Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD198519, Leo Valentine, Jr., Judge. Affirmed in part; affirmed as modified in part; reversed in part and remanded with instructions.
IRION, J.
A jury convicted Anthony Javon Martin of one count of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)) and two counts of assault with a deadly weapon on a peace officer (§ 245, subd. (c)), arising out of an incident in which Martin threw bricks at two police cars. Martin admitted that he had suffered two prior prison priors, one prior serious felony, and one prior strike (§§ 667, subds. (a)(1), (b)-(i), 667.5, subd. (b), 1170.12), and the trial court sentenced Martin to 11 years in prison.
All statutory references are to the Penal Code unless otherwise indicated.
Three issues are presented in this appeal. First, Martin contends that insufficient evidence supports the jury's finding that he had the required mental state for conviction of assault with a deadly weapon on a peace officer under section 245, subdivision (c). Second, Martin asserts that the prosecutor failed to present evidence that the dollar value of damage to the police cars was $400 or more, and therefore his felony vandalism conviction (§ 594, subds. (a), (b)(1)) must be reduced to the lesser included offense of misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)). Third, the Attorney General argues, and Martin concurs, that the trial court erred by staying the sentences on Martin's prison prior enhancements. Martin requests that we strike the prison priors in accordance with the trial court's apparent intention; however the Attorney General requests that we remand for the trial court to either strike or impose the enhancements.
We determine that Martin's challenge to his convictions of assault with a deadly weapon is without merit. With respect to Martin's felony vandalism conviction, because we agree that no evidence supports the jury's finding regarding the dollar value of damages sustained in the vandalism, we modify the judgment to reflect a conviction of the lesser and necessarily included offense of misdemeanor vandalism. Finally, with respect to the prison prior enhancements, we agree with the parties that the trial court erred by staying the sentences rather than imposing or striking the sentence enhancements, and we will remand the case to the trial court. (§ 1385, subd. (a).) On remand, the trial court shall either strike or impose the sentence enhancements for Martin's prison priors. In all other respects, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 22, 2006, Martin was standing on a street in downtown San Diego when he saw Officer Dick Ward of the San Diego Police Department in a marked patrol car. Martin ran towards Officer Ward and threw a brick at him, while yelling profanities. Martin repeatedly picked up the brick and threw it at Officer Ward, who began driving in quick circles to avoid being hit. Martin repeatedly yelled, "Why won't you kill me?" The brick never hit Officer Ward, even though Martin threw the brick at the officer's head from a distance of five to 10 feet. The brick hit the side of the car on one occasion, and the last time Martin threw the brick, it shattered the rear window of Officer Ward's patrol car and landed in the back seat. Martin then ran off, and Ward pursued him in his car.
Shortly thereafter, Officer Joel Mendoza arrived in his patrol car to assist Officer Ward. When Martin saw Officer Mendoza, he ran towards him with a brick in his hand and cocked back his arm in a throwing motion. Martin then threw the brick towards Officer Mendoza's front windshield, but Officer Mendoza maneuvered around Martin, and the brick struck the rear door frame on the driver's side. The rear window shattered from the impact. The point of impact was only 10 inches from Officer Mendoza's head, but Officer Mendoza was not hit.
After Martin was arrested, Martin waived his Miranda rights and admitted in a police interview that he threw bricks at the two police officers. Asked if he wanted to hurt the officers, Martin replied, "I wanted them to hurt me. I think that was my way of making sure they hurted me."
Miranda v. Arizona (1966) 384 U.S. 436.
An information charged Martin with two counts of throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b)), one count of vandalism over $400 (§ 594, subds. (a), (b)(1)) and two counts of assault with a deadly weapon on a peace officer (§ 245, subd. (c)). The information also charged Martin with two prison priors (§§ 667.5, subd. (b), 668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (a)) and one strike prior (§§ 667, subds. (b)-(i), 668, 1170.12).
At trial, Martin did not testify and called no witnesses in his defense. The prosecution called several witnesses, including the police officers.
The jury returned a verdict of guilty on one count of felony vandalism (§ 594, subds. (a), (b)(1)) and two counts of assault with a deadly weapon on a peace officer (§ 245, subd. (c)). The jury was unable to reach a verdict on the two counts of throwing a substance at a vehicle, and the trial court dismissed those counts after declaring a mistrial.
The court sentenced Martin to 11 years imprisonment: the low term of three years for each of the assault charges (counts 4 and 5), which terms were then doubled pursuant to sections 667, subdivisions (b)-(i) and 1170.12 and ordered to be served concurrently; and a five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)). As relevant here, the trial court imposed a two-year sentence for the felony vandalism conviction but stayed the punishment, and it imposed a one-year enhancement for each of Martin's two prior prison terms but "stayed the time."
II
DISCUSSION
A. Substantial Evidence Supports the Finding that Martin Violated Section 245, Subdivision(c)
Martin's first contention is that the evidence is insufficient to show that he had the required mental state for conviction of assault with a deadly weapon on a peace officer (§ 245, subd. (c)). Martin argues that his assault convictions should be reversed because "a reasonable doubt exists as to whether [he] committed the offenses" in that "there exists a reasonable possibility that [he] threw the bricks at the police cars simply in order to damage [the cars]" and not with the intent to harm the officers themselves. For the reasons set forth below, we find his challenge to be without merit.
We apply a substantial evidence standard of review in evaluating whether sufficient evidence exists to support a finding of assault with a deadly weapon. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) "Reversal... is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The crime of assault with a deadly weapon on a peace officer (§ 245, subd. (c)) incorporates the statutory definition of "assault" set forth in section 240. (See People v. Colantuono (1994) 7 Cal.4th 206, 213-214 (Colantuono).) Thus, we begin our analysis with the applicable legal standard for assault. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) An assault is merely "an incipient or inchoate battery," and an assault charge does not require proof of injury. (Colantuono, at p. 216.)
Regarding the mental state required for an assault or assault with a deadly weapon, "assault is a general intent crime," and thus the prosecution does not need to prove that the defendant had the specific intent to injure the victim. (Colantuono, supra, 7 Cal.4th at pp. 215-216; People v. Williams (2001) 26 Cal.4th 779, 784.) A defendant is guilty of an assault if he commits an intentional act with actual knowledge of "facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery.... In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally, and probably result from his or her conduct." (Williams, at p. 788, citation omitted.) " '[T]he test of natural and probable consequences is an objective one,' " and does not turn on the defendant's subjective state of mind. (Id. at p. 790.)
Although Martin argues in his opening brief that he did not intend to hit the officers, as opposed to merely breaking the patrol car windows, Martin's argument is misplaced because specific intent to cause harm is not required for the crime of assault. (Colantuono, supra, 7 Cal.4th at p. 218 & fn. 9.)
In the present case, substantial evidence supports the jury's implied finding that Martin had the requisite mental state for assault with a deadly weapon. Martin committed intentional acts (throwing bricks), and a reasonable person would know that such acts would probably and directly result in a battery upon Officers Ward and Mendoza. Martin threw bricks at the police car windows, knowing the officers were inside their vehicles. He threw bricks at Officer Ward's head and at Officer Mendoza's front windshield, from distances of as little as three feet, with such force that he shattered two windows and dented at least one police car's frame. But for the officers' fortuitous maneuvering out of the way of the flying bricks, they would have been hit with a brick or shattered glass. Based on these facts, the record contains ample evidence to support a finding that a battery would naturally and probably result from Martin's actions, and therefore to support a finding of assault with a deadly weapon.
B. Substantial Evidence Does Not Support the Felony Vandalism Conviction
We next examine Martin's contention that the evidence is insufficient to support the jury's finding of felony vandalism. Martin disputes the jury's implied finding that the damage to the police cars was $400 or more, as required for a felony vandalism charge, and argues that his conviction should be reduced to misdemeanor vandalism. As we will explain, we agree.
Martin bases his argument on section 594, subdivision (b)(1), which provides that vandalism may be punishable as a felony only if the property damage is $400 or more. At trial, the prosecutor presented photographs of the damaged vehicles, but no evidence of the dollar value of damages to the patrol cars due to Martin's brick-throwing acts. After resting the case, the prosecutor realized her mistake and asked to reopen the case to present testimony regarding the dollar value of damages, but the court denied the request. The trial court observed that the evidence was insufficient for a jury to find that the damage to the patrol cars exceeded $400 and commented that it was inclined to strike the felony charge. Ultimately, the trial court decided not to strike the felony charge and instructed the jury on both felony and misdemeanor vandalism.
Accordingly, under section 594, subdivision (b)(2)(A), vandalism is a misdemeanor if the damage is less than $400.
We independently have reviewed the record, and we concur with the observation of both the prosecutor and the trial court that the record contains no evidence concerning the dollar value of the damage sustained by the patrol vehicles.
The Attorney General acknowledges the evidentiary void but argues that jurors can rely upon their "common knowledge" in assessing damages. In support of its argument, the Attorney General cites Ferrari v. Mambretti (1943) 58 Cal.App.2d 318 (Ferrari), which stated, in dicta, that a jury may use its common knowledge alone when determining damages for the value of services performed " '[i]f the trier of the facts possesses the common knowledge of the value of such services....' " (Id. at p. 328.) We question whether the approach taken in Ferrari is appropriate in a criminal case, in which the prosecution has the "burden... to prove every element of a crime beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260.) The monetary damage element of section 594, subdivision (b) provides the dividing line between felony and misdemeanor vandalism, a distinction that carries serious consequences. Where the prosecution fails to present any evidence of the dollar value of damages in a felony charge pursuant to section 594, subdivision (b), it abdicates its responsibility to provide proof beyond a reasonable doubt of every element of the crime.
Even if we were to accept the principle in Ferrari that the jury may rely on its common knowledge when assessing damages, we would still find a lack of sufficient evidence to establish the dollar value of damages here. Ferrari stressed that, in the absence of relevant evidence, the jury could fix the value of damages for services rendered only if the jury actually possessed common knowledge of the value of such services. (Ferrari, supra, 58 Cal.App.2d at pp. 327-328.) Applying that rule, Ferrari concluded that "[i]t would be beyond reason to expect twelve jurors to possess the common knowledge of the value of services here sued for...." (Id. at p. 328.) Similarly, we have no basis to conclude that a juror would possess common knowledge about the cost of repairing or replacing patrol car windows.
The Attorney General cites State v. Brooks (Tenn. Crim. App. 1995) 909 S.W.2d 854, 858-859, which involved the valuation of damage to police cars, but Brooks does not establish that the value of a police car window is within the common knowledge of a jury. Indeed, in Brooks a police officer testified as to the dollar value of damages to his patrol car. (Ibid.)
In the absence of any evidence of the dollar value of damage to the police cars, the jury's finding that the damages were at least $400 was necessarily based on speculation. "[M]ere speculation cannot support a conviction." (People v. Marshall (1997) 15 Cal.4th 1, 35.) Accordingly, we conclude that insufficient evidence supports the damages element of the felony vandalism conviction.
Given the lack of evidence to support a felony conviction under section 594, subdivision (b)(1), we may reduce the conviction to a misdemeanor (§ 594, subd. (b)(2)(A)). "[A]n appellate court may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense but not the charged offense." (People v. Howard (2002) 100 Cal.App.4th 94, 99.) Misdemeanor vandalism is a lesser included offense of felony vandalism. (People v. Birks (1998) 19 Cal.4th 108, 117.) The only difference between the two offenses lies in the value of the damages to the property vandalized. (§ 594, subd. (b).) Martin does not dispute that the record establishes all elements of misdemeanor vandalism; he requests only that we reduce his conviction to the lesser included offense. Accordingly, we reduce Martin's conviction on count 3 to misdemeanor vandalism (§ 594, subd. (b)(2)(A)).
C. The Case Must Be Remanded for the Striking of, or Imposition of Sentence on, Martin's Prison Priors
The trial court found that Martin suffered two prison priors. Under section 667.5, subdivision (b), "the court shall impose a one-year term for each prior separate prison term served for any felony." At Martin's sentencing hearing, the trial court stated that it had "imposed and stayed the time, but did not strike" the prison priors.
The parties both take issue with the trial court's decision to stay the sentences on the prison priors. The Attorney General first raises the issue in its responsive brief, arguing that we should remand the case to the trial court for resentencing because the trial court exceeded its jurisdiction by not either striking or imposing a one-year sentence enhancement for each of Martin's two prison priors. In his reply brief, Martin argues that the sentences should not have been stayed but asserts that, "because the trial court clearly intended that appellant not be punished for the two prior convictions, [we] should simply order the trial court to modify the judgment to strike the punishment for the allegations of the prior convictions."
We review the trial court's decision to stay the sentence on the prior prison terms despite the fact that the issue was first raised in the Attorney General's brief. "It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant's appeal is pending, the appellate court should remand the case for a proper sentence." (People v. Benton (1979) 100 Cal.App.3d 92, 102.)
We agree that, because a court must either strike or impose a sentence based on a prior prison term enhancement, but may not stay the sentence, the trial court erred by staying the sentences for the prison priors. As our Supreme Court explained in People v. Langston (2004) 33 Cal.4th 1237, 1241, "[o]nce the prior prison term is found true within the meaning of section 667.5[, subdivision ](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." Under these circumstances, a remand for resentencing on the prior prison term enhancements is the proper remedy. (See People v. Meloney (2003) 30 Cal.4th 1145, 1151.) On remand, the trial court should decide whether to impose or strike the sentences for the prison priors.
DISPOSITION
The judgment shall be modified on count 3 to reflect a conviction of the lesser included offense of misdemeanor vandalism. Further, the trial court is directed to strike or impose the prior prison term enhancements, to amend the abstract of judgment to reflect its sentencing decision and our modification of count 3, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.