target="G047129_files/props0002.xml">
P. v. Hopkins
Filed 7/9/13 P.
v. Hopkins CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID STEPHAN HOPKINS,
Defendant and
Appellant.
G047129
(Super. Ct.
No. 11WF2643)
O P I N I O
N
Appeal from a judgment
of the Superior Court of
County, Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, §
21.) Affirmed with directions.
Matthew A. Siroka, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton, Heather M. Clark, and
Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
David
Stephan Hopkins appeals from a judgment after a jury convicted him of
his conviction and this court should direct the clerk of the superior court to
prepare a new minute order omitting any reference to his driver’s license being
revoked. Neither of his contentions have
merit. We affirm the judgment but remand
the matter to the trial court for it to make the required findings under
Vehicle Code section 13351.5.
FACTS
One evening, Officers
Juan Delgado and Brian Dalton were on patrol at Fairlane Trailer Park in Garden
Grove. They were in an all-black Crown
Victoria police car equipped with interior police light bars, spotlights, and
an in-car video system, which captured the events of the evening. As Delgado drove through the trailer park, he
saw a green Kia sedan drive in the opposite direction and stop in front of
space No. 90. Delgado had previous
contacts with the occupant of that trailer, Robert Green, who was on probation
and subject to search and seizure probation conditions.
Delgado drove towards
the Kia and identified Green after shining the patrol car spotlight into the
front passenger side area of the car. A
man later identified as Hopkins was in the driver’s seat. Delgado parked five to 10 feet in front of
the Kia and slightly to the side as he intended to conduct a probation search
of Green. As Delgado stepped out of the
car, he yelled, “‘Robert, stop.’â€
Delgado’s left foot was on the ground and his torso was emerging from
the patrol vehicle, when he heard the Kia’s engine rev and the tires
squeal. Dalton yelled at Delgado to get
back inside the car. Delgado quickly got
back inside the patrol car as the Kia accelerated and struck the patrol car’s
driver’s side door, slamming the door shut and barely missing Delgado’s leg;
Delgado was not injured.
Hopkins stopped the Kia
a few feet from the patrol car, and Delgado got out of the car, drew his weapon,
walked to the Kia’s passenger side, pointed his gun at Hopkins and Green, and
told them to put their hands in the air.
Dalton got out of the car, drew his weapon, pointed it at Hopkins, and
told him to put his hands in the air.
Neither man complied. In fact,
Green put his hands in his sweat shirt pockets.
Delgado told Hopkins to take the keys out of the ignition. Hopkins put the Kia in drive and fled. Officers pursued the Kia but lost sight of
the car once they exited the trailer park.
Delgado and Dalton
returned to the trailer park and spoke with Green’s mother. As a result of their investigation, officers
located the Kia at Hopkins’s son’s house; the Kia had damage consistent with
that found on the patrol car.
A few days later, during
a second search of a residence at the trailer park, officers uncovered, yes
literally uncovered, Hopkins under a pile of clothes in a bedroom closet. Officers arrested him.
After
advising Hopkins of his rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436, Hopkins told an officer he was on probation
for possession of methamphetamine.
Hopkins admitted he had not seen his probation officer in eight months
and he believed probation was searching for him. Hopkins denied he was at the trailer park the
night the incident occurred, but he admitted being there earlier that day.
An information charged
Hopkins in count 1 with aggravated assault on a peace officer, Delgado, with a
vehicle (Pen. Code, § 245, subd. (c)).
The information contained an “‘ADW Vehicle CVC 13351.5’†notice.
At trial, Delgado
testified to the circumstances of the incident as we describe above. Additionally, Delgado explained what he and
Dalton were wearing that night: jeans,
and a black polo and/or windbreaker with the words “‘Gang Unit’†on the right
chest area and the word “‘Garden Grove Police’†on the left chest area. On the back was “‘Police’†and “‘Gang
Unit.’†On cross-examination, Delgado
stated that after the incident he prepared a police report and a supplemental
police report. Delgado admitted that in
both reports he never stated he identified himself as a police officer before
the Kia hit the patrol vehicle or that he heard squealing tires before the Kia
hit the patrol vehicle. He did not activate his police lights
before the Kia struck the patrol car.
Dalton also testified
concerning the event consistent with Delgado’s testimony. On cross-examination, though, Dalton
testified he did not hear squealing tires before the Kia hit the patrol
vehicle.
The jury convicted Hopkins
of aggravated assault on a peace officer as charged in count 1. In her sentencing brief, the prosecutor
requested “the [c]ourt make a finding that the deadly weapon used in the
present case was a vehicle, that the [c]ourt indicate as such on the abstract
of judgment, and that a copy of that abstract be sent to the Department of
Motor Vehicles.†The probation report
recommended Hopkins’s driver’s license be permanently revoked pursuant to
Vehicle Code section 13351.5. At the
sentencing hearing, the trial court indicated it had read and considered the
probation report. The court sentenced
Hopkins to the low term of three years in prison. The court did not orally make the findings as
required by Vehicle Code section 13351.5.
The minute order, however, states, “As to count(s) 1, court orders
driver’s license suspended for 99 [y]ear(s).â€
DISCUSSION
I. Sufficiency
of the Evidence
argues insufficient evidence supports his conviction for aggravated assault on
a peace officer because he acted foolishly and dangerously but without the
required intent. As we explain below,
sufficient evidence supports his conviction.
law governing sufficiency-of-the-evidence challenges is well established . . .
. [Citations.] In reviewing a claim for sufficiency of the
evidence, we must determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime or special circumstance beyond a reasonable
doubt. We review the entire record in
the light most favorable to the judgment below to determine whether it
discloses sufficient
evidence—
that is, evidence that is reasonable, credible, and of solid value—supporting
the decision, and not whether the evidence proves guilt beyond a reasonable
doubt. [Citation.] We neither reweigh the evidence nor
reevaluate the credibility of witnesses.
[Citation.] We presume in support
of the judgment the existence of every fact the jury reasonably could deduce
from the evidence. [Citation.] If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding. [Citation.]†(People
v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Penal Code section 245,
subdivision (c), states: “Any person who
commits an assault with a deadly weapon or instrument, other than a firearm, or
by any means likely to produce great bodily injury upon the person of a peace
officer or firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his or her
duties, when the peace officer or firefighter is engaged in the performance of
his or her duties, shall be punished by imprisonment in the state prison for
three, four, or five years.â€
“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 . . . .) ‘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. [Citation.] 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.†[Citation.] 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. [Citation.]’
(People v. Colantuono (1994) 7
Cal.4th 206, 214-215 . . . .)†(
101, 108-109, fn. omitted.)
Here, the record
includes sufficient evidence from which the jury could reasonably conclude
Hopkins committed aggravated assault on Delgado, a peace officer, with a
vehicle. The evidence at trial
established Hopkins had a motive for not wanting to speak with the police—he
believed the probation department was looking for him. There was overwhelming evidence Delgado and
Dalton were police officers, as they were driving a Crown Victoria with
internal police bar lights and spotlights on both sides of the car. When Delgado got out of his car, he yelled
for Green to stop, although he could not remember if he identified himself as a
police officer. We are certain though
that based on the type of vehicle Delgado and Dalton were driving and Delgado’s
command, not to mention the fact the shirt or jacket Delgado wore identified him
as a Garden Grove Police officer with the gang unit, that neither man could
have any question Delgado and Dalton were police officers.
was also evidence that when Delgado ordered Green to stop, Hopkins revved the
Kia’s engine and accelerated. Although
Dalton testified he did not hear the tires squeal, Delgado heard squealing
tires, and Delgado was standing outside the patrol car. Hopkins then drove the Kia into the patrol
car’s driver’s side door just as Delgado quickly got back inside the patrol
car. From this evidence, the jury could
certainly conclude Hopkins willfully drove the Kia into the patrol car door and
had Delgado not astutely and quickly got back inside the car, the patrol car
door would have slammed shut against his left leg potentially ending his career
as a police officer. Contrary to
Hopkins’s assertion otherwise, the only reasonable explanation is not that it
was an accident because he was blinded by the spotlight and the street was
narrow.
that it was an accident, and two that Hopkins intentionally drove the Kia into
the patrol car’s door in an attempt to slam the door against the left side of
Delgado’s body, thereby incapacitating Delgado and preventing the officers from
apprehending him.
Additionally, Hopkins’s
claim is merely an argument for a different interpretation of the evidence, an
argument which misconstrues our standard of review. Finally, the trial court instructed the jury
with CALCRIM No. 3404, “Accident.†The
jury heard the evidence and defense counsel’s argument it was an accident, and
rejected Hopkins’s defense.
Hopkins relies on
382 (Gonzales),
and People v. Lara (1996) 44
Cal.App.4th 102 (Lara), neither of
which helps him here. In
389 to 392, the court addressed the issue of whether the trial court erred in
failing to instruct the jury on accident against a charge of inflicting
corporal injury on a cohabitant. In
44
Cal.App.4th at pages 108 to 111, the court addressed the issue of whether the
trial
court erred in instructing the jury on accident. Here, as we explain above, the
trial
court instructed the jury on the defense of accident, and Hopkins concedes the
instruction was proper. Thus, sufficient
evidence supports Hopkins’s conviction for aggravated assault on a peace
officer.
II.
Driver’s License Revocation
Hopkins
contends this court should order the clerk of the superior court to prepare a
new minute order “rescinding the driver’s license suspension†because the trial
court did not make the findings as required by Vehicle Code section 13351.5,
and the superior court does not have the authority under that statute to revoke
his license. The Attorney General agrees
the trial court did not have the authority to revoke Hopkins’s license, as that
authority lies with the Department of Motor Vehicles (DMV) alone. The Attorney General, however, asserts this
court should remand the matter to the trial court so that court can make the
required findings. We agree with the
Attorney General.
Vehicle Code section
13351.5, subdivision (a), provides:
“Upon receipt of a duly certified abstract of the record of any court
showing that a person has been convicted of a felony for a violation of
[s]ection 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,
privilege of that person to drive a motor vehicle.†(Italics added.)
The Attorney General
concedes the trial court did not have the authority to revoke Hopkins’s license
and the trial court did not make the required findings under Vehicle Code
section 13351.5. Thus, the minute order
revoking Hopkins’s license is invalid. (
181, 185 [abstract of judgment not judgment of conviction and does not control
if different from trial court’s oral judgment and may not add to or modify
judgment it purports to summarize].) The
sole issue then is the proper remedy.
Hopkins argues this
court should order the clerk of the superior court to prepare a new minute
order omitting the driver’s license suspension because the trial court
exercised its discretion and simply chose not to make the finding. The Attorney General counters we should
remand the matter to the trial court to make the required findings pursuant to
Vehicle Code section 13351.5.
Vehicle Code section
13351.5 requires two distinct findings.
First, there must be a conviction of Penal Code section 245. Second, the court must make the determination
a vehicle was used as a deadly weapon that resulted in the conviction. Vehicle Code section 13351.5 is clear such a
determination is to be made by the
trial
court.
Based on the foregoing,
we remand to the trial court for the limited purpose of it making the required
finding pursuant to Vehicle Code section 13351.5 as to whether Hopkins used a
vehicle to commit the offense. If the
trial court makes such a finding, it must modify its minute order and the
abstract of judgment accordingly and forward the modified abstract of judgment
to the DMV.
Hopkins’s reliance on
Vehicle Code section 1803, subdivision (a), and
166 (Gaspar D.), is misplaced. First, we do
not read Vehicle Code section 1803, subdivision (a), as rendering the trial
court’s duty as discretionary when a defendant is convicted of violating Penal
Code section 245 while using a vehicle.
That section controls when a defendant is convicted of violating a number
of specified provisions.
name="_ftnref3" title="">[3] Second, Gaspar
D., supra, 22 Cal.App.4th 166, did not involve Vehicle Code section
13351.5. It concerned Vehicle Code
section 13350.
DISPOSITION
We remand the matter to
the trial court for the limited purpose of the court making the required
finding pursuant to Vehicle Code section 13351.5, as set forth in the
opinion. We affirm the judgment in all
other respects.
O’LEARY,
P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
name="_ftn1" title="">[1] In support of his claim it
was an accident, Hopkins invited our attention to exhibit No. 4. Exhibit No. 4, however, is not a part of the
record. It is no consequence though as
we conclude the record includes substantial evidence from which the jury could
certainly conclude Hopkins committed a willful act that by its nature would
probably and directly result in an injury to a police officer.
name="_ftn2" title="">[2] Gonzales, supra, 74 Cal.App.4th 382, was overruled on other grounds
in People v. Anderson (2011) 51
Cal.4th 989, 998, fn. 3.
