Opinion
A100021.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LAWRENCE ROBERTS, Defendant and Appellant.
Michael Roberts appeals his jury convictions for vandalism and assault by means likely to produce great bodily injury. He contends the trial court erred by failing to instruct on tampering with a vehicle as a lesser included offense, and by omitting the final sentence of the jury instruction on admissions. He also argues the evidence was insufficient to support his conviction for aggravated assault. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the early afternoon of December 1, 2001, Abraham Rodriguez was driving north in the rain on El Camino Real with his girlfriend, Sara Dayne. Rodriguez testified that he signaled, looked in the rear view mirror, and changed lanes. When Rodriguez stopped at a red light, the car behind him pulled up close to his bumper and started flashing its lights. The driver, later identified as appellant, was also honking his horn and throwing his hands up and down. Rodriguez ignored him, and continued talking with his girlfriend.
When the traffic light changed, appellant pulled up very close to the side of Rodriguezs car, making obscene hand gestures. Rodriguez responded by extending his middle finger. Appellant skidded to a stop, cutting Rodriguez off, and got out of his car. He pounded on the hood of Rodriguezs car, screaming that nobody sticks their middle finger up at him and gets away with it. Rodriguez described appellant as extremely upset. As appellant reached for the door handle, Rodriguez cracked open his door to tell appellant to calm down, get back in his car and leave. Appellant cursed Rodriguez, balling up his fists and challenging him to get out of his car and fight. Appellant also spat on the window. Rodriguez remained in his car, comforting his crying girlfriend.
When Rodriguez tried to drive away, while appellant was standing behind the car, he heard something break. Rodriguez got out of the car and walked back to find his rear windshield broken, and appellant jumping up and down, inviting him to fight. When Rodriguez said, "You broke my window," appellant yelled, "Yeah. Now Im going to break your face." With his fists up like a boxer, appellant came at Rodriguez and hit him in the face. Both men fell to the ground throwing punches, as Rodriguez tried to defend himself. Rodriguez was able to get away, but appellant continued to pursue him, pulling off his own shirt. As Rodriguez continued to back away, appellant kicked his hand. It was only when the police arrived that appellant stopped pursuing Rodriguez. Rodriguez suffered a bloody nose, a cut lip, bruises and other injuries to his hands, and a swollen face. He went to the emergency room for stitches and x-rays after talking with police. Photos of his injuries were admitted in evidence. The repair to his car window cost $ 426.40.
On cross-examination, Rodriguez stated he was not sure whether the kick actually struck him.
Dayne testified she saw appellants car skid to a stop, as he yelled angrily from inside. She saw appellant stick up his middle finger, and Rodriguez return the gesture, saying, "Fuck you." Appellant leaped out of his car and came to Rodriguezs door, saying: "Get out of the car. Im going to fuck you up." Appellant had his fists up, ready to fight. Dayne was scared, and told Rodriguez to stay in the car. She also saw appellant spit on the car. She heard Rodriguez tell appellant he was lucky his girlfriend was in the car, and appellant was not worth fighting.
As Rodriguez started to drive away, Dayne heard a popping sound, and saw that the back window had shattered. She saw appellant standing behind the car, still challenging Rodriguez to get out. When Rodriguez told appellant, "You just broke my fucking windshield," appellant responded, "Now Im going to break your fucking face." After Dayne got out of the car, she saw appellant swinging at Rodriguez as Rodriguez backed away. She saw blood on Rodriguezs face, and a cut on his finger. Although she saw them separate several times, appellant continued to go after Rodriguez repeatedly.
Two passengers in nearby cars also observed the incident. Eleanor Makhlouf saw appellant stop his car abruptly and run over to the drivers side of Rodriguezs car, moving his fists and yelling: "Get out and fight like a man in front of your woman." She testified that Rodriguez "was just shaking his head like, whats wrong with you man?" Makhlouf saw appellant hit the hood of Rodriguezs car, then run around the back and hit the trunk and the antenna. She saw the back window "just shattered completely." There was no one else nearby. When Rodriguez got out of his car, Makhlouf saw appellant put up his fists and swing at him. She saw appellant hit Rodriguez in the face, and watched Rodriguez hit back to defend himself. She also saw appellant pull Rodriguez to the ground. When Rodriguez broke away, appellant went after him again, as Rodriguez ran in circles trying to escape, saying he didnt want to fight. Makhlouf saw appellant hit Rodriguez again in the face before the police arrived.
Leena Prasad also saw appellant approach Rodriguezs car, yelling and upset. Appellant was raising his hands in the air before he took his shirt off in the rain. Prasad saw appellant hit Rodriguez five or six times with closed fists as Rodriguez tried to back away. Prasad also saw appellant punch down on the rear car window, although she couldnt see whether the window was broken.
Appellant testified he had been convicted of felonies in 1991, 1995, and 1998. Rodriguez cut in front of him without signaling, causing him to brake suddenly, stopping about nine to twelve feet away. Rodriguez made him nervous because he was looking at him, and appellant tried to turn into a nearby parking lot. Appellant denied making hand gestures at Rodriguez, but admitted honking loudly. He saw Rodriguezs digital gesture and became upset. Appellant felt threatened and scared, but got out of his car and ran over to tell Rodriguez not to drive that way. Appellant admitted swinging his hands around and yelling, and acknowledged "being the aggressor . . . in that circumstance." Appellant testified: "I guess it was a stupid thing to do, you know. But I was upset. I was really upset." Appellant did not recall challenging Rodriguez to fight or to get out of the car, but might have spat at him. Appellant testified he was returning to his own car to leave when he heard Rodriguezs door open and then shut twice. Appellant returned to Rodriguezs car, swearing at him and telling him to leave. As Rodriguez started to drive away, appellant thought he was going to be hit.
Appellant later described Rodriguez as smiling "satanically."
Now appellant was "really, really upset" and "just really, really angry." He testified he "found it very hard to control [his] behavior at that point." He "felt things were accelerating at a really bad pace." He wanted to leave, but he was walking towards Rodriguezs car. He "guess[ed his] anger had taken the best of [his] control out of [him]." Appellant turned again to leave, but then saw Rodriguez get out of his car. At that point, appellant saw Rodriguezs rear window "just . . . fall in." He heard Rodriguez yell something about his window and saw Rodriguez walking toward him. Appellant stood in front of his own car to protect it. Appellant testified he put up his arms to defend himself and Rodriguez hit him, knocking him to the ground. Appellant may have hit Rodriguez once when they were on the ground. Appellant did not have a clear recollection of the fight. He had taken off his shirt because it was new and he was afraid it was damaged. He tried to call 911, but a bystander told him the police were already on their way. Appellant admitted his body language "was pretty offensive . . . [and] intimidating," and described kicking at Rodriguez to keep him away. He denied ever hitting the hood, trunk, antenna, or back window of Rodriguezs car, and claimed he was seven to fifteen feet away when the window shattered. He didnt understand how it broke, but thought it might have been caused by the car door slamming. He denied chasing after Rodriguez, or following him as he backed away.
Appellant was charged with assault by means likely to produce great bodily injury, making a terrorist threat, attempting a terrorist threat, and vandalism. Two felony strike priors and two prison priors were also alleged. The jury found appellant guilty of assault by means likely to produce great bodily injury and vandalism. The jury deadlocked on the attempted terrorist threat count, and it was dismissed at the prosecutors request. The court found appellant had suffered one felony strike prior and two prison priors. Appellant was sentenced to double the middle term of three years for the assault by means likely to produce great bodily injury and twice one-third the middle term of eight months for vandalism with consecutive terms of one year each for the two prison priors, for a total of nine years, four months in prison. He was awarded a total of 319 days custody credits. He timely appealed.
The count charging the making of a terrorist threat was dismissed before trial under Penal Code section 995. All further statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
Appellant first contends the trial court had a sua sponte duty to instruct on vehicle tampering as a lesser included offense of vandalism. He argues that under the accusatory pleading test, appellant could not have violated section 594 without also violating Vehicle Code section 10852, and that if the jury had concluded he acted without malice, he could have been convicted of tampering instead of vandalism. As appellant acknowledges, however, a trial court is only required to instruct sua sponte on a lesser included offense when there is substantial evidence that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094.)
Penal Code section 594 provides, in relevant part: "(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [P] (1) Defaces with graffiti or other inscribed material. [P] (2) Damages. [P] (3) Destroys. [P]. . . [P] (b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($ 400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($ 10,000) . . . ." Vehicle Code section 10852 provides: "No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner."
The malice required to violate section 594 "imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act." (Pen. Code, § 7, subd. (4).) While appellant contends there is no direct evidence that he intended to break Rodriguezs window with his hand, the record here overwhelmingly supports the Peoples position that appellant either acted with malice, or did not act at all (i.e., did not break the window). The trial court is not required to instruct on a lesser included offense when the evidence shows the defendant, if guilty at all, is guilty of the greater offense. (People v. Hawkins (1995) 10 Cal.4th 920, 954, 897 P.2d 574; People v. Aguilar (1989) 214 Cal. App. 3d 1434, 1436, 263 Cal. Rptr. 314.) The trial court did not err in failing to instruct on vehicle tampering as a lesser included offense under these circumstances. (See People v. Hicks (1983) 147 Cal. App. 3d 424, 428, 195 Cal. Rptr. 127.) Moreover, even assuming arguendo such an instruction should have been given, it was not reasonably probable a result more favorable to appellant would have been reached in the absence of the error. (Breverman, supra, 19 Cal.4th at p. 165.)
The willfulness required by Vehicle Code, section 10852, by contrast, "does not require any intent to violate law, or to injure another, or to acquire any advantage." (Pen. Code, § 7, subd. (1).)
Next, appellant contends the trial court committed prejudicial error by failing to include the last sentence of the jury instruction on admissions. The record does not explain why the final sentence was omitted. Assuming arguendo the omission was erroneous, we conclude no prejudice has been shown under the circumstances of this case. (See People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal. Rptr. 313, 492 P.2d 1.) "The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made." (Id. at p. 456.) Appellant points to his response to Rodriguezs complaint that appellant had broken his windshield: "Yeah. Now Im going to break your face." Appellant contends this evidence was highly prejudicial, and the jury should have been instructed to view it with caution. We note, however, that both Rodriguez and Dayne reported hearing that particular statement, and there was no directly conflicting evidence from other witnesses who observed various aspects of the altercation from varying distances and perspectives. (See id. at p. 456.)
CALJIC No. 2.71 states: "An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crimes for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [P] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]"
We also decline to adopt appellants interpretation of his overall testimony as an implied denial that he made the statement in question.
We also note the jury was separately instructed on factors affecting a witnesss credibility, and told that the defendant may not be convicted of a criminal offense unless there is some proof of each element of the crime independent of any admission made by the defendant. They were also informed about the presumption of innocence and the prosecutions burden of proof beyond a reasonable doubt. The instructions given "adequately informed the jury of its duty to determine the believability of the witnesses and of each part of [their] testimony and the weight to which the testimony was entitled." (People v. Shoals (1992) 8 Cal.App.4th 475, 499.) It is not reasonably probable that the jury would have reached a result more favorable to defendant had the final sentence of CALJIC 2.71 been included in the jury instructions. (Ibid .; Beagle, supra, 6 Cal.3d at p. 456.)
We also note the Beagle courts observation that "the risk of conviction on a false pre-offense statement alone is less than the risk of such a conviction upon a false confession or admission." (Supra, 6 Cal.3d at p. 455, fn. 5.) Nor did the trial courts failure to include the final sentence of CALJIC 2.71 violate appellants federal constitutional rights. (See Estelle v. McGuire (1991) 502 U.S. 62, 71-72, 116 L. Ed. 2d 385, 112 S. Ct. 475.)
Finally, appellant argues there was insufficient evidence of force likely to produce great bodily injury to support his conviction for aggravated assault. As appellant acknowledges, however, it is well-established that the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, 945 P.2d 1204.) Nor is actual bodily injury a necessary element of the crime, and the extent of any injury is not determinative. (People v. Covino (1980) 100 Cal. App. 3d 660, 667, 161 Cal. Rptr. 155.) " The issue . . . is not whether serious injury was caused, but whether the force used was such as would be likely to cause it. [Citations.]" (Ibid .; see also Aguilar, supra, 16 Cal.4th at p. 1036, fn. 9.) The cases appellant cites are distinguishable, as they involved jury findings that great bodily injury had actually been inflicted. (See People v. Roberts (1981) 114 Cal. App. 3d 960, 964, 170 Cal. Rptr. 872; contrast People v. Escobar (1992) 3 Cal.4th 740, 750, 837 P.2d 1100;People v. Lopez (1986) 176 Cal. App. 3d 460, 463, 222 Cal. Rptr. 83; People v. Wolcott (1983) 34 Cal.3d 92, 106, 192 Cal. Rptr. 748, 665 P.2d 520.) We conclude that appellants actions here, which included kicking Rodriguez in the hand and hitting him repeatedly in the face with closed fists during an episode of "road rage," were sufficient to support his conviction for assault by means of force likely to cause great bodily injury, under the applicable standards of review. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618.)
DISPOSITION
The judgment is affirmed.
We concur: Parrilli, J. Pollak, J.