P. v. Colt

Filed 9/24/08 P. v. Colt CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

A jury found Jonathan Colt guilty of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)[1]), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), and hitting a vehicle and leaving the scene of the accident (Veh. Code,  20002). Colt received a suspended sentence and three years probation with the condition that he serve a one-year jail term.

On appeal, Colt contends the judgment must be reversed because evidence of uncharged misconduct was erroneously admitted at trial. Colt further contends that the trial court erred by ordering that Colts California Drivers License be permanently revoked. We affirm the judgment but remand this case so the lower court can take the steps necessary to ensure that the Department of Motor Vehicles (DMV) permanently revokes Colts license.

II. STATEMENT OF FACTS

Colt met Lisa Chin in 2002. The two began dating and, eventually, Colt moved into Chins home on Cliffside Drive in Daly City. Colt moved out of Chins home in May or June of 2005.

On July 23, 2005, Chin attended her cousins wedding banquet. Originally, Chin planned to take Colt to the banquet. However, after Colt moved out, Chin arranged for her friend Norman Wong to take her to the event.

On the afternoon of July 23, Chin was dressing for the banquet when Colt rang her doorbell and told her he wanted to talk to her. Chin said she was busy and that she would talk to Colt later. Colt left but then repeatedly called Chins home and cell phone. Chin answered a few times, told Colt she was busy and said she would talk to him after the banquet. When Wong arrived at Chins house at 5:00 p.m., Chin was changing the lock on her front door.

Chin and Wong left for the banquet at 5:30 p.m. Wong was driving on John Daly Boulevard toward the onramp for the 280 freeway when Chin told him that she saw Colts car in the far right lane. Chin recognized Colts silver Honda Accord because of it distinctive features which included blue tail lights, dark tire rims and a distinct spoiler on the back. Wong stopped at a red light on John Daly Boulevard. The Accord pulled up and stopped in the next lane and Wong saw Colt sitting in the drivers seat.[2] Chin also saw Colt and warned Wong to be careful. Colt followed Wong onto the 280 freeway.

Wong was not comfortable remaining on the freeway and exited onto San Jose Avenue. Wong was traveling north on San Jose Avenue when Colt passed him on the right, cut over and merged directly in front of Wong and slammed on his brakes. Colt stopped in the middle of the street when there were no cars in front of him. Wong had to slam his brakes to avoid hitting Colts car. After both cars came to a complete stop, Colt merged to the right and stopped, and Wong continued driving on San Jose Avenue, and then turned right onto Cesar Chavez. Colt followed. Colt passed Wongs car and Wong turned onto Alabama Street in order to avoid following Colt. But, after Wong made another right turn, Colt was behind him again. Wong made several more turns before returning to the 280 freeway. Wong had entered the on-ramp and was preparing to merge onto the freeway when Colt ran a stop sign, passed Wong on the right, merged in front of him and slammed his brakes again. Wong had to slam his brakes a second time to avoid hitting Colt. Both cars stopped on the on-ramp, then Colt merged onto the freeway. Wong waited a few seconds before he drove onto the freeway. Wong then merged one lane to his left as Colt traveled ahead of him in the right lane.

Colt was driving approximately 20 miles an hour in the right exit lane and Chin warned Wong to be careful passing him. Just as Wong was about to pass, Colt swerved into Wongs lane and hit the passenger side of Wongs car forcing him halfway into the next lane where he stopped his car. Colt did not stop but immediately exited the freeway at Mariposa Avenue. Then Wong exited the freeway at Mariposa and stopped at the side of the road, but Colt was nowhere in sight. Chin called 911 and then Wong drove to a police station on 850 Bryant where an officer directed him to go to a California Highway Patrol (CHP) office to make a report.

At 6:00 p.m. on July 23, CHP officer Elliot Davis took a report from Wong and Chin. Davis also inspected and took photographs of Wongs car. The right front portion of the car sustained minor to moderate damage including a dented fender, black swirl marks on the rim of the tire and right front bumper and a missing side light. Davis attempted to locate Colt without success. Davis also called Colt a few times and left a message for him but never actually spoke with him.

Within a day or two of the July 23 incident, Chin drove to Colts neighborhood to look for his car and see if it was damaged. When she found Colts car, Chin noticed it was clean and shiny but that there were new dents on the drivers side of the car above the rear tire. Chin contacted the police and let them know where to find Colts car.

Officer Victor Forero investigated the July 23 incident for the CHP. On August 19, Forero inspected Wongs car at the body shop where it was being repaired. Forero noticed a small silver paint transfer on the right front headlamp and some small silver paint transfers along the right front fender where the car had been dented. Forero also located Colts car using information provided by Chin and found moderate dents on the rear drivers side of the car.

An October 4, 2005, complaint filed against Colt included charges that he committed felony assault against both Wong and Chin on July 23, 2005. Colt and Chin resumed their romantic relationship at some point in October 2005. In July 2006, charges relating to Chin were dismissed for lack of evidence. On July 19, 2006, an information was filed charging Colt with two counts of felony assault against Wong and with hitting a vehicle and leaving the scene of the July 23, 2005, incident. Colt and Chin ended their relationship on November 23, 2006.

Trial commenced in April 2007. Colts defense was that someone else hit Wongs car. Colt presented evidence of a credit card receipt for the purchase of some cloths from a Kragen Auto Parts Store on Ocean Avenue in San Francisco. The receipt was time stamped 5:55 p.m. However, the manager of the store, who testified at trial, acknowledged that the time stamp on Colts credit card receipt could be off by five to ten minutes.

Colt also presented testimony from Nigel Phillips, an employee of the Public Defenders office. Phillips testified that he drove from Cliffside Drive to the intersection of John Daly Boulevard and the 280 freeway in five minutes, from the 280 freeway to San Jose Avenue in five minutes, from San Jose Avenue to Cesar Chavez in three minutes, from Cesar Chavez to Alabama Street in four minutes, took a series of right turns from Alabama back to Cesar Chavez in thirty seconds, drove from Cesar Chavez to Indiana in four minutes and from Indiana to the 280 on-ramp in one minute.

Molly Braun, an investigator employed by the District Attorney, testified at trial that she drove from Chins house on Cliffside Drive to the Mariposa exit several times and that the drive took anywhere from eight to eleven minutes. Braun also drove from the Mariposa exit to the Kragen store in seven minutes.

III. DISCUSSION

A. Uncharged Conduct

Over Colts objection, the trial court admitted evidence relating to an altercation between Colt and Chin that occurred on July 5, 2005 (the July 5 incident).[3] Colt contends the trial court committed reversible error by refusing to exclude this evidence pursuant to section 1101 of the Evidence Code (section 1101). Colt also contends that his federal constitutional rights were violated because this evidence was admitted and because the jury was given an improper instruction regarding how the evidence could be used.

1. TheEvidence

On July 5, 2005, Chin went with Colt to visit his grandmother in the hospital. After the visit, the two were traveling in Colts car when Chin said she wanted to end their relationship because she knew Colt was seeing someone else. Chin told Colt she wanted to go home. Colt did not respond but drove to Fishermans Wharf and parked. Chin repeated that she wanted to go home. Colt then drove across the Golden Gate Bridge to Point Bonita where he parked his car and turned the heater on full blast. The vents were all pointed toward Chin and her window was locked shut. So Chin opened her door to get some air. Colt drove in a circle so the door would slam shut. Then Chin got out of the car, saying she would just walk home. Each time she started to walk away, Colt pulled the car in front of her to block her path. Finally, Chin decided she would get back in the car. But, as she went to walk around the back of the car, Colt shifted into reverse and bumped into Chins leg. Chin kicked the car and then got in. When she tried to turn off the heat, Colt held her arms down. Angry, Chin put her feet on the dashboard at which point Colt took her shoe and sock and threw them out the window. Chin responded by throwing some CDs out of the car. Chin tried to take Colts sunglasses but he bit her hand. As Colt drove back to San Francisco, the two argued and hit each other. Back in the city, Colt stopped at a stop sign and Chin tried to take her purse and get out of the car. Colt bit Chins hands. Chin screamed and eventually got out of the car. She sat on a curb and cried while Colt drove away. A resident of a nearby home came to help Chin and someone called the police.

A few days later, Colt went to Chins house to get some of his things. Chin refused to open the door, told Colt she had obtained a restraining order and called the police. Eventually, Colt removed his belongings from Chins home while police officers watched. On July 12, 2005, San Francisco police investigator Donna Loftus commenced her investigation of the July 5 incident. Loftus interviewed Chin at her office on July 14 at which time she noticed a bruise on Chins wrist and what appeared to be bite marks on both of Chins hands. Loftus interviewed Colt over the telephone on July 28 and, after she completed her investigation, referred the case to the District Attorney.

2. Analysis

Colts first contention is that the trial court erroneously found that evidence relating to the July 5 incident was relevant and admissible pursuant to section 1101. Rulings under section 1101 are reviewed under the abuse of discretion standard. (People v.Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt); People v. Kipp (1998) 18 Cal.4th 349, 369.)

Section 1101, subdivision (a) (section 1101(a)) establishes a general rule excluding evidence of a persons character or a trait of his or her character . . . when offered to prove his or her conduct on a specified occasion. However, this provision expressly acknowledges there are exceptions to this rule which may make character evidence admissible. Furthermore, section 1101, subdivision (b) (section 1101(b)), clarifies that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition. (Ewoldt, supra, 7 Cal.4th at p. 393.) Section 1101(b) contains a non-exclusive list of examples of facts that may legitimately be proved by uncharged conduct evidence. (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)

If a trial court has determined that evidence of a criminal defendants uncharged conduct is not excluded by section 1101(a), it must then consider whether the evidence should nevertheless be excluded pursuant to Evidence Code section 352 (section 352). (People v. Balcom (1994) 7 Cal.4th 414, 426.) The evidence must be excluded if the probative value of the evidence is substantially outweighed by the probability that its admission would (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ( 352.)

In the present case, Colt characterizes evidence of the July 5 incident as pure propensity evidence and highly prejudicial and argues the trial court erroneously found that this uncharged conduct evidence was probative of identity, modus operandi and motive. In fact, though, the record shows that the jury was expressly instructed that evidence relating to the July 5 incident could be considered only to the extent it was probative of motive.[4] Therefore, we will not address Colts irrelevant arguments that this evidence was not probative of identity or modus operandi.

The crux of Colts argument is that the July 5 incident is not sufficiently similar to the July 23 incident to be probative of any relevant issue relating to the charged offenses. We find some striking similarities. In both instances, Chin wanted to separate herself from Colt, Colt resisted, and then Colt used his car as an instrument of violence. In any event, the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. [Citation.] (People v. Demetrulias (2006) 39 Cal.4th 1, 15.) The logical nexus between the July 5 and the July 23 incidents was Chin herself. Just a few weeks before the July 23 assault, Chin broke up with Colt which triggered a violent altercation and police intervention. Evidence of that breakup and its fallout constituted a motive for Colt to commit the July 23 offense against Wong because Chin was in the car with Wong at the time. Therefore, we find that evidence of the July 5 incident was relevant to show Colts motive for the charged offense.

We also find that the trial court did not abuse its discretion under section 352 by finding that the probative value of the uncharged conduct evidence outweighed the danger of undue prejudice. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 320.)

Colt argues that the probative value of the July 5 incident was low because he did not dispute that he had a prior relationship with Chin. It was not the couples relationship but the circumstances relating to their breakup which made the July 5 incident so relevant because those circumstances, which included the fact that Chin broke up with Colt, that Colt reacted violently and that Chin made a report to the police, established Colts motive for committing the charged offenses.

Nor are we persuaded that this evidence was unduly prejudicial. The trial court gave limiting instructions before the evidence was admitted and again at the end of trial. Both counsel reinforced that this evidence was admitted for a limited purpose during their closing arguments. Furthermore, to the extent evidence of the earlier violent altercation was damaging to Colt, it was not unduly prejudicial. This altercation was not an unrelated act of violence, as Colt now contends. It was the event that triggered a violent reaction with ongoing repercussions that culminated in the July 23 assault.

Colt next argues that, even if the trial court did not violate section 1101, admitting evidence of the July 5 incident deprived him of a fair trial and violated his federal constitutional rights to due process and equal protection. We summarily reject this contention which is unsupported by relevant authority or any reasoned analysis. Colt has not provided us with any basis upon which to find that he was denied a fair trial.

Finally, Colt argues that his federal constitutional rights were violated because the jury was given the following instruction regarding the uncharged conduct evidence:

During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [] The People presented evidence that the defendant committed an act that was not charged in this case. [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged act. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden, you must disregard this evidence entirely.

If you decide that the defendant committed the uncharged act, you may, but are not required to, consider the evidence for the limited purpose of deciding whether or not the defendant had a motive to commit the offense charged in this case. [] Do not consider this evidence for any other purpose. [] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.

If you conclude that the defendant committed the uncharged act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.

Colt contends this instruction lowered the prosecutors burden of proof because the jury was told that it needed only to find by a preponderance of the evidence that appellant had committed the prior acts of domestic violence. Colt ignores that we must view a challenged portion [of an instruction] in the context of the instructions as a whole and the trial court record to determine whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. [Citations.] (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) We find no such likelihood here.

The challenged instruction clearly stated that the preponderance of the evidence standard applied only to the uncharged conduct evidence, and that, if the jury found the uncharged conduct occurred, that conclusion was only one fact to consider along with all the other evidence and was not sufficient by itself to prove that the defendant is guilty of the charged offenses. The jury was properly and expressly instructed that the prosecution was required to prove each element of every charge beyond a reasonable doubt, and we assume the jury followed that instruction.

Colts sole authority for his due process challenge to this instruction is Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 (Gibson), a case which is not binding on us and which involved an outdated version of a different instruction, CALJIC No. 2.50.01. That version of the instruction expressly authorized the jury to use evidence of a prior sexual offense to infer that the defendant had a disposition to commit the same or similar type sexual offenses, and to infer from evidence regarding the defendants disposition that he likely committed the charged offense. (Gibson, supra, 387 F.3d at pp. 817-818.)

In contrast to the instruction disapproved in Gibson, the instruction in this case expressly instructed the jury that evidence regarding the July 5 incident could not be used to infer that the defendant has a bad character or is disposed to commit crime, that this evidence was not sufficient to prove that the defendant committed the charged offenses and that the People still had the burden to prove every element of every charge beyond a reasonable doubt.

Colt analogizes the instruction given in this case, which was based on CALCRIM No. 375, to the outdated version of CALJIC No. 2.50.01 at issue in Gibson solely on the basis that both instructed the jury that they could consider uncharged conduct evidence if they found the prosecutor proved by a preponderance of the evidence that the uncharged conduct occurred. However, as we have already explained, when the instruction before us is read as a whole and in the context of the other instructions that were given, there is no reasonable likelihood that the jury misinterpreted it as authorizing a guilty verdict based solely on proof of the uncharged conduct.

Although we unequivocally find that Colt has failed to establish error with respect to the admission of the uncharged conduct evidence, we also note for the record that there is other overwhelming evidence of guilt which would render any claimed error harmless under any standard of error. Chin was intimately familiar with Colt and his car and identified both on three separate occasions, during the assault itself, shortly after the collision, and again during trial. Wong, who had met Colt before, also identified Colt to the CHP shortly after the incident and again at trial where he testified that he actually saw Colt behind the wheel of the silver Accord that hit his car. Further the damage to Colts and Wongs vehicles was consistent with the conclusion that Colt was the person who hit Wongs car. Finally, Colts alibi evidence was inconclusive at best. Indeed, evidence that Colt purchased cloths from an auto parts store on the day of the collision explained why his damaged car was clean and shiny when Chin found it a few days later.

B. Revocation of Colts Drivers License

Colt contends the trial court erred by revoking Colts California Drivers License pursuant to section 13351.5, subdivision (a) of the Vehicle Code (section 13351.5(a)).

Section 13351.5(a) states: Upon receipt of a duly certified abstract of record of any court showing that a person has been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by the court to constitute the deadly weapon or instrument used to commit that offense, the department immediately shall revoke the privilege of that person to drive a motor vehicle.

The DMV, not the court, has the power to revoke a drivers license pursuant to section 13351. (In re Grayden N. (1997) 55 Cal.App.4th 598, 604; see also People v. Linares (2003) 105 Cal.App.4th 1196, 1199 [We also recognize the DMV, not the court, is empowered to revoke a drivers license.].) A section 13351 revocation is an administrative act pursuant to which the DMV performs a mandatory function. (In re Grayden N., supra, 55 Cal.App.4th at p. 604.) In order to perform that function, however, the DMV must receive a certified abstract of the superior court record showing that (1) the defendant was convicted of a section 245 felony, and (2) the defendant used a vehicle as a deadly weapon or instrument to commit the section 245 felony. ( 13351(a).)

In the present case, when the trial court announced Colts sentence on May 18, 2007, it made the following statement: Defendants driving privilege is revoked permanently pursuant to Vehicle Code 13351.5. A short while later, the prosecutor asked the court to order the clerks office to convey to the Department of Motor Vehicles your order that the defendants driving privileges be revoked. The court responded [a]bsolutely, and said [m]y clerk will do that in conformity with my sentence. That same day, the court filed a Commitment order which stated, among other things, that Colt was convicted of two felony violations of section 245, subdivision (a)(1). The May 18, 2007 order also included the following language: THE COURT ORDERS: Drivers License permanently revoked per VC 13351.5.

Colt construes the language quoted above as purporting to revoke his license and asks this court to strike the order because the lower court had no such authority. The People construe the trial courts comments and order as an acknowledgement that Colts license would be revoked by the DMV upon receipt of the courts orders. Either way, the trial court erred by failing to include in its order the information the DMV needs to revoke Colts license. Specifically, the May 18, 2007, order does not reflect that Colt used a vehicle as a deadly weapon or instrument when he committed either of the two section 245 felonies.

Although Colt fails to address the issue at all, it appears to us to be indisputable that the omission from the trial courts order can and should be corrected pursuant to our remand order. A license suspension is not a punishment or penal sanction within the meaning of the Penal Code. (In re Grayden N., supra, 55 Cal.App.4th at p. 605; see also Fearn v. Zolin (1992) 9 Cal.App.4th 1756, 1761-1762.) In this context, it is a mandatory civil consequence of sustaining a specific type of criminal conviction. Here, the jury expressly found that Colt committed felony assault with a deadly weapon in violation of section 245 and that the deadly weapon used was a motor vehicle . . . . Therefore, the DMV has a mandatory duty to revoke Colts license. ( 13331.5.) We will remand this case to the superior court so that it can amend its May 18, 2007, order to provide the DMV with the information required by section 13351.5.

IV. DISPOSITION

The judgment is affirmed and this case is remanded to the superior court so that it can modify the May 18, 2007, order in a manner consistent with our decision.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

_________________________

Richman, J.

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[1] Undesignated statutory references are to the Penal Code.

[2] After the incident Wong identified Colt as the driver of the silver Accord by selecting his photo from a line-up. Wong also identified Colt at trial. In addition, Wong testified that he knew who Colt was at the time of the incident because he had met him on two prior occasions.

[3] Charges relating to the July 5 incident were included in the October 4, 2005, complaint filed against Colt, but were dismissed for lack of evidence during the period that Colt and Chin were temporarily reconciled.

[4]Although the trial court initially found that evidence of this uncharged incident was relevant to several issues, ultimately it instructed the jury that the evidence could only be considered to the extent it was probative of motive.