THE PEOPLE v. NEAL ALLAN PENSO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. NEAL ALLAN PENSO, Defendant and Appellant.

B220187

Decided: January 13, 2011

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Neal Allan Penso, appeals the judgment entered following his conviction, by jury trial, for assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)).1  He was sentenced to a three-year term of probation.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

On February 27, 2008, Adam Drozdz was driving on Sherman Way when the car ahead of him, driven by defendant Penso, suddenly switched into Drozdz's lane and caused him to brake.   Drozdz gestured to Penso by pointing to the side of his own head in order to indicate Penso had done “something foolish.” 2  Penso then stopped abruptly, causing Drozdz to brake, stop and sound his horn.   After that, Penso began tailgating Drozdz and trying to cut in front of him.

At some point, Penso hit Drozdz's car from behind at about 15 or 20 miles per hour.   When Drozdz stopped, Penso jumped out his car, ran over and opened the door of Drozdz's vehicle.   Penso screamed at Drozdz, grabbed him and began pulling him out of the car.   Penso snatched Drozdz's cell phone from his belt holder and threw it on the ground.

Some people came to Drozdz's aid and pulled Penso away.   One of them was Ronald Thompson, who had been riding on a public bus when he saw Penso attacking Drozdz.   Thompson testified Drozdz's car door was open and he saw Penso “strike, ․ grab him and shake him, and I saw him throw the cell phone.”   Thompson asked the bus driver to let him off.   A couple of other passengers got off too.   By the time Thompson reached Drozdz's car, two other drivers had stopped and were trying to restrain Penso.

Thompson described Drozdz as an “elderly gentleman” who was sitting in his SUV and crying.   Using profanity, Thompson asked Penso what his problem was and told him to “get out of here.”   Penso, who was “very enraged,” replied, “Fuck you, nigger.   Fuck you.”   Penso tried to reach Drozdz two more times before returning to his car.   Thompson did not see anyone strike Penso.

Penso got into his car and appeared to be using a cell phone.   Then Penso started driving.   He entered the intersection on a red light, made a U-turn and came back driving in the wrong direction.   His car would have hit Drozdz's driver's door had Drozdz not closed it in time.   Penso then drove over the traffic island where Thompson was standing.   As Penso's car was about to hit him, Thompson jumped onto the hood.   He grabbed the end of the hood near the windshield with one hand, while hitting the car with his skateboard with the other.   Thompson was on the hood while Penso's car traveled about five feet, and then he slid off.   Penso's car reached the other side of the island and drove away.   Thompson suffered aches and cramps from his impact with Penso's car.

Fabian Gracian testified he witnessed most of the incident while driving his truck.   He saw Penso rear-end Drozdz's SUV at 15-20 miles per hour, run up to Drozdz's car, open the door and punch Drozdz.   Gracian saw eight to ten people apparently get off a public bus and run toward Penso.   Gracian heard members of the group challenge Penso to fight.   Penso initially stood his ground, but then got back into his car when the group grew in size.   Gracian never saw anyone touch Penso.

Gracian then saw Penso drive into the intersection, make a U-turn and steer his car toward Drozdz's SUV like he wanted to ram it.   After Drozdz closed the driver's door, Penso drove toward Thompson, who was standing on the traffic island.   Penso “aimed right for the kid.”   Gracian saw Penso's car hit Thompson.

2. Defense evidence.

Penso testified that while driving on Sherman Way he heard someone honking and, in his rearview mirror, saw Drozdz pointing his index finger at his temple.   Drozdz drove past Penso and cut him off.   Drozdz then stopped suddenly, causing Penso to rear-end him.

Penso jumped out of his car and yelled at Drozdz for causing the accident.   He did not open the door of Drozdz's SUV, but yelled at him through the open window.   He reached into the car and grabbed Drozdz's radar detector, which he threw across the passenger compartment.   Penso denied touching Drozdz or his cell phone during the incident.

After calling in a report to the messenger service where he worked, Penso was planning to get Drozdz's insurance information when he saw 10 or 12 guys running toward him.   Thompson, who was part of this group, started screaming obscenities, threatening Penso, and behaving irrationally.   Thompson pulled down his pants, exposed his penis, and asked Penso if he had “ever had any black dick․”  Thompson then repeatedly whacked Penso's car with his skateboard.

Because he was scared, Penso got back into his car and drove away.   As he did, some of the onlookers rushed his car and Thompson apparently hit it again with his skateboard.   Penso testified he did not drive onto the traffic island, or try to hit Thompson.

3. The jury verdict.

Penso was tried on three charges:  assault with a deadly weapon against Drozdz;  misdemeanor battery against Drozdz;  and, assault with a deadly weapon against Thompson.   The jury convicted Penso of assaulting Thompson with a deadly weapon, but deadlocked on the other two charges.

CONTENTION

The trial court erred by giving the standard aggravated assault instruction (CALCRIM No. 875).

DISCUSSION

Penso contends the trial court misinstructed the jury on a key element of assault.   This claim is meritless.

1. Background.

The trial court instructed the jury with CALCRIM No. 875 on the elements of assault, as follows:

“Defendant is charged in Counts 1 and 2 with assault with force likely to produce great bodily injury or with a deadly weapon, to wit, an automobile, in violation of Penal Code section 245.

“To prove the defendant is guilty of this crime, the People must prove that ․ [¶][t]he defendant did an act with a deadly weapon, an automobile, that by its nature would directly and probably result in the application of force to a person.   The defendant did that act willfully.   When the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.

And ․ when the defendant acted, he had the present ability to apply force likely to produce great bodily injury with that deadly weapon, to wit, an automobile.

“The term[s] ‘application of force’ and ‘apply force’ mean to touch in a harmful or offensive manner.   The slightest touching can be enough if done in a rude or angry way.   Making contact with another person, including through his or her clothing, is enough.   The touching does not have to cause pain or injury of any kind.   The touching ․ can be done indirectly or by causing an object [or] someone else to touch the other person.

“[The] People are not required to prove that the defendant actually touched someone.   The People are not required to prove that the defendant actually intended to use force against someone when he acted.   No one needs to actually have been injured by the defendant's act, but if someone was injured, you may consider the fact along with all the other evidence in deciding whether the defendant committed an assault, and if so, what kind of assault it was.”

The trial court refused Penso's request to use CALJIC No. 9.00 instead.   That instruction would have said:

“In order to prove an assault, each of the following elements must be proved:

“1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person;

“2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person;  and

“3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.

“The word ‘willfully’ means that the person committing the act did so intentionally.   However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.

“To constitute an assault, it is not necessary that any actual injury be inflicted.   However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault].”

2. Discussion.

Penso argues CALCRIM No. 875 “is confusing if not contradictory.   The instruction initially requires the prosecution to prove that the defendant willfully did ‘an act that by its nature would directly and probably result in the application of force to a person.’   However, later in the instruction, the jury is advised that the prosecution is ‘not required to prove that the defendant actually intended to use force against someone when he acted.’   These two clauses could have easily confused the jury․”

But the alternative instruction suggested by Penso, CALJIC No. 9.00, says the same thing.   It initially requires the prosecution to prove the defendant “willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person,” but then provides:  “However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.”   We cannot see any substantive difference between these two formulations.   There is no reason to think the jury would have been confused.

Penso also argues, “In order to find appellant guilty of assault with a deadly weapon, the jury was required to find that he intended to attempt to commit a battery․  [¶] Unfortunately, this requirement was not made clear to the jury by CALCRIM No. 875.   It states in relevant part:  ‘The People are not required to prove that the defendant actually intended to use force against someone when he acted.’   This language, which is not included in [CALJIC] No. 9.00, could have led the jury to find appellant guilty of the charged assault even if it believed that he did not intend to attempt to commit a battery against Ronald Thompson or anyone else at the crime scene.”

We disagree.   The willful act that would probably result in the application of force to another person is an attempted battery.   As People v. Colantuono (1994) 7 Cal.4th 206, explained:  “ ‘[T]he intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being “any willful and unlawful use of force or violence upon the person of another.”   [Citation.]  We conclude that the criminal intent which is required for assault with a deadly weapon ․ is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.   Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful.   The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.’  [Citations.]”  (Id. at p. 214, fn. omitted.)

To the extent Penso may be referring to the fact CALJIC No. 9.00 says “cause injury ” where CALCRIM No. 875 says “use force,” 3 Colantuono explained:  “ ‘A battery must be contemplated, but only an “injury” as that term is used with respect to a battery need be intended.  “It has long been established, both in tort and criminal law, that ‘the least touching’ may constitute battery.   In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.”  [Citation.]  [¶] “The ‘violent injury’ here mentioned is not synonymous with ‘bodily harm,’ but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.”   [Citation.]'  [Citation.]”  (People v. Colantuono, supra, 7 Cal.4th at p. 214, fn. 4.) In this respect, CALCRIM No. 875 is more accurate than CALJIC No. 9.00.

There was no instructional error in this case.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

1.  FN1. All further statutory references are to the Penal Code unless otherwise specified.

2.  FN2. Drozdz testified through a Polish interpreter.

3.  FN3. Although Penso is never clear about this, he may be referring to the fact CALCRIM No. 875 says the prosecution need not prove “the defendant actually intended to use force against someone,” whereas CALJIC No. 9.00 says “an assault does not require an intent to cause injury to another person․”

KLEIN, P. J.

CROSKEY, J.ALDRICH, J.

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