Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC895665.
Mihara, J.
A jury convicted defendant Alison Marie Leavitt of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), failure to stop at the scene of an injury accident (Veh. Code, § 20001, subds. (a) & (b)(1)), and misdemeanor vandalism (§ 594, subds. (a) & (b)(2)(A)). Allegations that she personally used a deadly weapon (a vehicle) in the commission of the assaults (§§ 667, 1192.7) were also found true. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation on condition, among others, that she serve one year in the county jail.
Further statutory references are to the Penal Code unless otherwise noted.
Defendant raises four issues on appeal: (1) the evidence supported only one assault conviction, not two; (2) the trial court prejudicially erred in failing to instruct the jury sua sponte on a “misfortune or accident” defense; (3) the court prejudicially erred in excluding defense evidence; and (4) the court “exceeded its jurisdiction when it revoked [defendant’s] driver’s license.” We affirm.
I. Factual Background
On a February afternoon, professional cyclist Megan Guarnier drove up to the house of Michael Dunn, a fellow cyclist. Guarnier had, after graduating from college in Vermont, “decided to take a year or so off to pursue cycling” before returning to school for an advanced degree. She had just moved to California, and Dunn was “somebody I knew in California that I could ride my bike with.” They were not dating or even close friends. She had offered to take him to pick up his car, which had been towed for being parked on the street for more than 72 hours.
When Guarnier arrived, she saw Dunn standing outside, talking to a woman she assumed was his “roommate or something.” Guarnier did not know it at the time, but the woman was defendant, whom Dunn had, until several months previously, dated “off and on for about two years.”
Guarnier pulled over to the curb and was moving her purse from the passenger seat when Dunn “came kind of scurrying over to my car and hopped in, and told me to drive away now. Drive now, go.” “And I kind of just was -- didn’t really realize what was going on. So I put the car in drive and I started to go.” Suddenly, defendant “came running in front of my car, screaming at me. Screaming things like, ‘you don’t know who you’re dealing with....’ ” “I was like, what is going on, who is this woman, and why, like, why is she -- what did I do? And I’ve never seen her before.” Defendant “came running in front of my car and then continued to go towards her car. And I was starting to move at that point. And [she] came running back at my car and kicked in the driver’s side door.”
Guarnier got out of her car and saw a dent in the door. “And she was still screaming at me, and I was, like, who are you and what is your problem? Like who -- why did you do this?” “I completely didn’t ask for this and I don’t even know this woman, why would she kick my car door?” “She went to get in her car and was still yelling at me. And at that point Dunn told me to get her license plate number.”
Realizing defendant was about to leave, Guarnier walked across the street, calling back to Dunn to notify the police. Standing outside defendant’s car, Guarnier told her, “You need to pay for this. You can’t leave.” Dunn, meanwhile, had gotten out of Guarnier’s car and was standing in front of it, talking to the 911 dispatcher on Guarnier’s cell phone.
Guarnier walked in front of defendant’s car to get the license plate number. “And at that point I had bent down to look at it, but... she was putting the car in drive and I... kind of just backed up, threw my hands forward and tried to brace myself, like, get out of the way, but there was no place for me to get out of the way, because she just hit the gas.” “She was still screaming at me in the car.” “It was -- it was like -- it was -- I was done looking for license plate numbers, I was just trying to -- this is, like, split seconds. This was an, oh, my God, like, stand up and throw your hands out because you’re about to get run over by a car.” “I put my hands out and she hit me, and I ended up on the hood of her car. And she didn’t stop. She continued to accelerate on the street, to about, I’d say, 35 miles per hour.”
“[A]t the end of the road, she slammed on the brakes and I fell off the front of the car. [¶]... [¶] I didn’t fall off gracefully.” Guarnier said her “head was... away from the car, because I had fallen off the driver’s side.” Her legs, however, were “[i]n the path of the car.” “[S]he hit the brakes, I don’t know if she had actually stopped, but she hit the brakes. I got off the car and then she accelerated again and ran over my legs, my lower legs, with her front -- front driver’s side wheel. I jerked my legs out from underneath the car” before the rear wheels ran over them.
Defendant did not stop, but proceeded instead to the Westfield Oakridge shopping mall, intending to pay her Macy’s bill. On the way, she called a friend and told her what had happened. The friend urged her to call the police.
Defendant then called 911. She told the San Jose police dispatcher, “Um, yeah- I just needed to, um- I don’t know if it’s a hit and run- Um, basically what happened is, I got in a confrontation with, um, my ex-boyfriend, um, and the girl that he’s now seeing. Um, she jumped on the hood of my car, I took off, um, she fell off- I think I ran over her foot. I don’t know.... But I wanted to call and report it so it’s not like a hit and run that I injured someone and left the scene....” Defendant failed to mention kicking Guarnier’s car door. She told the dispatcher she was “just stopping by” Dunn’s house “to say hello to him because I was in the area, and this other girl showed up and she got crazy and got on the hood of my car and stuff and, like I said, I think I ran over her leg.” “I just don’t want it to be a hit and run and get in worse trouble.”
Responding to the dispatch, San Jose Police Officer Mary Cayori met defendant in the parking lot of the shopping mall. Defendant was arrested and transported to the county jail.
II. Procedural Background
Defendant was charged by information with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), felony vandalism (§ 594, subds. (a) & (b)(1)), and failure to stop at the scene of an injury accident (Veh. Code, § 20001, subds. (a) & (b)(1)). It was also specially alleged that she personally used a deadly weapon, a vehicle, in the commission of the assault crimes (§§ 667, 1192.7).
On the first day of trial, the court heard the People’s motion in limine to exclude all reference to alleged prior acts of violence between defendant and Dunn. The motion was apparently triggered by defendant’s allegation, in her written statement to police, that Dunn had “ ‘pushed, shoved and hit her in the past.’ ” She had never reported these alleged incidents. Defendant’s trial counsel did not oppose the motion but instead reserved his right, “if at some point it appears to me to be relevant, ... to discuss that at a later time, if necessary.” The court indicated it was inclined to grant the motion, but reserved ruling on it.
The court also heard competing motions in limine to admit or exclude the recording of defendant’s 911 call. After hearing testimony from Officer Cayori and listening to a recording of the 911 call, the court ruled that at least a portion of the tape was admissible as a spontaneous statement. “However, ” the court continued, “there’s going to have to be some redacting made....” Expressing concern about the trustworthiness of defendant’s statements about why she left the scene, the court ruled that the jury would not “be hearing that, unless... [she] testifies that at the scene she was approached by them or they used some sort of weapons to make her leave the scene, that would be a different story. But based upon what I’ve heard so far, that doesn’t describe what happened at the scene. That describes her motivation for leaving the scene.”
The parties stipulated that two 911 calls had been made: one by Dunn at 3:49 p.m. from the scene of the incident and a second by defendant at 4:01 p.m. The recording of Dunn’s 911 call was played for the jury without objection.
Guarnier was the prosecution’s first witness at trial. Describing what happened that day, she denied “yelling and screaming” at defendant, physically confronting her, or trying to remove her from her car. Guarnier denied trying to rip the license plate from defendant’s car. She testified that she had no weapons in her hands and did not see Dunn with any weapons in his hands. “He had a phone.” She denied throwing herself on the hood of defendant’s car to keep her from leaving. “I would have never put myself in danger and I would have never done something like that.... [B]eing on the top of an angry woman’s car is not -- not rational.”
Dunn testified next. He explained that defendant called him that day to say she planned to stop by, and he told her not to come over because he was on his way out. She came over anyway. “[A]nd I said, I told you I’m on my way out, I don’t want to see you, and I shut the door. [¶]... [¶] And then I waited a couple of minutes. And then I went out through my side garage door and I looked out through the side gate.” He did not see her or her car, “so I walked out through the side gate down into the driveway. And [she] was still standing in my driveway.” “And I told her, I told you I don’t want to see you. And that was -- right then is when [Guarnier] pulled up.” “And so I walked straight over to [Guarnier’s] car and I got inside of the car and I told her to just drive.” Asked why he told Guarnier to just drive, Dunn responded, “Because I’ve had previous incidents with [defendant] where she gets violent.”
Defense counsel immediately objected. After a bench conference, the trial court sustained the objection “as to the question and answer” and instructed the jury to disregard both.
Dunn’s account of events tracked Guarnier’s in all material respects. Defendant’s car was parked across the street from Guarnier’s car. When Guarnier got out of her car after defendant kicked it, Dunn got out as well. He “was standing in front of [Guarnier’s] SUV... talking to 911” as Guarnier stood in front of defendant’s car “with her hands up like this, saying don’t go, we are calling the police, just stop, the police are on their way.” Defendant was inside her car “and the window was up. And so there was no physical altercation or shoving, pushing, yelling of any kind like that.” Guarnier had no weapon, did not try to open defendant’s driver’s side door, and did not throw herself on the hood of defendant’s car. After being thrown off the hood of defendant’s car, Guarnier did not “stand up and charge the defendant, ” nor did she “ever maneuver herself in front of the car.” At no time did Dunn “charge the defendant with weapons or otherwise at the scene.” Instead, he stayed by Guarnier’s SUV, across the street from defendant’s car. “I was standing with [Guarnier’s] cell phone in my hand talking to 911 at the time.”
Guarnier testified that Dunn’s street was wide enough to “comfortably fit a car parked on both sides and then also cars, two way traffic.”
San Jose Police Officer Stella Cruz-Foy, who responded to Dunn’s 911 call, testified for the prosecution. She described Dunn’s demeanor at the scene as calm. “But he looked -- he appeared to be in shock. Kind of as I was talking to him, he didn’t really understand why the situation had taken place.” Officer Cruz-Foy saw nothing in Guarnier’s or Dunn’s demeanors to suggest that either one had been the aggressor. She concluded instead, based on her training, that defendant had been the dominant aggressor.
The People rested, and defense counsel again sought permission to question defendant about domestic violence issues. Labeling Dunn’s brief comment “certainly in violation of the court’s in limine order, ” defendant’s counsel argued that “the bell really cannot be unrung... given that it’s been stated by Mr. Dunn in front of the jury.” The district attorney countered that any discussion of abuse in defendant’s past relationship with Dunn was “certainly not relevant.... And the brief mention of some vague sort of violence was less than a sentence. It was a clause by the witness that the jury was instructed to disregard. [¶] I don’t believe that the bell has been sufficiently rung to open the door to such prejudicial testimony....” The trial court denied the motion.
Defendant testified on her own behalf. She said she became “a little bit upset” when she saw “there was actually a girl driving the jeep” Dunn got into. “Well, actually a lot. I became very upset.” She admitted yelling at Guarnier and kicking her driver’s side door, and conceded she “might have been using profanity, yes.” After kicking the door, she walked across the street to her own car and was “inside of it, windows rolled up, doors locked, just kind of sitting there” when Guarnier walked toward her, telling her she couldn’t leave. Defendant said she felt “scared, afraid. Not sure what her next step is going to be.” Guarnier “seemed very upset, very agitated.” “I thought if I got out of the car she could attack me, beat me up or something, who knows.” “I think she was trying to rip my front license plate off my car.”
Defendant turned on her car because she thought that “would maybe get her to move out of the way.” But Guarnier “continued to just stand there and tell me I cannot leave.” Defendant shifted her car into first gear “and slowly kind of just, like, inched forward a little bit [¶]...[¶] [t]hinking that, you know, she’s still a good enough distance away, that if I inch forward a little bit, I’m not going to strike her, but she might move.” Guarnier “placed her hands on my hood and said you cannot leave.” “She wasn’t backing away, and obviously my car is getting close and closer to her, so she’s getting kind of almost leaning on the hood of my car.” Although her windows were still rolled up and her doors remained locked, defendant did not think remaining at the scene was a safe choice for her at that point. “At that point I’m still inching forward, inching forward and eventually she’s so far onto the hood of my car that her feet are off the ground and she’s laying on my car basically.” “Um, ... when she was laying completely on my hood I started to go a little bit. I got up to maybe ten, 15 miles per hour. I did not get out of first gear, and she’s laying on the hood of my car holding on where my hood, like, where the gap is between the windshield and the hood.” Asked what she was thinking, defendant responded, “That I need to get this girl off the hood of my car.”
Defendant drove “maybe 35 to 40 feet” and then stopped “in a quick manner, like, but not a slamming on the brakes, like, almost if you were stopping at a stop sign kind of.” When she stopped, Guarnier “kind of rolled off the car towards the driver’s side” and “ended up in the street.” She was “a little bit off to the left-hand side, but in front of my front driver’s side tire.” “Um, she was seated kind of with her legs extended a little bit, like out in front of her” towards the car. “I figured that this is a good opportunity, and I tried to drive to the left, um, to go around her to avoid running her over or doing anything.” “So I attempted to go around her to the right, and as I was going around her, um, I must have run over her. I ran over her leg. I felt a bump.” Defendant drove away. She called her friend and then 911 on her way to the mall. A redacted version of defendant’s 911 call was played for the jury.
On cross examination, defendant admitted Guarnier had done nothing-apart from driving up to Dunn’s house-to provoke her. She conceded that Guarnier never threatened her physically or said anything to cause her to believe she was about to attack her. She admitted she “knew that there was a human being right in front” of her car before she drove into Guarnier the first time: “Yeah, I could see her head, yeah.” “And you drove with her standing in front of your car?” “Yes.” Defendant admitted that her car hit Guarnier.
When Guarnier fell off the car and landed in the street, defendant could see her in the street in front of her. “[S]he was in front. On the driver’s side in the front, um, I could, like, from where I was seated, I could see about her waist up and she was sitting on the ground there.” She was “in front of my front driver’s side tire.” Defendant said she tried, unsuccessfully, to maneuver around Guarnier. She knew she had driven over her legs, but she felt she “needed to get out of this situation for my safety.” She conceded that Guarnier-on the ground, having just been run over-was not a danger to her. “[B]ut other people at the scene are a danger to me.”
Defendant was apparently referring to Dunn and his mother; there is no evidence in the record that there were any other people at the scene. The recording of defendant’s 911 call played for the jury reflects that she told the dispatcher, “I didn’t feel safe, and I didn’t want to stop. His mom was there; he was there; the girl was there....” There is no other reference to Dunn’s mother anywhere in the record, and no evidence that defendant feared or felt threatened in any way by Dunn’s mother.
The People called Officer Cayori in rebuttal. Defendant admitted to Officer Cayori at the mall that she initiated the incident, that she tried to drive around Guarnier but believed she ran her over, and that she left the scene. In a number of other respects, however, what defendant told the jury diverged from what she told Officer Cayori. Defendant told Cayori that Guarnier tried to get her out of her car and “jumped on the hood of her vehicle” when she tried to get away. At trial, defendant conceded, “[p]erhaps jumped was the wrong word then.” Defendant told Officer Cayori that when she stopped at the stop sign at the end of Dunn’s street, Guarnier jumped off the hood of her car, sat down “Indian style” in front of the car, and tried to rip the license plate off. She said she couldn’t see where Guarnier was, because she was below her line of sight. At trial, however, defendant admitted she had stopped short of the stop sign and conceded that, after Guarnier fell off the hood of the car, she did not sit down “Indian style” in front of it and try to rip the license plate off. Defendant also admitted that she could see Guarnier in front of her left driver’s side tire.
Officer Cayori testified on cross examination that defendant told her she did not get out of her car at the scene because “she didn’t want a confrontation with her ex-boyfriend either. That was the main, I think, the main concern of hers.” Defendant’s trial counsel then renewed his motion to play the unredacted recording of defendant’s 911 call, arguing that it was admissible either as a spontaneous statement or as a prior consistent statement about why defendant left the scene. The district attorney opposed the motion on relevance grounds, and the trial court denied it. The court explained that it had “a bit of a logical problem of you trying to use statements that she’s fearful of her ex-boyfriend being at the scene when the boyfriend is not anywhere near her.”
Both sides then rested. After deliberating for less than two hours, the jury returned guilty verdicts on all four counts and also found the personal use allegations true. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation on condition, among others, that she serve one year in the county jail and complete an anger management treatment program.
At the close of the prosecution’s case, the trial court granted defendant’s motion to reduce the vandalism count to a misdemeanor.
Defendant filed a timely notice of appeal.
III. Discussion
A. Assault Convictions
Defendant contends the jury “wrongfully convicted” her of two assaults with a deadly weapon. Arguing that the incident “transpired over only seconds, ... included the use of only one alleged deadly weapon..., and that was confined to one small area outside Dunn’s house, ” she urges that “[a] claim that [she] hit Guarnier once with the front of her car and a second time when she passed over her leg unduly fragments the incident into separate events.” The evidence “demonstrated only one continuous course of conduct, ” defendant asserts, “and thus, was sufficient to support only one assault conviction.” We disagree.
Defendant’s basic premise-that “a course of continuous criminal conduct” cannot support multiple convictions-is unsound. “Unless one offense is necessarily included in the other..., multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct....” (People v. Benavides (2005) 35 Cal.4th 69, 97, citations omitted.)
In People v. Harrison (1989) 48 Cal.3d 321 (Harrison), the California Supreme Court rejected the defendant’s contention that “multiple, nonconsensual sex acts of an identical nature, committed in short succession against a single victim, constitute a single offense.” (Harrison, at p. 334.) Noting that “[s]ince the origin of the rape and sodomy statutes, the courts have strictly adhered to the principle that a ‘penetration, ’ however slight, ‘completes’ the crime, ” the court concluded that “a new and separate violation of section 289 is ‘completed’ each time a new and separate ‘penetration, however slight, ’ occurs.” (Harrison, at pp. 329, 334 [where 10-minute attack involved three separate penetrations, each accomplished with the statutorily prescribed intent and the requisite degree of force or fear, defendant was properly convicted of three counts of violating section 289]; accord, People v. Scott (1994) 9 Cal.4th 331, 345 [“one offense is complete and another one begins whenever the perpetrator stops and resumes unlawful activity during a sexual assault”].)
The rule is not limited to sex crimes. (See People v. Ortega (1998) 19 Cal.4th 686, 700 [defendants properly convicted of two counts of carjacking and two counts of robbery based on same conduct], overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1229.) In People v. Johnson (2007) 150 Cal.App.4th 1467, 1474 (Johnson), this court rejected the defendant’s contention that “a ‘single continuous assault, ’ albeit involving ‘multiple blows’ ” could not support three convictions for inflicting corporal injury on a cohabitant (§ 273.5). (Johnson, at p. 1473-1474, 1477.) The court followed Harrison’s teaching that the proper analysis involves determining when each charged crime is complete, then evaluating “ ‘the sufficiency of the evidence in terms of the particular statutory violations at issue.’ ” (Johnson, at pp. 1474-1475.) Concluding that a section 273.5 crime is complete “upon the willful and direct application of physical force upon the victim, resulting in wound or injury, ” this court affirmed the convictions because there was substantial evidence the defendant committed three successive acts of violence that resulted in separate injuries. (Johnson, at p 1477; see also People v. Washington (1996) 50 Cal.App.4th 568, 578-579 [“every entry with the requisite intent supports a separate conviction” for burglary].)
These cases govern our analysis. Section 245, subdivision (a)(1) outlaws “an assault upon the person of another with a deadly weapon or instrument other than a firearm....” (§ 245, subd. (a)(1).) “Since 1872, the Penal Code has defined assault as ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ (Pen. Code, § 240.)” (People v. Chance (2008) 44 Cal.4th 1164, 1167 (Chance), fn. omitted.) “ ‘The “violent injury” here mentioned is not synonymous with “bodily harm, ” but includes any wrongful act committed by means of physical force against the person of another....’ [Citation.]” (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12 (Rocha).) “ ‘In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’ [Citation.]” (Rocha, at p. 899, fn. 12.)
The present ability element “is satisfied when ‘a defendant has attained the means and location to strike immediately.’ [Citations.] In this context, however, ‘immediately’ does not mean ‘instantaneously.’ It simply means that the defendant must have the ability to inflict injury on the present occasion.” (Chance, supra, 44 Cal.4th at p. 1168.)
“[A]ssault with a deadly weapon is a general intent crime.” (Rocha, supra, 3 Cal.3d at p. 899.) “[T]he criminal intent which is required for assault with a deadly weapon... is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (Ibid.) “The pivotal question is whether the defendant intended to commit an act likely to result in... physical force, not whether he or she intended a specific harm.” (People v. Colantuono (1994) 7 Cal.4th 206, 218 (Colantuono).) “[W]here there is a clear intent to commit violence accompanied by acts which if not interrupted will be followed by personal injury, the violence is commenced and the assault is complete.” (People v. Yslas (1865) 27 Cal. 630, 633.)
Here, there was substantial evidence to support two assault convictions. By her own admissions, defendant established she had “ ‘attained the means and location to strike immediately’ ” (Chance, supra, 44 Cal.4th at p. 1168) and had the requisite intent before she drove her car into Guarnier. (People v. Golde (2008) 163 Cal.App.4th 101, 110 (Golde) [intent established by “evidence that defendant drove the car toward the victim and repositioned the car toward the victim as she tried to move out of its way, ” even though he did not actually hit her]; People v. Russell (2005) 129 Cal.App.4th 776, 787 (Russell) [jury could justifiably infer defendant intended to push victim into path of moving car from fact he pushed him into the street and the car struck him].)
Defendant admitted that as she was sitting in her car, she could see Guarnier standing in front of it, “[n]ot to the side of my car. More directly in -- if I was sitting in the driver’s seat, she was in front of my car directly in front of me standing by the front bumper.” “[S]he was fully standing up looking at me.” Defense counsel asked, “At that moment, had you driven directly straight forward, would you have struck Miss Guarnier?” Defendant unequivocally responded, “Yes.” With Guarnier standing “in the direction that I would need to go if I was to drive away, ” defendant testified, “I put my seat belt on and I turned on my car.” These facts amply support the jury’s finding that before striking Guarnier the first time, defendant had the “present ability” to commit “a violent injury on the person of another.” (§ 240; Chance, supra, 44 Cal.4th at p. 1167.)
Defendant also admitted acting with the requisite intent. With Guarnier in front of her car, defendant “shifted... into first gear and slowly kind of just, like, inched forward a little bit.” “I’m not driving the car into her. I’m inching my car forward towards her.” Although she disputed Guarnier’s account that she “just hit the gas” and Dunn’s account that she “gunned the engine and took off, ” causing Guarnier to be “launched onto the hood, ” defendant admitted that her car actually hit Guarnier. “Eventually, yes, it did touch her because she did not move.” “She is standing there, the car is slowly inching forward.... And as I’m inching forward, she’s going further and further towards my car. To the point where she no longer has her feet on the ground.” Asked why she didn’t maneuver around Guarnier, defendant responded, “I couldn’t maneuver around her then. There was a curb that way. Where was I going to drive, on someone’s lawn?” “I can’t drive my car onto a curb. I drive a Honda Civic, it’s very low to the ground and I can’t drive onto a lawn.” These facts amply support the jury’s finding that defendant possessed the requisite intent before she hit Guarnier the first time. (Golde, supra, 163 Cal.App.4th at p. 110; Russell, supra, 129 Cal.App.4th at p. 787.) We conclude the first assault was completed, at the latest, when defendant’s car first struck Guarnier.
Instead of stopping, defendant continued to drive forward, in her estimate, “not going more than 15 miles per hour.” Dunn, however, testified that she went “whizzing down the street” and “got up to about 25 miles per hour.” Guarnier said defendant accelerated “to about, I’d say, 35 miles per hour.” By her own admission, defendant traveled at least 46 feet. Both Guarnier and Dunn testified that she then “slammed on the brakes.” Dunn said she “skidded to a stop.” Defendant conceded she did not come to a gradual stop. “Um, not a slow gradual stop. I mean I didn’t slam on my brakes. I didn’t -- well, I just stopped my car as if I was stopping at a stop sign.” “I stopped.” At this point, Guarnier either fell or rolled or “got launched off” the hood of the car.
Defendant testified that Guarnier “ended up on the street, ” and that she could see her “a little bit off to the left-hand side, but in front of my front driver’s side tire.” As Dunn explained it, Guarnier “ended up on her butt propping herself up on her hands like that, and looking back at me....” “Her legs were at about the -- a 45-degree angle in front of her.” “She looked terrified and was staring back at me....” “And then [defendant] gunned [the car] again and went forward and ran over her legs.”
In our view, these facts provide substantial evidence of a second assault. Defendant came to a complete stop after the first assault. She was still in her car, with the ignition on, and Guarnier was sitting in the street “in front of [defendant’s] front driver’s side tire.” Defendant had, therefore, once again “ ‘attained the means and location to strike immediately.’ ” (Chance, supra, 44 Cal.4th at p. 1168.) Fully aware that Guarnier was on the ground “a little bit off to the left-hand side, but in front of my front driver’s side tire” with her legs extended in front of her “towards [the] car, ” defendant chose to drive forward. (Italics added.) She testified that she “tried” to go around Guarnier. “I attempted to go around her to the right, and as I was going around her, um, I must have run over her.” Even then, defendant did not stop to avoid running over Guarnier with her back tire. That result was averted only because Guarnier “jerked [her] legs out from underneath the car” before defendant’s rear wheels ran over them.
We think these facts amply support the jury’s finding that defendant once again had the present ability and possessed the requisite intent when she struck Guarnier the second time. A new and second assault was completed, at the latest, when defendant ran over Guarnier’s legs. We conclude defendant was properly convicted of two assaults.
The cases defendant relies on do not compel a different result. People v. Jefferson (1954) 123 Cal.App.2d 219 (Jefferson) says nothing about the propriety of multiple convictions. Instead, it addresses the “ ‘continuous conduct’ ” exception to the election rule that applies where the evidence reveals numerous crimes, any one of which could be the crime charged. The general rule in such cases is that the prosecutor must elect which act is to support the charges, or the jury must be instructed that it must unanimously agree about which act the defendant committed. (Harrison, supra, 48 Cal.3d at p. 334, fn. 10.) “Such a rule, ” our high court has explained, “ensures that all jurors agree beyond a reasonable doubt that defendant was guilty of the same act, and provides defendant with a reasonable opportunity to present a defense. [Citation.]” (Ibid.) The Harrison court cited Jefferson as illustrative of the continuous conduct exception that applies where a series of acts are part of the same, continuous transaction. (Ibid.) It distinguished both “ ‘election’ rule” and “continuous conduct exception” cases in Harrison, noting that neither rule was implicated where the defendant was charged with and convicted of three counts of violating section 289, subdivision (a) on the same day. (Harrison, at p. 334.) Jefferson is inapposite here. People v. McIntyre (1981) 115 Cal.App.3d 899, on which defendant also relies, is inapposite for the same reason. (Id. at pp. 907, 910.)
Jefferson assaulted a police officer with a knife outside her house, then went inside and assaulted other officers with a different knife. (Jefferson, supra, 123 Cal.App.2d at pp. 219-220.) Charged with one count of assault with a deadly weapon, she argued on appeal that the evidence supported two assaults, either of which could sustain the charge in the information. (Id. at p. 220.) The Court of Appeal rejected her claim that the trial court erred in denying her demand for an election, noting first that the record reflected no such demand. (Id. at pp. 220-221.) “In any event, ” the court continued, “the rule relied on... ‘has no application where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense’.... This whole episode consumed from 10 to 15 minutes....” (Id. at pp. 220-221, citations omitted.) Although this language, quoted outside the context of the case, arguably supports defendant’s position, Jefferson does not stand for the proposition that a defendant cannot be convicted of multiple counts of assault simply because the assaultive conduct occurred over a short period of time.
People v. Bevan (1989) 208 Cal.App.3d 393 (Bevan), as the Attorney General correctly points out, was disapproved by the California Supreme Court on the very point for which defendant cites it. (See People v. Scott (1994) 9 Cal.4th 331, 347-348 [noting that “Bevan and Bothuel were both decided before Harrison... , and their reasoning is flawed”].) The reasoning of Hankla v. Municipal Court (1972) 26 Cal.App.3d 342 (Hankla), on which the Bevan court relied (and on which defendant relies here), is similarly flawed.
People v. Bothuel (1988) 205 Cal.App.3d 581
Bevan, Bothuel, and Hankla condemned “technical fragmentation” of undefined lewd acts committed in violation of section 288, subdivision (a), observing that fragmenting “a single brief course of lewd and lascivious conduct into separate offenses, ” one for each unlawful touching, “could lead to absurd results.” (Bevan, supra, 208 Cal.App.3d at p. 403.) As the California Supreme Court explained in Scott, however, the assumption that distinct fondling activities are merely “incidental” or “preparatory” to other sex crimes committed on the same occasion “was extracted from older cases which addressed the separate problem of multiple punishment under section 654, and which are outdated even in that context. Thus Bevan and Bothuel do not properly analyze the circumstances under which a defendant may be separately convicted under section 288 for separate lewd acts committed in a single encounter. They are disapproved to this extent.” (Scott, supra, 9 Cal.4th at pp. 347-348, fn. omitted.)
People v. Thomas (1994) 26 Cal.App.4th 1328 (Thomas) and People v. Jackson (1998) 66 Cal.App.4th 182 (Jackson) were kidnapping cases. Thomas stands for the proposition that, because the crime of kidnapping is not complete until the forcible detention of the victim ends, a single abduction, followed by a continuous period of detention, constitutes but a single act of kidnapping, notwithstanding that the defendant may have “changed his approach or focus as to the robbery, uttered a variety of threats to the victim, and engaged in other crimes after the initial abduction.” (Thomas, at p. 1335.) Jackson stands for the proposition that multiple convictions cannot be based on necessarily included offenses. (Jackson, at p. 189.) Thomas and Jackson do not advance defendant’s position. Indeed, Jackson expressly recognizes that “ ‘[d]efendants may be charged with and convicted of multiple offenses based on a single act or indivisible course of conduct.’ [Citation.]” (Jackson, at p. 189.)
B. Sua Sponte Misfortune or Accident Instruction
Defendant claims the trial court was required to instruct the jury sua sponte on the affirmative defense of misfortune or accident (CALCRIM No. 3404) because substantial evidence supported her contention that she “never drove with the necessary criminal intent for an assault conviction.” Reversal is required, she asserts, because “[a]ny of the jurors could have reasonably identified the incident as an accident and reasonably doubted whether [she] drove with criminal intent, given the facts and the omitted accident instruction.” We disagree.
In relevant part, CALCRIM No. 3404 states that “[t]he defendant is not guilty of _____ <insert crime[s]> if (he/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 _____ unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.”
A trial court’s duty to instruct sua sponte arises “ ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman).) Defendant cannot satisfy either prong of this test here.
Defendant argues that “the substance of [her trial] counsel’s argument to the jury included a defense in the nature of misfortune or accident.” The record refutes that claim. In his closing argument, defendant’s trial counsel told the jury that “[w]hat [defendant] did is an act of self-defense. You get to determine that, that’s what this case is entirely about.” (Italics added.) He told them, “You weren’t given all the law on [self-defense]. [¶] Some of it was left out. I’m going to go over that with you.” Consistent with a self-defense theory, counsel characterized Guarnier, from the moment she got out of her car after defendant kicked it, as “aggressively pursuing [defendant].” Guarnier “ran up to that car, ” he told the jury. “[S]he runs up and tries to rip the license plate off....” Defendant was “scared” and “fearful.” “She knew that if she got out of that car there was going to be a fight.” “So [defendant] has the right, and begins to act, to protect herself.” (Italics added.) Even after Guarnier fell off the hood of defendant’s car, counsel continued, defendant “still has the -- the legal ability -- we will talk about the law, but she still has the ability at that point to protect herself. In fact, I think you can argue very easily that the need for protection is even greater now than it was 46 feet ago, because if she was angry then, what do you think she’s going to be thinking now.” Defense counsel focused his closing argument on self-defense, referring to self-defense or defendant’s right to protect herself at least six times. “Defense counsel did not mention mistake or accident in his closing argument, ” the Attorney General argues. “Not once.” Because it does not appear defendant was relying on a misfortune or accident defense at trial, she cannot satisfy the first prong of the disjunctive Breverman test.
Nor can she satisfy the second prong, because there was not substantial evidence supportive of a misfortune or accident defense. The misfortune or accident instruction is based on section 26, which lists six exceptions to the general premise that all persons are capable of committing crimes. (§ 26.) One exception is for “persons 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.” (§ 26.) “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 (Gonzales).)
Defendant’s reliance on Gonzales is misplaced. Gonzales was convicted of willfully inflicting corporal injury on a cohabitant (§273.5). His victim testified that he beat her, then kicked open the bathroom door, causing it to hit her head. (Gonzales, supra, 74 Cal.App.4th at pp. 384-385.) Her mother, her uncle, and a sheriff’s deputy testified that she told them a similar story. (Id. at pp. 385-386.) At the preliminary examination, however, she had said her injuries were accidental. (Id. at p. 385.) The defendant’s brother, his mother, and his sister testified that the victim said her injuries were accidental. (Id. at p. 386.) In his closing argument, Gonzales’s counsel urged the jury to acquit him because the incident was an accident. (Id. at p. 386.) He did not request a misfortune or accident instruction, and the trial court did not give one. (Id. at pp. 386-387.) The Court of Appeal held that “[s]ince there was substantial evidence [the victim’s] injuries were caused by an accident and defense counsel relied on the defense... in his argument to the jury, the trial court erred in failing to instruct the jury sua sponte regarding that defense....” (Id. at p. 390.) Gonzales is factually inapposite here. We agree with the Attorney General that “[u]nlike the defendant in Gonzales, who was charged with assaulting someone hidden behind a door he could not see through, and for whom accident was a plausible theory even before the victim recanted, [defendant here] was looking right at Ms. Guarnier when she drove into her, and in [this] case, there was never a claim of accident.”
The mens rea defendant claims is missing here is the mens rea for assault. As previously noted, assault is a general intent crime. (Colantuono, supra, 7 Cal.4th at p. 213.) “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.” (Id. at p. 214.) “The pivotal question is whether the defendant intended to commit an act likely to result in... physical force, not whether he or she intended a specific harm.” (Id. at p. 218.)
Here, we find nothing in the record to suggest defendant acted without the requisite intent. There is no testimony that she drove her car into Guarnier accidentally. She admitted she purposefully drove it forward, fully realizing that Guarnier was standing, the first time, “in the direction that I would need to go if I was to drive away.” She admitted coming to a complete stop and then purposefully driving forward a second time, even though she could see Guarnier in the street “in front of my front driver’s side tire.” This testimony unequivocally established the requisite intent. Indeed, defendant concedes in her opening brief that that she “intended to accelerate her car....” She asserts that she did so, however, “without evil design or intent.” That does not advance her position, because assault with a deadly weapon is a general intent crime. (Rocha, supra, 3 Cal.3d at p. 899; Colantuono, supra, 7 Cal.4th at p. 218.)
Defendant’s testimony that she “felt that she needed to leave for [her] safety” after an empty-handed but “upset” and “angry” Guarnier walked over to her, as she sat in her locked car with the windows rolled up, does not mean that she lacked the requisite intent to drive her car forward with Guarnier “still standing... directly in front of me.” Her testimony that she left the scene after Guarnier fell off her car because, although Guarnier was no longer a danger to her, “other people at the scene are a danger to me, ” does not mean that she lacked the intent to drive her car forward even though Guarnier was in the street in front of her car. In our view, her testimony that she attempted “to go around [Guarnier] to avoid running her over or doing anything, ” and that she was “surprised I ran her over, because I’m making an attempt to maneuver around her, ” demonstrates that she was fully aware that her act was “likely to result in... physical force.” (Colantuono, supra, 7 Cal.4th at p. 218.) She drove forward anyway.
We conclude that since there was not substantial evidence to support a misfortune or accident instruction, the trial court did not err in failing to give one.
C. Exclusion of Evidence
1. Alleged Past Violence
Asserting that the trial court “failed to recognize the significant probative value Dunn’s history of violence had to [her] defense, ” defendant contends the court improperly excluded evidence of prior acts of violence between them. She was entitled to present this evidence, she claims, “because it established the basis for [her] reasonable fear of Dunn. It thus supported a justifiable motive for [defendant] to escape the scene and reflected the absence of criminal intent behind driving her car.”
Defendant contends that “[t]he particulars of exactly how and why [she] drove her car at the instant Guarnier went on to her car hood were crucial for determining whether [she] drove with criminal intent.” Criminal intent was lacking here, she claims, because she “acted with reasonable fear and panic.” The court “unfairly tied her hands” and violated her constitutional right to present a defense by “suppressing her most valuable evidence on the issue-the history she had with Dunn that caused her to fear him....” We disagree.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) A fundamental rule of evidence is that “[o]nly relevant evidence is admissible. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 176-177, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117.) An appellate court will not disturb a trial court’s exercise of discretion in admitting or excluding evidence “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, evidence that Dunn may have “ ‘pushed, shoved and hit [defendant] in the past, ’ ”-even if believed by the jury-could have no “tendency in reason” to prove or disprove any fact “of consequence to the determination of the action.” (Evid. Code, § 210.) Since assault is a general intent crime, a defendant’s motivation is relevant only to the extent it supports or refutes a finding that he or she acted in self-defense, reasonably believing the immediate use of force was necessary to defend against an imminent danger of suffering bodily injury or being touched unlawfully. (See People v. Goins (1991) 228 Cal.App.3d 511, 516.) Here, where defendant was charged with using force against Guarnier, her motivation would be relevant only to the extent she acted in self-defense because she felt threatened by Guarnier. But none of the statements that defendant claims were improperly excluded had anything whatsoever to do with Guarnier. Defendant’s claim that she felt threatened by Dunn-who had nothing but a cell phone in his hands and never left his position across the street from where defendant sat in her locked car-provides no justification for her assault on Guarnier. As the Attorney General points out, “[t]here was no evidence, and [defendant] made no proffer, that Mr. Dunn was involved in any way other than as a percipient witness and a 911 caller.” In these circumstances, evidence of past violence by Dunn was irrelevant.
Defendant next argues that by excluding evidence of Dunn’s alleged past violence, the trial court “unfairly tied her hands” and prevented her from testifying in response to Dunn’s “unauthorized and provocative allegation that she herself had a history of violence against him.” In our view, defendant overemphasizes the impact of Dunn’s testimony that he told Guarnier to “just drive” because he had had “previous incidents with [defendant] where she gets violent.” Dunn’s exceedingly brief response was non-specific and non-inflammatory. Defense counsel immediately interposed an objection, which the trial court sustained. We have no reason to believe the jury failed to follow the court’s instruction to disregard both “the question and answer.” (People v. Prince (2007) 40 Cal.4th 1179, 1295 [“we may presume the jury followed the instructions it was given....”].) We conclude that the trial court did not abuse its discretion in excluding evidence of alleged past violence by Dunn.
2. Statements Redacted from 911 Tape
Defendant contends the trial court improperly excluded portions of her recorded call to 911. She claims the statements were “highly relevant” to her defense because they “authenticated” her fear of Dunn. Had the statements been admitted, they “would have effectively linked the volatile events at the scene... to her reasonable fear of Dunn, a link that justified her motivation for escaping the scene and refuted the element of criminal intent in her assault charges.” We disagree.
In the statements the court redacted, defendant claims to fear Dunn. Her characterization of those statements admits as much: “The 911 statements were made in real time, demonstrating that [defendant] actually feared Dunn during the incident, enough to drive away from him.” (Italics added.) She “left the scene because she did not want Dunn to injure her.” “She drove to a shopping mall because it was a public place, and if Dunn followed her, she would be around other people.” As we have explained (ante, at pp. 21-23), defendant’s alleged fear of Dunn could not justify her assault on Guarnier. We have already rejected the argument that defendant claims her 911 statements bolstered. The trial court did not abuse its discretion by excluding the redacted statements as irrelevant.
The following statements were redacted from the recording the jury heard: (1) “But I left the scene because I didn’t want my ex to injure me in any way”; (2) “I went to, like a public place so that if he does follow me or show up or anything, I’m around other people”; and (3) “I would have been very much out teamed if they tried to do anything to me so I wanted to leave the scene.”
D. License Revocation
Defendant claims the trial court “exceeded its jurisdiction when it revoked [her] driver’s license.” The order must be reversed, she argues, because the operative Vehicle Code section authorizes only the Department of Motor Vehicles (DMV), not the court, to revoke licenses. We disagree.
The transcript of the sentencing hearing reflects the following colloquy: “THE COURT: Any further comments by Probation? [¶] PROBATION OFFICER: Yes, your Honor, we left off the recommendation that Ms. Leavitt’s license be suspended pursuant to Section 13351.5. [¶]... [¶] THE COURT: Is that a revocation or suspension? [¶] PROBATION OFFICER: It’s the lifetime suspension due to a 245 with the vehicle.” “THE COURT: The Court would suspend the driving privilege under CVC -- [¶] PROBATION OFFICER: I’m sorry. It is a revocation. [¶] THE COURT: I thought so, but I thought maybe you had looked at that. [¶] A revocation under California Vehicle Code Section 13351.5.”
A handwritten notation in the probation report says “16a CVC 13351.5 revocation.” “13511” and the word “suspension” are crossed out.
Defendant characterizes this exchange as an “order” revoking her driver’s license. The Attorney General contends the court did not “revoke” defendant’s driving privileges but simply advised her of the mandatory and immediate civil consequence of a felony conviction under section 245. We agree with the Attorney General’s interpretation.
Vehicle Code section 13351.5 provides that “[u]pon receipt of a duly certified abstract of the record of any court showing that a person has been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by the court to constitute the deadly weapon or instrument used to commit that offense, the department immediately shall revoke the privilege of that person to drive a motor vehicle.” (Veh. Code, § 13351.5, subd. (a).) “The department shall not reinstate a privilege revoked under subdivision (a) under any circumstances.” (Veh. Code, § 13351, subd. (b).) “It is the [DMV], ... not the court, which revokes the driver’s license.” (In re Grayden N. (1997) 55 Cal.App.4th 598, 604 (Grayden).)
A Vehicle Code section 13351.5 revocation is a mandatory administrative function. (Grayden, supra, 55 Cal.App.4th at p. 604.) To perform that function, the DMV must receive a certified abstract of the superior court record showing that the defendant was convicted of a section 245 felony and that the deadly weapon or instrument used in the commission of the offense was a vehicle. (Veh. Code, § 13351.5.) “Simply put, the... court is bound, under the statute, to report to the [DMV] the true finding [defendant] committed an assault with a deadly weapon in violation of Penal Code section 245, subdivision (a), and the true finding the weapon... used was a vehicle.” (Grayden, at p. 604.)
Here, the jury expressly found defendant committed two felony assaults with a deadly weapon, and that she “personally used a dangerous and deadly weapon, a(n) vehicle, ” in the commission of those offenses. In these circumstances, the DMV is statutorily required to permanently revoke her driving privileges. (Veh. Code, § 13351.5.) We reject defendant’s contention that the trial court “exceeded its jurisdiction” when it informed her of that fact.
IV. Disposition
The order of probation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.