Opinion
F073821
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM SHANNON REED, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13074)
OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. Michael A. Fagalde, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found appellant William Shannon Reed guilty of two felony counts of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), and a felony count of fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2). He was also found guilty of misdemeanor counts of resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)), trespassing (Pen. Code, § 602, subd. (k)), and driving when privilege is suspended or revoked (Veh. Code, § 14601.1, subd. (a)). He was acquitted of a charge of vandalism (Pen. Code, § 594, subd. (a)). Reed admitted he suffered two prior Vehicle Code section 14601.1 convictions, a prior strike conviction, and two prison priors. Reed was sentenced to 19 years eight months in prison, and various fees and fines imposed.
On appeal, Reed contends there is insufficient evidence to uphold his convictions for assault with a deadly weapon and reckless evasion. He also contends Penal Code section 654 bars imposition of sentence on both counts of assault. We affirm.
STATEMENT OF THE FACTS
On July 12, 2015, Sheriff's Deputy William Atkinson was in uniform in a marked sheriff's department patrol car when he saw a vehicle without a front license plate. The driver and passenger of the vehicle were not wearing seatbelts. Atkinson radioed the rear license plate number to sheriff's dispatch while he followed the vehicle, which then accelerated and turned suddenly without signaling onto Boyer Road, a two-lane road. Atkinson described Boyer Road as "three quarters parts paved, a quarter dirt portion, a highly residential area, partially unmarked with a solid double yellow line." Atkinson turned on his overhead lights and siren and followed the vehicle at 60 to 65 miles per hour. The vehicle crossed over the double yellow line and, towards the end of Boyer Road, "took a private residence driveway, which is dirt." Atkinson lost visual contact due to excessive dust. When Atkinson again saw the vehicle, it was driving straight toward him at about 50 miles an hour on the road, which was "a lane and a half wide." Atkinson swerved his patrol car in order to avoid a head-on collision.
Deputy Atkinson then turned his patrol car around and continued pursuit of the vehicle, which had turned back onto Boyer Road. The vehicle turned onto Italian Creek Road and then Manzanita Road, both one-lane dirt roads. Atkinson saw the vehicle, which was again driving straight toward him at about 50 miles per hour. Atkinson slowed down, held his firearm outside the driver's side window, and yelled for the vehicle to stop. Again, Atkinson had to swerve to avoid a head-on collision. The vehicle struck the patrol car's left front tire.
Deputy Atkinson eventually located the vehicle, which had collided into a rock pile on someone's private property. In the process, the vehicle damaged two trees on the property. The driver and passenger had fled. Backup officers arrived and a K-9 unit located Reed, the driver, concealed in nearby bushes.
The parties stipulated that on July 12, 2015, Reed was driving on a license previously suspended, of which he had notice.
DISCUSSION
I. SUFFICIENT EVIDENCE SUPPORTS THE PENAL CODE SECTION 245(c) CONVICTIONS
Reed claims the evidence is insufficient to sustain his convictions for assault with a deadly weapon on a police officer, i.e., Deputy Atkinson. We disagree.
When considering a sufficiency of the evidence challenge, we must "'"review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."'" (People v. Hill (1998) 17 Cal.4th 800, 848-849 (Hill).) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, supra, at p. 849.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371 (Massie).)
Penal Code section 245, subdivision (c) prohibits a person from "commit[ting] an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer ...." (Pen. Code, § 245, subd. (c).) The mental state for assault requires actual knowledge of the facts sufficient to establish that the defendant's act by its nature will probably and directly result in injury to another. (People v. Williams (2001) 26 Cal.4th 779, 782 (Williams).) "[A]ny operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon." (People v. Wright (2002) 100 Cal.App.4th 703, 706.)
Reed argues that he did not have the requisite intent to hit Deputy Atkinson's vehicle. The evidence, as Reed characterizes it, was insufficient to show his intent to hit Atkinson's vehicle because it showed only that he was ahead of Atkinson while fleeing the officer, turned onto a small, narrow road and, in both instances, made a U-turn to head back to the main highway, passing Atkinson's patrol vehicle on the way, albeit clipping him the second time. According to Reed, "particularly as to the first incident, there is no indication [he] was aware his action had any reasonable probability of causing injury to another person." Instead, he was merely "fleeing the officer and made a [U]-turn to return to the main highway."
As noted above, however, we do not consider the evidence in the light most favorable to defendant as the above theory does, but in the light most favorable to the judgment. (Hill, supra, 17 Cal.4th at p. 848.) If there is any hypothesis supported by sufficient evidence, we are duty bound to uphold the conviction. (Massie, supra, 142 Cal.App.4th at p. 371.)
Here, the evidence is sufficient to support both of Reed's assault convictions. Viewed in the light most favorable to the judgment, Reed twice nearly collided head-on with Deputy Atkinson. In both instances, Reed was driving away from Atkinson when he turned and drove towards him at about 50 miles an hour on narrow roads. Both times, head-on collisions were avoided only because Atkinson swerved to avoid Reed's oncoming car. The second time, despite Atkinson swerving to avoid Reed, Reed's vehicle struck Atkinson's patrol vehicle. The patrol vehicle had its lights and siren on both times Reed approached at a high rate of speed. Reed made no effort to slow down or avoid hitting the patrol vehicle. In light of this evidence, the jury could reasonably infer Reed deliberately drove his vehicle toward Atkinson's vehicle with knowledge of facts that would lead an objectively reasonable person to realize that injury to Atkinson was a direct and probable result. (See People v. Claborn (1964) 224 Cal.App.2d 38, 41 [evidence sufficient to support conviction for assault with a deadly weapon where defendant aimed his vehicle at police officer's vehicle and collided with it].)
Although Reed correctly notes that mere recklessness is not enough to establish an assault (Williams, supra, 26 Cal.4th at p. 788), recklessness is transcended where the defendant has "actual knowledge of the facts sufficient to establish that the defendant's act by its nature will probably and directly result in injury to another." (Id. at p. 782.) The issue is whether an objectively reasonable person driving in the manner in which Reed drove would have known that his act would directly and probably result in the application of force to another. The evidence presented at trial is sufficient to support such a finding.
II. SUFFICIENT EVIDENCE SUPPORTS THE VEHICLE CODE SECTION 2800.2 CONVICTION
Reed contends the evidence does not support his conviction for reckless driving while evading a peace officer under Vehicle Code section 2800.2, subdivision (a). The statute requires proof, among other things, that "the pursued vehicle [was] driven in a willful or wanton disregard for the safety of persons or property ...." (Veh. Code, § 2800.2, subd. (a).) The statute provides that "a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." (Veh. Code, § 2800.2, subd. (b).)
At trial, the prosecution offered testimony that Reed committed at least three traffic violations while evading Deputy Atkinson, namely crossing a solid double yellow line, excessive speed, and failing to signal before making a turn. The court instructed the jury on the elements of the offense, including its definition of "willful or wanton disregard for the safety of persons or property," using CALCRIM No. 2181. In pertinent part, the court stated,
"Driving with a willful or wanton disregard of the safety of persons or property includes, but is not limited to, causing damage to property while driving or commit[ing] three or more violations that are each assigned a traffic violation point. Speeding, crossing a double yellow line, and failing to signal are each assigned a traffic violation point."
Reed claims that the evidence was insufficient because Deputy Atkinson's testimony "fails to state a violation for turning without a signal as there was no evidence of other vehicles in the area that were impacted by the turn and no evidence that the move had any impact on Deputy Atkinson." As a result, according to Reed, "the People failed to establish the third moving violation necessary for a conviction under Section 2800.2." We disagree.
In People v. Mutuma (2006) 144 Cal.App.4th 635 (Mutuma), the defendant argued, inter alia, that the jury instructions on Vehicle Code section 2800.2 were erroneous as they did not specifically state the jury had to find that the three violations occurred beyond a reasonable doubt. In considering this question, this court found the trial court was correct in not giving a separate instruction directing the jury to decide whether or not the three alleged violations constituted willful and wanton disregard for the safety of persons or property, as these were questions of law properly resolved by the trial judge. (Id. at p. 643.) "Whether an offense is a traffic offense or something else depends on what statute has been violated, not on any of the circumstances of the particular violation." (Ibid.)
More recently, in People v. Leonard (2017) 15 Cal.App.5th 275, decided after briefing in this matter concluded, the defendant argued the evidence was insufficient to convict him of a violation of Vehicle Code section 2800.2 because the prosecution did not show he was assigned any traffic violation points, i.e, that he personally incurred traffic violation points as a result of his conduct in evading a peace officer. (Leonard, supra, at p. 280.) The court held, as a matter of first impression, that the statute defining reckless driving while evading a peace officer did not require evidence that the defendant was personally assessed traffic violation points. Instead, it found the phrase "'that are assigned a traffic violation point count under Section 12810'" in Vehicle Code section 2800.2, merely described the type of violation that may support a finding of willful or wanton conduct. (Leonard, supra, at p. 281.) The Leonard court found support for its interpretation in our reasoning in Mutuma. (Leonard, supra, at p. 281.)
We find no merit to Reed's claim.
Reed was sentenced consecutively for both assault with a deadly weapon convictions. Reed claims his sentence for one of the two convictions of assault with a deadly weapon should have been stayed pursuant to Penal Code section 654 because his actions constituted a single course of conduct. We disagree.
Penal Code section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." This section bars imposition of multiple punishments where one act or an indivisible course of conduct violates more than one statute. (People v. Correa (2012) 54 Cal.4th 331, 336-337, 340-341.) The purpose of this protection is to ensure that the defendant's punishment is commensurate with his criminal culpability. (People v. Capistrano (2014) 59 Cal.4th 830, 886, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed ... the application of section 654 raises a question of law we review de novo." (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
If the pertinent facts are in dispute, "[i]ntent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354.) The court's implicit or express determination in that respect will be upheld on appeal if supported by substantial evidence. (People v. Capistrano, supra, 59 Cal.4th at p. 886, fn. 14 [appellate court may affirm the trial court's ruling, if supported by substantial evidence, on any valid ground]; People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005.)
At sentencing, defense counsel made no argument regarding the applicability of Penal Code section 654. The trial court, in sentencing Reed on the two assault with a deadly weapon convictions, counts 1 and 2, stated:
"So therefore, the defendant is going to be sentenced to the California Department of Corrections and Rehabilitation as follows: On Count I, the
violation of Penal Code Section 245(c), assault with a deadly weapon upon a peace officer, I'm going to impose the upper-term of five years doubled by the strike, for a total of ten years. [¶] On Count II, in violation of Penal Code Section 245 (c), assault with a deadly weapon on a peace officer, I'm going to impose a sentence consecutive to Count I, because both this charge and Count I are strikes. Further, I find that they are distinct crimes separated in time and the defendant had an opportunity to reflect on his conduct between the commission of each."
Reed argues both assaults were committed with "a single intent based upon his desire to flee Deputy Atkinson," as evidenced by the fact that the pursuit took place over a short period of time.
The People, relying on People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter) argue substantial evidence supports the trial court's conclusion. In Trotter, the defendant, while fleeing in a stolen car, fired three separate gunshots at a pursuing officer's patrol car. (Id. at p. 365.) The defendant claimed he fired each shot at the officer to avoid apprehension. (Id. at p. 366.) Defendant in Trotter was convicted of, inter alia, three counts of assault on a peace officer with a firearm. (Id. at p. 365.)
On appeal, the defendant in Trotter argued he should not have been sentenced separately for all three assaults because, under Penal Code section 654, "they were 'part and parcel' of a single course of conduct and were incidental to one objective." (Trotter, supra, 7 Cal.App.4th at p. 366.) The appellate court disagreed, finding there were three separate acts of assault, not a single act "'made punishable in different ways by different provisions of [the Penal Code]....'" (Id. at p. 368.) The Trotter court observed that the defendant pointed his gun at the police car that was following him and fired one shot, then resumed driving for about a minute and turned back and shot again, and then a few seconds later fired a third shot. (Ibid.) The court noted that each shot required a separate trigger pull, and each shot was separated by periods during which the defendant had time to reflect and consider his next action. (Ibid.) The court in Trotter concluded that the three shots did not constitute a single course of conduct for Penal Code section 654 purposes under the intent and objective test because "[d]efendant's conduct became more egregious with each successive shot" and "each shot evinced a separate intent to do violence." (Ibid.)
Here, Reed's goal was to get away from the pursuing Deputy Atkinson and he committed two separate assaults trying to do so. As noted by the trial court, Reed had a chance to reflect between the two offenses. The assaults occurred on separate streets and were separated by a period of close to five minutes, as evidenced from the radio dispatch log.
Because the two acts were separate and distinct, during which time Reed had the opportunity to reflect and consider his next action, Reed could be punished for both.
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.