Opinion
D076257
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW LEE HILDRETH, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN391599 ) APPEAL from judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Andrew Lee Hildreth of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); felony vandalism (§ 594, subd. (a)(b)(1)); and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The jury found Hildreth personally used a deadly weapon in both assault counts (§ 1192.7, subd. (c)(23)). Hildreth admitted a strike prior (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise specified.
The court sentenced Hildreth to a determinate term of six years in prison.
Hildreth appeals his conviction for assault with a deadly weapon by using his vehicle to deliberately stop it in front of the victim's vehicle to cause a collision. Hildreth argues that although a car can be used as a deadly weapon, using it to force a collision under the facts of this case does not support a finding that his vehicle was used as a deadly weapon. We disagree and find sufficient evidence to support the jury's decision.
STATEMENT OF THE FACTS
The parties do not dispute the facts of the offenses. The only dispute is the interpretation of Hildreth's use of his Subaru Outback (Outback) in the assault and whether it was used as a deadly weapon. We will adopt the summary from the respondent's brief for background purposes as a matter of convenience.
Around 1:30 p.m. on a Tuesday, Thomas R. had just finished grocery shopping at the Escondido Walmart. He buckled his infant daughter into the backseat of his Jeep Wrangler and headed for home.
As Thomas was making his way eastbound on a road that had two lanes in each direction, he noticed Hildreth's Outback moving erratically behind him. Traffic was moderate. There was an SUV in the lane next to Thomas R. Hildreth kept switching lanes trying to pass the two cars. He then started tailgating them.
Hildreth was driving the Outback with his nephew in the passenger seat.
Eventually, Hildreth drove into oncoming traffic to get around Thomas R. and the SUV, flashing his middle finger as he went by. Thomas R. responded with his own middle finger. Once Hildreth was past Thomas R., he swerved back into the eastbound lanes. The SUV was now gone.
At that point, Hildreth positioned his car about a foot in front of Thomas R. and slammed on his brakes. Thomas R., who was going approximately 35 miles per hour, braked hard but was unable to avoid hitting the back of Hildreth's car. The impact was "kind of hard[,] not too hard but . . . definitely not soft."
This maneuver was described as "brake-checking."
Thomas might have been able to avoid the collision by steering his car into oncoming traffic, but that was not a risk he wanted to take.
Following the collision, Hildreth and Thomas R. stopped, and Hildreth exited his car holding a knife. When Thomas R. saw the knife, he got out of his car and grabbed an axe handle he kept handy. After an exchange of words, Hildreth and Thomas R. each returned to their vehicles. Hildreth backed his car into Thomas R.'s car two or three times before he raced away.
Thomas R. briefly pursued Hildreth to get a picture of his license plate. Then Thomas R. turned down a side street so he could call 911. But it wasn't over.
While Thomas R. was parked and talking to 911 dispatch, Hildreth drove up next to him. Hildreth's passenger window was down and he had a loaded slingshot aimed at Thomas R.'s car. Hildreth fired a BB from the slingshot, shattering the back window where Thomas R.'s daughter was sitting. Again, Hildreth fled.
Although Thomas R. tried to give chase, he quickly abandoned the idea when Hildreth ran a red light. Thomas R. pulled over, checked on his daughter (who was fortunately uninjured), and waited for the police.
DISCUSSION
This case involves an act of road rage where Hildreth used his Outback to stop abruptly one foot in front of the victim's vehicle while the cars were travelling at about 35 miles per hour causing the victim's jeep to crash into Hildreth's rear bumper. We conclude the properly instructed jury could reasonably find Hildreth intended to cause a collision and possible damage and injury to the victim. The jury could easily decide Hildreth used his Outback as a deadly weapon under the facts of this case.
A. Legal Principles
We review a challenge to the sufficiency of the evidence under the familiar substantial evidence standard of review. Under that standard we review the entire record to determine whether there is sufficient, substantial evidence from which the jury could reasonably find each element of the offense has been proved beyond a reasonable doubt. We do not reweigh the evidence, but we draw all reasonable inferences in favor of the verdict. We do not make credibility determinations. (People v. Smith (2005) 37 Cal.4th 733, 738-739; People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Section 245, subdivision (a)(1) punishes assaults committed with a deadly weapon or instrument other than a firearm. "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
Cars (or Outback as in this case) can be used as deadly weapons. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 458.) It is well accepted that a car can be used as a deadly weapon. (People v. Oehmigen (2014) 232 Cal.App.4th 1, 10.) The question for the jury a given case is whether the way the car was used was likely to cause or produce death or great bodily injury. (Bipialaka, at p. 459.)
In People v. Marsh (2019) 37 Cal.App.5th 474, 486 (Marsh), this court discussed the use of a vehicle as a deadly weapon under section 245, subdivision (a)(1). In that case the defendant cut the brake line of the victim's car. The victim discovered the damage before driving the car. The defendant argued the car was not used as a "deadly weapon" because it was not driven after the brakes were disabled. The court rejected the argument. (Id. at p. 487.) This court reasoned it is the potential for inflicting death or great bodily injury that determined whether a car is used as a deadly weapon. The court upheld the jury's finding that cutting the brake line was likely to cause injury when the victim began driving the car. (Id. at p. 488.) The nature of any injury or damage resulting would be an appropriate consideration in deciding if the car was used as a deadly weapon, but the fact of injury is not required in determining whether a person attempted to use the car to apply force to another.
The court in Marsh, relied on the Supreme Court opinion in In re B.M. (2018) 6 Cal.5th 528 (B.M.) to determine how an item can be used as a deadly weapon in an assault case. In the B.M. case, a minor used a dull butter knife to assault his sister. The knife was drawn down her leg several times. Her leg was covered with a blanket which the knife could not penetrate. The court found the butter knife was not used as a deadly weapon under the facts of that case.
Hildreth relies on B.M. arguing it supports his contention that abruptly stopping his Outback in front of the victim's jeep causing a collision was akin to the use of the butter knife in the B.M. case. Hildreth contends the "relatively low speed" of travel and the lack of injury makes this case like B.M. We disagree and find B.M. does not aid Hildreth's case.
B. Analysis
As we have already commented, we find Hildreth's arguments unpersuasive. He was so angry he drove on the wrong side of the road in order to pass the victim then slammed on his brakes when he was about one foot in front of the victim. They were apparently traveling about 35 miles per hour. While the victim was able to apply his brakes and reduce the impact of the intended collision, that does not mean Hildreth's dangerous maneuver did not involve using his Outback as a weapon.
Hildreth does not challenge the jury instruction on assault with a deadly weapon. Thus, the question for us is whether there was sufficient evidence to support the jury's determination that Hildreth used his Outback as a deadly weapon under the facts of this case. We think a reasonable jury could find that Hildreth's rage, wild driving and abrupt stopping in front of the victim was designed to cause harm. His Outback, weighing thousands of pounds, served as a weapon in an attempt to inflict harm on the victim who had angered Hildreth by driving too slowly. There is sufficient evidence in this record to support the jury's finding.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.