People v. Simons

• Court: California Court of Appeals
• Writing for the Court: CORRIGAN; CHIN, P.J., and PARRILLI
• Citation: People v. Simons, 50 Cal.Rptr.2d 351, 42 Cal.App.4th 1100 (Cal. App. 1996)
• Decision Date: 22 February 1996
• Docket Number: No. A066726,A066726
• Parties: , 96 Cal. Daily Op. Serv. 1225, 96 Daily Journal D.A.R. 2017 The PEOPLE, Plaintiff and Respondent, v. Bruce Edward SIMONS, Defendant and Appellant.

Page 351

50 Cal.Rptr.2d 351

42 Cal.App.4th 1100, 96 Cal. Daily Op. Serv. 1225,

96 Daily Journal D.A.R. 2017

The PEOPLE, Plaintiff and Respondent, v. Bruce Edward SIMONS, Defendant and Appellant.

No. A066726.

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

Feb. 22, 1996.

Certified for Partial Publication ^*.

Review Denied May 1, 1996. ^**

David Y. Stanley, under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald E. Niver, Laurence K. Sullivan, Deputy Attorneys General, San Francisco, for plaintiff and respondent.

CORRIGAN, Associate Justice.

Defendant was found guilty by jury of two counts of exhibiting a deadly weapon to prevent arrest and one count of vehicular evasion of a peace officer, all felonies. The jury found him not guilty of three counts of assault with a deadly weapon on a peace officer and of hit and run. They were unable to reach a verdict on a charge of interference with a police dog. The court found defendant's prior serious felony convictions true and sentenced him to 13 years in state prison. ¹ Defendant appeals alleging various errors, including the failure to instruct that misdemeanor resisting or obstructing a peace officer (Pen.Code, § 148, subd. (a)) ² is a lesser offense of felonious exhibition of a deadly weapon to evade arrest (§ 417.8). He also asserts that a screwdriver can never be a deadly weapon for purposes of section 417.8. ³ We reject defendant's assertions and affirm the judgment.

Statement of Facts

About 3 a.m. on March 21, 1993, East Palo Alto Police Officer Reich stopped defendant's car for an expired registration and failure to signal for a left turn. Defendant presented an expired driver's license. After the officer completed the traffic citation, defendant walked toward his car, as if to drive away. The officer told defendant he would not be allowed to drive and the automobile would have to be towed. Defendant became angry and ran to his car. As defendant was trying to start the vehicle, the officer grabbed both defendant and the car door. Defendant drove forward with the officer still holding on. After approximately 30 feet, the officer fell free of the car, and defendant sped away.

Officer Reich pursued defendant with lights and siren. Defendant ran a red light, briefly lost control of his car, and entered the southbound 101 freeway. Defendant briefly left the freeway by an exit ramp. He then tried to reenter the freeway but was traveling too fast. He lost control, coming to a stop facing the wrong direction on the on-ramp. Reich stopped and approached defendant's car on foot, ordering him out at gunpoint. Defendant instead restarted his car, which lurched forward striking the officer slightly. Defendant then began backing onto the freeway. After making contact with another police car, he spun around and headed back onto the freeway in the proper direction.

Officers pursued defendant into the city of Mountain View. There, defendant left the freeway at 70 to 80 miles per hour and led several officers on a chase through the city. Officer Peardon testified that, at one point, defendant backed into his squad car. Finally, defendant jumped out of his still-moving vehicle and fled on foot. His car continued until it crashed into a tree.

As defendant fled into an apartment complex, Officer Peardon pointed his gun at him and ordered him to the ground. Defendant turned, with a screwdriver in hand, and said, "[F]uck you. Shoot me." Defendant then ran into the building and into his mother's apartment. His mother testified defendant entered the apartment saying, "They are trying to kill me, they tried to push my car off the road."

After Peardon and Reich broke open the apartment door, defendant held them at bay with the screwdriver. Reich described defendant at this time: "He would flail his hands, show the screwdriver, if we were to approach he would bring the screwdriver forward toward us. He was pacing back and forth." When asked if he felt threatened by defendant, the officer testified: "I would take the fact that we were telling him to drop the screwdriver and him waving it at us in this fashion, yelling, come on, kill me, go ahead, come on in; I would say that's threatening."

Although several other officers arrived, defendant continued to hold the screwdriver in a threatening way and ordered the officers to stay back. A police dog was brought into the apartment, but defendant threatened to stab the dog. Finally, officers distracted defendant by throwing a chair at him. After a brief struggle, he was subdued.

Discussion

A. Can a Screwdriver Be a Deadly Weapon Under Section 417.8?

Defendant urges reversal of his convictions for exhibiting a deadly weapon to prevent arrest, alleging a screwdriver is not a deadly weapon for the purposes of that statute. We disagree and hold that, on these facts, the exhibition of a screwdriver to a peace officer with the intent to resist or prevent arrest is a violation of section 417.8. ⁴

Section 417.8 prohibits the drawing or exhibiting of a deadly weapon with the intent to resist or prevent the arrest or detention of oneself or another by a peace officer. We recite the long-held distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular occasion in question: " 'There are, first, those instrumentalities which are weapons in the strict sense of the word, and second those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are "dangerous or deadly" to others in the ordinary use for which they are designed, may be said as a matter of law to be "dangerous or deadly weapons." This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons." When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion.' " (People v. Graham (1969) 71 Cal.2d 303, 327-328, 78 Cal.Rptr. 217, 455 P.2d 153, quoting People v. Raleigh (1932) 128 Cal.App. 105, 108-109, 16 P.2d 752; see also People v. Brookins (1989) 215 Cal.App.3d 1297, 1305, 264 Cal.Rptr. 240.)

Based upon the foregoing distinction, we can say without hesitation that the screwdriver exhibited by defendant here, while not an inherently deadly weapon, was a deadly weapon on this particular occasion. The evidence clearly demonstrated that the screwdriver was capable of being used as a deadly weapon and that defendant intended to use it as such if the circumstances required.

Defendant erroneously argues that section 417.8 can apply only to the exhibition of inherently dangerous or deadly weapons because ordinarily innocuous items require some dangerous or deadly use in order to transform them into dangerous or deadly weapons. Further, he reasons, any such use would constitute an assault with a dangerous or deadly weapon on a peace officer in violation of section 245, subdivision (c), thereby subsuming all violations of section 417.8. However, the circumstantial evidence required to transform an innocuous object into a deadly weapon is not necessarily as substantial as evidence that proves an assault with that weapon. The former requires only that the object be capable of deadly use and that the defendant intends to so use it if need be. Assault with a deadly weapon requires "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Merely because this defendant's conduct might also be characterized as an assault with a deadly weapon upon an officer does not mean it cannot also constitute the exhibition of a deadly weapon.

Both section 417.8 and section 245, subdivision (c) proscribe the use of a deadly weapon; the former to evade arrest, the latter to assault a peace officer. Defendant's analysis suggests the term "deadly weapon" is defined differently for each section, such that the trier of fact may consider the circumstances of the incident to determine if an otherwise innocuous item, like a screwdriver, was a deadly weapon for the purposes of section 245, subdivision (c) but not section 417.8. We cannot agree. If the evidence supports a finding that the screwdriver was capable of being used as a deadly weapon and that defendant intended to use it as one if need be, it is a deadly weapon under either section. The record here supports such a finding. The distinction between the two sections rests not upon the nature of the weapon involved, but upon what is done with the weapon.

B. Is Section 148, Subdivision (a) a Lesser Offense of Section 417.8?

Defendant alleges error in the court's failure to instruct the jury they could find defendant guilty of violating section 148, subdivision (a) as a lesser offense of section 417.8. The question of whether section 148, subdivision (a) is a lesser offense of section 417.8 is one of first impression. We conclude section 148, subdivision (a) is not...