People v. Simon
| Decision Date | 09 March 1999 |
| Docket Number | No. A079252,A079252 |
| Citation | 82 Cal.Rptr.2d 903,70 Cal.App.4th 742 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 70 Cal.App.4th 742 70 Cal.App.4th 742, 99 Cal. Daily Op. Serv. 1785, 1999 Daily Journal D.A.R. 2293 The PEOPLE, Plaintiff and Respondent, v. Travis SIMON, Jr., Defendant and Appellant. |
L. Richard Braucher, under appointment by the Court of Appeal, San Francisco, for appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General; George Williamson and David Druliner, Chief Assistant Attorneys General; Ronald A. Bass, Senior Assistant Attorney General; Ronald E. Niver and Joan Killeen, Supervising Deputy Attorneys General; Ross C. Moody, Deputy Attorney General, for respondent.
Travis Simon, Jr., timely appeals from a judgment of conviction, after a jury trial, of two counts of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (c)). 1 The trial court suspended imposition of sentence and granted appellant probation with conditions.
Simon contends the trial court erred by: (1) denying his motion for acquittal and his request for a jury instruction on the issue whether Contra Costa County was a proper venue for this prosecution; (2) denying his motion for a mistrial based on a single statement made by one of the investigating police officers referring to an item of inadmissible evidence; and (3) instructing the jury with CALJIC No. 9.00, and refusing to give a special instruction regarding the intent element of assault.
As to Simon's venue claim, we conclude he waived his objections to a Contra Costa County venue by failing to raise the issue at the preliminary hearing, where it is properly entrusted to the magistrate as a question of fact. So long as there is some evidence to support the magistrate's express or implied finding on the issue, we may not inquire further into its sufficiency. In the unpublished portion of this opinion, we find no reversible error on either of the other points appellant has raised. Accordingly, we affirm.
At approximately 1 a.m. on January 19, 1997, El Cerrito Police Officer Michael Felmann was dispatched to the Eagles Hall on the corner of Carlson Boulevard and Central Avenue in El Cerrito, which is in Contra Costa County. A large party being held at the hall was ending, and hall security had requested "police presence" to prevent any problems. Officer Felmann parked his patrol vehicle in the Union 76 gas station across the intersection from the hall. Another El Cerrito police officer, Jeff Doty, also answered the dispatch, and arrived in a separate vehicle. When the party broke up, over 100 people left the hall and began to congregate in the parking lot of the hall and in the parking lot of the Nation's Hamburgers outlet on the corner of San Pablo and Central Avenues.
Officer Felmann had been watching the situation for approximately 20 minutes when he noticed a light-colored Suburban stopped in front of Nation's Hamburgers. He thought some sort of disturbance was going on and heard people talking loudly. Officer Felmann then heard three or four gunshots, and saw an African-American man shooting a handgun into the crowd outside Nation's. The shooter was approximately 18 to 20 years old, and was "sitting on the window sill" of the Suburban and holding onto the roof of the vehicle while firing. As these first shots were fired, the Suburban began accelerating rapidly and made a left turn onto Central Avenue. As the Suburban turned, the shooter fired three or four more shots at Officer Felmann and another patrol car parked nearby. At trial, Officer Felmann identified the shooter as appellant's codefendant, Erick Jones.
After the shots were fired at him, Officer Felmann began to follow the Suburban, which proceeded down Central Avenue, toward Interstate 80 (I-80). Officer Doty followed behind Felmann's patrol vehicle. Officer Felmann turned on his emergency lights, and the Suburban "slowly pulled to the right-hand curb lane," after a block or so. The Suburban stopped for a brief moment, then moved forward another 15 or 20 feet and stopped again. Officer Felmann brought his patrol vehicle to a stop and, using his public address system, ordered the occupants of the Suburban to get out of the vehicle one at a time. Officer Felmann could not tell how many people were in the Suburban because the rear window was tinted, and no one complied with his command to exit the vehicle. Officer Doty also stopped his vehicle, got out, and took cover behind the passenger door of Officer Felmann's vehicle. After 20 or 30 seconds, the Suburban sped off with its tires squealing. Officer Doty got into the passenger seat of Officer Felmann's vehicle, and they resumed their pursuit of the Suburban.
The Suburban proceeded onto I-80 westbound, in moderate traffic, traveling in excess of 100 miles per hour and weaving in and out of lanes. Officer Felmann estimated that after a "[m]inute maybe," just before the Suburban reached the Ashby exit, which is in Berkeley in Alameda County, the rear window was rolled down. Officer Felmann dropped back to a distance of approximately 300 feet and, because he thought someone in the Suburban might be preparing to shoot at him, turned on his spotlight in an attempt to "blind" the person in the back of the vehicle. At that point, he could see "numerous people" in the Suburban, including one in the very back of the vehicle, and four or five in the passenger seats. About 30 seconds after the window was rolled down, Officer Felmann "very clearly" saw appellant lift up a floor jack and drop it out of the Suburban and into the path of his patrol vehicle. Although he was traveling at a speed in excess of 100 miles per hour, Officer Felmann was able to take evasive action to avoid being hit by the jack.
The window rolled up, the chase continued, and the Suburban proceeded onto Interstate 580 (I-580) heading eastbound "toward Oakland/Hayward." Just before the Suburban reached the Grand Avenue exit, the window of the Suburban again rolled down, and Officer Felmann saw appellant take a large tire and balance it in the open rear window of the Suburban for 15 to 20 seconds. The officer veered to the left, but was forced back behind the Suburban by other traffic. As soon as he pulled in behind the Suburban again, appellant released the tire. Officer Felmann was still traveling at speeds above 100 miles per hour. The tire bounced, but Officer Felmann was able to avoid it by driving "to the right shoulder."
At the Park Avenue exit, the Suburban left I-580 and the chase continued on city streets in Oakland. The Suburban eventually crashed, and Officer Felmann saw several young African-American men run away, including one with braids whom he identified as appellant. 2 One of the occupants was found hiding under a tarp near the crash scene. None of the other occupants of the vehicle were apprehended that night. However, a pair of pants found in the "far back" of the Suburban contained a check payable to appellant. 3
A jack and tire were recovered from, respectively, I-80 and I-580. A woman who lived two blocks from Nation's Hamburgers on Central Avenue in El Cerrito found a handgun on the walkway in front of her house the morning after the incident. The gun, a .38 special Colt Trooper, contained six expended shell casings.
Initially, the information alleged that the offenses involving appellant--counts five and six--were committed in Alameda County. On the second day of the three-day trial, the prosecution moved to amend the information to include the following jurisdictional clause: "It is further alleged, pursuant to Penal Code Section 781, that the offenses of Assault With A Deadly Weapon Against A Peace Officer, as alleged in Counts 5 and 6 of the Information, and the lesser offenses there involved, were committed in part in Contra Costa County and in part in Alameda County, and the acts and effects thereof and requisite to the consummation of the offenses occurred in Contra Costa County and Alameda County."
After the close of evidence, appellant moved under section 1118.1 for a judgment of acquittal on the grounds that Contra Costa County was an improper venue in which to prosecute him. After allowing the parties time to research the venue issue overnight, the trial court denied appellant's motion for acquittal and granted the prosecution's motion to amend the information.
After thus disposing of the parties' motions, the court turned to the issue of jury instructions. Before proceeding, however, defense counsel Howard Jameson raised the issue of venue again, suggesting that his client should be allowed to enter a new plea to the amended information. The court confirmed that appellant was pleading not guilty to the amended information, and deemed the amendment filed. Mr. Jameson continued, arguing that the prosecution was now required to prove venue by a preponderance of the evidence, and that an instruction would have to be given to the jury allowing them to make the decision. The court asked defense counsel to wait, saying: "I'll hear from you with the proposed instruction at the appropriate time."
Toward the end of the jury instruction conference, defense counsel requested an instruction on the issue of venue as follows:
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People v. Simon, S077866
...PEOPLE, Respondent, v. Travis SIMON, Jr., Appellant. No. S077866. Supreme Court of California June 16, 1999. Prior report: Cal.App., 82 Cal.Rptr.2d 903. Appellant's petition for review GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN and BROWN, JJ., concur. ...