PEOPLE v. WHITWORTH

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Wayne Andrew WHITWORTH, Defendant and Appellant.

No. H017022.

Decided: October 27, 1998

Paul Kleven, Berkeley, under appointment by the Sixth District Appellate Project for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Rene A. Chacon, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Wayne Andrew Whitworth appeals after conviction, by jury trial, of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) 1 and battery upon a cohabitant (§§ 242, 243, subd. (e)).   In a bifurcated proceeding, the jury found true the allegation that defendant had a prior felony conviction which qualified as a “strike.”  (§§ 667, subds. (b)-(i), 1170.12.)   The trial court imposed the middle term of three years for the assault, but doubled it to six years pursuant to the “three strikes” law.   The trial court stayed the term for the battery pursuant to section 654.

In this appeal, defendant contends that the trial court erred in the following respects:  (1) by allowing his prior robbery conviction to come in for impeachment;  (2) by denying his motion to dismiss his prior conviction, which was made on the ground that his guilty plea in the prior proceeding was not voluntary;  and (3) by instructing the jury on assault pursuant to CALJIC No. 9.00.   Defendant further contends that the abstract of judgment incorrectly shows that defendant was convicted of battery with serious bodily injury (§§ 242, 243, subd. (d)) instead of battery upon a cohabitant (§§ 242, 243, subd. (e)).   We will order the abstract of judgment corrected but affirm the judgment in all other respects.

Background

On the night of November 11, 1995, defendant visited the residence of his girlfriend, Joya Ward.   Defendant and Ward drank alcohol, smoked cocaine, and played cards and dominoes with Ward's roommate and her roommate's brother.   At about 3 a.m., defendant indicated he wanted Ward to follow him into the bedroom.   Ward complied.   Defendant closed the bedroom door behind them and stood in front of the door.   Ward attempted to leave but defendant blocked her exit.   When Ward told defendant she did not want to stay in the room with him, defendant became angry.

Ward suddenly felt a blow to the side of her head from a heavy object.   She felt pain in her face and saw blood running from her nose.   Defendant left, and Ward went to the bathroom, where she saw that her face was swollen.   She called 9-1-1 and then returned to the bedroom.   She noticed a glass mug on the dresser and believed it was the weapon defendant had used.   Ward later believed defendant had used a football trophy to inflict the blow.

As a result of the incident, Ward had trouble breathing out of the right side of her nose and could not see out of her right eye for about two weeks.   Her face was black and blue.   For about a month after the incident, she had difficulty opening her mouth and had a constant headache.

Defendant was charged, by information, with assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), battery with serious bodily injury (§§ 242, 243, subd. (d)), false imprisonment by means of force, violence, or menace (§§ 236, 237), and being under the influence of cocaine (Health & Saf.Code, § 11550, subd. (a)).   The information alleged that in committing the assault, defendant personally used a dangerous and deadly weapon (§§ 667, 1192.7) and that in committing the battery, defendant personally used a deadly weapon (§ 12022, subd. (b)) and inflicted great bodily injury (§§ 667, 1192.7).   The information further alleged that defendant had previously been convicted of a serious felony (§ 667, subd. (a)) which qualified as a “strike” (§§ 667, subds. (b)-(i), 1170.12).

At trial, defendant testified that he was not feeling well on the night of the incident.   He spent most of the night laying down, watching television.   He wanted to talk to Ward about several issues and asked her to speak with him several times.   After Ward finally agreed to talk to defendant and entered the bedroom with him, she closed the door behind them.   Defendant sat on the bed.   The two talked about their relationship for about 20 minutes.   The discussion “escalated,” and Ward ordered defendant to leave.   Defendant gathered his personal belongings and then left.

Cornelius Singleton testified that defendant knocked on his door sometime between 2 a.m. and 3 a.m. on the morning of November 12, 1995.   Defendant told Singleton that he needed a place to stay.   According to Singleton, defendant did not exhibit any symptoms of being under the influence of cocaine.

The jury found defendant guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), but found not true the allegation that he used a dangerous and deadly weapon in the commission of that offense.   The jury found defendant not guilty of battery with serious bodily injury (§§ 242, 243, subd. (d)), but found defendant guilty of the lesser offense of battery upon a cohabitant (§§ 242, 243, subd. (e)).   The jury found defendant not guilty of false imprisonment (§§ 236, 237) and not guilty of use of a controlled substance (Health & Saf.Code, § 11550, subd. (a)).2  In the bifurcated proceeding, the jury found true the allegation that defendant suffered a prior conviction which qualified as a “strike.”  (§§ 667, subds. (b)-(i), 1170.12.)

The trial court sentenced defendant to the middle term of three years for the assault, and doubled that term to six years pursuant to the “three strikes” law.   It stayed sentence for the battery pursuant to section 654.

Discussion

A. Prior Conviction-Impeachment

When defendant moved to bifurcate trial of the “strike” allegation, he indicated that he did not plan to testify.   However, defense counsel later indicated defendant might testify and asked the court to rule on the use of his prior convictions for impeachment.   The prosecution informed the trial court that defendant had a 1991 misdemeanor conviction for battery upon a cohabitant (§ 243, subd. (e)) and two prior felony convictions:  a 1985 robbery (§ 211) and a 1989 petty theft with a prior (§ 666).   The trial court ruled that the prosecution could not use the battery conviction, finding that it was “virtually identical to the charges here,” but that the prosecution could use the two felonies, finding that they were “crimes of moral turpitude” and “sufficiently recent to be used for impeachment purposes.”   The trial court found that as to the two felony convictions, “probative value is not substantially outweighed by the prejudicial effect on the defendant.”   The prosecution ultimately used only the 1985 robbery conviction to impeach defendant:  during cross-examination, the prosecutor asked defendant whether it was true “that on October 9th of 1985 you were convicted of a felony, a robbery, correct?”   Defendant replied, “That's true.”

Defendant contends the trial court prejudicially erred by allowing the prosecution to use his 1985 robbery conviction for impeachment.   He argues the probative value of the robbery conviction was substantially outweighed by its prejudicial effect, especially in light of the fact the jury which heard him admit the conviction later determined the truth of that same conviction for purposes of the “three strikes” law.  (Pen.Code, §§ 667, subds. (b)-(i), 1170.12.)

 Article I, section 28, subdivision (f) of the California Constitution provides in pertinent part that “[a]ny prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”   However, a trial court has discretion to exclude a prior felony conviction under Evidence Code section 352 if it finds the probative value of such conviction is substantially outweighed by its prejudicial effect.3  (See People v. Clair (1992) 2 Cal.4th 629, 654, 7 Cal.Rptr.2d 564, 828 P.2d 705.)  “The rule is settled that the trial court's discretion to exclude or admit relevant evidence under Evidence Code section 352 ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.’  (People v. Collins (1986) 42 Cal.3d 378, 389, 228 Cal.Rptr. 899, 722 P.2d 173.)”  (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532, 48 Cal.Rptr.2d 325.)

 In performing an Evidence Code section 352 analysis the trial court is to consider the following factors:  (1) whether the prior conviction “rest [s] on dishonest conduct”;  (2) the “nearness or remoteness of the prior conviction”;  (3) whether “the prior conviction is for the same or substantially similar conduct for which the accused is on trial”;  and (4) “what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.”  (People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

 Defendant focuses on the first two factors in claiming the trial court abused its discretion by allowing the robbery conviction to be used for impeachment.   He first argues that the crime of robbery is less relevant, for impeachment purposes, than other crimes.   However, robbery is a crime involving “moral turpitude” and thus probative of a witness's credibility.   (People v. Collins, supra, 42 Cal.3d at p. 395, 228 Cal.Rptr. 899, 722 P.2d 173.)

Defendant next argues that because the 1985 robbery conviction was 12 years old at the time it was introduced for impeachment, it was so remote as to lessen its probative value.   However, as respondent points out, courts have concluded similarly-aged prior convictions were not inadmissible as a matter of law.  (See, e.g., People v. Turner (1994) 8 Cal.4th 137, 200, 32 Cal.Rptr.2d 762, 878 P.2d 521 [convictions suffered 10 to 13 years earlier];  People v. Campbell (1994) 23 Cal.App.4th 1488, 1496-1497, 28 Cal.Rptr.2d 716 [10-year-old prior conviction];  People v. DeCosse (1986) 183 Cal.App.3d 404, 411-412, 228 Cal.Rptr. 114 [12-year-old prior conviction].)

 We further conclude that prejudice is not established by the fact that the same jury which heard defendant admit he was convicted of robbery in 1985 also determined the truth of that conviction, for purposes of the “three strikes” law, in the bifurcated proceeding.   In fact, the trial court would have been justified in holding a unitary trial, in which the jury heard the evidence of the prior conviction both for impeachment and to determine the truth of the “strike” allegation.   In People v. Calderon (1994) 9 Cal.4th 69, 36 Cal.Rptr.2d 333, 885 P.2d 83, the court explained that “when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant.”  (Id. at p. 78, 36 Cal.Rptr.2d 333, 885 P.2d 83, fn. omitted.)   The court stated that in making the determination whether to bifurcate, a trial court “should consider whether this potential for prejudice will be lessened for some reason, such as because evidence that the defendant has committed one or more uncharged criminal offenses will be admitted for purposes other than sentence enhancement.”  (Id. at p. 79, 36 Cal.Rptr.2d 333, 885 P.2d 83.)

Here, the proceedings were bifurcated simply because, at the time defendant moved for bifurcation, the trial court believed defendant was not going to testify at trial on the substantive offenses.   As the trial court explained, “The reason I bifurcated the trial, had I known this was going to happen, I wouldn't have bifurcated the trial.   We would have tried the two of them together․ I made a decision based on what was told to me at the start of the trial.   It now turns out to [be] what I was told at the start of the trial was wrong.”   In such a situation, admission of the prior conviction for impeachment was not an abuse of discretion.

Moreover, the trial court instructed the jury, pursuant to CALJIC No. 2.23, that “[t]he fact that a witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the believability of that witness.   The fact of such a conviction does not necessarily destroy or impair the witness'[s] believability.   It is one of ․ the circumstances that you may take into consideration in weighing the testimony of such a witness.”   In addition, the trial court instructed the jury, pursuant to CALJIC No. 17.26, that in considering the truth of the “strike” allegation, that it “must not be influenced by the previous conviction of Penal Code section 245[, subdivision] (a)(1) on which you have already returned a verdict or on any evidence received in support of that allegation.”   We presume the jury followed these instructions.  (See People v. Davenport (1995) 11 Cal.4th 1171, 1210, 47 Cal.Rptr.2d 800, 906 P.2d 1068.)   The fact the trial court gave such cautionary instructions further supports our conclusion the trial court did not abuse its discretion by allowing the prior conviction to be used for impeachment.

B. Prior Conviction-Validity

 Defendant contends the trial court erred by denying his motion to dismiss the “strike” allegation.   He argues that the prior conviction was invalid because his guilty plea in that prior proceeding was not voluntary, in two respects.   First, he did not understand the charges against him:  he was under the mistaken belief that he was pleading guilty to grand theft, rather than robbery.   Second, he was not properly admonished pursuant to Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, which require that a defendant, before entering a plea of guilty, be advised of and waive the right to trial by jury, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.  (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

Respondent first argues that defendant waived the right to present this claim on appeal because defendant failed to raise, in the trial court, the issue whether the prior conviction was invalid on Boykin/Tahl grounds.   We set forth a summary of the relevant proceedings below.

On July 8, 1996, defendant announced he wanted to have a separate trial on the “strike” allegation.   He explained the prior conviction had been obtained in violation of his “fundamental constitutional rights” and stated that he wanted the validity of the prior conviction “looked into.”   Defendant explained that he had detailed this claim in a declaration that he intended to file as part of a petition for writ of habeas corpus.   The trial court adjourned the proceedings in order to review defendant's declaration.

According to the declaration, the trial of the 1985 robbery ended in a mistrial after the jury failed to reach a verdict.   Defendant subsequently pled guilty pursuant to a plea bargain in which he was to receive no state prison time.   Defendant explained that he had given his attorney information about a witness who would have corroborated defendant's testimony, but that the attorney had failed to procure the witness.   He argued that the jury would have acquitted defendant, had defendant's attorney procured the corroborating witness.   He further argued that the prosecutor and the jury had committed misconduct, that he had received ineffective assistance of counsel, and that he would not have pled guilty had he known the “three strikes” law would apply to his conviction.

The trial court ruled that it would consider the motion to dismiss the “strike” allegation after trial of the substantive offenses.   At the beginning of the bifurcated trial on the “strike” allegation, the trial court noted that “most of the issues that you're raising are issues of law as to whether or not you were correctly advised of your constitutional ․ rights.”   Defendant responded, “Yeah.   Most of my colleagues would be before Boykin-Tahl and without the Boykin-Tahl measurement made in the sentencing transcript․”

After the jury returned a true finding on the “strike” allegation, defendant moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 and was granted pro per status.   He filed a motion to dismiss the “strike” in which he argued, inter alia, that the 1985 conviction was an “ ‘uncounseled’ conviction rendering it ‘unconstitutional.’ ”  Defendant explained that an attorney from the public defender's office had told him that he could either defend himself or take the plea bargain, and that this “ultimatum” caused him to plead guilty.

During the March 14, 1997 hearing on defendant's motion to dismiss the “strike,” defendant stated, “I gambled with Boykin/Tahl, but did I understand it?   Was somebody in that room really acting in my behalf?   I don't think so.   But Boykin/Tahl says I was in contract․”   He further stated, “[D]oes [the prior conviction] stand on constitutional validity?   I say no because of the fact I wasn't counseled.”   The trial court asked, “When you say it was uncounseled, you mean the attorney you had there didn't give you adequate advice?”   Defendant replied, “She never even said a word to me.”   Defendant also explained that in the prior case, “[t]hey set it under [section] 859[a] [I]t was actually explained that [section] 859[a] was grand theft.4  They actually pointed to me right there in the place and I said, Well, what is this?   They said that's what you said you wanted, a grand theft, and that is it.”

The trial court issued its ruling on the motion to dismiss the prior conviction in a written order filed on May 7, 1997.   In the order, the trial court noted that one of defendant's claims was that he “received no advice from his counsel at the time of his plea and that his conviction was ‘uncounseled.’ ” The trial court ruled that this claim “amounts to one of ineffective assistance of counsel and is not properly raised in this proceeding.”   As support for its ruling, the trial court cited Garcia v. Superior Court (1997) 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572, wherein the California Supreme Court held that “a criminal defendant may not challenge a prior conviction on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense.”  (Id. at p. 956, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

The final discussion of defendant's motion to dismiss the “strike” occurred at sentencing.   Defendant reiterated his reluctance to take the plea bargain in the 1985 robbery case and mentioned that “there was no Boykin/Tahl admonishments.”   He argued, “What I am saying is in order for ․ you to find constitution[al] validity with the prior than it must-there must have been Boykin/Tahl and if there is Boykin/Tahl then the deal is sealed, a bargaining that is sealed, but if that never took place because I was never given those then in some of my other arguments what I was saying is that these are the two most important things.”   Defendant then reiterated that his attorney had not advised him of the consequences of a guilty plea.   The trial court ruled:  “I think the law is pretty clear right now that your avenue is by way of a petition for habeas corpus.”

Defendant concedes the record is unclear whether his motion to dismiss the “strike” was based on the claim that he pled guilty without proper Boykin/Tahl advisements, but argues that the record at least indicates the motion was based on the claim that he did not understand the charges against him when he pled guilty (that is, he believed he was pleading guilty to grand theft rather than robbery).   We will assume, without deciding, that defendant preserved both issues for appeal and therefore will address the merits of his argument.

Respondent argues that even if defendant preserved the Boykin/Tahl issue for appeal, the trial court properly relied on Garcia v. Superior Court, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 in ruling that the claim was not properly raised in the proceedings below.

As noted above, in Garcia, the California Supreme Court held that “a criminal defendant may not challenge a prior conviction on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense.”  (Garcia v. Superior Court, supra, 14 Cal.4th at p. 956, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   The defendant in Garcia sought to dismiss a prior conviction on the basis it had been obtained without the effective assistance of counsel.   The defendant claimed his attorney had told him that he had no viable defense and that if found guilty he would receive the maximum term of 13 years, and had advised him to plead guilty in exchange for a 7-year sentence, but had failed to explain that he could be acquitted of one of the two charged offenses, that he could move for dismissal pursuant to section 995, or that the trial court would in fact have discretion to sentence him to less than 13 years.

The Garcia court reviewed Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517.   In Custis, the United States Supreme Court held that a defendant may not collaterally attack the validity of a prior conviction during the course of a later federal prosecution, with the “sole exception of convictions obtained in violation of the right to [appointed] counsel” as established in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.  (Custis v. United States, supra, 511 U.S. at p. 487, 114 S.Ct. 1732.)   The defendant in that case attacked his prior conviction on several grounds, including the allegation he had been denied the right to the effective assistance of counsel and the allegation that his guilty plea was not knowing and intelligent (i.e., a Boykin violation).   The court declined the defendant's invitation to “extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to have appointed counsel established in Gideon.”  (Id. at p. 496, 114 S.Ct. 1732.)

The United States Supreme Court in Custis provided three reasons for its decision.   The court first explained that the failure to appoint counsel for an indigent defendant is a “unique constitutional defect” and that the defendant's alleged constitutional violations did not “rise[ ] to the level of a jurisdictional defect resulting from the failure to appoint counsel at all.”  (Custis v. United States, supra, 511 U.S. at p. 496, 114 S.Ct. 1732.)   Second, the court concluded that determination of a Gideon violation involves “[e]ase of administration,” while “determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era․”  (Ibid.)   Third, the court noted that its holding would serve “[t]he interest in promoting the finality of judgments” and that “when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attack has special force.’  [Citation.]”  (Id. at 497, 114 S.Ct. 1732.)

The California Supreme Court in Garcia concluded that “[n]othing in the language of our state Constitution, or in our past decisions construing its provisions, presents a ‘cogent reason’ for us to reach an interpretation of our state constitutional requirements different from that under the federal Constitution, as determined in Custis.  [Citation.]”  (Garcia v. Superior Court, supra, 14 Cal.4th at p. 963, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   The court further concluded that “[p]olicy considerations similar to those that led the United States Supreme Court in Custis to restrict narrowly the basis for collateral attacks in a federal sentencing proceeding justify precluding a claim of ineffectiveness of counsel in the prior proceeding as a ground that will support a motion to strike.”  (Id. at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   The court specifically noted that “[s]uch a claim often will necessitate a factual investigation ․ requiring the parties and the court to reconstruct events possibly remote in time, and to scour potentially voluminous records, substantially delaying the proceedings related to the current offense.”  (Id. at p. 965, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

Defendant contends Garcia did not overrule, implicitly or explicitly, People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, which held a defendant may challenge the validity of a prior conviction on the ground that he or she had not received the Boykin/Tahl admonishments.   In Garcia, the court discussed Sumstine, but distinguished it on the basis that Sumstine did not involve an ineffective assistance of counsel challenge to the validity of a prior conviction.  (Garcia v. Superior Court, supra, 14 Cal.4th at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   Defendant also cites People v. Dolliver (1986) 181 Cal.App.3d 49, 60-61, 225 Cal.Rptr. 920, which considered, but rejected, a defendant's claim that his prior conviction was invalid on the basis he did not understand the charges against him.

Although Garcia limited its holding to the ineffective assistance of counsel claim presented in the case, we believe that the rationale underlying Garcia also supports the conclusion that, during trial or sentencing for a current offense, a defendant may not bring a collateral challenge to a prior conviction on the basis of a Boykin/Tahl violation or the claim that he did not understand the charges against him.   The instant case illustrates the problems courts would encounter were they to hear, during trial or sentencing for a current offense, challenges to prior convictions on the grounds a plea was not voluntary.   Here, the transcripts of the hearing at which defendant changed his plea in the 1985 robbery case were destroyed pursuant to Government Code section 68152.   The clerk's minutes of the plea hearing, which were admitted to prove the prior conviction, specify only that defendant was represented by counsel and that he pled guilty to robbery.   The clerk's minutes contain no indication whether or not defendant was properly admonished pursuant to the Boykin/Tahl advisements or whether defendant in fact understood that he was pleading guilty to robbery.   Thus, a determination of those questions would necessitate a full evidentiary hearing which would unduly consume judicial resources and fail to preserve the interest in finality of judgments.

We conclude the trial court properly denied defendant's motion to dismiss the “strike” allegation pursuant to Garcia v. Superior Court, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 and Custis v. United States, supra, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517.5

C. Assault Instruction

 Defendant contends the trial court prejudicially erred by instructing the jury with CALJIC No. 9.00 (6th ed.1996), which defines assault.   The jury was instructed that in order to prove an assault was committed, “each of the following elements must be proved:  [¶] [One], a person willfully committed an act that by its nature would probably and directly result in the application of physical force on another person, and, [¶] [Two], at the time the act was committed, such person had the present ability to apply physical force to the person of another.  [¶] Willfully means that the person committing the act did so intentionally.  [¶] 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.”

Defendant contends the instruction was erroneous, relying on People v. Smith (1997) 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604.   In Smith, the defendant was charged with assault with a deadly weapon upon a peace officer (§ 245, subd. (c)).  The defendant had been stopped at a barricade of officers, but he drove the car forward and struck an officer when, he testified, he saw officers motioning him forward.

The trial court initially gave the jury two instructions on assault.   The first instruction was the former version of CALJIC 9.00 (5th ed.1988), which defined assault as “[a]n unlawful attempt ․ to apply physical force upon the person of another” with “the present ability to apply such physical force.”  (See People v. Smith, supra, 57 Cal.App.4th at p. 1477, fn. 4, 67 Cal.Rptr.2d 604.)   The second instruction provided:  “ ‘Mere ․ reckless conduct alone does not constitute a sufficient basis for a conviction of assault with a deadly weapon.   However, if a person intended 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, this would not constitute reckless conduct․’ ” (Id. at p. 1478, fn. 5, 67 Cal.Rptr.2d 604.)

During deliberations, the jury asked whether intent to move the car forward was sufficient to constitute assault, or whether it had to find the defendant had the intent to injure.   In response, the trial court read back only the second, “abbreviated” instruction, without also reading CALJIC 9.00.  (People v. Smith, supra, 57 Cal.App.4th at p. 1478, 67 Cal.Rptr.2d 604.)

The Court of Appeal reversed the defendant's assault conviction, concluding that the trial court erred by reading back only the “abbreviated” instruction.  (People v. Smith, supra, 57 Cal.App.4th at pp. 1477-1478, 67 Cal.Rptr.2d 604.)   The court reasoned that the “abbreviated” instruction allowed the jury to convict the defendant upon “an application of the law of criminal negligence.”  (Id. at p. 1480, 67 Cal.Rptr.2d 604.)

In the instant case, the trial court did not give an abbreviated instruction;  it properly gave the entire version of CALJIC No. 9.00.   The trial court instructed the jury that it had to find defendant acted “willfully,” and specified that “ ‘willfully’ means that the person committing the act did so intentionally.”   Any rational juror would have understood that the jury had to find defendant acted intentionally and not simply negligently.

Finally, the language of CALJIC No. 9.00 to which defendant objects is taken verbatim from People v. Colantuono (1994) 7 Cal.4th 206 at page 214, 26 Cal.Rptr.2d 908, 865 P.2d 704, where the court explained:  “The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.   Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.”   The California Supreme Court's decision in Colantuono is controlling here.  (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

D. Abstract of Judgment

Defendant points out that the abstract of judgment reflects defendant was convicted of sections 242, 243, subdivision (d), when in fact he was acquitted of that offense but convicted of sections 242, 243, subdivision (e).   Respondent joins defendant in requesting we order the abstract of judgment corrected.   We will so order.

Disposition

The matter is remanded to the superior court and the clerk of the superior court is directed to amend the abstract of judgment to reflect that defendant was convicted of sections 242, 243, subdivision (e) and not sections 242, 243, subdivision (d).   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All further unspecified section references are to the Penal Code.

2.   The information had previously been amended to allege “use” of a controlled substance rather than “under the influence” of a controlled substance.

3.   Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

4.   Defendant's reference to “[section] 859[a]” is somewhat misplaced.   Grand theft is defined by section 487, subdivision (a).   Section 859a specifies the procedures by which a defendant may plead guilty or nolo contendere before a magistrate.

5.   The California Supreme Court has granted review of several appellate decisions addressing this issue.  (People v. Allen (S054125, review granted Oct. 29, 1997), People v. Superior Court (Branham) (S063653, review granted Oct. 29, 1997), People v. Gainey (S064917, review granted Oct. 29, 1997), People v. Rizo (1998) 61 Cal.App.4th 573, 71 Cal.Rptr.2d 649, review granted May 13, 1998 (S068729), and People v. Maupin (1998) 62 Cal.App.4th 290, 74 Cal.Rptr.2d 309, review granted June 17, 1998 (S069616).)

BAMATTRE-MANOUKIAN, Associate Justice.

COTTLE, P.J., and MIHARA, J., concur.