People v. Golde

• Decision Date: 22 May 2008
• Docket Number: No. C053632.,C053632.
• Citation: 77 Cal. Rptr. 3d 120,163 Cal.App.4th 101
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent. v. MARIO JAMES GOLDE, Defendant and Appellant.

163 Cal.App.4th 101

77 Cal. Rptr. 3d 120

THE PEOPLE, Plaintiff and Respondent. v.MARIO JAMES GOLDE, Defendant and Appellant.

No. C053632.

Court of Appeals of California, Third District.

May 22, 2008.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Janis Shank McLean and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SIMS, Acting P. J.

In this case, we hold:

1.Substantial evidence supports defendant's conviction for violation of Penal Code section 245, subdivision (a)(1)(felony assault)¹;

2.No substantial evidence supports the trial court's finding that defendant suffered a prior serious felony "strike" conviction for violation of section 246.3(negligent discharge of firearm), because no evidence in the record shows defendant personally used a firearm;

3.The trial court did not err in failing to instruct the jury on the elements of simple assault (§ 240), as a lesser included offense, because no substantial evidence supported such an instruction;

4.The trial court did not err by giving the following jury instructions: Judicial Council of California Criminal Jury Instructions (2006-2007)CALCRIM Nos. 101, 102, 104, 200, 220, 223, 225, 226, 300, 302, 315, 316, 318, 333, 355, and 875.

DefendantMario James Golde was convicted of assault by means of force likely to produce great bodily injury or with a deadly weapon, a car (§ 245, subd. (a)(1)), with a prior serious felony conviction (§§ 667, subds. (b)-(i),1170.12).He appeals, contending (1) the evidence is insufficient to support the assault conviction and the finding that defendant's prior conviction was a serious felony; (2)the trial court erroneously failed to instruct on a lesser included offense; and (3) numerous CALCRIM jury instructions are defective.We shall vacate the finding of the prior serious felony conviction and remand to allow the prosecution the opportunity for retrial of that one issue.We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with (Count One) kidnapping (§ 207); (Count Two) false imprisonment (§ 236); (Count Three) domestic violence (§ 273.5); (Count Four) vehicle theft (Veh. Code, § 10851); (Count Five) violation of a domestic relations court order (§ 273.6); and (Counts Six & Seven) two counts of assault by means of force likely to produce great bodily injury or with a deadly weapon and instrument (car).It was alleged defendant had a prior serious felony (§§ 667,1170.12, subd. (b)), i.e., a 1990 conviction for discharging a firearm with gross negligence (§ 246.3).Count Three, domestic violence, was dismissed at the prosecution's request before trial.

Evidence adduced at trial included the following: The victim, Hilda Nieves, testified she was married to but was separated from another man.She was in an intimate relationship with defendant and was living with him.The victim testified she started using a lot of crystal methamphetamine and heroin in 2004 and started hallucinating and falsely accusing defendant of hitting her.On August 28, 2005, they consumed methamphetamine and heroin.The victim had also consumed some of the same drugs on her own, had not slept for two days, and was so "high"she was "hearing things," like music coming out of the bathroom fan.Another couple came to visit.The victim became jealous because she knew the woman was attracted to defendant.When the other couple left, the victim accused defendant of cheating and swore revenge.She was mad and tried to leave, but defendant took her car keys, chased her when she tried to run, and persuaded her to get into her car with defendant driving.

According to the victim's trial testimony (which conflicted with her statement to police but was consistent with her testimony at the preliminary hearing), her accusations against defendant were false.The victim testified that, as defendant drove the car, she hit him and said she would rather see him locked up than cheating on her.She wanted to get him in trouble.When defendant slowed the car at a four-way intersection, the victim jumped out of the car yelling, "He's going to kill me."She said the abrasions she sustained that day were caused when she jumped out of the car and hit the gravel.Defendant made a U-turn, stopped the car about 15 feet away from her, and chased her on foot and asked her to get back in the car.The victim told a man at a fire station that defendant was trying to run her over.At trial, the victim said this was a lie she told in an attempt to get defendant in trouble.

A firefighter testified he heard a female screaming, looked outside and saw a car screeching its tires in acceleration at about 15 miles per hour, trying to hit the female.²The female ran toward the firefighter, screaming several times, "He's trying to kill me."Inside the station, she said the driver forced her into the car and was going to take her to a remote location to kill her.The firefighter observed abrasions to her arm, shoulder, hip and buttocks.

Paramedics took the victim to the hospital, where she told police that defendant forced her into the car, threatened her, and slapped her.As defendant slowed the car at an intersection, she unlatched her seatbelt.He accelerated the car, and she jumped out.Defendant drove the car in reverse, hit her once, then turned the car around and tried to hit her again.The victim gave a similar account to a deputy, who observed the victim was very upset and afraid.

From the hospital, the victim phoned her husband and said defendant wanted to take her out to the country to kill her.The husband took the victim home and later drove her to see a police detective.The victim gave her husband a handwritten note with defendant's physical description "[i]n case something happened to her."

On September 7, 2005, more than a week after the incident, the victim gave a tape-recorded statement to a police detective, in which the victim was more timid but did not recant her original account.The victim testified she was afraid to recant because the detective said not to let the detective down.

In September 2005, the victim resumed living with defendant.She wrote a note in late 2005 asking police not to arrest defendant at his residence.When defendant was arrested, in the victim's presence, she did not recant because she was afraid.

Beginning at defendant's arraignment, the victim recanted and thereafter told police, the prosecution, and the court that she had lied, and the accusations against defendant were false.She claimed the prosecutor originally assigned to the case refused to listen to her recantation.The prosecutor originally assigned to the case testified he told her he could not discuss the facts with her (a policy designed to avoid having the prosecutor become a witness), but she should tell the truth.He also testified the victim said she wanted defendant out of custody, and it is common for domestic violence victims to recant.

In her testimony in this trial, the victim acknowledged she made prior reports concerning defendant's violence and obtained restraining orders in 2004 and 2005.In her testimony in this trial, the victim testified her prior reports were based on falsehoods.

Police officers who dealt with the prior reports testified in this trial that on those prior occasions the victim was upset and afraid and bore physical injuries.

The incident which is the subject of this prosecution was witnessed by persons inside a shop at the intersection.They heard tires screeching, saw the car come to a halt, and a frantic female outside the car screamed, "Help me, help me.He's going to kill me."The female jumped up from the ground a couple of feet from the car.The car moved toward her.She ran, trying to avoid the moving car.The driver was trying to run her over.One of the witnesses saw the driver accelerate toward the female at least three times.The car maneuvered toward her as she tried to move out of its way.When she ran to the fire station, the driver stopped the car and got out, looking enraged.A witness told the driver to leave, and he did.

Defendant did not testify, but several of his friends and relatives testified that the victim has a drug problem and a history of self-injury and false accusations.

The jury found defendant guilty only as to one of the two assault counts, Count Six, for assault by means of force likely to produce great bodily injury or with a deadly weapon (car).The jury found defendant not guilty on the other counts, except Count Three, domestic violence (which was dismissed before trial) and Count Five, violating a domestic relations court order, for which the jury was deadlocked and a mistrial was declared.

The trial court found true the prior serious felony "strike" allegation and sentenced defendant to six years in prison (the midterm of three years, doubled).

DISCUSSION

I.Substantial Evidence

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.[Citation.]The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.[Citations.]"(People v. Kraft(2000)23 Cal.4th 978, 1053[99 Cal.Rptr.2d 1, 5 P.3d 68].)

A.Assault

Defendant argues the evidence is insufficient to support the assault conviction because no reasonable juror could conclude under the facts presented that defendant intended for his vehicle to strike the victim.We shall explain why the contention...