People v. Herrera, Cr. 3784

• Citation: 6 Cal.App.3d 846,86 Cal.Rptr. 165
• Decision Date: 22 April 1970
• Docket Number: Cr. 3784
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel John HERRERA, Defendant and Appellant.

Page 165

86 Cal.Rptr. 165

6 Cal.App.3d 846

The PEOPLE, Plaintiff and Respondent, v. Daniel John HERRERA, Defendant and Appellant.

Cr. 3784.

Court of Appeal, Fourth District, Division 1, California.

April 22, 1970.

[6 Cal.App.3d 850] Howard A. Muhleman, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

COUGHLIN, Associate Justice.

Defendant Herrera and a co-defendant Rodriguez, were charged with the offenses of assault with a deadly weapon (Pen.Code § 245), in Count I, and discharging a firearm at a vehicle on a highway with intent to do great bodily injury (Veh.Code § 23110), in Count II; were tried by a jury; and were found guilty of both offenses. At the time of sentencing, upon motion of the district attorney because dual punishment was proscribed, the charge of discharging a firearm on a highway with intent to commit great bodily injury was dismissed. Both defendants were sentenced to imprisonment in the state prison. Defendant Herrera appeals.

On February 2, 1969, shortly before 10:30 p.m., defendant was driving a Chevrolet automobile on a state highway. His co-defendant was seated next to him in the front seat. The latter's brother was in the rear seat. Over a distance of several miles the Chevrolet was driven behind and in a manner described as 'tail-gating' a Ford automobile occupied by five women. On two occasions the driver of the Ford went to the side of the road to permit the Chevrolet to pass but, instead of passing, it continued to drive to the rear. The lights of the Chevrolet always were visible to the driver of the Ford although the distance between the two cars varied from time to time. In the course of this harassment, the occupants of the Ford heard a noise indicating something had struck the trunk of their car. When the driver of the Ford saw a sheriff's automobile parked on the side of the road she drove her car up behind it; saw the defendant's car pull up in back of her and then pull out, passing to her left; and, as the Chevrolet passed, she observed 'a gentleman hanging out the window and a gun also out the window'. There was a hole in the trunk of the Ford which appeared to have been made by a bullet. The occupants of the Chevrolet were apprehended and arrested. The codefendant Rodriguez testified he had a rifle with him in the front seat. While riding along the highway he held the gun outside the right door of the Chevrolet; two shots were fired, one accidently and the other at 'signs'; and he was intoxicated. He denied shooting at the Ford or any knowledge of its being on the highway. Defendant Herrera testified he was not 'tail-gating' the Ford; was not following it; did not know of its being on the highway; and that he was intoxicated. The rifle purportedly had been used during the day for target practice.

The court instructed the jury respecting the elements constituting the two offenses charged; that an essential element of the offense of discharging a firearm on the highway was the specific intent to do great bodily injury; that intoxication was a fact the jury might consider in determining whether the specific intent existed; that a person who commits an act by accident, under circumstances showing no evil design, intention or culpable negligence, does not commit a crime; and on the law respecting aiding and abetting an offense.

Defendant contends the evidence does not support the conclusion he aided and abetted the offense of assault with a deadly weapon; the court erred in failing to instruct the jury 'as to specific intent necessary to aid and abet'; and, under the instructions given, the jury was not advised they might consider evidence of his intoxication in determining his intent.

The evidence adequately supports the conclusion Rodriguez committed an assault upon the occupants of the Ford with a deadly weapon. This was a criminal offense. (Pen.Code §§ 240, 245.) His claim the shooting was accidental and was not directed at the Ford was rejected by the jury which was entitled to infer from the evidence he fired a shot into the Ford in the course of the harassment to which he and the defendant subjected the occupants of the Ford and that his intention was to do great bodily injury. The jury, by its verdicts of guilty on both offenses, found accordingly. The offense of assault with a deadly weapon requires proof only of an attempt to commit a violent injury upon the person of another; does not require proof an injury occurred; and is supported by an inference from proof a gun was fired in the direction of another. (People v. Hood, 1 Cal.3d 444, 448, 458, 82 Cal.Rptr. 618, 462 P.2d 340, fn. 7; People v. Carmen, 36 Cal.2d 768, 776, 228 P.2d 281; People v. McCoy, 25 Cal.2d 177, 189, 192--193, 153 P.2d 315; People v. Morrow, 268 Cal.App.2d 939, 949--952, 74 Cal.Rptr. 551; People v. Laya, 123 Cal.App.2d 7, 16, 266 P.2d 157; People v. Ingram, 91 Cal.App.2d 912, 914, 206 P.2d 36.)

It is a matter of note the term 'violent injury' used in defining an assault is not synonymous with the term 'bodily harm', but includes 'any wrongful act committed by means of physical force against the person of another.' (People v. McCoy, supra, 25 Cal.2d 177, 191, 153 P.2d 315, 322.) In the case at bench, the jury by its verdicts of guilty on both offenses found the gun was discharged with an intent not only to commit a 'violent injury' upon the occupants of the Ford, but also to inflict 'great bodily injury' upon them.

A person present when a crime is committed who engaged in conduct aiding and assisting the perpetrator with knowledge of the latter's criminal intent, aids and abets in its commission. (Pen.Code § 31; People v. Masters, 219 Cal.App.2d 672, 679, 33 Cal.Rptr. 383.) Whether a person has aided and abetted in the commission of a crime is a question of fact. (People v. Morga, 273 A.C.A. 215, 222, 78 Cal.Rptr. 120; People v. George, 259 Cal.App.2d 424, 429, 66 Cal.Rptr. 442.)

In the case at bench the implied finding of the jury defendant aided and abetted his co-defendant in the assault with a deadly weapon upon the occupants of the Ford automobile is supported by evidence showing defendant was the driver of the Chevrolet in which the co-defendant was seated next to him; he drove that automobile for several miles in a manner harassing the occupants of the Ford; the rifle used to commit the assault was in the front seat with defendant and the co-defendant; he must have seen the co-defendant leaning out of the window of the automobile and discharging the rifle; and upon discovering the driver of the Ford was stopping behind a sheriff's automobile, he ceased his...