People v. Burres

• Decision Date: 24 January 1980
• Docket Number: Cr. 18597
• Citation: 161 Cal.Rptr. 593,101 Cal.App.3d 341
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Timothy William BURRES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 593

161 Cal.Rptr. 593

101 Cal.App.3d 341

PEOPLE of the State of California, Plaintiff and Respondent, v. Timothy William BURRES, Defendant and Appellant.

Cr. 18597.

Court of Appeal, First District, Division 3, California.

Jan. 24, 1980.

Hearing Denied March 20, 1980.

John Kappos, Kappos & Williams, Stockton, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, David D. Salmon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Defendant Timothy Burres was charged by information with two counts of assault by means of force likely to produce great bodily injury upon the person of a peace officer (Pen.Code, § 245, subd. (b)). A jury acquitted him of Count I (relating to Officer Leon Williamson) and found him guilty of Count II (relating to Officer Michael Korbett).

About two months prior to the events at issue, Officer Leon Williamson, a Rio Vista police officer, arrested appellant, a 19-year-old local resident, for a traffic offense. Appellant was not permitted to testify at trial as to whether Williamson used force in arresting him on that occasion, but was permitted to state that he was afraid of Williamson, without giving any reasons therefor. Upon returning to his car on the day following his arrest, appellant found that it had been damaged; appellant treasured his car more than any other item he owned.

On the occasion at issue, January 29, 1978, Officer Williamson stopped appellant for a traffic offense, took his car keys, and told appellant to have his parents collect the keys at the police station. Because of the damage done to his car on the prior occasion, appellant went home and secured a second set of keys.

Williamson was informed that the car was moving. He testified that as he approached the area where it had been parked, he saw appellant's oncoming car swerve into his lane, forcing him to drive to the edge of the pavement to avoid a collision. Appellant testified that he dropped his cigarette and, in the process of retrieving it, swerved into the opposing lane, but that he brought the car back into his own lane before there was any danger of a collision.

Williamson made a U-turn and began to pursue appellant. Appellant first attempted to "ditch" Williamson, but stated that he changed his mind and stopped his car. Conflicting testimony was offered as to whether Williamson then rammed appellant's car or vice versa. Testifying for the defense, a mechanical engineer and expert in accident reconstruction analyzed the damage done to both cars and concluded that Williamson unquestionably had rammed appellant while appellant's car was stopped.

Appellant drove off again, making a series of U-turns, and made two "passes" at the police vehicle. Appellant testified that on both occasions, he intended only to frighten Williamson. When appellant made the second "pass," Williamson fired four shots at him.

Officer Michael Korbett then began to pursue appellant in a second police car. Korbett testified that at one point appellant was driving on the wrong side of the road, near the curb, directly towards him, and that he was obliged to drive onto the sidewalk to avoid a head-on collision. An eyewitness confirmed this account. Appellant testified that he had no recollection of the incident.

Williamson fired twice more at appellant. Appellant drove out of town, avoided capture, and later turned himself in to the police.

Appellant stated that he was not aware that Williamson had shot at him in the first occasion, but realized that he was under fire on the second occasion because his side window was shot out. He testified that he had no recollection of events from that point on until he started walking home from the field where he left his car. Appellant further stated that he had never realized that Korbett was involved in the chase, but thought that he was being pursued by Williamson alone.

Appellant raises five questions on appeal relating to jury instruction.

1. Intent to Commit Battery

Under Penal Code section 240, an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Thus, an assault is an attempt to commit a battery. (In re James M. (1973) 9 Cal.3d 517, 521-522, 108 Cal.Rptr. 89, 510 P.2d 33; People v. Rocha (1971) 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 479 P.2d 372; People v. Lathus (1973) 35 Cal.App.3d 466, 470, 110 Cal.Rptr. 921; 1 Witkin, Cal. Crimes (1963) § 255, p. 241.)

The intent necessary to commit an assault is the intent to commit battery. (People v. Rocha, supra, 3 Cal.3d at p. 899, 92 Cal.Rptr. 172, 479 P.2d 372.) Mere reckless conduct is not sufficient to constitute assault. (Id., at p. 898, 92 Cal.Rptr. 172, 479 P.2d 372; People v. Hood (1969) 1 Cal.3d 444, 452-458, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Carmen (1951) 36 Cal.2d 768, 775-776, 228 P.2d 281.) Further, a conviction for assault may not be grounded upon intent only to frighten. (People v. Marceaux (1970) 3 Cal.App.3d 613, 618, 83 Cal.Rptr. 798.) Whether the requisite intent existed is a question for the jury. (People v. Carmen, supra, 36 Cal.2d 768, 776, 228 P.2d 281.)

The court instructed the jury on the elements of assault with force likely to produce great bodily injury, including intent to commit the crime; the court did not instruct specifically on the requisite intent. At the request of the prosecution, the court instructed the jury that "When an act inherently dangerous to others is committed with a conscious disregard of human life and safety the intent to commit a battery is presumed."

In support of the instruction, the prosecution cited People v. Lathus, supra, 35 Cal.App.3d 466, 110 Cal.Rptr. 921, and People v. Martinez (1977) 75 Cal.App.3d 859, 142 Cal.Rptr. 515. The prosecution also pointed out that People v. Lathus was noted in the Comment to CALJIC No. 9.03 (1971 Re-Revision 1976 pocket pt.) p. 161. ¹ At oral argument respondent cited People v. Bedolla (1979) 94 Cal.App.3d 1, 156 Cal.Rptr. 171 as further authority for the instruction.

We begin our analysis with the obvious the distinction between a presumption and an inference.

Section 600 of the Evidence Code defines a presumption and an inference as follows:

(a) A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.

(b) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.

We now examine the three cases cited above and relied upon by respondent.

In Lathus, appellant was charged with and convicted of assault with a deadly weapon (Pen.Code, § 245, subdivision (a)). The evidence showed that appellant, in a moving vehicle on a highway, fired several pistol shots at a car parked on the shoulder of the highway. A person standing outside and adjacent to the car was hit; a tire of the car was also hit.

The defense was that appellant had not seen any person near the car and that he had not intended to shoot anyone.

The issue on appeal was whether there was Substantial evidence to support the verdict.

Under the evidence, as the Lathus court pointed out, the jury could have reasonably found that appellant had "deliberately shot at the parked automobile with actual knowledge that there were people in or near it." (Id., 35 Cal.App.3d at p. 471, 110 Cal.Rptr. at p. 925.)

It is true that the court in Lathus said at page 470, 110 Cal.Rptr. at page 924:

However, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed; the law cannot tolerate a deliberate and conscious disregard of human safety. Thus, if one deliberately employs a lethal weapon, such as a gun, with actual or presumptive knowledge that if utilized in the manner in which it is being used the infliction of serious bodily injury to another is very likely to occur, he is presumed to have intended the natural consequences of his deliberate act.

But Lathus did not involve an instruction of law, i. e., in our context, a Presumption, but rather an Inference that a jury could reasonably draw from the evidence. From the evidence in Lathus, it would appear reasonable to Infer that appellant intended to commit a battery. The jury did not have to believe his testimony to the contrary.

Thus, Lathus did not address itself to the issue of the effect of a presumption in a criminal case.

Similarly, in People v. Martinez, supra, 75 Cal.App.3d 859, 142 Cal.Rptr. 515, the case came before the court on the People's appeal from the trial court's order granting a Penal Code section 995 motion to dismiss. Martinez was charged with a violation of Penal Code section 245, subdivision (b). The evidence at the preliminary examination showed that several policemen were at the scene of a disturbance on the streets when Martinez, carrying a brown bottle "crouched down in a 'military' or 'hand grenade stance' and threw the bottle." (Id., at p. 862, 142 Cal.Rptr. at p. 516.) The bottle bounced off a police car and struck an officer. At the time Martinez threw the bottle, his view of the officer struck was unobscured.

The Court of Appeal held that the evidence generated sufficient cause under Penal Code section 872 to warrant holding Martinez to answer.

Again, the issue of the effect of a presumption was not before the court but rather the issue was one of drawing an inference.

We address now People v. Bedolla, supra, 94 Cal.App.3d 1, 156 Cal.Rptr. 171. Bedolla was convicted of Penal Code section 245, subdivision (a) firing revolver shots from a motorcycle at the occupants of another vehicle, which occupants had shortly before been...