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People v. Nash

California Court of Appeals, Fifth District
Sep 18, 2008
No. F053988 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. VCF183487 Paul A. Vortmann, Judge.

James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.

Defendant Michael David Nash was convicted of assault on a peace officer with a deadly weapon and battery on a peace officer causing injury. On appeal defendant claims (1) the trial court erred by failing to instruct on unanimity and (2) the evidence was insufficient to support the battery conviction. We will affirm.

FACTS AND PROCEDURAL HISTORY

On April 12, 2007, at 1:49 a.m., California Highway Patrol (CHP) officers in Porterville, observed a brown Hyundai Sonata fail to stop at a stop sign. The officers followed the Sonata in their marked patrol car with the intention of performing a traffic stop. The Sonata did not yield to the patrol car and instead turned into a residential cul-de-sac. The officers followed the Sonata into the cul-de-sac where it made a wide U-turn and drove toward the patrol car. The officer driving the patrol car got a good look at the driver of the Sonata and identified him as defendant.

The officers followed the Sonata out of the cul-de-sac. Defendant ran another stop sign and continued to speed. At one point, defendant attempted to hide from the officers by stopping the Sonata next to a building and turning off the lights. When the officers located defendant, he again sped away. Defendant spun out, but turned back and drove straight toward the patrol car. The officers were forced to rapidly back up the patrol car to avoid a collision. Defendant drove in circles around the patrol car three times and almost hit the patrol car on the third pass. The officers continued to pursue defendant, who then made another U-turn and drove straight at the patrol car again. The officer who was driving was again forced to take evasive action and had to drive onto the shoulder of the road to avoid being hit.

After a seven- or eight-minute pursuit, defendant tried to drive through a grove of trees. He crashed the Sonata into a tree, got out and fled on foot. The officers found a passenger in the Sonata and took him into custody, but the passenger was never charged with a crime.

On May 8, 2007, Sergeant Tripp of the CHP observed defendant sitting in a truck at a residence in Visalia. Tripp recognized defendant as someone wanted by the CHP. Tripp was in civilian attire at the time and radioed for three marked patrol cars and uniformed officers to be sent to his location. Tripp donned a CHP raid jacket with patches and badges on the front and “CHP” written in bold letters on the back. He also wore a lanyard around his neck from which hung his CHP credentials.

Tripp and the other three officers who arrived on the scene all approached defendant with their guns drawn. Tripp was the first to make verbal contact with defendant. Tripp identified himself as a police officer and ordered defendant to raise his hands in the air. Defendant denied being Michael Nash and told the officers he was “John Riesing.” As defendant exited the truck, officers observed he was holding a metal file with a wooden handle in his right hand. Although the metal file fell to the ground, defendant continued to hold the wooden handle.

Tripp pushed defendant back against the truck and another officer grabbed defendant’s left arm. Defendant tried to spin away from the officers and Tripp grabbed defendant’s right arm to restrain him. Defendant continued to flail his arms and refused to comply with the officers’ orders to get down on the ground. Defendant and two of the officers spun in a circle along the side of defendant’s truck to the back of the truck. At this point, a third officer joined the fray and attempted to restrain defendant. Defendant still did not go down and the entire group spun into a chainlink fence. Tripp released defendant’s right arm in order to grab and restrain his legs. At that moment, defendant’s right arm shot out, still holding the wooden handle, and struck Tripp in the eye. Tripp sustained a cut to his eye and experienced an irritating flashing for approximately a month.

A second amended information was filed against defendant on August 20, 2007. The information charged defendant with assaulting a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c); counts 1, 2 & 4); evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 3); battery on a peace officer with injury (§ 243, subd. (c)(2); count 5); resisting arrest (§ 69; counts 6, 7 & 8); misdemeanor resisting arrest (§ 148, subd. (a)(1); counts 9 & 10); and misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a); count 11). A jury trial commenced the same day.

All statutory references are to the Penal Code unless otherwise specified.

At trial, defendant testified on his own behalf. He denied being in Porterville on April 12, 2007, claiming he was staying in a motel in Bakersfield that night because he was attending a funeral the next day. As to the incident on May 8, 2007, defendant claimed he thought he was being robbed and that was why he tried to get away from the officers. Defendant claimed he never saw any insignia on Tripp identifying him as a CHP officer and Tripp never identified himself as a peace officer. He further claimed he never saw any of the other uniformed officers until after he was handcuffed. Defendant denied claiming that he was not Michael Nash, flailing his arms, holding anything in his hand or striking Tripp.

On August 22, 2007 the jury found defendant guilty as charged on all counts except count 4. On count 4, the jury found defendant guilty of the lesser crime of misdemeanor assault against a peace officer.

On September 20, 2007, the trial court sentenced defendant to a total of eight years in prison. Defendant filed notice of appeal on October 12, 2007.

DISCUSSION

I. Unanimity Instruction

Defendant argues the trial court erred by not giving the jury an instruction that it must unanimously agree on the act or acts which constituted the assault. We disagree.

“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] ... ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (Ibid.)

When, however, the offenses are so closely related in time so as to form one transaction, a unanimity instruction is not required. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) This continuous conduct exception applies when “‘the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place.’” (People v. Beardslee (1991) 53 Cal.3d 68, 93.) “‘“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” [Citations.]’” (People v. Champion (1995) 9 Cal.4th 879, 932.) Furthermore, a unanimity instruction is not required when the prosecution chooses to rely on multiple acts in a continuous course of conduct to establish only one crime (People v. Lopez (2005) 129 Cal.App.4th 1508, 1534), or when the defendant “tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them” (People v. Candell (1988) 46 Cal.3d 833, 875, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365).

Here, defendant’s acts were so closely related in time as to constitute a single continuous course of conduct. Defendant repeatedly drove the Sonata toward the officers’ patrol car during a seven- or eight-minute high-speed pursuit that began when defendant failed to stop at a stop sign. The officers and the passenger in the Sonata recounted several instances when defendant drove the Sonata directly at the patrol car, just narrowly missing a collision in each instance. If the jury believed any of these near-misses occurred, the jury inevitably would have believed all of them occurred. There was no conceivable basis for the jury to believe that defendant drove the Sonata at the officers in one instance, but did not do so in all instances. The acts were never parceled out and discussed separately and no evidence was introduced to rebut the occurrence of any particular instance. These acts, substantially identical in nature, occurred during the same high-speed pursuit and within minutes of each other.

Moreover, the prosecution did not try to identify each act as a separate crime but instead offered all of them together as one crime. In her closing argument, the prosecutor described the acts together and never attempted to separate them out. She also described the acts as arising out of defendant’s failure to stop at a stop sign that “snowballed into seven minutes of a high speed pursuit.” The theory of the prosecution’s case was that the several acts of defendant driving the Sonata at the officers together amounted to one crime.

Finally, defendant did not offer any different or separate defense to each instance of driving at the officers. Instead he submitted a blanket defense that he was not even in the same county when the high-speed pursuit took place. Defendant tendered the same defense as to each act and there was no reasonable basis for the jury to distinguish between each individual instance and not consider them together.

For all of these reasons, no unanimity instruction was required.

II. Sufficiency of the Evidence

Defendant also argues there was insufficient evidence that he intentionally committed a battery on Tripp. Defendant’s argument has no merit.

When reviewing a defendant’s challenge to the sufficiency of the evidence, the appellate court must consider the record in the light most favorable to the prosecution. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1020.) Evidence is considered substantial if it is of ponderable legal significance. “‘“It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.”’ [Citations.]” (People v. Olmsted (2000) 84 Cal.App.4th 270, 277.) “[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].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Battery is a general intent crime. (People v. Lara (1996) 44 Cal.App.4th 102, 107.) The law requires only that a defendant “actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’” (Ibid.) Intent to cause injury and the subjective awareness of risk is not required to prove a battery. (People v. Hayes (2006) 142 Cal.App.4th 175, 180.) The test is objective and all that must be shown is that the defendant committed an “intentional act and [had] actual knowledge of those facts sufficient to establish that the act by its nature [would] probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790 [assault context]; People v. Hayes, supra, at p. 180.) The defendant must have been aware of “facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (People v. Williams, supra, at p. 788; People v. Hayes, supra, at p. 180.) It is of no consequence that the defendant might have honestly believed his intentional act was unlikely to result in a battery. (People v. Williams, supra, at p. 788, fn. 3.)

“[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, supra, 26 Cal.4th at p. 788, fn. 3.)

In this case, the evidence amply supported a finding that defendant was aware he was using substantial physical force to resist the three officers who were struggling to subdue and arrest him. He flailed his arms and thrashed his body in an effort to prevent the officers from handcuffing him. His resistance was so violent that three officers were required to finally restrain him. While two officers attempted to cuff him, defendant struggled sufficiently that he was able to spin himself and the officers several feet along the side of defendant’s truck, and when the third officer joined in the effort, defendant still was able to spin the entire group into a chain link fence next to the truck. These facts would lead a reasonable person to realize that defendant’s intentional act of thrusting out his arm (while holding a wooden handle), with three officers in close proximity attempting to restrain him, “would directly, naturally and probably result in a battery” against one of the officers. Accordingly, substantial evidence supported the jury’s implied finding that defendant had the required mental state for battery.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Nash

California Court of Appeals, Fifth District
Sep 18, 2008
No. F053988 (Cal. Ct. App. Sep. 18, 2008)
Case details for

People v. Nash

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID NASH, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 18, 2008

Citations

No. F053988 (Cal. Ct. App. Sep. 18, 2008)