P. v. Williams
Filed 1/9/13 P.
v. Williams CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
TAISHA
WILLIAMS,
Defendant and Appellant.
B239039
(Los Angeles County
Super. Ct. No.
TA119588)
APPEAL
from a judgment of the Superior Court of
County.
Kelvin D. Filer, Judge. Affirmed.
John
Ralphling, 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, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant
Taisha Williams was convicted, following a jury trial, of one count of
Penal Code section 211
name="_ftnref1" title="">[1] and one count of assault
with a deadly weapon, an automobile, in violation of section 245, subdivision
(a)(1). The trial court suspended imposition
of sentence and placed appellant on formal probation for three years. Codefendant Latasha Rougely was convicted of
one count of second degree robbery and sentenced to three years in state
prison. She is not a party to this
appeal.
Appellant
appeals from the judgment of conviction, contending that there is insufficient
evidence to support the verdict and further contending that the trial court
erred in failing to stay sentence for the assault conviction pursuant to
section 654. We affirm the judgment of
conviction.
Facts
On
August 18,
2011, Christian Cartagena was waiting at a
bus stop at the intersection of Figueroa and Century Boulevards. He was listening to music on his iPhone,
which was attached to his waistband. His
wallet was also attached to his waistband.
Appellant and codefendant Rougely approached him from behind. Rougely said, "Give me your
wallet." Cartagena felt a
hard object on the back of his head. He
turned, saw Rougely pointing a black revolver at him and appellant holding out
her hand toward him. Cartagena gave his
wallet to appellant. Rougely demanded
the iPhone, and Cartagena handed it to appellant.
Rougely
put the revolver in her purse. Appellant
ran north on Figueroa. Cartagena followed
her. When he reached the corner, he
turned, looked back and saw Rougely pick up something from the ground in the
area of the bus stop. Appellant ran to a
parked white car and got in. Cartagena dove head
first through the open driver's window of the car in an attempt to retrieve his
iPhone, which was visible in appellant's right hand. His body from the waist up was inside the
car, while the rest of his body was outside the car.
Appellant
accelerated the car, drove down Figueroa, and turned onto Century
Boulevard. Appellant grabbed Cartagena's head
and face and tried to push him out of the car.
The lower half of his body was pressed against the car with his feet
dragging on the ground. Cartagena attempted
to push himself all the way inside the car.
When he could not get inside, he said, "Stop let me go." Appellant replied, "You got yourself
into this, now you're going to kill yourself." She continued to try to push him out the window.
Appellant
lost control of the car and crashed into a fire hydrant and light pole. The driver's side airbag deployed, hitting Cartagena on the
left side of the body. The force of the
various impacts caused Cartagena to fly out of the car and land on the ground. Less than one minute had passed since
appellant began driving.
Appellant
started to run away, returned to the car and got a one-year old baby out of the
back seat, and then got into a newly arrived car with the baby. Cartagena screamed for bystanders to call the police and stop appellant.
Police
officers and paramedics came to the scene.
A bystander pointed out Rougely and appellant to police.
and appellant was inside it. Officers
searched Rougely's purse and found Cartagena's school
identification card and check cashing card, and a receipt for a purchase made
by Cartagena. These items were in Cartagena's wallet
when it was stolen. Police officers
searched for but did not find a revolver or the iPhone.
In
their defense, appellant and Rougely offered testimony that painted Cartagena as an
aggressor who attacked appellant without provocation, dropping his wallet in
the process.
Discussion
1. Sufficiency of the evidence - assault
Appellant
contends that there is insufficient
evidence to support her conviction for assault with a deadly weapon because
the evidence shows that she was reckless in driving her car but was trying to
avoid injury to Cartagena.
"'In
reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, "we
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." [Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial
evidence and to special circumstance allegations. [Citation.]
"[I]f the circumstances reasonably justify the jury's findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding."
[Citation.] We do not reweigh
evidence or reevaluate a witness's credibility.
[Citation.]'" (
Cal.4th 198, 210.)
Assault
is a general intent crime. It "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." (People
v. Williams (2001) 26 Cal.4th 779, 790.) A defendant "need not be subjectively
aware of the risk that a battery might occur." (Id.
at p. 788.) He need only be aware of
"facts that would lead a reasonable person to realize that a battery would
directly, naturally and probably result from his conduct." (Ibid.) Recklessness or criminal negligence is not
enough to support an assault conviction because a defendant cannot be convicted
of assault "based on facts he should have known but did not
know." (Ibid.)
"[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." (
Cal.App.4th 703, 706.)
Here,
there is ample evidence that appellant actually intended to commit a battery on
Cartagena by dislodging him from the car while it was moving. She accelerated the car with Cartagena half
in and half out of the driver's side window and tried to push him all the way
out the window. When Cartagena asked
appellant to stop the car, she replied, "You got yourself into this, now
you're going to kill yourself."
During this time she was still trying to push Cartagena out of the
window. Dislodging Cartagena from the
window of a moving car would have resulted in a battery.
Further,
even without Cartagena's testimony about appellant's statement and her pushing,
there would be sufficient evidence to support appellant's assault
conviction. Appellant was aware that she
was accelerating her car, aware that Cartagena was half inside and half outside
of the driver's compartment of the car and that she was struggling with him,
and aware that she was on a city street lined with cars, utility poles,
buildings and various other large objects.
A reasonable person would realize that the struggle with Cartagena was
impeding her ability to see and to control the car and that, given the
environment, a collision would probably result from her driving, and would
cause a battery on Cartagena.
Appellant's
reliance on People
(1980) 113 Cal.App.3d 294 and People
(1981) 123 Cal.App.3d 83 is misplaced.
In both cases, the defendants were driving at high speeds in an attempt
to evade police pursuits, and the defendants made visible efforts to avoid
hitting another car, but collided with that car anyway. Here, appellant was not simply driving fast,
but had the upper half of a person inside her car and was struggling with that
person. This greatly increased the
likelihood of a collision.
2. Section 654
Appellant
contends that the trial court erred in failing to stay sentence on the assault
conviction pursuant to section 654.
Respondent contends that this issue is not ripe for adjudication. We agree with respondent.
At
the sentencing hearing, the trial court stated:
"So as to both counts 1 and 2, imposition of sentence
suspended. You're going to be placed on
formal probation for three years under the following terms and conditions. First serve 100 days in county jail. Credit for 100 days you served. That's 50 actual, and 50 good time work time
credits. . . ." Appellant's trial counsel asked, "And on
the issue of 654, on count 2, would the court stay the punishment on count 2
under Penal Code section [6]54?"
The court replied, "I don't know if I have to do that at this point
since I'm not sentencing her on either one of them. I don't think I need to make that
determination at this time."
Section
654 states: "An act or omission
that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision." Thus, section
654 "does not allow any multiple punishment, including either concurrent
or consecutive sentences. [Citation.]" (People
v. Deloza (1998) 18 Cal.4th 585, 592.)
When
imposition of sentence is stayed, and probation granted, section 654 does not
apply. "Because sentence was not
imposed . . . , there is no double punishment issue. The section 654 issue should be presented to
a court upon any future attempt to impose a double punishment . . . in the
event of a probation violation." (
Cal.App.3d 124, 137.) "Probation is
an act of grace and clemency designed to allow rehabilitation [citations] and
is not within the ambit of the double punishment proscription of . . . section
654. [Citations.]" (People
v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds
in People v. Martinez (1999) 20
Cal.4th 225, 240.)
Appellant
acknowledges that Wittig and
and that she cannot cite any contrary cases.
She argues that for reasons of common sense, reason and the fair and
efficient administration of justice, this Court should not follow
Appellant
contends that even if probation is considered an act of clemency, the court may
still punish the defendant by imposing jail time and so section 654 should
apply. Probation comes with various
terms and conditions. The fact that one
of those conditions is jail time does not transform probation into
punishment. Appellant also contends that
it is more efficient to have the court which tried the case decide any section
654 issue, rather than a later court hearing a probation violation claim. There are no facts in the record to support
this efficiency argument.
Disposition
The
judgment is affirmed.
OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
references are to the Penal Code unless otherwise indicated.
June 15, 2012 requested that her appeal be dismissed. We dismissed her appeal on June 18, 2012.
