People v. Smith
| Decision Date | 24 September 1997 |
| Docket Number | No. C012464,C012464 |
| Citation | 67 Cal.Rptr.2d 604,57 Cal.App.4th 1470 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 7642, 97 Daily Journal D.A.R. 12,263 The PEOPLE, Plaintiff and Respondent, v. Reginald Calvin SMITH, Defendant and Appellant. |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Roger E. Venturi, Gelacio L. Bayani, Deputy Attorneys General, for Respondent.
The defendant, Reginald Smith, was convicted after a jury trial of the offense of assault with a deadly weapon (ADW) upon the person of a peace officer, Penal Code section 245, subdivision (c). 1 Imposition of sentence was suspended and he was placed on probation on condition he serve five months in the county jail.
The incident arose when a line of police officers blocked traffic on a highway. According to the defendant he had been directed by an officer to drive his car forward; he did so and his car inadvertently struck an officer.
The defendant contends the trial court prejudicially misinstructed the jury on the mental state required for the offense. The jury was instructed under former CALJIC No. 9.00 (5th ed.1988) that assault requires a general criminal intent. The jury sent a note to the court asking whether "the intent to move the vehicle forward, alone constitute[s] general criminal intent" or whether an "intent to injure" was required. (Emphasis added.)
The court did not reread CALJIC No. 9.00, which, inter alia, defined an assault as an attempt to apply physical force upon the person of another. Instead, it read an abbreviated instruction, that the defendant must "intend[ ] to commit an act, the natural and probable consequence of which if successfully completed would be the application of physical force upon the person of another...." 2 Thereafter the jury came back with a guilty verdict.
As we explain, in this context the abbreviated instruction directed the jury to apply a negligence standard to the assault element of the offense. The issue is whether negligence satisfies the mental state required for conviction of assault with a deadly weapon. We answer "no" and will reverse the conviction for prejudicial error.
The error cannot be deemed harmless. Under the abbreviated instruction the defendant was foreclosed from jury consideration of his theory of the defense. While the evidence would have supported a conviction under a properly worded instruction, there is evidence in the testimony of the defendant and his companion from which the jury could have acquitted him.
The incident took place on New Year's Eve, at the intersection of Highway 50 and Stateline Boulevard. Officers from the El Dorado County Sheriff's Department arrived at the scene to shut down Highway 50 to pedestrian and vehicular traffic following an exuberant New Year's Eve celebration. Officers formed a "V" across Highway 50 to keep a rambunctious crowd from flowing down the highway.
Smith and his companion, Christina Jensen, had driven the preceding evening to South Lake Tahoe to celebrate. The couple dined and gambled, but neither consumed alcohol. At midnight they joined the crowd celebrating on the street. Soon after midnight Smith and Jensen decided to leave, and drove down Stateline Boulevard toward Highway 50 in Smith's Porsche.
Smith testified as follows. He and Jensen drove down Stateline, someone approached them, hit the car and yelled at Smith to get out and fight. Smith continued driving until he saw the police barricade. An officer stopped the Porsche and told Smith he would have to turn around. Smith told the officer someone down the street was shouting at him and asked the officer to allow him to go through the police lines. The officer told Smith to wait and walked to the rear of the car.
As Smith waited for the officer to return, Jensen hit him and said, Smith stated he droveforward because he saw two officers motioning him forward. As he began to move forward, Smith saw the line of officers move apart, and he thought they were allowing him to proceed. Smith heard Jensen scream, and saw a person coming through the sun roof of his car. Smith then felt something hit him on the nose and someone grab his face. He heard someone yell, "You ran over my partner; you ran over my buddy."
Smith was confused and fearful that the crowd was closing in on the Porsche. He testified he thought at the time: "Just get out of here--you know--I can deal with it later--whatever it is--move now." Because he had no horn, Smith revved the car to let people know he was coming. Smith stated, "[M]y intentions at that time were to just leave--were to go until I got out of the whole situation--out of the crowd of people." Smith stopped when a patrol car pulled in front of him.
Jensen testified she watched the officer who told Smith to wait walk back to the police line. According to Jensen it was this same officer who waved them forward.
The police officers at the scene provided a different account of the events. Officer Brown, standing on Highway 50, saw Smith's Porsche inch through police barricades and stop in front of the line of officers. Brown walked up to the Porsche and told Smith he could not proceed and asked him to back up As Officer Brown walked behind Smith's car, he noticed the Porsche jerk forward once or twice. Suddenly the Porsche accelerated rapidly down Stateline toward Highway 50. Officer Brown saw fellow Officer Becker on top of the Porsche as it accelerated for about 100 feet until it was blocked and stopped by a police car.
his car. Smith told Brown he wanted to drive to the other side because "someone was shooting at him from down the street." Brown told Smith to wait while he spoke with other officers to see if the cars behind Smith could turn around, allowing Smith to leave. Brown did not tell Smith he could move through the police line, nor did Brown see any other officer motion Smith forward
Officer Becker stood in a line with other officers forming the human barricade. Becker saw Smith's Porsche weaving through the barricades and inching toward the police line. The car stopped and two officers spoke with Smith. Suddenly the Porsche accelerated. The car struck Becker in the lower leg, ran over his toe and his right arm, breaking his watch and knocking the radio off his belt. Becker landed on top of the Porsche and his right arm went through the open sun roof. He held onto the car as it accelerated, and grabbed Smith by the face in order to get him to stop. Becker did not require medical attention.
Officer Wilson of the South Lake Tahoe Police Department also saw Smith's car cross the police line. Wilson moved out of the way to avoid being run over. As the Porsche sped away, Wilson saw Becker riding on the Porsche's hood. After a police car blocked the Porsche, Smith slammed on the brakes and Becker fell to the ground.
Richard Hartman, a technician with the South Lake Tahoe Police, was filming the crowd from the top of a nearby casino. Hartman noticed Smith's Porsche inching its way toward the police line. Hartman did not see the Porsche hit anyone; instead he saw Becker jump on top of the car as it accelerated to approximately 30 miles per hour. Fellow Officer Olsen saw the Porsche cross the police line with Officer Becker hanging on top of the car. Olsen, fearing for Becker's safety, pulled his police car in front of the Porsche. The car stopped abruptly, throwing Becker to the ground.
Sergeant Scott of the South Lake Tahoe Police noticed Smith's Porsche moving towards police barricades. As the Porsche inched forward, Scott saw Officer Brown tell Smith to stop. Smith stopped for a moment, but then began to inch forward toward the police line. Before Brown could back the cars behind the Porsche up, Smith revved the Porsche's engine. Scott saw the car lunge forward across the police line, scattering officers. Officer Becker was hanging on top of the Porsche leaning into the sun roof.
The commander of the operation, Lieutenant Owens of the South Lake Tahoe Police Department, saw several officers motion to Smith to stop, and then approach the driver's side of the car. According to Owens, the officers directed Smith to go back and turn around; no officer motioned Smith to drive forward.
El Dorado County Sheriff Sergeant Neves, who was also on duty that night, saw Smith's Porsche lurch forward once or twice toward the police line while the officers told Smith to wait. According to Neves, Smith appeared not to listen, but instead accelerated and drove the Porsche through the police line. The officers on the police line jumped out of the way to avoid being run over.
The trial court instructed the jury that the offense proscribed by section 245, subdivision (c) consists of an assault with a deadly weapon or by means likely to produce great bodily injury, upon a person known to be a peace officer engaged in the performance of his duties. 3 Assault was defined by modified, former CALJIC No. 9.00 as an unlawful attempt to apply physical force upon the person The defendant requested that the jury be instructed: (1) that assault with a deadly weapon requires an intent to commit a battery, a battery being any willful and unlawful use of force or violence upon the person of another and (2) that reckless conduct alone does not constitute a sufficient basis for a conviction of assault with a deadly weapon. The court refused the first request and granted the second. At the prosecutor's request the court added the following sentence: "However, if a person intended to commit an act,...
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