P. v. Sizemore
Filed 1/29/13 P. v. Sizemore CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
THOMAS EBER SIZEMORE,
Defendant and
Appellant.
2d Crim. No.
B236539
(Super. Ct. No.
2011010788)
(Ventura
County)
Thomas Eber Sizemore
appeals the judgment entered after a jury convicted him of
officer (Pen. Code,
name="_ftnref1" title="">[1] § 245, subd. (c)), felony evading (Veh.
Code, § 2800.2, subd. (a)), and misdemeanor being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)). In a bifurcated proceeding, the trial court
found true allegations that appellant had served three prior prison terms
(§ 667.5, subd. (b)). Appellant was
sentenced to eight years eight months in state prison. He contends the evidence is insufficient to
support his assault conviction. We
affirm.
STATEMENT OF FACTS
At approximately 3:00 a.m. on March 27, 2011, Sergeant Craig Adford of the Ventura
County Sheriff's Department saw appellant make an illegal left turn on Highway
1 near Mugu Rock. Sergeant Adford began
following appellant as appellant continued driving approximately 55 to 60 miles
per hour in a 50 miles-per-hour zone.
Appellant's front seat
passenger, Antonio Barragan, saw Sergeant Adford's patrol car and told
appellant to pull over. Appellant told
Barragan he was going to try to "escape" and that "no matter
what he wasn't going to go to prison."
After appellant drove through a stop sign and red light, Sergeant Adford
activated his lights and siren.
Appellant repeatedly crossed into the opposing traffic lane and
continued driving at an excessive speed.
Several officers eventually joined the pursuit with their lights and
sirens activated.
The pursuit continued as
appellant drove to Newbury Park
and turned onto a dead-end street that ended in a cul-de-sac. Sergeant Adford, Deputy Ryan Lindsey, and
Sergeant Galante followed appellant into the cul-de-sac and strategically
positioned their vehicles to block appellant's exit. Deputy Lindsey parked his patrol car approximately
a car length away from appellant's vehicle, and Sergeant Adford's Tahoe cruiser
was about eight to ten feet from Deputy Lindsey's vehicle. Sergeant Galante also parked behind Deputy
Lindsey, while Deputies Jacob Holt (the victim) and Julie Novak stopped their
vehicles further down the street.
All of the officers got
out of their vehicles and drew their firearms on appellant. Appellant backed up toward a driveway, then
sped through a narrow gap between the parked police vehicles. Appellant's vehicle came within eight to
twelve feet of Sergeant Adford, who had to jump out of the way to avoid being
hit.
Appellant sped directly
toward Deputy Holt as the two of them made eye contact. The deputy saw the driver's side headlight of
appellant's vehicle "coming straight for [his] body." Deputy Holt repeatedly yelled at appellant to
stop. Instead of stopping or slowing
down, appellant accelerated. Deputy Holt
"was convinced" that he and Deputy Novak were going to be hit and
killed. Deputy Holt ran to his right to
avoid being hit as he fired several rounds at the driver's side door of
appellant's vehicle. Deputy Novak heard
the shots and saw appellant's vehicle coming in her direction. The deputy ran to her vehicle and quickly
drove in reverse to avoid being hit.
Appellant straightened out his vehicle and narrowly avoided a collision
with Deputy Novak's vehicle.
Deputies Holt and Novak
attempted to follow appellant's vehicle but lost sight of him. Appellant
abandoned his vehicle a few blocks away, leaving Barragan behind. Appellant was subsequently arrested by Deputy
Holt after the deputy saw him walking on the sidewalk. Appellant displayed signs of being under the influence
of a stimulant, and tested positive for cocaine and marijuana.
Barragan was also
arrested. Barragan had suffered a
superficial gunshot to the abdomen and was drunk and belligerent. He told the arresting officer, "That
mother fucker is crazy, he wanted to kill the cop." Barragan testified he did not recall making
this statement. Barragan also failed to
recall telling the police later that day that he could see Deputy Holt standing
in front of them and jumping out of the way to avoid being hit. He admitted,
however, that he could see the officers outside of their cars with their guns
drawn before appellant drove toward them.
DISCUSSION
Appellant claims the
evidence is insufficient to sustain his conviction for assault with a deadly
weapon on a police officer, i.e., Deputy Holt.
He is wrong.
In deciding the sufficiency
of the evidence, we draw all reasonable inferences from the record to support
the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the
credibility of the witnesses. (
"[A]ssault requires
only a general criminal intent and not a specific intent to cause injury. [Citation.]" (People
v. Williams (2001) 26 Cal.4th 779, 782 (Williams).) An assault conviction merely requires proof
the defendant (1) willfully committed an act which by its nature would probably
and directly result in the application of physical force against another; and
(2) was aware of facts that would lead a reasonable person to realize this
direct and probable consequence of his or her act. (Ibid.) The crime does not require any intent to
cause an application of physical force, or a substantial certainty that an
application of force will result. (
206, 214-220.) "[A]ny operation of
a vehicle by a person knowing facts that would lead a reasonable person to
realize a battery will probably and directly result may be charged as an
assault with a deadly weapon." (
703, 706.)
The
evidence is sufficient to support appellant's assault conviction. After leading the police on a high-speed
chase during which he ran several red lights and stop signs, appellant found
himself trapped at the end of a cul-de-sac.
Appellant's front seat passenger testified he was able to see the
officers standing outside their vehicles as appellant sped through a narrow gap
between the vehicles, requiring one of the officers to jump out of the way to
avoid being hit. The passenger also told
the police he could see Deputy Holt standing in front of them as appellant
drove directly at him. Deputy Holt
testified that he made eye contact with appellant and repeatedly yelled at him
to stop. Appellant made no effort to
slow down or avoid hitting the deputy, but rather accelerated. From the passenger's perspective, it appeared
as if appellant "wanted to kill" the deputy. In light of this evidence, the jury could
reasonably infer that appellant deliberately drove his vehicle through the
roadblock with knowledge of facts that would lead an objectively reasonable
person to realize that injury
to Deputy Holt would directly and probably result. Indeed, the evidence is sufficient to support
appellant's assault conviction on the theory that he actually intended to hit
Deputy Holt with his vehicle. (See
38, 41 [evidence was sufficient to support conviction for assault with a deadly
weapon where defendant aimed his vehicle at police officer's vehicle and
collided with it].)
In arguing to the
contrary, appellant largely ignores the applicable standard of review, which
compels us to view the evidence in the light most favorable to the
verdict. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Although appellant correctly notes that mere
recklessness is not enough to establish an assault (Williams, supra, 26 Cal.4th at p. 788), recklessness is transcended
where the defendant has "actual knowledge of the facts sufficient to
establish that the defendant's act by its nature will probably and directly
result in injury to another." (
he claims, "successfully driven through a roadblock before." The issue is whether an objectively
reasonable person driving through this roadblock
would have known that his act would directly and probably result in the
application of force to another. The
evidence presented at trial is sufficient to support such a finding.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Brian
J. Back, Judge
Superior
Court County of Ventura
______________________________
Lisa M. J. Spillman,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising
Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for
Plaintiff and Respondent.
are to the Penal Code.
recklessness, appellant also misplaces his reliance on two older cases
involving high speed chases in which the court found the evidence insufficient
to support a conviction for assault with a deadly weapon. (People
v. Cotton (1980) 113 Cal.App.3d 294; People
v. Jones (1981) 123 Cal.App.3d 83.)
Both cases are based on the since-invalidated principle that attempted
battery is an element of assault with a deadly weapon. (Williams,
supra, 26 Cal.4th at p. 788; People
v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1188.)
