Opinion
E045266.
2-25-2009
THE PEOPLE, Plaintiff and Respondent, v. DANIEL MEDINA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant Daniel Medina jumped into a womans car at a gas station when the woman left the car (leaving the keys in the ignition and her purse on the passenger seat) to pay for her gas. As defendant began to drive off in the car, the woman clung to the window of her car, attempting to stop defendant. She was dragged a distance of 300 feet until a police officer, who happened to be patrolling the area, blocked the car and stopped defendant.
Defendant was convicted of carjacking and assault with a deadly weapon and/or with force likely to cause great bodily injury. Defendant now contends:
1. The trial court erroneously instructed the jury regarding the mental state required for assault.
2. The trial courts order to the California Department of Motor Vehicles (DMV) that defendants drivers license should be revoked for life pursuant to Vehicle Code section 13351.5 must be reversed.
We affirm the judgment but remand to the trial court in order for it to make the required findings under Vehicle Code section 13351.5.
I
PROCEDURAL BACKGROUND
Defendant was convicted of carjacking (Pen. Code, § 215) and assault with a deadly weapon and/or with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court sentenced defendant to five years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
Shortly after 10:00 p.m., on February 1, 2006, Teresa Reyes stopped to get gas at the AM/PM market and gas station located on Nuevo Road in Perris. She exited her car and walked to a nearby machine to put in money to pay for her gas. She left the keys in the ignition and her purse on the passenger seat. As Reyes was putting her money into the machine, she heard her car start. She ran to her car and opened the door. Defendant was in the drivers seat. He immediately started to drive off. Reyes clung to the outside of the door. Reyes was screaming and crying. Defendant looked over at her but did not stop.
Reyes had never seen defendant before and had not given him permission to take her car.
Reyes was dragged to an intersection outside the gas station, a distance of about 300 feet. The door never closed and kept banging against her knee.
Fortuitously, Riverside County Sheriffs Deputy Nelson Gomez was patrolling the area near the AM/PM gas station. He observed defendant driving Reyess vehicle at a high rate of speed (approximately 35 to 40 miles per hour) away from the gas station and saw Reyes hanging from the drivers side door. Deputy Gomez positioned himself to stop the car. Defendant immediately stopped.
As a result of the incident, Reyes suffered from a swollen leg and knee. She was treated at the scene by paramedics but did not go to the hospital.
In his defense, defendant recalled Deputy Gomez, who testified that defendant did not try to evade him.
III
INSTRUCTIONAL ERROR ON THE INTENT FOR ASSAULT
Defendant claims that the trial court erred by giving the jury Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 875, as it allowed the jury to convict him based on negligence rather than requiring the jury to find he intended to make contact with the victim.
The jury was instructed with CALCRIM No. 875 as follows: "The defendant is charged in Count 2 with assault with (a deadly weapon) in violation of Penal Code section 245. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with (a deadly weapon) that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, (he) was aware of the 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; [¶] AND [¶] 4. When the defendant acted, (he) had the present ability to apply force (likely to produce great bodily injury) to a person. [¶] 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 People are not required to prove that the defendant actually touched someone. [¶] 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 defendants 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. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
Section 245, subdivision (a)(1) penalizes "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . ." "Assault" is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur." (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).)
As stated in Williams, in order to show assault with a deadly weapon, "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." (Williams, supra, 26 Cal.4th at p. 790.)
CALCRIM No. 875 advised the jury that the People had to prove (a) defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person, (b) defendant did that act willfully, and (c) when defendant acted, he was aware of facts that would lead a reasonable person to realize his act, by its nature, would directly and probably result in the application of force to another. Thus, CALCRIM No. 875 instructed the jury on the appropriate substantive law on assault with a deadly weapon as set forth in Williams, supra, 26 Cal.4th at page 790.
Defendants argument that Williams allows for a person to be convicted for mere negligence relies on the Third Districts opinion in People v. Wright (2002) 100 Cal.App.4th 703. In Wright, that court, after the decision in Williams, criticized the definition of assault in Williams as based on an erroneous interpretation of the law. (Wright, at pp. 706, 711-724.) That court concluded that any assault instruction that does not require that the defendant specifically intend to commit a battery would erroneously permit a jury to convict a person of negligent assault. (Id. at pp. 712-721.) Despite this determination, the Third District recognized it was bound by Williams. (Wright, at p. 706.)
It is well established that intermediate appellate courts must follow decisions of the states highest court and have no authority to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant recognizes this principle but raises the point anyway to preserve his right to petition the California Supreme Court for review, hoping that it will reconsider its holding in Williams. We must reject his challenge to CALCRIM No. 875, as it comports with the language approved in Williams.
Furthermore, in this case, the evidence supported that defendant intended to harm Reyes. It was undisputed that defendant looked at Reyes as she hung on the side of the car. Reyes was screaming and yelling. Defendant was well aware of Reyess presence on the car but continued to drive and dragged her for 300 feet. Rather than abandon his ill-conceived idea to take Reyess car, defendant chose to continue to drive with her clinging to the car, an act that shows he intended to harm Reyes. One could also reasonably foresee that dragging a person on the side of a car could cause great bodily injury. The evidence here clearly showed assault with a deadly weapon and/or with force likely to cause great bodily injury.
IV
REVOCATION OF DEFENDANTS DRIVERS LICENSE
Defendant further contends that the trial courts order at the sentencing hearing held on January 8, 2008, that the DMV was to revoke his privilege to operate a motor vehicle for the rest of his life pursuant to Vehicle Code section 13351.5, must be reversed.
A. Additional Factual Background
Defendant was charged in the information in count 2 with a violation of section 245, subdivision (a)(1), because he "did wilfully and unlawfully commit an assault upon TERESA REYES, with a deadly weapon other than a firearm, to wit: VEHICLE, and by means of force likely to produce great bodily injury." The jury was instructed with CALCRIM No. 875, which provided alternative theories of liability; that they could find defendant guilty of assault with a deadly weapon or because he used force likely to cause great bodily injury. The verdict form, signed by the jury, stated that defendant was guilty of "ASSAULT WITH A DEADLY WEAPON OR FORCE LIKELY TO COMMIT GREAT BODILY INJURY."
At the time of sentencing, the trial court merely stated, "And, finally, pursuant to Vehicle Code section 13351.5, the Department of Motor Vehicles is to revoke his privilege to operate a motor vehicle for the rest [of] his life, actually." The trial court made no additional findings; the minute order does not reflect the order; and, although the abstract of judgment states that defendant was convicted of "Assault w/deadly," it provides no further information or finding and does not direct that the abstract be sent to the DMV.
B. Analysis
Vehicle Code section 13351.5, subdivision (a) 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 [DMV] immediately shall revoke the privilege of that person to drive a motor vehicle."
As the court in People v. Linares (2003) 105 Cal.App.4th 1196, 1199 stated, "We view driving as a privilege, not a right, and license revocation as a civil, not a criminal, sanction. [Citation.]" The DMV, not the court, has the power to revoke a license. (In re Grayden N. (1997) 55 Cal.App.4th 598, 604.)
Here, at no time did the trial court make a finding that the vehicle used by defendant constituted a deadly weapon as required by Vehicle Code section 13351.5, nor does the record reflect that the abstract of judgment was ordered sent to the DMV.
The People contend that this court can order modification of the abstract of judgment to reflect the trial courts "implied" finding in ordering the revocation of defendants license under Vehicle Code section 13351.5 that the vehicle was a deadly weapon. We are reluctant to make such a finding as the record is sparse surrounding the trial courts imposition of the Vehicle Code section 13351.5 revocation. Furthermore, the jury found defendant guilty under both theories of assault: assault with a deadly weapon and/or force likely to commit great bodily injury. Although we certainly agree with the People that the evidence overwhelmingly supported that the jury convicted defendant under the theory that defendant used Reyess vehicle as a deadly weapon, we are not in a position to make a finding required by the trial court.
Defendant argues that the above finding must be made by a jury relying upon Cunningham v. California (2007) 549 U.S. 270 . In Cunningham, the Supreme Court concluded that, "[e]xcept for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.]" (Id., 127 S.Ct. at p. 868.) Defendant insists that the "facts triggering his punishment" were the conviction of a violation of section 245, subdivision (a)(1), and as such, a finding had to be made by the jury that Reyess vehicle was used as a deadly weapon.
We reject that such a determination requires a jury finding. Initially, the language in Vehicle Code section 13351.5 requires two distinct findings. First, there must be a conviction of Penal Code section 245, subdivision (a)(1). Second, the court must make the determination that a vehicle was used as a deadly weapon that resulted in the conviction. The statute is clear that such a determination is to be made by the court. Further, there is no violation of Cunningham, as the revocation of a persons driving privilege is not punishment, but rather an administrative act. (See In re Grayden N., supra, 55 Cal.App.4th at p. 605.)
Based on the foregoing, we remand to the trial court for the limited purpose of it making the required finding pursuant to Vehicle Code section 13351.5 as to whether defendant used Reyess vehicle as a deadly weapon. If the trial court makes such a finding, it must modify its minute order and the abstract of judgment accordingly and forward the abstract of judgment to the DMV.
V
DISPOSITION
We remand this case for the limited purpose of the trial court making the required finding pursuant to Vehicle Code section 13351.5, as set forth in the opinion. We affirm the judgment in all other respects.
We concur:
RAMIREZ, P.J.
GAUT, J.