People v. Marsh, D074053

CourtCalifornia Court of Appeals
Writing for the CourtBENKE, Acting P. J.
Citation249 Cal.Rptr.3d 749,37 Cal.App.5th 474
Parties The PEOPLE, Plaintiff and Respondent, v. Spencer Alan MARSH, Defendant and Appellant.
Docket NumberD074053
Decision Date15 July 2019

37 Cal.App.5th 474
249 Cal.Rptr.3d 749

The PEOPLE, Plaintiff and Respondent,
v.
Spencer Alan MARSH, Defendant and Appellant.

D074053

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

Filed July 15, 2019


Red Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P. J.

37 Cal.App.5th 477

A jury convicted defendant Spencer Alan Marsh of assault with a deadly weapon ( Pen. Code,1 § 245, subd. (a)(1), count 1) and vandalism (§ 594, subd. (a)(b)(1), count 2). The jury also found true the allegations in connection with count 1, that the deadly weapon used to commit this offense was a vehicle ( Veh. Code, § 13351.5 ), and that defendant personally used this dangerous and deadly weapon (§ 1192.7, subd. (c)(23)); and in connection with count 2, that the amount of property damage was $400 or more. The court sentenced defendant to the midterm of three years in prison on count 1, and stayed under section 654, subdivision (a) a two-year midterm sentence on count 2.

On appeal, defendant contends that there is insufficient record evidence to support his conviction of assault with a deadly weapon; that the court

37 Cal.App.5th 478

prejudicially erred in instructing the jury on the meaning of the phrase "deadly weapon"; and that defense counsel violated his constitutional rights by allegedly conceding during closing argument that defendant was guilty of the vandalism charge in count 2. As we explain, we disagree with these contentions and affirm the judgment.

FACTUAL OVERVIEW

Alex P., a Navy SEAL, testified he drove a Jeep Grand Cherokee to a fitness club located in Pacific Beach at about 7:00 a.m. on June 21, 2017. Alex parked his vehicle in the back of the fitness club, near a few other vehicles including a white van. As he parked, Alex noticed a man was

249 Cal.Rptr.3d 754

sitting inside the van. Alex and his wife had acquired this vehicle just a few months earlier. After validating his parking ticket inside the club, Alex went back outside and placed the ticket on the dashboard. As he did so, Alex noticed the man was still sitting in the van.

A little over an hour later, Alex left the club. As he approached his vehicle, Alex saw "two puddles" near the front tires, which he found "strange" because his car had been parked while he exercised inside the club. As part of his SEAL training, Alex testified they sometimes "introduce[d] malfunctions" into various vehicles in order to learn how to spot and/or repair them. One such malfunction involved the "brake lines" of a vehicle. Because it was sunny that day, Alex saw a "sheen" under the vehicle caused by the puddles.

On investigation, Alex found an "oily" liquid that was inconsistent with just water. While on the ground under the vehicle, he looked up near the tire on the driver's side and found the brake fluid line and the antilock brake system sensor had both been "cut" or "severed" at the "same spot." Concerned that this was not an accident, Alex stood up, looked around, and noticed the same man was still sitting in the driver's seat of the white van parked near his vehicle.

Alex contacted the man, hoping to find out what had happened to his vehicle. That man was defendant, who Alex identified in court. Until that day, Alex had never seen or met defendant. Alex approached the man and stated, "Hey, man. Who cut my brake lines?" Alex testified he then was "pretty upset" by what had happened, as he was concerned not only for his safety, but the safety of his wife and their "baby."

Alex testified the man's demeanor was "standoffish" as the man responded, "I don't know what you're talking about." Alex became even more upset as a result of the man's response, inasmuch as the man had been sitting in his van before Alex went inside to exercise and was still sitting in his van over an

37 Cal.App.5th 479

hour later. Alex testified, "And I told him that, and ... said, ‘Hey, man. You were here the whole time. You’ — ‘Somebody had blatantly went under my car and did this. Either you did it, or you know who did it. So what's up with my car? Why is it like that?’ " According to Alex, the man gave the same response as before, claiming he was just living in his van. Alex estimated he was about three or four feet from the driver's door while they were having this exchange.

After again imploring the man to tell him what had happened to his vehicle, Alex said, "All right, man. I'm just going to call the police." The man in the van appeared unfazed. Alex next used his phone to take a picture of the van's license plate. He then checked the rest of his vehicle and found the brake lines on the passenger side also had been severed in the "same linear fashion" as the driver's side. Once he got to his feet, Alex noticed a "bunch" of surveillance cameras in the area, including one facing the parking lot. Alex went back inside the club and contacted a manager, seeking help in determining who had intentionally damaged his vehicle.

Alex went back outside and called police on the nonemergency number. Alex testified he was "pretty heated" when reporting the incident to police. Shortly thereafter, the man in the white van drove away, ostensibly because the man overheard Alex reporting the crime.

Alex then tested his brakes by pushing on the vehicle's brake pedal. Alex found there "was a little bit of pressure or pushback, which is what you want in a brake, but there wasn't a whole lot." He then got

249 Cal.Rptr.3d 755

out of the car and again checked the brakes lines. Unlike before, this time "fluid was actively leaving the brake lines," which indicated to him there were "definitely brake lines issues." Alex testified the vehicle would still start even if the brakes could not stop the car once it was moving. Alex tested the brake pedal again and found he was able to get the pedal "all the way down" to the floorboard of the vehicle.

The police responded to the scene about 10 or 15 minutes after Alex's call. Alex gave a statement. The vehicle was towed to a dealership for repair, as Alex did not want to risk driving the vehicle and experiencing "possible catastrophic brake failure."

During Alex's testimony, the jury was shown a portion of the surveillance video from the parking lot camera. The video showed the white van described by Alex; Alex pulling into the lot in the Cherokee; Alex getting out of the vehicle, going inside to get his parking validated, and coming back outside to put the parking ticket on the dashboard of his vehicle; and Alex exiting the fitness club about an hour later, and shortly thereafter, engaging the man in the white van.

37 Cal.App.5th 480

Hope Rubin, the manager of the fitness club, testified fitness members could park in the back of the club, obtain a parking pass that they would place inside their car, and then use the club facilities. She further testified the fitness club had a surveillance camera overlooking the entire back parking lot; a camera at each club entrance, allowing the club to see who is entering and exiting the club; and a camera at the front desk, where members check in, among other cameras inside the club. Rubin testified that video footage from the cameras streams into a computer located in her office; that she can simultaneously view the video from four different cameras on her computer; that the times and dates on the videos are accurate; and that the fitness club maintains the videos.

Regarding the instant case, Rubin stated sometime in September 2017 a detective from the San Diego Police Department inquired about video footage from June 21 in connection with "someone tampering with some[one] else's car." Rubin watched the parking lot video from June 21 and then contacted another individual "who actually pulls the video and burns it to send to the detective."

Rubin testified that when she watched the video she saw "an individual slide under a car ... like shimmy under the car on both sides"; that video from inside the fitness club showed this same individual entered the club and checked in; that the individual who "went under the car had the same physique and body type and was also wearing the same clothes as the individual who walked in the facility"; that in response to information provided by the detective, Rubin generated a "check-in record" and determined this individual was a club member; and that this member's name was "Spencer Marsh." Prior to the incident, Rubin had never seen or met either defendant or Alex.

The records from the fitness club showed defendant checked in at the club at "7:05 and 13 seconds in the morning." Additional video from the fitness club's surveillance system was shown to the jury. Rubin testified the video of a man at the front desk "holding [a] coffee cup" was the same "individual with the same clothes and the same frame as the...

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18 practice notes
  • People v. Aledamat, S248105
    • United States
    • United States State Supreme Court (California)
    • 26 Agosto 2019
    ...the box cutter as "inherently deadly" and suggesting heuristics for assessing its dangerousness. (Cf. People v. Marsh (2019) 37 Cal.App.5th 474, 490, 249 Cal.Rptr.3d 749 [finding no prejudice where "the prosecutor only presented the [deadly-as-used] theory"].) On this re......
  • People v. Burns, D074536
    • United States
    • California Court of Appeals
    • 14 Agosto 2019
    ...guilt during opening and closing statements without his express consent. Consistent with our recent decision in People v. Marsh (2019) 37 Cal.App.5th 474, 249 Cal.Rptr.3d 749 ( Marsh ), we reject this claim as contrary to controlling precedent. However, we accept Burns's remaining claim tha......
  • Inquiry Concerning Judge John T. Laettner. !!!party1!!! v. !!!party2!!!, 203.
    • United States
    • United States State Supreme Court (California)
    • 6 Noviembre 2019
    ...the box cutter as "inherently deadly" and suggesting heuristics for assessing its dangerousness. (Cf. People v. Marsh (2019) 37 Cal.App.5th 474, 490 [249 Cal.Rptr.3d 749] [finding no prejudice where "the prosecutor only presented the [deadly-as-used] theory"].) On this r......
  • People v. Adams, B284753
    • United States
    • California Court of Appeals
    • 26 Agosto 2019
    ...error did not contribute to the jury's verdict." (People v. Lamas (2007) 42 Cal.4th 516, 526; see People v. Marsh (2019) 37 Cal.App.5th 474, 490 [where an instruction improperly defines an element of a charged offense, the "instructional error must result in reversal unless it app......
  • Request a trial to view additional results
18 cases
  • People v. Aledamat, S248105
    • United States
    • United States State Supreme Court (California)
    • 26 Agosto 2019
    ...the box cutter as "inherently deadly" and suggesting heuristics for assessing its dangerousness. (Cf. People v. Marsh (2019) 37 Cal.App.5th 474, 490, 249 Cal.Rptr.3d 749 [finding no prejudice where "the prosecutor only presented the [deadly-as-used] theory"].) On this re......
  • People v. Burns, D074536
    • United States
    • California Court of Appeals
    • 14 Agosto 2019
    ...guilt during opening and closing statements without his express consent. Consistent with our recent decision in People v. Marsh (2019) 37 Cal.App.5th 474, 249 Cal.Rptr.3d 749 ( Marsh ), we reject this claim as contrary to controlling precedent. However, we accept Burns's remaining claim tha......
  • Inquiry Concerning Judge John T. Laettner. !!!party1!!! v. !!!party2!!!, 203.
    • United States
    • United States State Supreme Court (California)
    • 6 Noviembre 2019
    ...the box cutter as "inherently deadly" and suggesting heuristics for assessing its dangerousness. (Cf. People v. Marsh (2019) 37 Cal.App.5th 474, 490 [249 Cal.Rptr.3d 749] [finding no prejudice where "the prosecutor only presented the [deadly-as-used] theory"].) On this r......
  • People v. Adams, B284753
    • United States
    • California Court of Appeals
    • 26 Agosto 2019
    ...error did not contribute to the jury's verdict." (People v. Lamas (2007) 42 Cal.4th 516, 526; see People v. Marsh (2019) 37 Cal.App.5th 474, 490 [where an instruction improperly defines an element of a charged offense, the "instructional error must result in reversal unless it app......
  • Request a trial to view additional results

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