PEOPLE v. GOUR (1999)

I. INTRODUCTION

Defendant Terry Joe Gour was convicted by jury in six counts as follows:  count 1, assault by means of force likely to produce great bodily injury or with a deadly weapon on a peace officer, in violation of Penal Code section 245, subdivision (c), with personal use of a deadly or dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1);  count 2, misdemeanor assault, in violation of Penal Code section 240;  count 3, misdemeanor driving under the influence of alcohol, in violation of Vehicle Code section 23152, subdivision (a);  count 4, misdemeanor driving with a blood alcohol content in excess of .08 percent, in violation of Vehicle Code section 23152, subdivision (b);  count 5, resisting an executive officer, in violation of Penal Code section 69;  and count 6, misdemeanor resisting arrest, in violation of Penal Code section 148, subdivision (a).   The trial court found that defendant had suffered a strike prior conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), a serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1) and that defendant had served a prior prison term under Penal Code section 667.5, subdivision (b).

Defendant was sentenced to state prison in count 1 for 16 years, comprised of the upper term of five years, which was doubled as a result of the strike prior for a total of 10 years, and enhancements of five years for the serious prior conviction and one year for the prior prison term.   On the misdemeanors in counts 2, 3, 4 and 6, defendant received concurrent 365-day sentences to the county jail.   In count 5, defendant was sentenced to state prison for the midterm of two years, to run concurrent with the other counts.   Defendant was awarded credit for 407 days served and 203 days of conduct credit.   A $200 restitution fine was imposed pursuant to Penal Code section 1202.4, subdivision (b).

Defendant raises three issues on appeal.   First, defendant argues the jury was not correctly instructed on the required mental state of assault with a deadly weapon.   Second, defendant contends the one-year enhancement for serving a prior prison term under Penal Code section 667.5, subdivision (b) must be stricken because the same prior conviction was used to impose a five-year enhancement for conviction of a serious felony under Penal Code section 667, subdivision (a).   Third, defendant argues that the sentence in count 5 of resisting an executive officer must be stayed under Penal Code section 654, and further that count 5 should be dismissed at the conclusion of the sentence in count 1.   The Attorney General raises an additional issue, arguing the trial court was obligated to impose a $200 parole revocation fine pursuant to Penal Code section 1202.45, and the additional fine must be reflected in the abstract of judgment.

II. FACTS

A. Prosecution Evidence

Defendant was observed to make an illegal right turn on a red light at the corner of Ventura and Reseda Boulevards by Los Angeles Police Department officers Andre Baydaline, David Benioff and Richard Prindle.   Officers Baydaline and Benioff followed defendant in their police car, attempting to effectuate a traffic stop for the violation.   Defendant did not pull over when the red lights on the police car were activated, so the officers chirped their siren and used the loudspeaker to direct defendant to pull over.

Defendant pulled into a gas station at the corner of Burbank and Reseda Boulevards, where he stopped.   Baydaline immediately noticed a strong odor of alcohol when he reached defendant's driver's side window, and Baydaline saw a can of beer on the floor.   Baydaline told defendant to exit his car so that he could conduct field sobriety tests.   Defendant forcibly opened his car door and exited, stumbling and losing his balance.   Defendant was belligerent and refused to take the tests, repeatedly directing profanity at Baydaline.

Baydaline directed Benioff to handcuff defendant, but defendant pushed Benioff away and then punched Baydaline in the shoulder, knocking him backward.   Defendant told Baydaline, “You're dead.”   Baydaline twice struck defendant in the face with his elbow, which caused defendant's nose and mouth to bleed.   Defendant spat blood at Baydaline, telling him to “taste my AIDS blood.”

Defendant was sprayed with pepper spray, which had no effect upon him.   Defendant fought with Baydaline and Benioff, throwing punches, spitting blood and saliva, kicking and using profanity.   Defendant took a gas nozzle from the pump and swung it toward Baydaline's face.   Baydaline moved away to avoid being hit.   The officers were able to knock defendant off his feet, and the fight continued on the ground.   Eventually defendant was handcuffed, and backup units arrived.   Benioff suffered a cut on his arm, and both officers were covered with defendant's blood after the fight.

Officer Prindle responded to the gas station after hearing a broadcast indicating officers needed assistance.   He saw Baydaline and Benioff breathing heavily, covered with blood, and defendant on the ground handcuffed behind his back.   Prindle went over to defendant, who directed profanity at Prindle, and other officers who arrived, telling them to taste his AIDS blood and that he would kill them.   Defendant stood up after being told not to get up, and was again pepper sprayed without effect.   Defendant fought with the backup officers, before finally having his legs hobble tied.   Defendant was probably the most violent person Prindle had ever seen.

Paramedic Steven Hofbauer of the Los Angeles Fire Department arrived at the scene, where he saw defendant scuffling with officers while handcuffed.   Defendant directed profanity at Hofbauer and his partner, fighting and spitting blood toward them.   Although being told they were paramedics who would help defendant, he would not cooperate and threatened them with bodily harm.   Defendant told Hofbauer, “Hope you get AIDS, mother fucker.”

It was stipulated defendant had a blood alcohol level of .20 percent based upon a sample of his blood drawn within three hours of defendant's driving.

B. Defense Evidence

Edwin Miller pulled into the gas station at Reseda and Burbank Boulevards to allow his girlfriend to use the restroom.   Miller saw defendant and the police drive into the station.   Defendant and Officer Baydaline exited their cars, met up, and argued with raised voices.   Defendant, who was obviously intoxicated, stumbled as he walked and had trouble with his balance.   Both parties were swearing at each other as the situation escalated.   Defendant was not close enough to the officer to be able to strike him.

Miller directed his attention elsewhere briefly, and when he turned back, he did not see defendant or Officer Baydaline for 5 to 10 seconds.   Miller then saw a flurry of movement and defendant on his way to the ground.   Baydaline then kicked defendant three to four times in the neck and twice in the face.   The kicks were like a person kicking a field goal.   Defendant was on the ground, curled up, trying to protect himself.   Miller did not see defendant strike an officer or in possession of a gas nozzle.   Miller did not hear defendant use the word “AIDS,” nor did he hear any officer tell defendant to stop spitting.

Miller saw Baydaline walk away from defendant, breathing heavily but acting proud of what he had done, after which Officer Benioff sprayed defendant with pepper spray.   Defendant was on the ground, beaten to a pulp.   Each time Benioff pepper sprayed defendant, defendant responded with screams of profanity.   Miller saw Benioff handcuff defendant, after which backup units arrived.

Miller gave a statement at the scene to Sergeant Scott Mallory, the patrol supervisor who investigated the use of force.   Miller told Mallory what he had seen, including the kicks by Baydaline to defendant's neck and head.   Miller believed Mallory did not like what he was saying, and the officer turned off his tape recorder when Miller described the force used against defendant.

Sergeant Mallory testified the batteries on his tape recorder went dead as he was interviewing Miller, and that the speed of the tape at the end of the recording reflected the problems with the batteries.   Mallory did not tell Miller he did not like what Miller was saying, and that was not the reason Mallory turned off the tape recorder.

C. Rebuttal

Defense investigator John Wolff interviewed Miller twice.   Miller told Wolff that Mallory had turned off his tape recorder because Mallory did not like what Miller was saying.   Miller said Mallory appeared disgusted, fumbled with buttons on the recorder, and walked away.

Officer Baydaline testified he did not kick defendant in the head or the neck.   He did use his knee and legs in an attempt to control defendant.   Baydaline did not walk away from defendant and leave defendant unattended and not handcuffed at any time.

The prosecution played a tape of defendant made by Officer James LaForce, which started after defendant was hobble tied and included defendant's conduct at the hospital.   The tape reflects a paramedic attempting to calm defendant, and defendant repeatedly responding with profanity.   Defendant is heard on the tape telling the paramedic he hopes the paramedic gets AIDS. Defendant said he was not injured but his lip was busted.   Defendant asked the police officers how they liked “working for a fuckin' nigger ․ ?”

III. DISCUSSION

A. Former CALJIC No. 9.00 Properly Sets Forth the Required Mental State for Assault, as Defined in People v. Colantuono (1994) 7 Cal.4th 206, 26 Cal.Rptr.2d 908, 865 P.2d 704

Defendant's first contention is that the trial court did not fully instruct the jury on the required mental state for assault with a deadly weapon.   Defendant argues that CALJIC 9.00 (6th ed. 1996), as given in this case, does not comply with the holding in People v. Colantuono, supra, 7 Cal.4th at pages 218-219, 26 Cal.Rptr.2d 908, 865 P.2d 704, in that the instruction did not require a jury finding that defendant was aware of the potential for injury from his act.   Defendant finds support for his position in two cases from the Third District Court of Appeal, People v. Smith (1997) 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604 and People v. Williams (1998) 68 Cal.App.4th 519 (review granted April 14, 1999 (S076262)).¹

 The standard by which the assault instruction in the instant case is to be measured is the analysis of the Supreme Court in Colantuono.   In Colantuono, the court deciphered the requisite intent for assault with a deadly weapon as follows:  “From the foregoing we can distill the following principles concerning the mental state for assault:  The mens rea 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.  (Cf. Pen.Code, § 7, subd. 1 [‘ “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to’].)   The evidence must only demonstrate that the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act committed by means of physical force against the person of another.’  [Citations.]  In other words, ‘[t]he use of the described force is what counts, not the intent with which same is employed.’  [Citation.]  Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state.   [Citations.]”  (People v. Colantuono, supra, 7 Cal.4th at pp. 214-215, 26 Cal.Rptr.2d 908, 865 P.2d 704.)

The jury was instructed as to the elements of assault pursuant to CALJIC No. 9.00 (6th ed.1996) in the instant case in pertinent part as follows:  “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;  and [¶] 2. At the time the act was committed, the 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.”

 The instruction on assault given by the trial court is consistent with Colantuono, and properly sets forth the required mental state.   The language in CALJIC No. 9.00 (“[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”) is nearly identical to that set forth in Colantuono, supra, 7 Cal.4th at page 214, 26 Cal.Rptr.2d 908, 865 P.2d 704, defining the mens rea for assault (“defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery”).

Subsequent to the decision in Colantuono, the Third District decided People v. Smith, supra, 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604, in which the defendant was convicted of assault with a deadly weapon based upon facts showing he struck a peace officer with his car.   The defendant in Smith testified he had been directed by a police officer to move his car forward, and in doing so he inadvertently struck an officer.   During deliberations the jury asked “whether ‘the intent to move the vehicle forward, alone, constitute[s] “general criminal intent” ’ or whether an ‘intent to injure’ was required.”   (Id. at p. 1473, 67 Cal.Rptr.2d 604, original emphasis.)   The trial court in Smith did not reread the entire text of CALJIC No. 9.00, but instead read “an abbreviated instruction” telling the jury 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․’ ”  (Id. at p. 1474, 67 Cal.Rptr.2d 604.)   On appeal, it was held that the instruction “directed the jury to apply a negligence standard to the assault element of the offense,” which did not support an assault conviction.  (Ibid.)  Assault, according to Smith, requires that the harmful consequence of the assault must be known to be substantially certain to result.  (Id. at pp. 1485-1487, 67 Cal.Rptr.2d 604.)

To the extent Smith may be read to require that in every assault case the jury must be instructed on the defendant's subjective desire to commit a touching and that the defendant was substantially certain such touching would result, we respectfully disagree because such a result would necessarily conflict with the plain language of Colantuono.  Colantuono does not require proof of “actual knowledge” that an unlawful touching was substantially certain to result in order for a trier of fact to find the intent for assault.   To the contrary, “․ it is clear that the question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences.   If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed.   Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault.”  (People v. Colantuono, supra, 7 Cal.4th at p. 217, 26 Cal.Rptr.2d 908, 865 P.2d 704.)

In response to Smith, CALJIC No. 9.00 has been amended to include the following bracketed paragraph:  “[2. At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person ․ ].” (CALJIC No. 9.00 (1998 Revision).)   The Use Note to the 1998 amended instruction states, “This 1998 revision, including a new element number 2, is based upon People v. Smith (1997) 57 Cal.App.4th 1470 [67 Cal.Rptr.2d 604].   This paragraph has been bracketed.   It is not known whether this holding will be required only when defendant claims he or she did not intend to injure the victim or whether it will have more general application.   It is a matter the trial court will have to consider.”  (Emphasis added.)

 Assuming, arguendo, that the instruction required by Smith is appropriate in a given fact pattern, we hold it is not required in all cases.   The instant case demonstrates that the concerns of the court in Smith are not present in all assault cases.   There is no doubt that if defendant swung the gas nozzle at Officer Baydaline's face, as the jury obviously found, he did so with the intent to injure or do violence to the victim.   In this respect, the instant case is clearly distinguishable on its facts from Smith, in which the defendant testified he was merely driving as directed when the officer was struck by his car.  (People v. Smith, supra, 57 Cal.App.4th at pp. 1474-1475, 67 Cal.Rptr.2d 604.)

 There is no way the facts in the instant case can be stretched to support an argument that defendant attacked Officer Baydaline with the gas nozzle without being aware of the consequences of hitting him with the object, nor can it be said that the desired consequence was not substantially certain to result from defendant's conduct.   The evidence is not susceptible to an interpretation that defendant was merely negligent, a concern voiced by the court in Smith.   The instant case was not tried by the defense on the theory defendant was merely negligent in assaulting Officer Baydaline.   To the contrary, the defense at trial was that there was no assault with the gas nozzle.   The defense presented the testimony of Edwin Miller, to the effect that defendant was drunk, but did not assault the officers and was not even close enough to the gas pump to reach a nozzle.   In argument to the jury, defense counsel relied on Miller's testimony that “he didn't even see any gas nozzle being flailed around,” but that if it did happen, it was “[a]fter [Officer Baydaline] belted him twice in the face with his elbow.”   At no time in the trial was it suggested that defendant engaged in merely negligent conduct, taking the case outside of the rule in Smith.

Under these circumstances, the trial court was not obligated to instruct the jury in accord with Smith.   CALJIC No. 9.00, as given in this case, was entirely consistent with the definition of assault in Colantuono, and properly set forth the elements of the charged offense.   The factors identified in Smith, which compelled that court to find error, simply did not exist at defendant's trial.

IV. DISPOSITION

The judgment is to be modified as follows:  the sentence in count 5 for resisting an executive officer in violation of Penal Code section 69 is stayed pursuant to Penal Code section 654, the stay to become permanent upon completion of the sentence in count 1;  the one-year enhancement under Penal Code section 667.5, subdivision (b) is stricken;  the finding of use of a deadly or dangerous weapon under Penal Code section 12022, subdivision (b) is stricken;  good time/work time credits are reduced to 202 days;  the sentences in counts 3 and 4 are reduced from 365 days to 180 days;  the sentence in either count 3 or 4 is to be ordered stayed pursuant to Penal Code section 654, the stay to become permanent upon completion of the sentence in the alternative count;  the trial court is to impose fines of between $390 and $1,000 in counts 3 and 4, plus appropriate penalty assessments;  and the trial court is to impose a suspended $200 parole revocation fine pursuant to Penal Code section 1202.45, the fine to become operational if defendant violates parole.   The clerk of the superior court is directed to prepare an amended abstract of judgment consistent with this opinion, including the additional parole revocation fine imposed pursuant to Penal Code section 1202.45.   The superior court clerk is then to deliver the corrected abstract of judgment to the Department of Corrections.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Review was granted in Williams after briefs were filed in this case.

KRIEGLER, J.** FN** Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

TURNER, P.J., and ARMSTRONG, J., concur.