Opinion
D074980
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. AMELEWORK A. MOJA, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie Chow and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD270056) APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie Chow and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Amelework A. Moja of four counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ; counts 1-4). The jury also found true that Moja personally used a deadly weapon (§ 1192.7, subd. (c)(23)) and the deadly weapon was a motor vehicle (Veh. Code, § 13351.5). The jury found Moja not guilty of three counts of making a criminal threat (Pen. Code, § 422).
All further statutory references are to the Penal Code unless otherwise specified. --------
The court sentenced Moja to three years of probation with 672 days credit for time served.
Moja appeals, contending the trial court prejudicially erred by improperly instructing the jury that a car could be an inherently dangerous weapon. We agree that the court erred, but we find the error was harmless beyond a reasonable doubt. (See People v. Aledamat (2019) 8 Cal.5th 1, 3 (Aledamat).) Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution
On December 18, 2016, K.E. and her husband J.C. attended an event at Qualcomm Stadium with another married couple, C.T. and S.T. When the event ended, the four of them entered Moja's taxicab, a Toyota Prius. Moja was to take them to a nearby hotel. En route, Moja drove past the freeway exit for the hotel, and she appeared to be driving in the wrong direction. K.E. confirmed this with the GPS on her cell phone and informed Moja that she needed to turn around and go back the other way. However, Moja continued to drive in the opposite direction of the hotel. She then pulled into a residential area and, without explanation, told all four passengers to get out of her car.
The four passengers exited Moja's car, and K.E. told Moja they were not going to pay her. In response, Moja did not ask for payment. Instead, she drove away. However, she soon made a U-turn and drove straight over the curb toward K.E, who was standing on the sidewalk. K.E.'s husband pulled her out of the way, and Moja stopped on a grassy area above the curb.
Moja then reversed and drove onto the grass and toward K.E. at least five times. Moja drove an estimated 10 to 20 miles per hour. Moja also drove at J.C., coming within six feet of him as he stood behind a fire hydrant for protection.
Moja also drove her vehicle toward S.T. and C.T. They ran away as Moja drove after them. At one point, Moja had C.T. pinned up against the wall of a house with the Prius only inches away from her. C.T. escaped when the owner of the home came out and yelled at Moja to get off his lawn. Moja also did "donuts" in the middle of the street in an attempt to hit S.T., who was forced to run parallel to Moja's car to avoid being hit. Moja told them to get into the street and yelled, "I'm going to kill you" out of the car window. All four passengers were scared and feared for their safety. They thought Moja was trying to kill them. If they had not moved out of the way, they believed they would have been hit by Moja's vehicle. As she chased the victims, Moja also yelled at them to pay her. S.T. tried to pay Moja with a $20 bill to defuse the situation, but he was unsuccessful.
Moja chased the victims in her vehicle and drove at them for 15 to 20 minutes. During the incident, multiple eyewitnesses in the neighborhood called the police to report Moja's erratic driving. It appeared to them as if Moja was trying to hit people with her vehicle.
K.E. called the police as she stood behind a fire hydrant for protection. The group tried to leave the area, but Moja continued to follow them. Around 5:30 p.m., a police officer arrived on scene and interviewed the victims and witnesses. The officer also interviewed Moja. She never told the officer that people had jumped in front of her car and stopped her from leaving.
Defense
Moja testified in her own defense. She drives a taxi. While driving her taxi, she learned there was a game concluding at Qualcomm Stadium. So, she went to the stadium and waited for about 30 minutes before picking up her fare. She let the four people in her car, who were drunk when they got in. Moja asked where they were going, and the lady in front, who was acting rude from the beginning, said "we're going to Marriott Courtyard, Spectrum Boulevard."
The traffic around Qualcomm Stadium at that time was busy. Moja knew where she was going but did not use her GPS. Instead, she used the GPS on K.E.'s cell phone. She exited the freeway at Tierrasanta Boulevard and turned right per the directions of the GPS, even though the map showed the way to get to the hotel destination was to turn left off the exit.
K.E., who was in the front seat, yelled at Moja and was aggressive toward her. Because of the verbal abuse, Moja dropped the passengers off in a residential area. She told them to get out of her car. Initially, she did not ask for a fare, but then the people told her to get the "F" away and that she was not going to get paid for the fare.
Moja then drove off and made a U-turn to take Tierrasanta Boulevard. S.T. yelled at her, insulting her, calling her a rat. In response, Moja rolled her window down and called him a little bitch. Then S.T. started running toward her car. Moja did not leave because she was still hoping they would pay her. She did not drive toward anyone or get close to any of them, but she was following them to see where they were going. At one point, her car ended up on the grass on the left-hand side of the house, because, as S.T. ran toward her car, she swerved to avoid him and another car that was coming from the opposite direction. She did not have someone in front of her car when she was on the grass.
Moja denied that she was driving toward anyone or getting close to any of the passengers with her vehicle. She testified that she did not threaten to kill anyone. She only asked for the money that they owed her, which is why she followed them. She was traveling about three miles per hour while following them. Moja said she could not leave the area because S.T. stood in front of her car.
Moja parked in front of a house and waited for the police to arrive. She told the officer she did not drive on any lawn. Although her car became out of control because she was nervous, she did not provide that information to the officer at that time. Despite telling the officer that she was chasing the passengers, she meant to say she was following them. She did not tell the police that she was concerned for her safety because the police did not ask her that question and she was frustrated because her passengers refused to pay her for her service and time even though she did not drop them at their final destination. She calculated the fare plus the time she spent arguing with them amounted to $30.
She did tell the officer, "I can't handle four people," and "I didn't try to run them over. They just tried to hit me."
DISCUSSION
The court instructed the jury with CALCRIM No. 875, which stated among other things: "A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." The court also instructed the jury under CALCRIM No. 3145, which included a similar definition of deadly weapon. Moja contends the court erred by instructing that a weapon could be either inherently deadly or deadly in the way it is used because a car is not an "inherently deadly" weapon. We review Moja's claims of instructional error de novo. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
At the outset, we note that Moja did not object to the instructions she now challenges on appeal. Although the People argue Moja forfeited the issue on appeal, there is an exception "if the substantial rights of the defendant were affected thereby." (§ 1259.) Because Moja claims the error resulted in the violation of her constitutional rights, we reach the claim on its merits without deciding whether the forfeiture doctrine applies.
In Aledamat, supra, 8 Cal.5th 1, the defendant used a box cutter by thrusting the blade at another man. (Id. at p. 4.) The court instructed the jury with CALCRIM No. 875, which defined a deadly weapon as one that is inherently deadly or used in such a way that it is capable of causing and likely to cause death or great bodily injury. (Aledamat, at p. 4.) Our Supreme Court held that "[b]ecause a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons." (Id. at p. 6.) The Supreme Court accordingly held the jury instruction was erroneous but found the error was harmless beyond a reasonable doubt. (Id. at pp. 7, 15.)
Likewise, here, a car is not an inherently deadly weapon. (People v. Montes (1999) 74 Cal.App.4th 1050, 1054 [noting that a car is not inherently dangerous but can be found to be a deadly weapon].) The court accordingly erred by referring to an inherently deadly weapon in the jury instructions.
We next consider whether the instructional error was prejudicial. The "usual 'beyond a reasonable doubt' standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for federal constitutional error applies. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Aledamat, supra, 8 Cal.5th at p. 3; see id. at p. 13.)
Here, the record shows the instructional error was harmless beyond a reasonable doubt. At trial, no party argued that simply using a car was "inherently deadly." During closing argument, the prosecutor focused on how appellant used her vehicle as a deadly weapon to assault and to threaten each of the four victims. Specifically, she stated:
"Assault with a deadly weapon. First, the defendant has to do an act with a deadly weapon other than a firearm that, by its nature, would directly and probably result in the application of force to a person. . . . That's like driving a car towards somebody. Okay. It's the apprehension. It's the person standing on the other side of it going, 'Oh my gosh. There's a car coming at me. It seems as though it's about to hit me.' That's what that requires. She has to do an act that, by its nature, would directly and probably result in the application of force to a person."
The prosecutor later added, "All four victims testified that they told you they jumped out of the way because they thought they were going to get hit. That's an act that, by its nature, would directly and probably result in the application of force to a person."
The prosecutor also pointed out that Moja drove up onto the lawn back and forth six to 12 times for 15 to 20 minutes. She further argued, "[Moja] made a U-turn and came towards [K.E.] [J.C.] snatched [K.E.] out of the way and [Moja] drove towards [K.E. and J.C.] on that green grassy lawn area. She got within three inches of [K.E], according to [J.C.] Okay. She repeatedly reversed and moved forward." The prosecutor went on to describe how Moja also drove toward C.T. and S.T. and pinned C.T. against the house. She stated Moja was "actively chasing them, and even by her own admission at the time. She kept making U-turns and driving back and forth approximately 20 times according to [S.T.]" She also commented, "She's using a car to try to chase people down when they're not threatening her with any harm."
When specifically discussing whether Moja personally used a deadly or dangerous weapon, the prosecutor stated the weapon was the vehicle. She repeated the instruction, mentioning both theories establishing assault with a deadly weapon. However, she then stated:
"You all have common sense. I don't need to explain why a vehicle can be a deadly weapon. People die in cars every day. If people get hit by a car, they will die. It's capable of causing great bodily injury. In deciding whether an object is a deadly weapon, consider all the circumstances, including how it's used, right? When it's being driven towards somebody, that's a different story. And someone personally uses a deadly or dangerous weapon if he or she intentionally displays the weapon in a menacing manner. Driving the car all over somebody's lawn, pinning someone against the house with it is using the vehicle in a menacing manner.
Defense counsel argued the jury should find Moja guilty of only the lesser included offense of simple assault for counts 1 through 4. He argued Moja was simply following the people for not paying for the cab and that she was "not using her car as a deadly weapon."
Defense counsel later stated, "She should not have chased after these people with her car, right? But she did not try to threaten them or kill them with a deadly weapon. She was not using her car as a deadly weapon. She was following these people." He further argued the evidence only showed that Moja drove after the victims with her car to get her money; she was not using her car as a deadly weapon.
In rebuttal, the prosecutor argued that Moja could not be guilty of assault if the assault was not with a deadly weapon. She stated:
"There is no evidence to suggest that an assault was committed without the car. If she committed an assault, it happened in the vehicle. There is no evidence at all to think that just an assault was committed and that a deadly weapon wasn't used, if you believe an assault was committed. So he's admitting she's guilty; then she's guilty with assault with a deadly weapon. Because if you believe she committed an assault, the only place she did it was in that car, and that's a deadly weapon. That an inherently dangerous—a weapon that can be used in such a way to cause harm."
As in Aledamat, we conclude the jury necessarily found: "(1) [Moja] did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) [Moja] was aware of 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 (3) [Moja] had the present ability to apply force with a deadly weapon to a person." (Aledamat, supra, 8 Cal.5th at p. 15.) It is unlikely the jury would have found these above elements without considering how Moja used her car. Put differently, the prosecutor's entire case was that Moja used her car to try to run down the four passengers. The only way the jury could have convicted Moja of assault with a deadly weapon was if it believed the prosecutor's version of events. The jury did so. No one argued the Prius was an inherently dangerous weapon. The error accordingly was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.