People v. Wright

• Decision Date: 29 July 2002
• Docket Number: No. C025971.,C025971.
• Citation: 123 Cal.Rptr.2d 494,100 Cal.App.4th 703
• Parties: The PEOPLE, Plaintiff and Respondent, v. Forrest Ray WRIGHT, II, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

123 Cal.Rptr.2d 494

100 Cal.App.4th 703

The PEOPLE, Plaintiff and Respondent, v. Forrest Ray WRIGHT, II, Defendant and Appellant.

No. C025971.

Court of Appeal, Third District.

July 29, 2002.

Certified for Partial Publication. Review Denied October 16, 2002.

Sandra Gillies, under appointment by the Court of Appeal, Woodland, for Defendant and Appellant.

Bill Lockyer and Daniel E. Lungren, Attorneys General, David P. Druliner and George Williamson, Chief Assistant Attorneys General, Robert R. Anderson, Senior Assistant Attorney General, Margaret Venturi, Supervising Deputy Attorney General, Alan Ashby, Deputy Attorney General, for Plaintiff and Respondent.

BLEASE, Acting P.J.

This case comes to us on remand from the Supreme Court for reconsideration in the light of People v. Williams (2001) 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197 (hereafter Williams).

A jury convicted defendant of two counts of assault with a deadly weapon, a pickup truck, (Pen.Code,¹ § 245, subd. (a)(1); counts I and II).² He was sentenced to state prison for an aggregate term of three years.

The convictions arose out of two incidents in which the defendant drove his pickup truck close to persons with whom he had contentious relations. The defendant attempted to put his intent in issue with proposed instructions that embodied the claim he intended to frighten his adversaries and therefore his conduct amounted to no more than reckless driving.

The trial court rejected the defendant's instructions. It instructed the jury in the language of CALJIC No. 9.00 (1994 rev.), which defines the mental state for assault as the intentional commission of an "act that by its nature would probably and directly result in the application of physical force on another person ...." The jury sent several notes to the court that raised questions about the scienter required for assault. One asked: "If a person's intent is to intimidate, rather than cause bodily harm, but in the process the victim's safety is compromised, is it still considered assault?" Another note stated: "We need additional definition of simple assault." In answer the court reinstructed the jury in the language of CALJIC No. 9.00 (1994 rev.).

In an earlier opinion, also involving a vehicle, we held the mental state for assault is an intent to commit a battery. (People v. Smith (1997) 57 Cal.App.4th 1470, 1484, 67 Cal.Rptr.2d 604.) We concluded that language similar to CALJIC No. 9.00 (1994 rev.) misdefined the mental state for assault because it encompassed a negligence standard. We reversed the judgment because the defendant's theory of defense, that he did not intend to hit the victim with his vehicle, was withdrawn from jury consideration by the instruction. The Supreme Court denied review.

The decision in Smith was the basis of our original decision in this case. Williams is at odds with Smith because it adopts a negligence standard and on remand we consider the application of that standard to this case. In so doing we examine the conceptual route by which the Supreme Court got to that standard.

Historically, assault has been defined as an attempted battery. (People v. Rocha (1971) 3 Cal.3d 893, 899, 92 Cal. Rptr. 172, 479 P.2d 372; People v. Hood (1969) 1 Cal.3d 444, 458, 82 Cal.Rptr. 618, 462 P.2d 370.) The harm addressed is a battery. Williams rejects the view that assault requires an intent to commit a battery. It holds that "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (26 Cal.4th at p. 790, 111 Cal.Rptr.2d 114, 29 P.3d 197.) The test is objective. The actor "need not be subjectively aware of the risk that a battery might occur." (Id. at p. 788, 111 Cal.Rptr.2d 114, 29 P.3d 197, fn. omitted.) This defines the mental state as a species of negligent conduct, a negligent assault. Where the negligent conduct involves the use of a deadly weapon, here a vehicle, the offense is assault with a deadly weapon. Thus, any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon.

In the published portion of the opinion³ we show the Williams interpretation of section 240 is based upon a mistake of fact, which produced an error of law. Williams asserts the definition of assault in section 240 was first enacted in 1872 and bases its statutory construction on that fact. "Because section 240 was enacted in 1872 and has not been amended, we must construe the Legislature's intent as of 1872." (26 Cal.4th at p. 785, 111 Cal.Rptr.2d 114, 29 P.3d 197.)

In fact, the present definition of assault was enacted in 1850 as section 49 of the Crimes and Punishment Act. (Stats.1850, ch. 99, § 49, p. 234.) It was codified without change in 1872 as section 240 of the new Penal Code. The Supreme Court cases interpreting the 1850 enactment, relied upon by the Code Commissioners in their report to the Legislature, state the 1850 language incorporates the common law definition of assault, which required an intent to inflict injury. This construction, consistent with Smith, would have required reversal of defendant's conviction in this case. It would not, for reasons we discuss, have required the characterization of section 240 as a specific intent crime.

Nonetheless, we are bound by Williams. We shall conclude the defendant was properly convicted of a negligent assault on the facts of the case.

FACTS

COUNT I (The Dircksen Incident)

On May 28, 1996, Patricia Dircksen, who worked for the Yreka Police Department as an administrative secretary, ran an errand outside the department. Returning to her office, she had to cross at the intersection of Oregon and Miner Streets. She was in the middle of the crosswalk when she heard a truck approaching. She looked up and saw defendant driving a white pickup truck around the corner at a "pretty good rate of speed." He was about 30 feet away. There was no stop sign. A woman and a boy were in the truck with defendant. Dircksen ran the rest of the way across the street fearing she would be struck otherwise. She was forced to jump out of the crosswalk and into the traffic lane. Defendant smirked as he passed within two to three feet of her.

In Dircksen's capacity as a police department employee, she had previously had encounters with defendant. Since 1994, the department had 59 "contacts" with defendant, "many" of which were negative. Dircksen believed defendant linked her with the negative contacts but did not specify any particular incident.

When Dircksen returned to the police station, she told Officer Frost what happened. In a written statement, she stated that she believed defendant was trying to intimidate her. Officer Frost testified at the preliminary hearing that Dircksen reported that she walked quickly, not ran, to the other side.

At trial, Dircksen testified that she believed defendant intended to hit her.

Defendant did not testify. Amanda Wright testified that she and Forrest Wright, III, defendant's son, along with Kelly and Julie Wright, were riding with defendant in his 1966 Chevy pickup on the way to his shop. As defendant turned left off of Miner Street onto South Oregon Street, he slowed down from 20 miles per hour and stopped because there was a woman in the crosswalk. Defendant's truck was old and could not go more than 12 miles per hour around that corner because of a drain. After the woman crossed the street, defendant continued. The woman turned and looked at them "funny." Mrs. Wright did not recognize the woman at the time but later remembered that Dircksen had been present when the police searched the Wrights's house. Mrs. Wright claimed that Dircksen had not run across the street. Forrest Wright, III confirmed Mrs. Wright's testimony.

COUNT II (The McHenry Incident)

Defendant and Ralph McHenry had known each other for about three years. They had once been friends. Both drove logging trucks and maintained them at shops located at 351 Oberlin Road in Yreka.

On June 9, 1996, McHenry had spent about five hours washing, waxing and working on his logging truck. He had had a few beers. Defendant got behind the wheel of a stock car and "spun a brodie"— driving rapidly in a circle—causing rocks to hit and dirt to settle on McHenry's clean truck. After defendant parked the stock car, he got in his pickup truck, which was towing a house trailer, and spurt the wheels, kicking up more dust and gravel.

McHenry believed defendant had done so to intimidate him. McHenry approached Darrell Hall, the owner of the stock car, and yelled at him for allowing defendant to drive the car. McHenry then crossed Oberlin Road where defendant had parked the trailer and shook his finger at defendant. McHenry told defendant he was sick of "this shit." Defendant slapped McHenry's hand away and a shoving match ensued. Defendant grabbed a baseball bat from his truck and hit McHenry in the back of his arms several times. Mrs. Wright got involved and hit McHenry. As McHenry retreated, defendant threw a rock at McHenry. McHenry went to his brother's shop and armed himself with a baseball bat. McHenry wanted to communicate to defendant that he was not intimidated.

Defendant, Mrs. Wright and Forrest Wright, III got into the pickup truck. As McHenry came out of the shop with the bat, he saw defendant driving the pickup truck very fast towards him. They made eye contact. Defendant's "eyeballs were really big and [his] teeth [were] clinched." The back wheels of the pickup truck were spinning. On the first pass, defendant missed McHenry by 10 feet. McHenry had stayed close to the building. On the second pass, McHenry threw the baseball bat at defendant's pickup truck. The back of the pickup truck slid towards McHenry. McHenry fell. He claimed he was struck on the inside...