Opinion
F084428
10-20-2023
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN JAMES DRENNEN, Defendant and Appellant.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. DF016167A John R. Brownlee, Judge.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Dustin James Drennen contends on appeal that (1) the judgment on count 2 must be reversed and remanded because the evidence presented at trial was insufficient to support his conviction for assault with a deadly weapon on a peace officer; (2) the judgment on count 3 should be modified to reduce his conviction for assault with a deadly weapon on a firefighter to a conviction for simple assault; and (3) his sentence should be vacated and the matter remanded for resentencing in accordance with the reversal of count 2 and modification of count 3.
We affirm the judgment.
PROCEDURAL SUMMARY
On February 25, 2022, the Kern County District Attorney filed an information charging defendant with two counts of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); counts 1 &2); assault with a deadly weapon on a firefighter (§ 245, subd. (c); count 3); two counts of hit and run resulting in injury (Veh. Code, § 20001, subd. (b)(1); counts 4 &5); evading a peace officer (Veh. Code, § 2800.2; count 6); evading a peace officer on a highway while driving in the opposite direction of traffic (Veh. Code, § 2800.4; count 7); misdemeanor reckless driving in an off-street parking facility (Veh. Code, § 23103, subd. (b); count 8); misdemeanor reckless driving (Veh. Code, § 23101, subd. (a); count 9); and resisting arrest (§ 148, subd. (a)(1); count 10).
All statutory references are to the Penal Code unless otherwise noted.
In count 1, the alleged victim was Delano Police Officer Kenneth Rivera. In count 2, the alleged victim was Delano Police Officer Shaun Manuele. In count 3, the alleged victim was Kern County firefighter Andrew Lewis.
Defendant pled not guilty to all charges.
On May 2, 2022, defendant waived a jury trial and agreed to a court trial instead. The court found defendant not guilty on count 1 (assault against peace officer Rivera), and guilty of all remaining counts. At the sentencing hearing on June 1, 2022, the court designated count 2 (assault against peace officer Manuele) as the principal term and imposed the upper term of five years on that charge based on the following aggravating circumstances: (1) defendant's prior convictions as an adult were numerous; (2) defendant was on felony probation and postrelease community supervision when the crime was committed; (3) defendant's performance on misdemeanor probation, felony probation and postrelease community supervision was unsatisfactory in that he failed to comply with terms or reoffended; (4) defendant had served three prior prison terms; and (5) the crime involved a great threat of bodily harm in that defendant traveled in excess of 100 miles per hour and against lanes of traffic on a busy highway. The court denied probation and sentenced defendant to an aggregate state prison term of seven years.
The court found one mitigating circumstance, which was that defendant's performance on misdemeanor probation in one case was satisfactory in that he received no violations and received an early dismissal of probation.
On June 1, 2022, defendant filed a notice of appeal.
FACTS
On April 28, 2021, at approximately 3:30 p.m., officers Manuele and Rivera responded in separate patrol cars to a call for service about someone unconscious in a car at a superstore parking lot in Delano.
As Rivera drove through the parking lot, a group of people standing next to defendant's car flagged him down. Rivera parked his patrol car nearby and walked toward defendant's car.
Manuele also arrived on scene and parked his patrol car approximately 25 to 30 feet directly behind and perpendicular to defendant's car. Defendant's car was facing east and Manuele's patrol car was facing south.
Manuele estimated a group of about 15 to 25 onlookers were near defendant's car.
Both officers approached defendant's car. They saw the driver's side door was open and defendant was sitting cross-legged on the ground next to the inside of the open driver's side door, slumped over with his head on the driver's side door frame. Defendant did not appear to be conscious, so Rivera shook defendant in an attempt to wake him, but was unsuccessful. Rivera checked defendant for a pulse and found he was still breathing. At that time, Kern County fire personnel were arriving on scene. Manuele looked through defendant's back pockets for his identification but found none, so he went back to his patrol car to run the license plate number on defendant's car. When Manuele left defendant's car, he was still unconscious. Rivera moved to the outside of defendant's driver's side door so that fire personnel could have access to defendant.
While the officers were checking defendant, a Kern County Fire Department truck arrived with lights and sirens activated. The fire truck parked approximately 20 feet away from the front of defendant's car, facing north. The three firefighters who arrived in the truck walked towards defendant's car. Rivera moved to the outside of the driver's side door to allow firefighter Andrew Lewis access to defendant.
Lewis saw defendant lying limp on the ground between his car and its open driver's side door. He talked to defendant to try to wake him up, but defendant did not respond. Lewis then performed an "external rub," which is a painful stimulus, causing defendant to regain consciousness. Lewis asked defendant for his name and other basic information to assess his mentation and level of consciousness. Defendant looked up at Lewis and repeated, "I'm okay." Defendant turned his head 90 degrees and looked around the surrounding area. After approximately 10 seconds of looking around the area, a sudden look of panic came over defendant's face. The firefighters told him to stay seated on the ground, but defendant continued to rise to a standing position.
One firefighter pointed to a bottle on defendant's driver's seat and asked defendant," '[W]ere you drinking that[?]'" Lewis asked defendant to keep his legs outside of the car and face him so he could check his vital signs. The group of onlookers was still present around defendant's car as he regained consciousness.
Defendant then made a sudden move to seat himself in his car's driver's seat and placed the keys in the ignition, stating," 'I'm okay. I'm okay. I have to go.'" Rivera feared defendant might be intoxicated and ordered him to stop. Rivera stepped around the open driver's side door of defendant's car, intending to reach inside to get the keys out of the ignition, but the firefighters were in Rivera's way. Defendant told Rivera," 'I'm not leaving,'" as Rivera moved towards him. Before Rivera could reach defendant, defendant put his car in reverse and accelerated. Lewis was trapped between the car's door and the car as it reversed. As defendant reversed his car, Rivera grabbed onto the car's window for support and to avoid being hit.
As defendant reversed, Lewis spun out of the way, but the open driver's side door hit Lewis's right leg and the window hit his right elbow, shattering the window. Although he felt the impact, he was not injured. Lewis was wearing a heavy duty Nomex material emergency medical services (EMS) jacket and his elbow was not cut by the shattered window. However, because Rivera was hanging onto the window when it shattered, his forearm hit the broken glass from the window causing a laceration on his arm. When Lewis spun out of the way, defendant's car was moving in reverse at approximately seven miles per hour. After Lewis spun out of the way, defendant "hit the gas or hit the accelerator as fast as he could."
As defendant reversed away from Lewis, Lewis saw Rivera hanging onto the driver's side window and saw Manuele seated in his patrol car with the driver's side door open and one leg clearly hanging outside of his car.
Approximately less than 30 seconds passed between defendant regaining consciousness and reversing his car. The group of onlookers still surrounded the car as defendant began reversing and Rivera ordered him to stop. Multiple onlookers backed away from the car as defendant began to reverse.
As defendant was reversing his car with Rivera hanging onto the window and the window was shattering, defendant looked at Rivera and said," 'What the f[***] are you doing?'" Rivera continued to hold onto defendant's car and attempted to keep pace with it by running alongside it, trying to stop defendant from leaving the area. Rivera did not notice whether defendant looked in his rearview or sideview mirrors or backward over his shoulder as he reversed the car. Rivera saw Manuele seated in the driver's seat of his patrol car parked approximately 20 feet behind where defendant had been parked. The car continued backwards towards Manuele's patrol car until the rear-end of defendant's car collided with the patrol car's driver's side door. Before the impact, Rivera was able to step away from between the inside of the car's open driver's side door and the body of the car.
Meanwhile, Manuele was sitting in the driver's seat of his patrol car with the door open and his left leg hanging outside of his car, when he heard "some kind of screaming going on." When he looked up, he saw Rivera engaged in a physical altercation with defendant and defendant's car reversing out of its parking stall toward his patrol car at approximately 10 to 15 miles per hour. Manuele's attention had previously been on his computer as he ran defendant's license plate information, so he did not notice whether defendant looked to see his patrol car parked behind defendant's car. Manuele realized "within that split second" of noticing defendant's car reversing towards him that defendant's car was on a collision path with the driver's side door of his patrol car which would cause his left leg to get caught between his open driver's side door and the frame of his patrol car, so he pulled his leg up into his patrol car just as the rear-end of defendant's car collided with his driver's side door. The impact of the rear-end of defendant's car with the driver's side of Manuele's patrol car caused Manuele's driver's side door to close and shove his left leg into the interior of his car, but because he had lifted it before the impact, his leg did not get caught in the door frame or door well. The driver's side door and door frame of Manuele's patrol car was indented where the impact with defendant's car occurred. If Manuele had not immediately moved his leg, it would have been caught between the driver's door and the body of the patrol car.
After defendant's car collided with Manuele's patrol car, defendant put his car into drive and fled, driving southbound through the parking lot. As defendant started to drive off, Rivera tried to grab defendant's shoulder to pull him out of the car, but he was unsuccessful. He fell off defendant's car and ran to get out of its path.
Initially, Manuele was in shock at nearly having his leg crushed in the door, but once the shock wore off, he began pursuing defendant's fleeing car in his patrol car and put out over the radio that he was leaving the scene. Rivera also ran to his patrol car and attempted to catch up with defendant in the parking lot. The officers pursued defendant onto Highway 99. The pursuit lasted about 25 minutes and covered approximately 27.9 miles, until defendant drove across a dirt median into oncoming traffic and continued driving on the opposite side of the highway. During the pursuit, defendant reached speeds upwards of 100 miles per hour, drove on the shoulder, and nearly collided with several other cars.
Defendant stipulated that he engaged in conduct that would satisfy all elements of the reckless driving charges in counts 4 through 10.
After the pursuit ended, Manuele went to Delano Regional Medical Center for treatment of his injured leg. He had an abrasion and a small bruise, and his ability to walk was affected for a short time. He felt pain in his leg for at least three days after it was injured and took pain medication for it. Manuele also sought chiropractic treatment for his injury for approximately a month and a half after the incident.
DISCUSSION
I. Assault with a Deadly Weapon on Lewis
For organizational purposes, we first address the issue of whether there was sufficient evidence for defendant's conviction for assault with a deadly weapon on Lewis.
Defendant contends that his conviction for assaulting Lewis with a deadly weapon (count 3) must be modified to a conviction for simple assault because there is insufficient evidence he used the car in a manner likely to produce great bodily injury. The People disagree, as do we.
A. Law
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
"It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp, supra, 151 Cal.App.4th at p. 955; accord, People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
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." (§ 245, subd. (c).)
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault is a general intent crime that requires neither a specific intent to injure the victim, nor actual injury to another. (People v. Williams (2001) 26 Cal.4th 779, 784-788 (Williams).)
A person may commit an assault without making "actual physical contact" with the victim. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Bipialaka (2019) 34 Cal.App.5th 455, 459 ["Assault does not require an intent to cause an application of physical force or substantial certainty that force will be applied."]; People v. Johnson (2016) 244 Cal.App.4th 384, 396, fn. 8 [assault "focuses on the force used, not the injury actually inflicted"].) Accordingly, "whether the victim in fact suffers any harm is immaterial." (Aguilar, at p. 1028.)
Assault with a deadly weapon requires proof of the basic crime of assault as well as proof that the assault was accomplished by the use of a deadly weapon. (§ 245, subd. (a).)
A deadly weapon is any object, instrument, or weapon that is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. (People v. Marsh (2019) 37 Cal.App.5th 474, 485; People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.)
Section 12022.7, subdivision (f) defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) Courts have further defined great bodily injury to mean "substantial injury beyond that inherent in the offense." (People v. Escobar (1992) 3 Cal.4th 740, 746.) However, the injury need not cause the victim" 'permanent,' 'prolonged,' or 'protracted' disfigurement, impairment, or loss of bodily function." (Id. at p. 750.) "Abrasions, lacerations and bruising can constitute great bodily injury." (People v. Jung (1999) 71 Cal.App.4th 1036, 1042.)
" ' "Likely" means "probable" or ... "more probable than not." '" (People v. Russell (2005) 129 Cal.App.4th 776, 787 (Russell).)
Whether something is a deadly weapon is a question of fact. (People v. Marsh, supra, 37 Cal.App.5th at p. 485.) In making that determination, the trier of fact can consider the nature of the object, the manner in which it is used, and anything else relevant to the issue. (Ibid.) "[I]t is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used." (In re B.M. (2018) 6 Cal.5th 528, 535.) "Analysis of whether the defendant's manner of using the object was likely to produce death or great bodily injury necessarily calls for an assessment of potential harm in light of the evidence." (Ibid.)
"Traditionally, cars can be deadly weapons. This law is not new." (People v. Bipialaka, supra, 34 Cal.App.5th at p. 458; People v. Oehmigen (2014) 232 Cal.App.4th 1, 10 [observing that a car is "ordinarily 'capable of being used' in a deadly or dangerous fashion [citation] under almost any circumstance"].)
B. Analysis
Here, there is sufficient evidence to support defendant's conviction for assault with a deadly weapon on Lewis.
Defendant contends that, while his "knowledge that firefighter Lewis was standing between the open driver's door and the body of the car, in a position where he could be struck by the door when defendant backed up the car, may support defendant's conviction of assaulting" Lewis, defendant drove his car too slowly for it to be likely to produce death or great bodily injury, shown by Lewis's ability to "easily" spin out of the way.
However, even when moving at low speeds, defendant's car was both capable of, and likely to, produce great bodily injury where someone is "trapped" or "stuck" in their path as Lewis was. "The law makes clear a person who operates or drives a car in an attempt to injure another person has committed assault with a deadly weapon, to wit, the car." (Russell, supra, 129 Cal.App.4th at p. 782 [defendant committed assault with a deadly weapon where he pushed the victim into the path of an oncoming car].) "An automobile weighing several thousand pounds and underway on a street is capable of seriously injuring and often killing any person it strikes." (Id. at p. 787.) In People v. Golde (2008) 163 Cal.App.4th 101, the court found that substantial evidence supported an assault with a deadly weapon conviction where the defendant drove his car at the victim, maneuvering the car in her direction when she tried to get out of the way. (Id. at pp. 110, 117.) The Golde court concluded that "there is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (Id. at p. 117; see People v. Wright (2002) 100 Cal.App.4th 703, 706 [substantial evidence supported assault with a deadly weapon conviction where defendant drove his car close to individuals with whom he had contentious relations]; see also Russell, at p. 778.)
The trial court clearly found credible Lewis's statements that he was "stuck" and "trapped" by the car door when defendant reversed the car. While defendant argues that Lewis "easily" spun out of the way, Lewis never testified that spinning out of the way to avoid further injury was "easy." Lewis testified that he was "trapped" by defendant's opened car door when defendant started reversing his car. He stated he was "between the ... driver's side door [of defendant's car and defendant] who was also in that area [between the driver's side door and the inside of the car]," when defendant suddenly got in the driver's seat of his car and put it into reverse. At that point, Rivera instructed defendant not to operate the car but defendant disregarded him. Lewis stated, "I was trapped in between the door and the car" as the car moved backwards. The window hit his elbow, shattering the window, and the door hit his hip. He stated, "[The car] moved a little bit, but I-[my elbow] broke the window and I was able to kind of spin out of-spin out of the way of the door and got out of the way." He explained, "I was stuck, and I could have been trapped if I wouldn't have spun out of the-out of the way." He was wearing his heavy duty Nomex material EMS jacket and pants, preventing him from getting cut by the window's broken glass. He testified that defendant's car was first moving at approximately five to 10 miles per hour, and that defendant accelerated backwards as the door hit him. He estimated it was moving at seven miles per hour when the window hit his elbow, hitting him just as defendant accelerated and "creat[ing] enough force hitting my elbow to break the-break the window," and that defendant had to accelerate to get to that point. "[T]he rule is that the trier of fact is the sole judge of the weight of the evidence and credibility of witnesses." (Donlon v. Donlon (1956) 140 Cal.App.2d 428, 430.) "It is not our function to second-guess such credibility determinations or weighing of the evidence." (In re S.G. (2021) 71 Cal.App.5th 654, 672.) Accordingly, the court was entitled to believe Lewis's statements that he was "stuck" and "trapped" by the door as defendant reversed his car.
Here, defendant reversed his car while knowing Lewis was "trapped" by his driver's side door and accelerated backwards as the window and door came into contact with Lewis's body. Lewis was indeed struck by the window and door, the force strong enough to shatter the window. Considering Lewis's location when defendant reversed, it is not necessary that the car was moving at a high rate of speed, so long as its speed was sufficient to produce contact with Lewis. "It is the injury-producing potential of the moving automobile that supplies the likelihood of great bodily injury or worse." (Russell, supra, 129 Cal.App.4th at p. 788.) It is true that Lewis did not suffer major injury. Nonetheless, as discussed above, defendant's acts need not actually result in serious injury, but must only be likely to cause great bodily injury. Reversing a car while a person is "trapped" or "stuck" between the open door and the body of the car, with enough speed to shatter the car's window upon contact with the victim, is likely to cause serious injury, whether this particular victim suffered such injuries or not. Here, indeed, Lewis was not actually injured because he was able to spin out of the way enough to avoid further contact with the car and was wearing a heavy duty Nomex EMS jacket. However, "a defendant can commit the crime of assault even though his intended victim, unknown to him, has thrown up an apparently impervious defense." (People v. Craig (1991) 227 Cal.App.3d 644, 647-648, 650 [defendant committed assault where defendant cut brake lines to the victim's car, but victim discovered the issue before driving].) "Effective steps taken to avoid injury by a wise victim have never been held to negate" a defendant's present ability to commit an assault. (Id. at p. 651.)
As discussed earlier, defendant concedes he was aware of Lewis's location between the driver's side door and the body of the car when he began reversing the car. Under these circumstances, the court's finding that defendant used the car in a manner likely to cause great bodily injury is supported by sufficient evidence.
II. Assault with a Deadly Weapon on Manuele
Next, defendant contends there is insufficient evidence to support his conviction for assault with a deadly weapon on Manuele (count 2) because the record does not show defendant was aware anyone was behind his car when he reversed it. The People disagree, as do we.
A. Law
As discussed above, in determining the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine "whether it discloses substantial evidence-that is, 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. Rodriguez (1999) 20 Cal.4th 1, 11.)
To establish the requisite intent for an assault conviction, the evidence must show "that 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." (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186 (Aznavoleh); see Williams, supra, 26 Cal.4th at p. 784.)
The Williams court explained that "a defendant is only guilty of assault if he intends to commit an act 'which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.' [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Williams, supra, 26 Cal.App.4th at pp. 787-788.) The test is thus an objective one: the defendant "need not be subjectively aware of the risk that a battery might occur." (Id. at p. 788, fn. omitted; see People v. Wright (2002) 100 Cal.App.4th 703, 706.)
"[A] defendant who harbors the requisite mental state for assault while committing one or more acti rei such that a direct, natural, and probable result is a battery against two persons may be convicted of assault against each." (People v. Trujillo (2010) 181 Cal.App.4th 1344, 1354 (Trujillo) [defendant has requisite mental state to commit two assaults based on both theory of "zone of harm" and foreseeability of harm, where he discharged multiple shots from a firearm into car with two occupants, even if defendant was not actually aware there was a second occupant].) "[N]o subjective intent to injure a particular victim is required. Rather, a defendant's intended acts are evaluated objectively to determine whether harm to a charged victim was foreseeable." (People v. Felix (2009) 172 Cal.App.4th 1618, 1628; People v. Tran (1996) 47 Cal.App.4th 253, 262.)
B. Analysis
Here, there is sufficient evidence that defendant knew facts that would have led a reasonable person to realize that physical force would be applied to someone other than Lewis when he reversed his car and collided with Manuele.
" '[O]nce [the requisite mens rea is] established as to any victim, it satisfies that element with respect to all other victims, even if those victims are unintended or even unknown to the defendant.'" (Trujillo, supra, 181 Cal.App.4th at p. 1355, fn. 6.) As discussed above, defendant had the requisite mens rea for assault against Lewis, stating that there "may" be sufficient evidence he committed assault against Lewis.
Accordingly, defendant also had the mens rea for assault against Manuele, even if he was not actually aware there was someone behind his car before he reversed it.
Defendant asserts, however, there is no evidence defendant knew of any facts that would have led a reasonable person to realize that physical force would be applied to a person other than Lewis as a direct and probable consequence of reversing his car. Defendant argues that because he was unconscious shortly before he reversed his car, he was unaware of any facts, including what time of day it was or that he was in a busy parking lot, that would have led him to realize suddenly reversing might result in hitting someone besides Lewis, or that anyone was behind his car.
However, despite defendant's initial state of unconsciousness, defendant did regain consciousness for approximately 30 seconds before he reversed his car. Dashcam video recordings from Manuele and Rivera's patrol cars show that it was a clear, sunny day, with multiple cars and pedestrians in the immediate vicinity of defendant's car, which the trial court could reasonably infer defendant also became aware of upon regaining consciousness and "looking around" the surrounding area for 10 seconds before reversing his car. The record also shows Manuele's patrol car was located approximately 20 feet behind defendant's car, and it, accordingly, would have been in plain view from where defendant was located to the inside of his open driver's side door. Lewis, standing next to defendant inside the open driver's side door area, also testified that he was able to see Manuele from his location. Further, Lewis testified that as defendant looked at him, another firefighter stood to Lewis's right, while Rivera was on the outside of the open driver's side door, and the firetruck was parked about 20 feet from the front of defendant's car, in addition to 15 to 25 bystanders nearby and car traffic in the parking lot. Also, when defendant suddenly began reversing his car, Rivera instructed him to stop, but he continued anyway. Rivera then reached into the car and tried to grab defendant's shirt to stop him. Then, as the car door hit Lewis's elbow and leg, defendant "hit the gas or accelerator as fast as he could," increasing his speed to approximately 15 miles per hour, until his car hit Manuele and his patrol car. Manuele's patrol car dashcam video recording also shows two bystanders moved quickly out of the path of defendant's car as he reversed.
From this evidence, the trial court could reasonably infer that defendant was aware of facts that would lead a reasonable person to realize that hitting someone other than Lewis with his car would be a direct and probable consequence of suddenly reversing it. (See Aznavoleh, supra, 210 Cal.App.4th at p. 1186.) As we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction, we determine the court, as trier of fact, could find that defendant was aware hitting someone else aside from Lewis was a direct and probable consequence of suddenly reversing his car. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
However, even if defendant was not aware of anyone behind his car, there is sufficient evidence to support his conviction for assault against Manuele. Defendant further contends no one saw him look behind him as he reversed his car, so there is no evidence he knew Manuele was located in his car's path. However, it is irrelevant whether defendant was actually aware Manuele or anyone else was located behind his car when he reversed it; it only matters that defendant was aware of facts that would lead a reasonable person to realize hitting someone, wherever they were located, would be a direct and probable consequence of his act. (See Aznavoleh, supra, Cal.App.4th at p. 1186.)
"In [People v. Riva (2003) 112 Cal.App.4th 981], the defendant fired shots from one car at the occupants of another car. He did not hit anyone in the other car, but did hit a pedestrian ... walking nearby. (Id. at p. 986.) The jury was not instructed in accordance with the Williams decision that the defendant must have actual knowledge of facts to indicate that the defendant's act would probably result in a battery. (Riva, supra, at p. 997.) The court held, however, that the error was harmless. It explained: 'The shooting took place on a February evening at approximately 5:00 p.m., when people are normally returning from work, school or shopping. Although it would have been dark at that time of day, the shooting took place in an urban neighborhood consisting of residences such as Gold Star Manor, where [the victim] lived, and small businesses .... [The victim], her friend ..., and [the victim's] two grandchildren had just left the market and were approaching the gate to Gold Star Manor when [the defendant] shot [the victim]. There were other pedestrians, including her grandchildren, and "a lot of cars" in the area when the shooting occurred. [¶] The facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct.' (Id. at p. 998, fn. omitted.) [Most importantly, the Riva] opinion does not indicate or suggest that the defendant saw or was actually aware of [the victim]." (Trujillo, supra, 181 Cal.App.4th at pp. 1353-1354.)
"The Riva court relied in part on People v. Bland (2002) 28 Cal.4th 313[,] [citation] ... [which states]:' "Criminal acts, consummated or inchoate, are discrete events that can be both pinpointed and counted. A mens rea, by contrast, is an elastic thing of unlimited supply. It neither follows nor fails to follow the bullet. It does not go anywhere. It remains in the brain of the criminal actor and never moves. It may combine with a single actus reus to make a single crime. It may as readily combine with a hundred acti rei, intended and unintended, to make a hundred crimes, consummated and inchoate. Unforeseen circumstances may multiply the criminal acts for which the criminal agent is responsible. A single state of mind, however, will control the fact of guilt and the level of guilt of them all." [Citation.]'" (People v. Trujillo, supra, 181 Cal.App.4th at pp. 1354-1355; see Bland, at p. 325; see also People v. Riva, supra, 112 Cal.App.4th at p. 999 &fn. 6; see also People v. Concha (2009) 47 Cal.4th 653, 660-661.)
"If we apply this view of mens rea to the crime of assault, a defendant who harbors the requisite mental state for assault while committing one or more acti rei such that a direct, natural, and probable result is a battery against two persons may be convicted of assault against each." (Trujillo, supra, 181 Cal.App.4th at p. 1354.) Here, there is no dispute that defendant's act of suddenly reversing his car without warning, knowing Lewis was in its path and looking around the surrounding area on a clear, sunny day for 10 seconds, is an" 'action enabling [defendant] to inflict a present injury' [on anyone in the car's path, thus] constitut[ing] [an] actus reus of assault." (Trujillo, at p. 1355; see People v. Chance (2008) 44 Cal.4th 1172.) Nor is it reasonably disputed that defendant had the requisite mental state for assault required by Williams: he was actually aware, as discussed above, that he was driving his car in a manner that would lead a reasonable person to realize that a battery against another (Lewis) would directly, naturally, and probably result. (See Williams, supra, 26 Cal.4th at pp. 787-788.) Even if defendant was not aware someone was also behind his car, his mental state can be "readily combine[d]" with the actus reus of suddenly reversing his car without warning, knowing people were in its immediate vicinity, to"' "multiply the criminal acts for which the [defendant] is responsible." '" (Trujillo, at p. 1355; People v. Bland, supra, 28 Cal.4th 313 at p. 325.) Just as "a person maliciously intending to kill is guilty of the murder of all persons actually killed" (Bland, at pp. 323-324), a person who harbors the requisite intent for assault is guilty of the assault of all persons actually assaulted. (See, e.g., Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351 [a defendant may properly be convicted of multiple counts for multiple victims where the act prohibited by the statute is centrally an act of violence against the person]; People v. Smart (2006) 145 Cal.App.4th 1216, 1224 [for assault, "there are as many crimes as there are victims"].)
Because the gravamen of assault is the likelihood that the defendant's action will result in a violent injury to another (see Williams, supra, 26 Cal.4th at p. 787; § 240), it follows that a victim of assault is one for whom such an injury was likely. Manuele, sitting in his patrol car parked directly behind defendant's car, was no less a victim of defendant's assault than Lewis, trapped by its open driver's side door. Therefore, defendant can be charged with and convicted of assault against both men hit by defendant's car even if the record does not show defendant saw Manuele behind him. (See Trujillo, supra, 181 Cal.App.4th at pp. 1353-1355.)
Further, "[s]upport for this view can be found in cases involving acts of violence that create a zone of harm encompassing multiple potential victims." (Trujillo, supra, 181 Cal.App.4th at p. 1355; see People v. Vang (2001) 87 Cal.App.4th 554, 564 [defendants guilty of attempted murder against persons inside residences shot at by defendants who were unknown and not seen by defendants and were not the intended victims because "defendants harbored a specific intent to kill every living being within the residences they shot up"]; see also People v. Adams (2008) 169 Cal.App.4th 1009 [defendant guilty of attempted murder of three people where she committed arson to murder her primary target but was unaware three other people were in the house at the time because "[w]hether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims actually were within the zone of harm"].) Here, defendant concedes he "may" have had the requisite mental state for assault and essentially created a "zone of danger" in the path of his car when he suddenly reversed it. Accordingly, the evidence is sufficient to support the conviction of assault on Manuele, who was in the zone of harm created by defendant reversing his car.
Even if the zone of harm theory does not apply to assault, we conclude that Manuele was a reasonably foreseeable victim of defendant's assault under the rationale expressed in Riva, discussed above. Here, the trial court could have reasonably found that a person with actual knowledge that he is suddenly reversing a car with at least one person in the path of the car's open door (Lewis), while being instructed by a police officer to stop, would realize that his conduct would directly, naturally, and probably result in a battery to anyone and everyone in the path of his car. People and other cars behind a reversing car in a busy parking lot in the middle of the day are no less foreseeable than the pedestrian hit by the bullet in a busy neighborhood in Riva. Indeed, because defendant suddenly reversed his car without warning, the likelihood that a person such as Manuele would be hit by his car was at least as great as the probability of the defendant's bullets hitting a person in Riva. Whether defendant was subjectively aware of such risk or had the specific intent to injure anyone behind his car is irrelevant. (Williams, supra, 26 Cal.4th at p. 788; People v. Felix, supra, 172, Cal.App.4th at p. 1629.)
Accordingly, there is sufficient evidence defendant committed assault with a deadly weapon on Manuele when he reversed his car into him.
DISPOSITION
We affirm the judgment and, accordingly, do not remand for resentencing.
[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.