Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE272057, Louis R. Hanoian, Judge.
HALLER, J.
Grant Balderree appeals from a judgment convicting him of assault with a deadly weapon against an officer, resisting an officer by force or violence, and vandalism. He challenges the sufficiency of the evidence to support the jury's finding that he committed assault with a deadly weapon against an officer. He also contends the trial court erred in admitting evidence of other crimes he had committed. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of June 12, 2007, the police were in the process of obtaining a search warrant to enter a residence on Princeton Avenue in La Mesa to arrest Balderree under an arrest warrant for robbery from Washington state. While waiting for the warrant to be secured, Officers Raymond Sweeney, Greg Runge and Andrew Harman were conducting an undercover surveillance of the residence. Sweeney was sitting in a silver sports utility vehicle (SUV), and Runge and Harman were sitting in a brown SUV. The officers saw a woman leave the residence and drive away in a Sebring vehicle. The woman returned in about five or 10 minutes. As she drove by Sweeney's SUV, the woman slowed down and stared into the window of his vehicle, where Sweeney was slumped down, trying not to be observed. The woman parked her car by the residence, stayed in her vehicle for a few minutes, and then entered the residence. Sweeney assumed the woman knew he was a police officer; accordingly, he radioed the other officers that he was going to leave the area because his position had been compromised.
Sweeney thought the woman was talking on a cell phone while she was sitting in her vehicle, although he was not in a position to actually see this.
After Officer Sweeney left, Officers Runge and Harman saw a man (not Balderree) leave the residence to walk a dog. As the man passed Runge and Harman's SUV, he said good morning to Runge and Harman through the open vehicle window. The officers were concerned that the man was checking if someone was watching the house. Runge and Harman notified Sweeney (who was parked at a nearby intersection) that their position had also been compromised. When Sweeney received this information, he radioed for marked patrol units to set up a perimeter to contain the area until the warrant to enter the residence had been secured.
About 20 minutes later, Officers Harman and Runge saw Balderree leave the residence and drive down Princeton Avenue in the Sebring vehicle toward where Officer Sweeney was parked. Harman and Runge relayed this information to Sweeney and started following Balderree. When he had driven only a short distance, Balderree stopped his vehicle in the middle of the street; Runge surmised that Balderree was trying to determine if he was being followed by Runge. Runge slowed down so as not to get too close, and after a couple of seconds Balderree continued driving.
For convenience, we shall refer to the Sebring vehicle as Balderree's vehicle even though he was not the owner.
Meanwhile, Officer Sweeney started driving his SUV up Princeton Avenue in the direction where he expected to see Balderree. When Sweeney spotted Balderree in the Sebring vehicle, he planned to let him pass by because he knew there were marked patrol units at the end of the street. However, when Balderree's vehicle was about 40 or 50 feet from Sweeney's vehicle, Balderree drove into a driveway, turned his vehicle around, and started driving back the way he had been coming from.
Princeton Avenue is a narrow street, and there were cars parked on both sides of the street at the time of the police surveillance. When Balderree turned around in the driveway, Officer Runge positioned his SUV at an angle in the street to block Balderree from driving past. Meanwhile, Officer Sweeney activated the lights and briefly sounded the siren on his SUV to effectuate a stop. Runge and Harman's brown SUV was a few feet in front of Balderree's vehicle, and Sweeney's SUV was a few feet behind Balderree's vehicle. An unoccupied truck was parked on the other side of the street from the brown SUV.
According to Officer Sweeney, there was about a three- to four-foot gap between the brown SUV and the truck, and the front of Balderree's vehicle was wider than the size of the gap. Officer Runge estimated that the gap between the brown SUV and the truck was about six to eight feet; he believed that he had successfully blocked the street and that there was not enough room for Balderree's vehicle to get through. Nonetheless, Balderree rapidly accelerated his vehicle and struck first the side of the truck and then the right front side of the brown SUV. Runge testified that he saw Balderree looking at the gap between the brown SUV and the truck before he accelerated, and when Balderree began accelerating forward, Runge knew there was going to be an impact. The brown SUV was "rock[ed] hard" and was moved about three feet out of the way when it was struck, and Balderree was able to drive through the gap and speed away from the scene. The officers in the marked patrol units chased Balderree in his fleeing vehicle but lost sight of him.
Officers Sweeney, Runge, and Harman testified that Balderree had stopped his vehicle before accelerating through the gap. On cross-examination, Officer Sweeney acknowledged that in his police report he wrote Balderree had merely slowed down his vehicle before accelerating.
Later that evening, Officer Sweeney, driving the same undercover silver SUV he had been driving that morning, spotted Balderree as a passenger in an Acura vehicle. Sweeney followed the Acura, and marked patrol units with sirens on joined the pursuit. The driver of the Acura drove 50 to 55 miles per hour in a residential area, went around a lowered trolley gate to cross the trolley tracks, and ran stop signs and a red light. The driver, who was a female acquaintance of Balderree, testified that Balderree yelled at her not to stop, put his hand on her leg to prevent her from lifting her foot off the pedal, and tried to push her out of the driver's door so he could take over the car. The driver pulled the Acura over to the side of the street when it was cornered by the police vehicles, and Balderree fled on foot until he was apprehended.
The brown SUV, Balderree's vehicle, and the truck were damaged in the incident on Princeton Avenue. The brown SUV sustained about $2,800 worth of damage. Officers Runge and Harman were not injured.
The prosecution's theory of the case was that Balderree was guilty of the charged offenses because he knew there was no room for him to drive through the gap without hitting the vehicles, and he chose to make room by hitting the brown SUV to move it out of the way as he made his escape. The defense theory was that although Balderree was admittedly trying to escape from the police, he did not intentionally drive at the brown SUV. According to the defense, Balderree assessed that he could drive though the gap without a collision, and he accidentally hit the brown SUV because Officer Runge moved the brown SUV to narrow the gap just as Balderree was driving through. Defense counsel contended the most Balderree could be convicted of was the lesser offense of resisting an officer.
The jury found Balderree guilty of the charged offenses of assault with a deadly weapon on an officer (Pen. Code, § 245, subd. (c)), resisting an officer by force or violence (§ 69), and vandalism (§ 594).
Subsequent statutory references are to the Penal Code unless otherwise specified.
DISCUSSSION
Substantial Evidence
Balderree contends there is insufficient evidence to support the jury's finding that he committed the offense of assault with a deadly weapon on a police officer. He asserts the record does not support (1) that he used his vehicle to commit an assault, and (2) that he knew the occupants of the brown SUV were police officers.
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Id. at p. 358.) It is the exclusive province of the jury to determine credibility and resolve evidentiary conflicts. (Id. at p. 357.) Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Young (2005)34 Cal.4th 1142, 1181.)
To commit the offense of assault, the defendant must intentionally perform an act with actual knowledge of facts that would lead a reasonable person to realize 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, 788, 790.) The defendant need not have an intent to injure or be subjectively aware of the risk of a battery, but he or she must have actual knowledge of facts showing a likely application of force to a person. (Ibid. [to commit assault from shooting a gun, defendant must know there is a person in the area].) The offense of assault with a deadly weapon against an officer contains the additional elements of use of a deadly weapon by a defendant who knows, or reasonably should know, that the victim is an officer. (§ 245, subd. (c).) A motor vehicle qualifies as a deadly weapon if it is used in a manner likely to produce death or great bodily injury. (People v. Jones (1981) 123 Cal.App.3d 83, 97; People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
According to prosecution witnesses, the brown SUV was blocking the road when Balderree accelerated; there was not enough room for Balderree's vehicle to fit through the gap; and Balderree forced his way through the gap by hitting the truck and the SUV. From this evidence, the jury could reasonably infer that Balderree was aware of facts showing that he could not pass through the gap without colliding with the SUV. This supports that he committed the offense of assault with a deadly weapon; i.e., he intentionally drove with knowledge of facts showing that force would likely be applied to the occupants of the SUV.
The jury was not required to credit the defense interpretation of the facts that Balderree accidentally hit the SUV when Officer Runge moved the SUV to close the gap. The record reflects that the chain of events—including Runge's blocking of the road, Sweeney's activation of his lights and siren, and Balderree's crashing through the gap—occurred very quickly. It was up to the jury to sort out what findings and inferences to draw from this evidence. Providing detailed observations on what occurred, Officer Runge testified that he saw Balderree looking at the gap before he accelerated and that he (Runge) knew there was going to be an impact once Balderree accelerated. Further, when Runge was specifically asked at trial if he was "trying to close the gap at the time that Mr. Balderree was accelerating and trying to get through the gap," Officer Runge responded, "No, [Balderree] was accelerating. I was no longer moving." There was sufficient evidentiary support for the jury to conclude that at the time Balderree accelerated through the gap, he knew his path was blocked and that he would cause a collision.
To support his challenge to the sufficiency of the evidence, Balderree asserts that his conduct of forcing his way through the gap, during which he tried to minimize contact with the other vehicles to make it through the gap, constitutes mere reckless driving but not use of his car as a weapon. He cites cases where the courts concluded the defendant, who engaged in reckless driving resulting in a collision with another occupied vehicle, could not be found guilty of assault with a deadly weapon. (People v. Jones, supra, 113 Cal.App.3d 83; People v. Cotton (1980) 123 Cal.App.3d 294.)
In Jones and Cotton, the courts recognized that the Legislature had adopted specific statutes addressing the penal consequences of reckless driving, and the courts declined to extend the crime of assault with a deadly weapon to situations where the defendant's conduct did not evince an intent to drive at or hit another vehicle. (People v. Jones, supra, at pp. 87, 96-97 [defendant rear-ended another vehicle during high speed chase; no evidence defendant drove his vehicle at the other car involved in the collision]; People v. Cotton, supra, at pp. 297, 301-307 [defendant collided with police vehicle that drove unexpectedly into intersection during high speed chase; defendant engaged in evasive action and did not deliberately collide].) Jones and Cotton were decided before the California Supreme Court's decision in Williams, where the court explained that the mental state for assault turns on the defendant's knowledge of facts showing that his or her act by its nature is likely to result in the application of force. (People v. Williams, supra, 26 Cal.4th at pp. 788, 790.) However, the holdings in Jones and Cotton are generally consistent with the conclusion in Williams that mere recklessness or criminal negligence does not establish assault. (Williams, supra, at p. 788; see also People v. Miller (2008) 164 Cal.App.4th 653, 662-664 [to sustain assault with deadly weapon conviction, defendant who was driving on beach bicycle path must have been aware of presence of victim hit by defendant's vehicle].)
Distinct from the circumstances in Jones and Cotton, here there was evidence that Balderree knew the brown SUV was blocking his path and he intentionally drove his vehicle through the too-narrow gap and hit the SUV. Balderree's knowledge that his path was blocked when he forced his way through the gap by hitting the SUV constituted more than mere reckless driving and established the offense of assault with a deadly weapon.
Balderree also contends he did not commit assault with a deadly weapon against the SUV occupants because there was no probability that his conduct of "shov[ing] their car out of his way" would produce great bodily injury. It was not unreasonable for the jury to reach a contrary conclusion based on a finding that an impact sufficient to move an SUV three feet was likely to cause great bodily injury so as to qualify the vehicle as a deadly weapon in this case. Assault with a deadly weapon does not require that injury actually result (People v. Aguilar, supra, 16 Cal.4th at p. 1028); thus, the offense is established even though the officers were not injured.
As to the second part of Balderree's challenge to the sufficiency of the evidence, the record supports the jury's finding that Balderree knew, or reasonably should have known, the occupants of the brown SUV were police officers. The evidence showed that Balderree was wanted for robbery in Washington, and that he encountered two SUV's when he tried to leave the residence. The SUV in back of him was obviously an undercover police vehicle based on its activated lights and siren, and the SUV in front of him was positioned at an angle in the middle of the road to prevent him from moving his car forward. Considering these circumstances together, the jury could reasonably infer that Balderree knew or should have known the brown SUV blocking his path was operated by undercover officers.
Other Crimes Evidence
Balderree asserts the trial court erred in admitting evidence of two prior offenses he committed involving vehicular chases with the police. During pretrial motions, the prosecutor argued the evidence was admissible to show that Balderree had previously gone to great lengths to escape from the police, which showed his intent and motive to intentionally (rather than accidentally) hit the SUV and his knowledge that the SUV was a police vehicle. The trial court ruled the other crimes evidence was admissible on the issues of intent, motive, knowledge, and absence of mistake. At trial, the court instructed the jury that it could consider the other crimes evidence to decide whether Balderree "acted with the intent to flee from the police in this case," "had a motive to commit the offenses alleged in this case," or "knew the police were present and performing their duties when he allegedly acted in this case."
The trial court also instructed the jury that it could consider the other crimes evidence on the issue of identity, i.e., whether "the defendant was the person who committed the offense alleged in this case." Balderree does not discuss this in his briefing on appeal, and there is nothing to suggest that the inclusion of the identity issue in the instruction created reversible error.
The other crimes involved incidents occurring in 1987 and 2000. In 1987, a deputy sheriff, driving a marked patrol vehicle, attempted to stop and arrest Balderree, who was driving a stolen motorhome. The deputy called for back-up and activated his vehicle's overhead lights. Balderree stopped the motorhome on the shoulder of the freeway. As the deputies were approaching the motorhome with their guns drawn, Balderree accelerated, crossed the two lanes of the freeway, and continued driving onto a connecting freeway. During the ensuing chase, Balderree exited the freeway, ran stop signs, forced one or two vehicles to the side of the road when making a U-turn across a raised center median, and drove into a parking lot where children were present. Balderree stopped the motorhome up against an embankment in the parking lot and fled on foot until he was caught.
In 2000, a police officer, driving a marked patrol vehicle, was looking for Balderree in order to arrest him for a previous incident. The officer saw Balderree drive away from a residence in a truck. The officer followed Balderree, and then initiated a traffic stop after Balderree ran a stop sign. Balderree did not stop but accelerated away. During the ensuing chase, Balderree drove up to 70 miles per hour on surface streets and ran through three stop signs. He eventually drove the truck down an embankment and fled on foot until he was caught.
Evidence of offenses committed by the defendant that are not charged in the current case is generally inadmissible for purposes of showing the defendant's bad character or propensity to commit crimes. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203; Evid. Code, § 1101, subd. (a).) The rationale for excluding other crimes evidence arises from the danger that the jury will convict merely because of the defendant's criminal propensity regardless of whether guilt is proven beyond a reasonable doubt. (See People v. Alcala (1984) 36 Cal.3d 604, 630-631.) However, other crimes evidence is admissible when relevant to prove some fact other than mere criminal disposition, such as intent, motive, knowledge, or absence of mistake or accident. (People v. Whisenhunt, supra, at p. 203; Evid. Code, § 1101, subd. (b).)
Because of the dangers associated with other crimes evidence, after the trial court determines the evidence is relevant it must then exercise its discretion under Evidence Code section 352 to ascertain whether the probative value is substantial and not largely outweighed by the probability that the evidence would be unduly prejudicial, confusing, or misleading to the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; People v. Kipp (1998) 18 Cal.4th 349, 371.) Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or to cause the jury to prejudge the issues based on extraneous factors. (People v. Jenkins (2000) 22 Cal.4th 900, 1008; People v. Branch (2001) 91 Cal.App.4th 274, 286.) We review the trial court's resolution of these issues for abuse of discretion. (People v. Kipp, supra, at pp. 369, 371.)
The trial court reasonably concluded the other crimes evidence had significant probative value on the issues of intent, motive, and absence of mistake. Other crimes evidence may be admissible to prove intent if the conduct during the other crime and the current crime is sufficiently similar to support a rational inference that the defendant harbored the same intent in each instance. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The reoccurrence of a similar result tends increasingly with each instance to negate accident, good faith, or other innocent mental state. (Ibid.; People v. Steele (2002) 27 Cal.4th 1230, 1244.) Similarly, other crimes evidence may be admissible to prove motive if the evidence tends to show the defendant had a reason to commit the current crime. (See People v. Walker (2006) 139 Cal.App.4th 782, 804-805; People v. Davis (2009) 46 Cal.4th 539, 604.)
When charged with a crime, the defendant may refute that he had the requisite mental state by showing that his or her conduct was accidental. (§ 26, subd. Five [person who accidentally commits charged act is not culpable]; People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) Here, the jury was instructed on the defense of accident, and defense counsel argued to the jury that Balderree accidentally hit the brown SUV as Officer Runge simultaneously moved the SUV to narrow the gap. The other crimes evidence showed that Balderree had repeatedly engaged in conduct indicating that he would go to great lengths to flee from the police rather than be arrested. Balderree's prior extreme actions of resistance to the police could reasonably support an inference that during the current confrontation with the police, he likewise had the intent and motive to engage in extreme measures in order to escape from the police. This inference buttressed the prosecution's claim that he intentionally chose to force his vehicle through the gap by hitting the SUV, and detracted from the defense claim of an accidental collision that occurred when Officer Runge narrowed the gap between the vehicles. Thus, the other crimes evidence was highly relevant to support Balderree's intentional use of force to establish the charged offenses.
Further, there was nothing unduly prejudicial about the other crimes evidence that required its exclusion under Evidence Code section 352. The prior vehicular chases did not involve any facts that were so egregious relative to the facts of the charged crime that they might have distracted the jury from its task of evaluating the evidence in the current case.
To support his contention of erroneous admission of the evidence, Balderree asserts that there was no dispute that he intended to escape from the police, that he had a motive to escape, and that he did not mistakenly flee from the police. A defendant's failure to dispute an issue does not foreclose the prosecution's presentation of relevant evidence on the issue, unless the trial court determines the potential for prejudice outweighs the probative value of the evidence. (People v. Waidla (2000)22 Cal.4th 690, 723, & fn. 5; People v. Steele, supra, 27 Cal.4th at pp. 1243, 1246; People v. Thornton (2000) 85 Cal.App.4th 44, 49.) For example, the potential for prejudice may outweigh the probative value of the evidence when the other crimes evidence is merely cumulative on an issue not reasonably subject to dispute. (People v. Balcom (1994) 7 Cal.4th 414, 423.) Although it was essentially undisputed that Balderree intended to flee from the police, the issue of whether he intended to flee by using force (i.e., intentionally, rather than accidentally, colliding with the police vehicle) was a primary issue in dispute, and was an essential fact that, if proven, supported the charged offenses. As stated, the other crimes evidence, which showed the extreme measures Balderree was willing to take against the police, was highly relevant to show that he had the intent and motive to escape by forcing his way through the gap by colliding with the SUV. Given the high relevancy of the other crimes evidence to refute the defense theory of an accidental collision during the escape, the trial court was not required to find that the potential for prejudice outweighed the probative value merely because Balderree did not dispute that he intentionally fled from the police.
In briefing on appeal, Balderree's appellate counsel claims that at trial defense counsel did not dispute that Balderree "knew he was going to cause damage to the vehicles when he shot his car through the gap." This is not an accurate depiction of the record. The defense theory was that Balderree accidentally hit the brown SUV when Officer Runge tried to close the gap at the same time that Balderree was accelerating through the gap. Balderree's trial counsel argued to the jury: "[Balderree was] clearly trying to make it through the gap; at the same time Officer Runge is trying to close [the gap]... [¶]... [¶]... Balderree [was] trying to get around the [brown SUV] and the [brown SUV] [was] turning into [Balderree's vehicle].... [¶]... [¶] Balderree was trying to drive around the [brown SUV], there is enough room there, the [brown SUV] turns, he doesn't make it, and there's an accident."
We note that the trial court instructed the jury that it could consider the other crimes evidence to consider whether Balderree acted with the intent to flee from the police, whereas the sharply disputed issue was whether he intended to use force when he fled the police. The trial court's narrow description of the intent issue in the instructions does not establish that the trial court was required to exclude the other crimes evidence on irrelevancy or undue prejudice grounds. If anything, the narrow instruction on intent inured to Balderree's favor to the extent the jury might have refrained from considering the other crimes evidence when evaluating the issue of his intent to use force when he drove through the gap. The same conclusion applies to the trial court's failure to include the issue of absence of mistake or accident in the instruction.
Regarding the issue of knowledge that the police were present and performing their duties, Balderree asserts that the prior crimes (which involved law enforcement personnel in marked vehicles) furnished no proof on this issue. The trial court could reasonably conclude that Balderree's prior involvements in police chases was relevant to show he was sophisticated enough in criminal matters to surmise that the unmarked brown SUV was a police vehicle. In any event, even if the other crimes evidence was not significantly relevant on the issue of knowledge to warrant admission on this point, any error in this regard concerned instructional error only. Given that the other crimes evidence was properly admitted on the issues of intent, motive, and absence of mistake, there is no reasonable probability the jury would have reached a different result had the trial court omitted the reference to the issue of knowledge when instructing the jury on the other crimes evidence. (See People v. Boyde (1988) 46 Cal.3d 212, 242.)
The trial court did not abuse its discretion in admitting the other crimes evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. NARES, J.
Notwithstanding its pretrial ruling that the other crimes evidence was relevant to the issue of absence of mistake, the trial court did not include an express reference to this issue in the instruction. However, as will become apparent in our discussion which follows, the trial court's reference to the issues of intent and motive to a large extent encompassed the issue of absence of mistake. (See also fn. 7, post.)