Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR916703
Jenkins, J.
This is an appeal from the judgment following the conviction of appellant Gene Arnold Peplinksi for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and driving under the influence of alcohol (Veh. Code, § 23152 subd. (a)). We affirm.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2008, an information was filed charging appellant with assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count one), and driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) (count two). A trial by jury was subsequently held, at which the following evidence was revealed.
On August 22, 2008, at about 7:00 p.m., 20-year-old Jennifer Solorzano and her boyfriend, Thomas Fleming, were driving east on Highway 20 toward Highway 53 on their way to Clearlake. Solorzano was driving about 50 miles per hour on the two-lane highway, when appellant, driving a black Ford Ranger, “came really fast on [her] tail end.” Solorzano increased her speed to about 55 miles per hour, but appellant nonetheless had to brake to avoid a collision.
After several minutes of tailgating Solorzano, appellant crossed into the westbound lane and pulled even with her vehicle. However, instead of passing Solorzano, appellant yelled obscenities and threats at her, and then swerved his vehicle towards hers, before finally being forced back behind her in the eastbound lane by oncoming traffic.
Two other times, appellant pulled his vehicle into the westbound lane in an apparent attempt to pass Solorzano, but was forced back into the eastbound lane by oncoming traffic. During the last time, appellant again yelled obscenities and threats at Solorzano, and then swerved his vehicle towards hers.
Eventually, Solorzano turned onto the Highway 53 onramp towards Clearlake. Appellant followed, and then pulled up next to her on the right side, using the shoulder of the single lane onramp. Appellant then, three times, swerved forcefully towards Solorzano, yelling obscenities and threats at her. During the third time, appellant’s vehicle struck Solorzano’s vehicle. Solorzano, in an attempt to avoid being forced off the road, turned her vehicle towards appellant’s. At that time, appellant’s vehicle “climbed over the – the front of [Solorzano’s] car and hit [her] tire,” causing his vehicle to flip over.
Solorzano immediately pulled off the highway to check on appellant’s well-being. As Fleming approached the flipped vehicle, however, appellant continued yelling obscenities and threats, prompting Fleming and Solorzano to return to their vehicle to await the police at a distance.
California Highway Patrol Officer Mark Barnes responded to the scene at about 7:17 p.m. Officer Barnes found appellant standing by his vehicle, which was lying on its driver’s side, and asked what had happened. Appellant told Officer Barnes “it was just a little – a little road rage and I didn’t have to worry about it or don’t worry about it.” Noticing that appellant appeared intoxicated, Officer Barnes asked what he meant by his statement about road rage. Appellant responded by laughing, but said nothing. Appellant admitted he had been driving alone in his vehicle when it flipped. But appellant denied striking Solorzano’s vehicle, explaining that he came up on it, the drivers had exchanged some road rage, and then he crashed when trying to pass her vehicle on the right side.
Following some unsuccessful field sobriety tests, appellant was arrested for driving under the influence. Later, at the hospital, appellant elected to receive a blood test, which revealed a blood alcohol level of 0.16 percent. While there, appellant stated that he had been on his way home when he got behind a vehicle travelling 35 miles per hour. He tried to pass the other vehicle, but could not, and the driver of the other vehicle then “suddenly moved into him.” Appellant declined to answer when asked if he tried to hit the other vehicle.
At trial, appellant denied attempting to strike or force Solorzano’s vehicle off the road. Appellant claimed, instead, that he had tried to pass Solorzano several times because she was driving under the speed limit, but that she repeatedly sped up to prevent him from doing so. Appellant believed Solorzano was intoxicated. Finally, when they reached Highway 53, appellant tried to pass Solorzano on the right side, at which point the vehicles collided. Claiming Solorzano and Fleming had also exhibited road rage, appellant believed the collision was both drivers’ faults. Further, appellant denied laughing and not answering when Officer Barnes asked him to explain his statement that there had been “a little road rage.”
On December 12, 2008, the jury found appellant guilty as charged. The trial court thereafter sentenced appellant to three years in state prison. This appeal followed.
DISCUSSION
On appeal, appellant contends the trial court made several errors when instructing the jury on count one, assault with a deadly weapon. Appellant does not challenge his conviction on count two, driving under the influence of alcohol. The following legal principles are relevant.
“Section 245, subdivision (a)(1), punishes assaults committed by the following means: ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any means of force likely to produce great bodily injury.’ One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].)” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
“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.’ (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276 [186 Cal.Rptr. 898].) Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. (In re Jose R., supra, 137 Cal.App.3d at p. 276; [citation]....)” (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.)
In this case, with respect to count one, assault with a deadly weapon, the trial court gave a modified version of CALCRIM 875 to the jury. This instruction read as follows:
“Defendant’s charged in Count 1 with an assault with a deadly weapon in violation of Penal Code Section 245. To prove that the defendant is guilty of this crime the People must prove that, one, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. Two, the defendant did that act willfully. Three, when the defendant acted he was aware of facts that would lead a reasonable person to realize his acts by its nature would directly and probably result in the application of force to someone. And four, when the defendant acted he had the present ability to apply force with a deadly weapon.”
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.”
“[T]he terms application of force and applied force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person including through his or her clothing is enough. Touching does not have to cause pain or injury of any kind. Touching can be done indirectly by causing an object to touch the other person.”
“People are not required to prove the defendant actually touched someone. The People are not required to prove the defendant actually intended to use force against someone when he acted. No one needs to have actually been injured by defendant’s acts, but if someone was injured you may consider that fact along with the other evidence in deciding whether the defendant committed an assault.”
“Voluntary intoxication is not a defense to assault. A deadly weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury, Count 1.”
As stated above, appellant claims this instruction to the jury was erroneous for several reasons, which we address in turn.
As appellant impliedly concedes, this instruction given by the trial court did not vary in any meaningful way from CALCRIM 875. Thus, in essence, appellant is making a legal challenge to CALCRIM 875 itself.
First, appellant challenges the portion of the instruction relating to his use of a vehicle as a deadly weapon. Appellant claims the jury should have been instructed that commission of the offense of assault with a deadly weapon required a finding that he intended to use his vehicle as a deadly weapon. According to appellant, the instruction given permitted a guilty verdict based solely on the manner in which he was driving his vehicle, which he admits was “stupid” and “reckless” but denies constituted assault with a deadly weapon. We disagree.
California law is clear that assault with a deadly weapon is a general criminal intent crime, requiring proof of an attempt to commit a violent injury upon a person, but not proof that an injury actually occurred. (In re Jose R. (1982) 137 Cal.App.3d 269, 275, People v. Parks (1971) 4 Cal.3d 955, 959.) Accordingly, as the California Supreme Court has explained: “The mens rea [for assault with a deadly weapon] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.... The evidence must only demonstrate that the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act committed by means of physical force against the person of another.’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.)
The instruction given to the jury in this case, a modified version of CALCRIM 875, was wholly consistent with this authority. Specifically, as set forth above, the jury was instructed that commission of the offense required a finding that appellant willfully committed an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person, and that, when committing this act, appellant was aware of facts that would lead a reasonable person to realize the act, by its nature, would directly and probably result in the application of force to someone. “Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.” Further, a “deadly weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” And finally, the jury was told that the People “are not required to prove [appellant] actually intended to use force against someone when he acted.”
These instructions, read as a whole, accurately set forth the relevant law with respect to the commission of assault with a deadly weapon. (See People v. Colantuono, supra, 7 Cal.4th at pp. 214-215.) Contrary to appellant’s argument, the trial court had no sua sponte duty to instruct that the People were required to prove appellant intended to use his vehicle as a deadly weapon. “Jurors can certainly employ common sense and experience to determine whether or not such [item] is a ‘deadly’ instrument.” (People v. Pruett (1997) 57 Cal.App.4th 77, 86.) Accordingly, having concluded the instructions properly informed the jury of the requisite intent for count one, we proceed to the next issue.
Appellant next argues that CALCRIM 875, as read by the trial court, incorrectly instructed the jury that the crime of assault “encompassed” or “included” the crime of battery. As both parties agree, a person can commit assault without also committing a battery. (See People v. Colantuono, supra, 7 Cal.4th at pp. 216-217 [“An assault is an incipient or inchoate battery; a battery is a consummated assault. ‘An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.’ ”].)
Here, as appellant points out, the jury was instructed that “the terms application of force and applied force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person including through his or her clothing is enough. Touching does not have to cause pain or injury of any kind. Touching can be done indirectly by causing an object to touch the other person.” According to appellant, this portion of the instruction in effect told jurors that “any slight touching or contact would be ‘enough’ to constitute an assault. [¶] By stating that to apply force ‘means’ to touch in a harmful manner, the instruction equated the willful assaultive act with touching another. [¶¶] Thus read, the instruction incorrectly and explicitly told the jury that an assault encompassed a battery.”
We again disagree. First, appellant disregards that the jury was also instructed that, to be found guilty of assault with a deadly weapon, appellant must have committed an act that, by its nature, “would directly and probably result in the application of force,” and must have been “aware of facts that would lead a reasonable person to realize his acts by its nature [sic] would directly and probably result in the application of force.” Consistent with the legal definition of assault, this was not a requirement that the jury find that appellant actually applied force, but rather a requirement that it find he committed an act that, by its nature, was likely to result in the application of physical force on another. (See People v. Colantuono, supra, 7 Cal.4th at p. 217.) Further, in case there was any confusion on this point (which we doubt), the jury was thereafter explicitly instructed that the “People are not required to prove the defendant actually touched someone....” Under these circumstances, we conclude there was no reasonable likelihood that the jury misunderstood the offense of assault to “encompass” or “include” the offense of battery, as appellant contends. (People v. Kelly (1992) 1 Cal.4th 495, 525-527.)
Appellant further argues that the trial court’s CALCRIM 875 instruction improperly advised the jury that the “People are not required to prove [he] actually intended to use force against someone when he acted.” However, we have already held that the jury in this case was properly instructed on the requisite intent for committing this offense. (People v. Colantuono, supra, 7 Cal.4th at pp. 214-215.) Accordingly, we need not revisit the issue.
Appellant’s remaining substantive argument is that the CALCRIM 875 instruction was “prejudicially argumentative” and deprived the jury of its full range of options, including the option of finding him not guilty or guilty of a lesser included offense. In making this argument, appellant concedes he was not entitled to an instruction on any of the lesser included offenses he suggested – including simple battery or various Vehicle Code violations – because those offenses are not necessarily included within the offense of assault with a deadly weapon. (See People v. Birks (1998) 19 Cal.4th 108, 118-119.) Nonetheless, appellant contends “the instruction unfairly tilted the all-or-nothing choice by going on to instruct the jury with an argumentative and partial range of evidentiary theories.” In particular, he claims the “previously noted instructions defining application of force, in addition to misdefining assault,... constituted a pure prosecutorial argument wrapped in the shell of ‘neutral’ instructions.” Thus, even if the evidence did not permit instruction on lesser included offenses, appellant insists the jury should nonetheless have been admonished against convicting him based solely on a desire to avoid letting culpable conduct go unpunished. We again disagree.
First, appellant points to nowhere in the record where he made a request for such an admonishment to the jury. As such, it appears he may have waived the right to it. Moreover, and in any event, our colleagues in the Fourth District, Division Three, have addressed – and rejected – a nearly identical argument. In People v. Flores (2007) 157 Cal.App.4th 216, the defendant argued that CALCRIM 875 was duplicative and argumentative in favor of the prosecution. The court disagreed, reasoning as follows: “An argumentative instruction ‘invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact, and therefore properly belongs... in the arguments of counsel to the jury.’ (People v. Wright (1988) 45 Cal.3d 1126, 1135 [248 Cal.Rptr. 600, 755 P.2d 1049.) Defendant complains CALCRIM No. 875’s latter part informs the jury the prosecution need not ‘prove... [he] actually intended to use force against someone’ or ‘touched someone,’ or that anyone ‘needs to... have been injured by [his] act.’ But it is undisputed defendant did not strike anyone when he fired the gun. Also, because assault requires only that the perpetrator act ‘willfully,’ i.e., with ‘a purpose or willingness to commit the act’ without ‘any intent to... injure another’ (Pen. Code, § 7, subd. 1), it was appropriate to advise the jury the prosecution need not prove defendant harbored an intent to use force against another. Thus, ‘[t]he subject instruction did not specify items of evidence, identify witnesses [citation], or in any way favor the prosecution over the defense.’ [Citation.]. [¶] Finally, the latter portion of CALCRIM No. 875 did not merely repeat the instruction’s first part. Felony assault requires proof the perpetrator committed ‘an act... that by its nature would directly and probably result in the application of force to a person’ (CALCRIM 875), and that ‘a defendant... be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.’ [Citation.] But because Penal Code 245 ‘focuses on use of a[n]... instrument..., whether the victim in fact suffers any harm is immaterial’ [Citation.] Thus, to avoid any possible juror confusion, it was appropriate for the instruction to clarify that proof of an actual touching, injury, or intent to injure was not essential to support a conviction of this offense.” (People v. Flores, supra, 157 Cal.App.4th at pp. 220-221.)
We agree with this reasoning, and believe much of it applies here to defeat appellant’s argument. Specifically, rather than “constitute[ing] a pure prosecutorial argument wrapped in the shell of ‘neutral’ instructions,” the instructions defining application of force and assault accurately set forth the relevant law regarding the charged offense without “ ‘invit[ing] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact...’ ” (People v. Flores, supra, 157 Cal.App.4th at p. 220.) As such, we conclude the instructions were not argumentative. (Ibid.)
Moreover, we reject appellant’s suggestion in his reply brief that the holding in People v. Flores was “case-specific, and depend[ant] on the key fact that ‘it [was] undisputed that defendant did not strike anyone.’ ” (See People v. Flores, supra, 157 Cal.App.4th at p. 220.) As is clear from the passage from People v. Flores excerpted above, while the court was indeed concerned with the specific facts of that case, ultimately, its holding focused squarely on the language of CALCRIM 875 and the legal principles that supported it. (Ibid.)
Finally, appellant contends the combined effect of the various errors he assigns to the trial court denied him of his constitutional right to a fair trial. Because, however, we have already concluded that none of appellant’s claims of error has merit, there is no basis for reversing the judgment on this ground. (See People v. Jones (1998) 17 Cal.4th 279, 315; People v. Marshall (1990) 50 Cal.3d 907, 945.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.