P. v. Crawford
Filed 4/9/12 P. v. Crawford CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRYL PIERRE CRAWFORD,
Defendant and Appellant.
D060110
(Super. Ct.
No. RIF150644)
APPEAL from
a judgment of the Superior Court
of
County, Rafael A. Arreola, Judge. (Retired judge of the San Diego Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.) Affirmed.
A jury
convicted defendant Darryl Crawford of two counts of
§ 245, subd. (a)(1), counts 4 (victim Cassandra Crawford) and 3 (victim
Jermaine Mims)) and one count of making a criminal
threat (§ 422, count 2). Crawford
contends the court erroneously admitted certain testimony by a police officer,
erred in instructing with CALCRIM No. 371, and that the evidence is
insufficient to support the convictions for assault with a deadly weapon.
I
FACTS
A. Prosecution Case
Crawford
married Cassandra Crawford (Cassandra) in 1999 but their relationship began to
deteriorate in 2005. The
occurring during May 2009.
In March or
April of 2009, Crawford physically assaulted Cassandra when he grabbed her arm
during an argument, pulled her from their house to the curb and left her
there. She went to a nearby park but
Crawford followed her and tried to take her purse. He stopped his assault and left when a man
approached them as they struggled. She
called police and the responding officer (Officer Vasquez) told her the only
way police could help her is if she obtained a restraining order against
Crawford. About a month later, Cassandra
telephoned Crawford to confront him about bills he paid for a motel and an
online dating service, because she suspected he was cheating on her. He told her they would talk about it later. When he arrived home he was confrontational
and told her he was "sick of [her]."
He grabbed her by the neck and shoved her so hard against the wall that
one of her shoes came off, and told her "I'll snap your mother fucking
neck." As she started toward the
door into the garage to leave, he grabbed her, slammed the door shut, and
twisted her hand and arm, causing her to scream.
Cassandra
began calling shelters but they warned her not to call if the perpetrator was
close by. A friend arrived and tried
talking to Crawford but to no avail.
Crawford watched Cassandra as she gathered a few belongings from her
bedroom in preparation to leave. She
tried to take her laptop, but he refused to allow her to take it. When he was not looking, she placed the
laptop into one of the suitcases but, as she was getting into her friend's car,
Crawford (apparently realizing she had taken her laptop) came out and tried to
snatch the suitcases away from her. He
succeeded in grabbing one of the suitcases, which he took inside the house. He then locked the door.
Cassandra
stayed with friends and family for a while, but she was forced to go back to
the house briefly to sneak in and pick up some clothes while Crawford was
away. Crawford figured she had been in
the house and called her. He told her,
"I dare you to come back," which she interpreted to mean he would
harm her if she returned. However, a few
days later, Crawford called her and politely offered to return her laptop, and
they met at a neutral public site where they made the exchange without
incident. Cassandra needed to retrieve
the remainder of her belongings, including her car, but believed she would need
the assistance of police to safely retrieve her belongings. Accordingly, she applied for a restraining
order against Crawford.
Vasquez and
others served Crawford with the temporary restraining order. When officers (who had their weapons drawn)
told Crawford he had to leave the house, he told them he would only leave when
he was dead. Vasquez was able to calm
him, and explained the TRO to Crawford, who was angry at Cassandra. Crawford ultimately gathered some of his
belongings and said he would be back.
Vasquez explained that, if Crawford returned, he would be arrested. Crawford left in his car.
After the
officers served Crawford with the TRO, he called Cassandra and said, "I'm
going to kill you. . . .
[Y]ou think you're going to throw me out of my house When I see you, you're dead." A few minutes later, Vasquez called Cassandra
and suggested she stay away from the house for a few days because he was
concerned for her safety. She told
Vasquez of Crawford's threat a few minutes earlier, and Vasquez told her
Crawford had threatened to kill her.
That evening, Crawford again called Cassandra and dared her to come back
home, and told her that if she thought she could take her car, she could try to
come and get it.
Because
Cassandra feared Crawford was still in the house despite the TRO, she went to
the home hoping to sneak in to collect some belongings. She was accompanied by her cousin, Jermaine
Mims. She clicked the garage door opener
but, when she saw both her car and Crawford's in the garage, she instructed
Mims to keep driving. Cassandra also
called 911. Suddenly, they saw Crawford
following them in his car. Crawford
accelerated alongside Mims's car, and was driving aggressively trying to block
them in. When they stopped at a light,
Crawford got out of his car, spat at Cassandra through her open window, and
said, "I told you bitch, I'm going to kill you."
When the
light turned green, Mims was able to drive away. However, Crawford drove aggressively after
them. Crawford sped up to get in front
of them and then slammed on his brakes, and also swerved towards Mims's car. At times the chase reached 80 miles per hour
on residential streets. When they stopped
at another traffic light, Crawford sped up and blocked them in with his
car. Crawford got out, retrieved
something that looked like a crow bar from his trunk, walked toward them and
cocked his arm as if to swing at them.
He took an aggressive swing at the window but stopped short of hitting
it. When the light turned green, Mims
was able to maneuver around Crawford's car and drive away. Crawford eventually broke off the chase and
left, and Mims and Cassandra met police at a Carl's Jr. restaurant.
Police
contacted Crawford by phone and arranged to meet him at a nearby park. When Crawford arrived, he was arrested,
handcuffed, and placed in the back of Vasquez's police car. Police transported Crawford back to the house
but left him in the police car while Sergeant Hutzler and Vasquez went inside
the house.
Because
there was a strong smell of gasoline when officers entered the house, they
called the fire department. The fire
department dispatched a unit at 11:58 a.m. and it arrived a few minutes later. Fire Captain Miller of the Riverside Fire
Department arrived at 12:42 p.m. to investigate a possible attempted
arson. Miller's trained dog alerted to
the smell of gasoline coming from Cassandra's black Lexus in the driveway, and
Miller could see a liquid on the floor of the car's interior. The dog also alerted to red fuel containers
in the garage.
At some
point, Vasquez asked Crawford if they needed to be concerned for their safety
based on the odors and the empty bottles found by police. At first, Crawford was uncooperative, but he
then admitted he had poured gasoline inside the Lexus. Crawford said nothing at that time about the
lug nuts on the gasoline-soaked car.
While
speaking with police in the kitchen, Cassandra told Hutzler that Crawford was
diabetic and needed something to drink and Hutzler brought a drink to Crawford,
who was still sitting in the patrol car.
While Crawford was drinking the water, he faced the garage where the
gasoline-soaked car was parked and said (in reference to fire department
personnel about to move the car) that "I wouldn't do that if I was
you." Hutzler asked him why, and
Crawford said he had rigged the car with explosives to cause someone harm, but
did not want any innocent parties to get hurt.
Hutzler yelled out for the personnel to stop. Crawford then said he had removed the lug
nuts from the car, and Hutzler warned the fire personnel not to move the car
because the lug nuts had been removed.
Hutzler
confirmed the lug nuts had been removed, and returned to the kitchen and told
Vasquez and Cassandra the lug nuts were off her car and that Crawford had
rigged the car. Vasquez later asked
Crawford about where the lug nuts could be found, and Crawford told him they
were inside Crawford's medicine bag.
Vasquez later found the lug nuts.
II
ANALYSIS
A. Admission of Crawford's Statements to Sergeant
Hutzler
Crawford
contends the trial court erred by denying his in limine motion to exclude
testimony by Hutzler that Crawford made statements that he purposefully removed
the lug nuts to turn Cassandra's car into an incendiary device. He asserts, for the first time on appeal,
that this testimony should have been excluded (1) based on an alleged
"ruling" as to their admissibility made by a trial judge in
Crawford's first trial and (2) as inadmissible hearsay.
Procedural
Background
In
Crawford's first trial, the jury convicted him of attempted murder, attempted
arson, criminal threats, and two counts of assault with a deadly weapon. He moved for a new trial, arguing the prosecution's
theory for the charges of attempted murder and attempted arson was that
Crawford plotted to kill Cassandra using the gasoline-soaked car that would
ignite from the spark caused when she tried to drive without the tires being
secured by the lug nuts. Crawford argued
the only evidence transforming these acts from ones of vandalism to ones of
attempted murder and attempted arson was his alleged admissions to Hutzler,
i.e. that Crawford knew of the potential explosion and wished no one
established the falsity of Hutzler's testimony about Crawford's admissions,
i.e. the recordings showed Hutzler's version of events could not have occurred
as described, and therefore his claim about Crawford's admissions could not be
true. Under these circumstances,
Crawford asserted a new trial was proper.
The first trial court granted the new trial motion. The court observed that if it were
"ruling on a [section] 402 motion" on the state of the evidence
before it (which included some new evidence introduced at the new trial
motion), it would have "grant[ed] the [section] 402 [motion] and [kept]
that statement out." The court,
concluding the statements were pivotal to the attempted murder and attempted
arson charges and "might carry over as well to the [assault] issue,"
granted the motion for a new trial.
At his
retrial, Crawford again moved to exclude Hutzler's testimony that Crawford
blurted out a warning not to move the car because of the missing lug nuts. Crawford, noting the new trial motion was
granted because the first judge would not have allowed the evidence in because
of the defense evidence proving Hutzler's testimony was false, argued that
testimony should be excluded under Evidence Code section 352 because "the
proof is so strong that [Hutzler] is not being truthful in his testimony that
the Court cannot allow the jury to hear
it . . . ." The
prosecution, responding to defense counsel's reference to the prior ruling,
noted that "the previous trial, as [
. . . is a different trial, and . . . has no relevance or
bearing to the [defense motion to
exclude] that we're having now"
(italics added), and argued exclusion was inappropriate because "[i]t's
for the jury to determine whether or not someone is testifying
truthfully." Defense counsel
replied "that I'm not basing my
argument on the fact that the other judge ruled that way, I'm just
explaining why this is an appropriate motion under [Evidence Code section] 402
that the Court does have to make a determination under [Evidence Code section
352] . . . since the Court has to rule on its
believability." (Italics added.) After conducting a hearing on his Evidence
Code section 402 motion, at which Hutzler and Vasquez testified, the court
rejected Crawford's motion under Evidence Code section 352, concluding
Hutzler's testimony was admissible and it was "a jury question as to
whether or not the statement was made."
Analysis
Crawford
asserts for the first time on appeal that it was error, under the rationale of
981,
admit Hutzler's testimony about Crawford's hearsay statements at the second
trial because the admissibility of that evidence was settled by the first trial
court's ruling against its admissibility.
However, we are convinced this argument is waived. Crawford did not raise this argument below,
and asserted the directly opposite position: he argued the evidence should be
excluded under Evidence Code section 352 and expressly eschewed any reliance on
the first trial court's action, stating "I'm not basing my argument [to
exclude the evidence] on the fact that the other judge ruled that way." It is not enough that Crawford raised
it has long been the law that "[a] judgment will
not be reversed on grounds that evidence has been erroneously admitted unless
'there appears of record an objection to or a
to exclude or to strike the evidence that was timely made and so stated as
to make clear the specific ground of the objection or
motion . . . .' [Citation.]
Specificity is required both to enable the court to make an
informed ruling on the motion or objection and to enable the party proffering
the evidence to cure the defect in the evidence." (People
v. Mattson (1990) 50 Cal.3d 826, 853-854.)
Crawford may not raise on appeal some variant of a "law of the
case" argument when he specifically jettisoned that argument below.
Crawford
cites People v. Partida (2005) 37
Cal.4th 428 (Partida) as holding that
his Evidence Code section 352 objection sufficed to preserve his argument that
admission of the evidence violated his due process rights. Crawford's argument misapplies
The Partida court specifically
reiterated that a defendant's failure to make a
timely and specific objection on the ground asserted on appeal makes that
ground not cognizable on appeal. (
explained Partida, is
" 'simply a matter of fairness and justice' " (
because a 'contrary rule would deprive the People of the opportunity to cure
the defect at trial and would "permit the defendant to gamble on an
acquittal at his trial secure in the knowledge that a conviction would be
reversed on appeal." ' (
548.) 'The reason for the requirement is
manifest: a specifically grounded objection to a defined body of evidence
serves to prevent error. It allows the
trial judge to consider excluding the evidence or limiting its admission to
avoid possible prejudice. It also allows
the proponent of the evidence to lay additional foundation, modify the offer of
proof, or take other steps designed to minimize the prospect of reversal.' [Quoting People
v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on other grounds by
824, 830, fn.1.]" (
In Partida, the defendant objected to the admission of gang evidence
under Evidence Code section 352, arguing its prejudicial impact outweighed its
probative value, and Partida
concluded that as long as the objection "fairly inform[s] the trial court,
as well as the party offering the evidence, of the specific reason or reasons
the objecting party believes the evidence should be excluded . . .
[and] the court overrules the objection, the objecting party may argue on
appeal that the evidence should have been excluded for the reason asserted at
trial." (Partida, supra, 37 Cal.4th at p. 435.) However, Partida
cautioned that a defendant "may not argue on appeal that the court
for a reason different from the one stated at trial. A party cannot argue the court erred in
failing to conduct an analysis it was not asked to conduct." (Ibid.) Because the defendant's Evidence Code section
352 objection "alerted the
court to the nature of the anticipated evidence and the basis on which its exclusion was sought [and thereby]
permitted the court to make an informed ruling and gave the People the
opportunity to establish the evidence's admissibility[,] [o]n appeal, defendant
may argue that the court erred in its ruling." (Ibid.,
italics added.) Partida concluded that, because the Evidence Code section 352
objection alerted the court that he contended admission of the evidence would
unfairly prejudice his defense, the defendant was entitled
due process argument on appeal," i.e. that admission of the evidence
violated due process because it made the trial fundamentally unfair. (Partida,
at pp. 435-436.)
Under
Partida, Crawford's Evidence Code
section 352 objection preserves only his ability to argue admission of his
statements to Hutzler rendered his trial
fundamentally unfair. However, we reject
this claim because his statements to Hutzler were at most germane to
showing his specific intent for the charged offenses of attempted arson and
attempted murder. His trial was not
rendered unfair as to those counts because he was acquitted of the former, and
the latter count was dismissed after the jury was unable to reach a verdict on
that charge. Crawford was not denied
Crawford alternatively
asserts that, under People v. Cudjo
(1993) 6 Cal.4th 585 (Cudjo), the
court erroneously admitted his statements to Hutzler
because they were inadmissible hearsay.
Crawford contends there was an inadequate showing his statement was made
as represented by Hutzler because it was physically impossible and its falsity
apparent. He does not contest that, if
made, it qualified as a statement against penal interest exception to the
hearsay rule. Even assuming this ground
was preserved, Cudjo does not assist
Crawford's claim of error.
"When evidence is offered under one of the
hearsay exceptions, the trial court must determine, as preliminary facts, both
that the out-of-court declarant made the statement as represented, and that the
statement meets certain standards of trustworthiness. [Citation.]
The first determination―whether the declaration was made as
represented―is governed by the substantial evidence rule. The trial court is to determine
sufficient to sustain a finding that the statement was made. [Citation.]
As with other facts, the direct testimony of a single witness is
sufficient to support a finding unless the testimony is physically impossible
or its falsity is apparent 'without
resorting to inferences or deductions.'
[Quoting People v. Huston
(1943) 21 Cal.2d 690, 693; citations.]
demonstrable falsity, doubts about the credibility of the in-court witness
should be left for the jury's resolution; such doubts do not afford a ground
for refusing to admit evidence under the hearsay exception for statements
against penal interest." (
The trial court
properly admitted the evidence. There
was some evidence from which a jury could have found Crawford made the
statements to Hutzler, based on both Hutzler's direct testimony as well as
Vasquez's testimony that, when Hutzler returned from bringing Crawford his
beverage, he told Vasquez the lug nuts on the tires were missing.
Crawford does not
assert Hutzler's testimony was demonstrably false based on physical
impossibility. Instead, he argues it was
demonstrably false because the time stamps on a tape recording made by
Vasquez's belt recorder were in conflict with the time stamps on Fire
Department records. However, to
determine falsity on this basis required "resort[]
to inferences or deductions," i.e. that the time-stamping mechanism on
Vasquez's recorder was in precise synchronicity with the Fire Department's
time-stamping mechanism. Under those
circumstances, the trial court correctly determined it was for the trier of
fact to determine the credibility of Hutzler's testimony in light of the other
evidence, and therefore properly overruled Crawford's objection. We conclude the evidence was not inadmissible
hearsay.
B. The Claim of Instructional Error
Crawford
argues the court erroneously instructed the jury with a portion of CALCRIM No.
371 because there was no evidence to support the instruction, and the error was
prejudicial.
Background
Midway
through Cassandra's testimony at trial, the court took an afternoon
recess. Immediately after returning from
the recess, the following exchange occurred:
"[Prosecutor]:
All right. We're safe now. [¶]
Now, I'm going to go a little bit off topic for a moment, okay Are there times [when] you've been in this
courtroom [when] you've been asked to kind of sit back here and wait until our
proceedings start [when] the jury is not in here
"[Cassandra]: Yes
"[Prosecutor]: Mr. Crawford ever turn around
towards you
"[Cassandra]: Quite often.
"[Prosecutor]: Okay. And when he's turning around towards you when
the jurors aren't here and you're sitting in the back of the courtroom, how is
he acting towards you
"[Cassandra]: Evil looks, leering at me, gesturing
something crazy towards me, lip―he's wording something but I try not to
pay attention, just play ignorant.
"[Prosecutor]: Do you hear the word 'bitch' at all
"[Cassandra]: I didn't hear it, but I don't know if
he lipped it. I don't know if he worded
it.
"[Prosecutor]:
All right. I'm going to go
on. Now, I have the photo, People's 8.
"[Crawford]: I'm talking about her nose."
"[The Deputy]: Knock that off.
"[Prosecutor]: Your Honor, maybe this would be a
good time to take another break very briefly."
After a short recess, during which Crawford apologized to
the court for his outburst, Cassandra's trial testimony resumed.
After the
close of evidence, while the parties were discussing jury instructions, the
prosecution asked for the first paragraph of CALCRIM No. 371 to be given to the
jury. Crawford objected, asserting there
was no evidence to support the instruction because Crawford merely made a
comment and "look[ed] at the [witness] before [she] testified, and I don't
think that constitutes dissuading . . . ." The court, noting the witness "testified
as to the conduct, which was more than mere looking, I believe, and there was
conduct exhibited in open court that I think . . . is
sufficient" to support the instruction, and gave an instruction derived
from CALCRIM No. 371.
The court
instructed: "If the defendant tried to hide
evidence or discourage someone from testifying against him, that conduct may
show that he was aware of his guilt. If
you conclude that the defendant made such an attempt, it is up to you to decide
its meaning and importance. However,
evidence of such an attempt cannot prove guilt by itself."
Analysis
A
court may instruct on permissible inferences when there is some evidence to
support those inferences (People v.
Hannon (1977) 19 Cal.3d 588, 597, disapproved on other grounds by
750, 762-763), and an inference of a defendant's awareness of his guilt may be
drawn when there is some evidence he or she attempted to dissuade a witness
from testifying against the defendant at trial.
(Cf. People v. Valdez (2004)
32 Cal.4th 73, 137-138.) Cassandra's
testimony about Crawford's conduct toward her when she was in the courtroom
awaiting the jury's return from recess, which the court undoubtedly also saw
and which prompted the prosecutor (once the jury had returned) to reassure her
by saying, "All right. We're
safe now," was sufficient to support the instruction.
Moreover,
because the jury was further instructed that "[s]ome of these instructions
may not apply, depending on your findings about the facts of this case,"
it was only potentially applicable if the jury credited Cassandra's testimony
that Crawford was casting evil looks, leers and gestures toward her and further
concluded that was an effort to intimidate her into skewing her testimony in
his favor. Absent such factual
determinations, no inference against Crawford was permissible and the
instruction became surplusage. However,
if those factual determinations were
made, the jury still was required to decide their
meaning and importance, and was specifically admonished the conduct
"cannot prove guilt." Under
these circumstances, we conclude the instruction was proper.
C. Sufficiency of the
Evidence
Crawford
challenges the sufficiency of the evidence to support the convictions on the
assault with a deadly weapon counts. He
argues the evidence showed the car chase was consistent only with an intent to chase after Mims's car so Crawford could
yell at Cassandra, and there was no evidence from which a reasonable jury could
have found he intended to crash his car into Mims's car.
Legal Principles
When the
defendant challenges the sufficiency of the evidence on appeal, we "must
examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence―evidence that is
reasonable, credible and of solid value―such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt." (People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
In conducting this analysis, we view the record in the light most
favorable to the prevailing party. (
562.) If there is any evidence
substantial enough to support the judgment, even in light of competing
evidence, the judgment must not be disturbed.
(People v. Ceja (1993) 4
Cal.4th 1134, 1139.)
The elements of assault with a deadly weapon are: (1) the
defendant did an act with a deadly weapon that by its nature would directly and
probably result in the application of force to a person; (2) the defendant did
the act willfully; (3) when he or she did so, the defendant was aware of facts
that would lead a reasonable person to realize his or her act would result in
the application of force to someone; and (4) the defendant had the present ability
to apply force with the deadly weapon.
(§§ 240, 245, subd. (a)(1); People
v. Golde (2008) 163 Cal.App.4th 101, 120-123.) The mental element for the assault charge is
that "assault does not require a specific intent to cause injury or a
subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional
act and actual knowledge of those facts sufficient to establish that the act by
its nature will probably and directly result in the application of physical
force against another." (
779, 790.) As long as
the prosecution shows "the defendant willfully committed an act that by
its nature will probably and directly result in injury to another
. . . the prosecution need not prove a specific intent to inflict a
particular harm. . . ."
(People v. Colantuono (1994) 7
Cal.4th 206, 214.)
Analysis
There is
substantial evidence from which a jury could have found Crawford guilty of
assault with a deadly weapon. When
Crawford began following Mims's car, the cars were driving on a residential
street at normal speeds but Crawford, utilizing the lane designed for cars to
travel in the opposite direction, sped up and pulled alongside Mims's car. When Mims was forced to stop at a red light,
Crawford jumped from his car, came around to the passenger window of Mims's
car, and threatened Cassandra's life.
When the light turned green, Mims was able to drive away, but Crawford
renewed his pursuit and was driving very aggressively. Crawford sped up and moved in front of them
and then slammed on his brakes, forcing Mims to slam on his brakes and come
"just like inches from hitting him."
Crawford also moved next to and swerved at Mims's car at one point, and
Cassandra testified "[t]here was one point I thought he was going to
sideswipe [Mims's] vehicle. . . . I remember
screaming. . . .
[Crawford] got very close."
Mims verified Crawford "was swerving[,] trying to run me off the
road," and Crawford swerved at Mims's car three or four times. The speeds reached nearly 80 miles per hour
as Mims tried to prevent Crawford from striking Mims's car.
This
evidence supports a finding that Crawford willfully
did an act with a deadly weapon (his car) that by its nature could directly and
probably result in the application of force to a person, and acted with an
awareness of facts that would lead a reasonable person to realize his or her
act could result in the application of force to someone, and that he had the
present ability to apply force with his car.
The fact Crawford did not actually strike Mims's car is irrelevant. As the court in People v. Golde, supra, 163 Cal.App.4th 101 made clear, "there
is no merit to defendant's argument that if he wanted to hit the victim, he
could have hit her, and therefore the fact that he did not hit her means he had
no intent to hit her. Under
defendant did not have to intend to hit the victim to be guilty of
assault." (Id. at p. 109.)
We
are not persuaded by Crawford's reliance on People
v. Cotton (1980) 113 Cal.App.3d 294 and People
v. Jones (1981) 123 Cal.App.3d 83, which he cites for the proposition that
car chases cannot satisfy the mental element necessary to assault with a deadly
weapon. In both Cotton and Jones, the
defendants drove their respective vehicles in an extremely reckless manner but,
unlike the present case, there was no evidence in either Cotton or Jones from
which a jury could have found the drivers intended to commit a battery on the
person of another or intended to commit an act the natural consequences of
which would have been the application of force on the person of another. (People
v. Cotton, supra, 113 Cal.App.3d
at pp. 301-307; People v. Jones,
reasonable jury could have found Crawford drove his car at Cassandra and Mims
in a manner menacing their physical safety, and therefore substantial evidence
supports the convictions for assault with a deadly weapon.
DISPOSITION
The
judgment is affirmed.
McDONALD,
Acting P. J.
WE CONCUR:
McINTYRE,
J.
AARON, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Crawford also cites federal cases to argue a ruling by the
first court should not be overturned in a second trial absent specific
justifications. (See, e.g.,
Alexander (9th Cir. 1997) 106 F.3d 874, 876.) However, that approach is not universally
applied by the federal courts (see, e.g., U.S.
v. Akers (D.C.Cir. 1983) 702 F.2d 1145, 1147-1149; U.S. v. Todd (6th Cir. 1990) 920 F.2d 399, 403), and we decline to
resolve the dispute among the federal courts.
