Opinion
C085618
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER ANTONIO VALENZUELA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE000384)
After driving suspiciously in a residential area where there had been numerous home invasions, defendant Javier Antonio Valenzuela sped away from sheriff's deputies in an unmarked van, crashed his car and then backed up into their van when they tried to approach him, cracking the bumper and moving the van a few feet backwards. He continued leading a high-speed chase until his car hit a pole guide wire and he was arrested. Among other offenses, he was convicted of three counts of assault by force likely to produce great bodily injury as a lesser included offense to assault with a deadly weapon or by force likely to produce great bodily injury on a peace officer and sentenced to three years eight months in prison.
Defendant contends on appeal that insufficient evidence supports his three assault convictions because the force he actually exerted when he backed his car into the deputies' van was not likely to cause great bodily injury. He also argues that the trial court had a sua sponte duty to instruct the jury with simple assault as a lesser included offense to the three assault charges. We conclude sufficient evidence supports the assault convictions and that the court did not err in failing to instruct the jury on simple assault as a lesser included offense to assault likely to produce great bodily injury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 2017, Sacramento County Sheriff's Deputies Gabriel Rodriguez, Eric Door, and Douglas Davis were working the graveyard shift in South Sacramento in a residential area where there had been frequent home invasions. Although they were wearing their standard issue uniforms, they were in an unmarked black van with no license plates. The van was equipped with lights and a siren. Deputy Rodriguez was driving, Deputy Davis was in the front passenger seat, and Deputy Door was in the rear passenger seat.
Around 3:30 a.m., the deputies noticed a silver sedan driving "abnormally slow for a residential area . . . ." The deputies passed the car. As they passed, Rodriguez looked over and saw the car's driver, whom he identified as defendant at trial. He then looked in the rearview mirror and saw that defendant had stopped his car in the roadway. Rodriguez found the car's slow speed and peculiar parking position suspicious.
Rodriguez turned the van around and pulled in behind defendant's car to check his license plate. The officers did not activate their lights or sirens at that time. Defendant sped away partially driving onto the sidewalk. Rodriguez activated his lights and sirens and attempted to conduct a vehicle stop. Defendant, however, continued to accelerate at a high rate of speed and failed to stop at two stop signs.
While turning onto a side street, defendant lost control of his car and crashed into a parked car. Rodriguez stopped the van approximately one car length behind defendant's car. He and Davis got out of the van, and Rodriguez drew his weapon. He saw defendant look over his shoulder, directly at him and Davis, and then put his car in reverse and accelerate toward the deputies and the van. At the time, Rodriguez was standing in the doorjamb between the open door and the car frame. According to Rodriguez, defendant went from "0 to . . . 15, 20 miles an hour roughly in a very short distance." Rodriguez was concerned that he and Davis could be severely injured if defendant's car, which he estimated weighed nearly 4,000 pounds, hit the van or them personally.
On cross, Rodriguez estimated that the speed was closer to 15 miles per hour. --------
Defendant's car struck the front bumper of the van, scratching and cracking it. The force of the impact caused the van to move backwards a "few feet." Rodriguez had to jump into the van "to avoid being struck by [defendant's] vehicle" or otherwise being "caught in . . . the doorjamb." None of the deputies were injured or required medical attention, and the van's air bags did not deploy.
After the collision, defendant put the car into drive and "peel[ed] out" again at a high rate of speed. The deputies followed in the unmarked van with the lights and sirens still activated and radioed for backup. A marked patrol car driven by Sergeant Greg Saunders took the lead in the pursuit. Defendant continually drove in excess of 90 miles per hour and even reached 100 miles per hour at one point. He also ran several red lights, passed a car on the right-hand side, drove about a half mile down the wrong lane, and crossed back and forth into oncoming traffic. Defendant finally came to a stop when his car hit a "guide wire to some sort of pole" and deputies arrested him.
At trial, the parties requested that the court instruct the jury on the lesser included offenses of assault with a deadly weapon and assault by force likely to produce great bodily injury. The court did so. Neither party requested, nor did the court give, an instruction on simple assault as an additional lesser included offense to those counts.
The jury found defendant not guilty on the three counts of assault on a peace officer, and on the lesser included offense of assault with a deadly weapon. The jury, however, found defendant guilty of the lesser included offenses of assault by force likely to produce great bodily injury for three counts. The jury also found defendant guilty of two additional charges.
Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence Supports The Convictions For Assault
By Means Of Force Likely To Produce Great Bodily Injury
Defendant contends insufficient evidence supports his three felony assault convictions because the force actually exerted was not likely to cause great bodily injury to any of the three officers. We disagree.
Penal Code section 245, subdivision (a)(4) provides that "[a]ny person who commits an assault upon the person of another by means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
The term "great bodily injury" as used in the felony assault statute "means significant or substantial bodily injury or damage . . . ." (People v. Duke (1985) 174 Cal.App.3d 296, 302.) "[I]t does not refer to trivial or insignificant injury or marginal harm." (Ibid.) "One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) But, physical injuries are " 'highly probative' " of the amount of force used. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.)
In assessing the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1119, 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, at p. 849.) Reversal for insufficient evidence is required only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Viewing the evidence in the light most favorable to the judgment, we conclude that a reasonable jury could find beyond a reasonable doubt that intentionally accelerating a car into another vehicle in close proximity at 15 to 20 miles per hour while a person was standing in the doorjamb of the vehicle constituted force likely to produce great bodily injury. "An automobile weighing several thousand pounds and underway on a street is capable of seriously injuring and often killing any person it strikes." (People v. Russell (2005) 129 Cal.App.4th 776, 785; see also People v. Wright (2002) 100 Cal.App.4th 703, 706 ["any 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. Claborn (1964) 224 Cal.App.2d 38, 41-42 [recognizing that automobile driven toward person in another car constitutes a force likely to produce great bodily injury; although evidence showed the defendant braked before a collision with an oncoming police officer's car, the court found that by driving directly toward officer the defendant used his car as a deadly weapon or in a manner likely to produce great bodily injury]; compare People v. Aguilar, supra, 16 Cal.4th at p. 1028 [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' "].)
Here, Rodriguez testified that the deputies' van was parked only a car length away from defendant's car when he revved the engine and quickly accelerated his car to 15 to 20 miles per hour, crashing into the deputies' van. The force of the impact caused the van to move backwards a "few feet." While defendant repeatedly characterizes the van's bumper as merely "scratched," the testimony at trial was that the impact actually cracked the bumper in addition to scratching it. Based on this evidence, the jury reasonably could have concluded that the force exerted was likely to cause great bodily injury.
The fact that the officers were not actually injured or that the air bags did not deploy does not mean the force exerted was not likely to cause great bodily injury. As the jury was properly instructed, "[n]o one needs to actually have been injured by defendant's act." (CALCRIM No. 875.)
Defendant's reliance on Duke is misplaced. Intentionally accelerating a car to 15 or 20 miles per hour and using it to smash into another vehicle, the force of which cracks the vehicle's bumper and causes it to move a "few feet" backwards while someone is standing in the open doorjamb of that vehicle differs markedly than the headlock that did not cut off the victim's breathing in Duke. (People v. Duke, supra, 174 Cal.App.3d at pp. 302-303.)
Under the circumstances of this case, the jury could reasonably conclude that the force defendant exerted in ramming his car into the deputies' van while they stood next to it was likely to cause great bodily injury.
II
Instruction On Lesser Included Offense Of Simple Assault
Defendant contends the trial court prejudicially erred by failing to instruct the jury on the lesser-included offense of simple assault. The trial court did not err.
"A trial court has a sua sponte duty to 'to instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. [Citation.] . . . [T]he court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense." (People v. Shockley (2013) 58 Cal.4th 400, 403-404.) A trial court errs in failing to instruct on a lesser included offense supported by the evidence " ' "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." ' " (People v. Souza (2012) 54 Cal.4th 90, 114.)
Given the evidence at trial, an instruction on simple assault was not warranted. As this court has recognized, "there is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (People v. Golde (2008) 163 Cal.App.4th 101, 117.)
Here, the evidence showed that defendant looked at Rodriguez getting out of the van before he revved his engine and quickly accelerated his car to 15 to 20 miles per hour over a short distance in order to smash into the van and escape the officers. Defendant drove his car in such a way as to force Rodriguez to have to jump back in the van to narrowly avoid being hit or pinned in the doorjamb. The force of the impact cracked the van's bumper and caused it to move back a "few feet." In light of this evidence, the court had no duty to give a simple assault instruction because there was no substantial evidence from which a reasonable jury could conclude that the force defendant used in assaulting the deputies was less than force likely to produce great bodily injury. (People v. Berry (1976) 18 Cal.3d 509, 519 [" '[T]he trial court may properly refuse to instruct upon simple assault where the evidence is such as to make it clear that if the defendant is guilty at all, he is guilty of the higher offense [felonious assault]' "].)
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Blease, J. /s/_________
Butz, J.