Opinion
A131154
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. KIERAN M. MCCARTY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County
Super. Ct. No. SC071014)
Appellant Kieran M. McCarty was convicted by jury of evading a police officer while operating a motor vehicle (Veil. Code, § 2800.2), assault on a peace officer with a deadly weapon (a vehicle) or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (c)), and driving a motor vehicle with a suspended or revoked license, a misdemeanor (Veh. Code, § 14601.1, subd (a)). His sole argument on appeal is that the evidence is insufficient to sustain his conviction of assault on a peace officer with a deadly weapon. We remand to correct an apparent sentencing error and otherwise affirm.
I. BACKGROUND
On April 29, 2010, at about 8:37 a.m., Pacifica Police Officer Stacy Jaquith responded to a call of a suspicious car in the parking lot of the Pacific Community Center, located at Crespi and Highway 1. She found McCarty sitting in the driver's seat of a white sedan parked in the center's parking lot. McCarty produced an identification card and said his license was suspended. Jaquith confirmed that McCarty's driver's license was suspended through a records check. She told him not to drive, but did not issue a citation.
About three hours later, Jaquith observed McCarty driving on the street and stopped him. She told him to wait in the vehicle and cited him for driving with a suspended license. She then told him that his car would be towed and impounded, directed him to gather his belongings, and took his car keys.
As Jaquith returned to her car, she heard McCarty's car engine start. She returned to McCarty's car and told him to turn off the engine. McCarty said something to the effect of "I'm not going through this shit." Jaquith grabbed McCarty's left arm and tried to put him in a control hold, a pain compliance technique, so that she would be able to pull him out of the vehicle safely. She had both hands engaged on McCarty's left wrist/arm, but did not feel that she had good control of his arm. They struggled briefly as McCarty shifted the transmission from park into drive and the car accelerated forward. She was forced forward with the car as it accelerated, and when she was able to let go of McCarty she landed hard on the ground on her right elbow and on her hip where her Taser and radio were on her belt. She was dragged for about four feet before being able to free herself.
Video of the incident taken from a police dashboard camera was shown to the jury as well as still photographs taken from the video.
Officer Sean Harper pursued McCarty as he sped away. During the chase McCarty committed various vehicle code violations including speeding, failing to signal, failing to stop at a red light, making improper lane changes, and entering the roadway from an improper position. The pursuit ended when McCarty's car caught fire.
Jaquith suffered a ruptured disk in her back which caused severe lower back pain and made it difficult for her to sleep. She suffered from random dizzy spells, normally walked with a cane, was sometimes required to use a wheelchair, was unable to drive, and was forced to lie down for most of the day. She was in pain at the time of her trial testimony (July 22, 2010).
On July 26, 2010, the jury found McCarty guilty on all remaining charged counts. On September 17, 2010, the court referred McCarty to the Department of Corrections and Rehabilitation for a diagnostic evaluation and report under Penal Code section 1203.03. On January 20, 2011, the court found true an allegation that the assault conviction was a serious felony (Pen. Code, § 1192.7, subd. (c)(31)). The court suspended imposition of sentence on the assault charge and granted probation. The court sentenced McCarty to 30 days in jail on the misdemeanor charge of driving on a suspended license. The court ordered McCarty to pay various fines and fees which are not contested here. Restitution was ordered in the amount of $39,309. On February 7, 2011, McCarty filed a timely notice of appeal.
The information filed against McCarty originally charged him with resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1); Count 3.) On July 23, 2010, the court granted the prosecution's motion to dismiss that count.
As we discuss post, there is no indication in either the clerk's minutes or the sentencing transcript that McCarty was actually sentenced on Count 1, the felony charge of evading a police officer while operating a motor vehicle (Veh. Code, § 2800.2).
II. DISCUSSION
A. Standard of Review
McCarty challenges only the sufficiency of the evidence to support his conviction for felony assault on a peace officer (Pen. Code, § 245, subd. (c)). In evaluating the sufficiency of the evidence the standard of review is deferential, and " ' "the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination. . . ." ' [Citations.]" (People v. Semaan (2007) 42 Cal.4th 79, 88.) "In reviewing a criminal conviction challenged as lacking evidentiary support, the court must 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—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences the jury might have drawn from the evidence, even if the court would have concluded otherwise. [Citation.]" (People v. Brady (2010) 50 Cal.4th 547, 561.) B. Elements of Assault on a Peace Officer with Force Likely to Produce Great Bodily Injury
The jury was instructed pursuant to CALCRIM No. 860 that to find McCarty guilty of the charged assault, the People were required to prove beyond a reasonable doubt that: "1[.] The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [¶] . . . [t]he force used was likely to produce great bodily injury; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, [he] was aware of facts that would lead a reasonable person to realize that [his] act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, [he] had the present ability to apply force likely to produce great bodily injury to a person; [¶] 5. When the defendant acted, the person assaulted was lawfully performing her duties as a peace officer; [¶] AND [¶] 6. When the defendant acted, [he] knew, or reasonably should have known, that the person assaulted was a peace officer who was performing [her] duties."
The jury was further told that "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object or someone else to touch the other person. [¶] The People are not required to prove that the defendant actually intended to use force against someone when [he] acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] A person who is employed as a police officer by Pacifica Police Department is a peace officer."
McCarty focuses only on the sufficiency of the evidence to establish that he "did an act that by its nature would directly and probably result in the application of force to a person," and that when he acted, "he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone." C. The Evidence
The basic facts are not in dispute. The undisputed evidence showed that McCarty started his car after being told that it would be towed and impounded; Jaquith grasped his arm from outside the car to prevent him from leaving; McCarty put the car in gear and accelerated; Jaquith was forced forward with the car; the motion of the car caused the officer to fall to the ground, with resulting injuries.
McCarty argues that "[t]he constellation of facts in this case do not meet the . . . requirements to establish an assault." McCarty contends here, as he did in the trial court, that he could not be convicted of assault because he "had done nothing to Officer Jaquith, had not held onto her, caught her up in any mechanism of the car, and that pushing on the accelerator was not an act that would directly and probably result in the application of force to another person." He also argues that "when he committed the act of moving forward[,] he was not aware of any facts that would lead a reasonable person to conclude that said act would by its nature, result in the application of force sufficient to cause great bodily injury" because he had no reason to think Jaquith would hold on.
As McCarty acknowledges, assault with a deadly weapon is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono); People v. Rocha (1971) 3 Cal.3d 893, 899.) The criminal intent required for assault " '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. Given that intent, it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.' " (Colantuono, supra, 7 Cal.4th at p. 214, fn. omitted.)
McCarty cites People v. Cotton (1980) 113 Cal.App.3d 294 (Cotton) and People v. Jones (1981) 123 Cal.App.3d 83 (Jones) for the proposition that mere reckless conduct alone is insufficient to constitute an assault. As the People point out, both cases are distinguishable. Both Cotton and Jones involved high speed police pursuits. In Cotton, the defendant drove recklessly in an attempt to evade pursuing police officers and struck the oncoming car of an officer as both entered an intersection. Evidence showed that the defendant took evasive action to avoid the collision. (Cotton, at pp. 297, 301.) The appellate court reversed because the judge, in this bench trial, erroneously relied on the doctrine of transferred intent and, in so doing, "simply transposed an intent to drive recklessly into an intent to commit a battery" and "precluded a meaningful examination of the nature of defendant's intent towards [the police officer]." (Id. at p. 302.) Jones also involved a police pursuit at speeds in excess of 100 miles per hour. The defendant's vehicle was "weaving through traffic, and ignoring stop signs and the traffic lights," and struck another vehicle in the rear, flipping it over. (Jones, at p. 87.) The court found "no evidence to show or infer defendant drove his vehicle at the other car involved in the collision. The overwhelming evidence is defendant drove his car in a gross reckless manner which resulted in bodily injury to another. And as such, his driving, under the given circumstances of this case, constituted a violation of Vehicle Code section 23104, not Penal Code section 245, subdivision (a)." (Id. at p. 96.) Relying on Cotton, the Jones court held that "in each case, evidence was lacking to show the drivers intended to commit a battery or an act the natural consequences of which is the application of force on the person of another." (Ibid., italics added.)
As Cotton also observes, whether the requisite intent existed is a question for the jury. (Cotton, supra, 113 Cal.App.3d at p. 301.)
Neither case is helpful to McCarty. He argued below, and argues here, that Jaquith's fall and injuries were "mere unintended consequences of a P.C. 148(A) or even a reckless driving." McCarty insists that "nothing prevented [Jaquith] from letting go of his arm as the car moved forward. There was zero evidence . . . that [he] had any reason to think she would not let go. Thus, when he committed the act of moving forward[,] he was not aware of any facts that would lead a reasonable person to conclude that said act would by its nature, result in the application of force sufficient to cause great bodily injury."
The essence of McCarty's argument is that 1) Jaquith could have simply let go of him as he attempted to drive off; 2) he reasonably thought she would let go of his arm as he drove away; 3) if she had let go, she would not have been injured; 4) therefore, the injury was not the natural and probable consequence of anything he did. There is, of course, no evidence at all as to McCarty's subjective state of mind, other than his intent to flee, as circumstantially exhibited by his immediate and subsequent actions, and as reflected in the jury's verdict convicting him of violating Vehicle Code section 2800.2. As the People observe, whether Jaquith could have avoided the natural, probable, and direct result of McCarty's conduct is irrelevant. McCarty's subjective expectation is also irrelevant. "[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (People v. Williams (2001) 26 Cal.4th 779, 788, fn. 3.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) " '[T]he test of natural and probable consequences is an objective one[.]' [Citation.]" (Ibid.)
The evidence was that McCarty accelerated forward while Jaquith held him by the arm, that he succeeded in dislodging her grip using the vehicle to do so, and that she was knocked to the ground as a result, suffering significant injuries. From that evidence the jury could reasonably conclude, beyond a reasonable doubt, that McCarty "willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery." (Colantuono, supra, 7 Cal.4th at p. 214.) D. Sentencing
As noted ante, the court sentenced McCarty on Count 2, the felony assault, and on Count 4, driving on a suspended license. While the sentencing transcript reflects some discussion by the court of Count 1, felony evasion of a police officer with a motor vehicle (Veh. Code, § 2800.2), neither the clerk's minutes nor the transcript show any sentence actually imposed on that count. Since the court discussed restitution on this count, this appears to have been simply an oversight. We will therefore remand the matter for the limited purpose of allowing the trial court to address this issue.
Neither party raised this issue in initial briefing. On January 17, 2012, we advised the parties that they could submit supplemental letter briefing on this issue. McCarty argues that the court in fact sentenced him on Count 1, granting him probation. While it seems clear that the court intended to grant probation on this count, it is also clear that it never actually did so.
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III. DISPOSITION
We remand for sentencing of McCarty on the charge of evading a police officer while operating a motor vehicle. The judgment is otherwise affirmed.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Needham, J.