appellant's conviction on count 9 is deemed a misdemeanor.
B. Instruction on Accident
Appellants argue the trial court erred when, with regard to the charge of assault on a police officer, it refused their request the jury be instructed in the terms of Judicial Council of California Criminal Jury Instructions 2006-2007, CALCRIM No. 3404 or the defense of accident.
1. Background
Appellants were charged with assault with a deadly weapon on a police officer based on Lewis's speeding away while Officer Trabelsi was attempting to remove Knight from her vehicle.
Lewis requested the trial court instruct with the following version of CALCRIM No. 3404: "[The defendant is not guilty of assault with a deadly weapon on a peace officer if she acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of assault with a deadly weapon on a peace officer unless you are convinced beyond a reasonable doubt that he acted with the required intent.]"
At the instructions conference, Lewis's counsel noted it was undisputed that when Knight, confronted by Trabelsi, told her to do so, Lewis drove off and the officer was struck by her car. Counsel argued, however, there was no evidence she drove off intending to hit the officer and that the officer's being hit was an accident.
The prosecutor argued the instruction should not be given, noting that it was unnecessary for a conviction of assault that Lewis intended to hit the officer. She noted an assault occurs when a person intentionally acts in a manner the natural and probable consequences of which will be contact with the victim. She stated that driving off with the officer partially in the car was such an act.
The court at first stated it would give the instruction. It stated it was unclear that Lewis knew the officer was in her car and unclear that she intended to harm him.
The prosecutor repeated that the intention to do harm was not an element of assault. The trial court replied it was unclear whether Lewis knew the officer was in the car. The court stated it was possible she was merely aware that the officer was grabbing Knight's arm.
Defense counsel stated the evidence allowed the conclusion that the officer was not in the car at the moment Lewis drove off or that she did not know the officer was inside her car.
The trial court stated again it would give the instruction. It noted that to be guilty of assault it was necessary Lewis be aware that her act would naturally and probably result in the application of force to another. If she was not aware of that possibility, then what occurred was an accident and an instruction on accident as a defense was appropriate.
The prosecutor replied that the accident instruction embodied in CALCRIM No. 3404 and requested by Lewis referred to the defendant acting without the intent required for the crime. The prosecutor noted, however, that the only intentional act required in this case for a finding of assault was that Lewis intentionally pressed the accelerator of her car.
Based on the prosecutor's comment, the trial court changed its mind and stated it would not give an instruction on accident. The trial court apparently concluded that unless there was evidence Lewis accidentally pressed the gas pedal, she was not entitled to an instruction on the defense of accident.
The prosecutor added that defense counsel was free to argue to the jury that if Lewis was unaware the officer was in the car, then she was unaware of facts that would lead a reasonable person to realize her act by its nature would directly and probably result in the application of force to the officer. The trial court seemed to agree.
CALCRIM No. 3404 concerning the defense of accident was not given.
2. Discussion
The mental elements of the crime of assault have confounded the courts of this state for well over 30 years. (See People v. Williams (2001) 26 Cal.4th 779, 782, 784, People v. Colantuono (1994) 7 Cal.4th 206, 215-214; People v. Rocha (1971) 3 Cal.3d 893, 899.) As evidenced by this case, the mental elements of the crime still cause confusion. Here, the trial court misapplied the concept of accident to the crime of assault in deciding not to instruct on the defense of accident.
Section 26, Five, provides a defense when an act is done "through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence." Essentially, the defense exists because the defendant failed to form the "mental state" necessary to make the act criminal. (People v. Bohana (2000) 84 Cal.App.4th 360, 370.)
In order to be guilty of assault, the defendant must willfully do an act aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to another. (People v. Williams, supra, 26 Cal.4th at p. 788; CALCRIM No. 915.) "Willfully" in this context simply means the act was done willingly or on purpose. (§ 7, subd. (1); see People v. Lewis (2004) 120 Cal.App.4th 837, 852; CALCRIM No. 3404.)
The problem in this case arose because the trial court and the prosecutor read CALCRIM No. 3404 too literally and because they were confused concerning the mental elements of the crime of assault.
The instruction states the defendant is not guilty if he or she acted "without the intent required" for the charged offenses. Perhaps less confusion would arise, especially in the context of an assault prosecution, if the model instruction instead used the words "without the required mental states."
As noted, two mental states are required for a conviction of assault. The defendant must act (1) willfully and (2) with awareness of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to another. Thus, as a matter of both law and common sense an accident occurs either when the act is not purposeful, e.g., a person's foot slips off the brake pedal and presses the gas, or when the person is unaware of facts that would lead a person to reasonably understand his purposeful act would result in the application of force to another, e.g, driving forward unaware that someone is getting into their car. If in an assault prosecution there is substantial evidence that either mental state does not exist, then the defendant is at least nominally entitled to an instruction on accident as a defense.
In this case, as the trial court noted, there was no evidence Lewis failed to act willingly. However, the trial court did believe there was evidence Lewis did not act with a sufficient awareness of the danger created by driving away. Assuming the trial court was correct, then the proper response to Lewis's request for an instruction on accident was to modify CALCRIM No. 3404 to state that the defendants were not guilty of assault if Lewis was unaware of facts that would lead a reasonable person to realize her act by its nature would directly and probably result in application of force to another.
There is authority requiring the giving on request of an instruction concerning the defense of accident when there is substantial evidence supporting that defense. (People v. Acosta (1955) 45 Cal.2d 538, 544; CALCRIM No. 3404, Bench Notes, p. 1038.) Clearly, however, the failure to give such an instruction is generally harmless. The defense of accident is a claim that the mental element of an offense is absent. The jury here was fully instructed concerning the elements of assault and concerning the prosecution's burden of proving each of those elements beyond a reasonable doubt. As the prosecutor noted below, even in the absence of an instruction on accident, the defense was free to argue that Lewis drove off unaware of the officer's location, did not realize the danger her act placed him in and, thus, she was not guilty of assault.
Appellants were done no harm by the trial court's failure to instruct on the defense of accident.
C. Section 654
Knight argues that because both crimes arose from a single objective, it was improper to sentence him both for burglary in count 7 and vehicle taking in count 8.
Section 654 states an act punishable in different ways by different provisions of the Penal Code may be punished under only one such provision. The section, however, applies not only to a single act violating multiple provisions of the code but also to an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all the criminal acts were incident to one object, then punishment may be imposed only as to one of the offenses committed. (People v Beamon (1973) 8 Cal.3d 625, 636-637; People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
In count 7 Knight was found guilty of burglary. He entered a house and took keys to a truck sitting outside the house. In count 8 he was convicted of taking the truck. Significantly, the prosecution's burglary theory was based on the claim Knight entered the house to steal the truck keys.
The Attorney General argues Knight had separate intents in the burglary and vehicle taking offenses, i.e, to steal keys and to take the truck. Therefore, he argues, separate sentences were proper. We note that both crimes had the same objective, taking the truck. The trial court erred in sentencing on both offenses.
The abstract of judgment is ordered amended to delete the sentence on count 8, vehicle taking, and to state the term on that count is stayed pursuant to section 654.
DISPOSITION
The true finding as to Knight on the section 12025, subdivision (b)(2), finding in count 9, concealing a firearm in a vehicle, is reversed and the offense is deemed a misdemeanor. Knight's abstract of judgment is amended to delete the sentence on count 8, vehicle taking, and to state that the term is stayed pursuant to section 654. In all other respects the judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.