Opinion
C096239
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. CASEY ADAM PROCTOR, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 62-181106
HULL, Acting P. J.Summary of the Appeal
A jury found defendant Casey Adam Proctor guilty of the assault with a deadly weapon on a peace officer within the meaning of Penal Code section 245, subdivision (c), and assault with a deadly weapon within the meaning of Penal Code section 245, subdivision (a)(1). (Statutory section citations that follow are to the Penal Code unless otherwise stated.) The trial was bifurcated regarding prior convictions and, following the jury's verdicts, the trial court found true the allegation that defendant had two prior strike convictions, making the instant conviction a third strike. The trial court denied defendant's request to dismiss prior strike convictions in the interest of justice under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court then sentenced defendant to a term of 25 years to life in prison.
On appeal, defendant challenges his conviction and sentence on five grounds. First, defendant argues his assault convictions are not supported by sufficient evidence. Second, he argues that the trial court erred in failing to provide the jury instructions on the lesser included offenses of simple assault and simple assault on a peace officer. Third, he argues the trial court abused its discretion in denying his request to strike one or more of his prior strike convictions. Fourth, he argues that recent amendments to section 1385 required the trial court to dismiss the allegations that he suffered prior strike convictions. Fifth, he argues the sentence the trial court imposed amounts to cruel and unusual punishment in violation of the United States and California Constitutions.
We affirm the judgment.
Facts and History of the Proceedings
The Prosecution Evidence
At trial, Captain Douglas Alan Blake testified that on August 20, 2021, at around 2:20 p.m., he left the police department in Roseville to drive to a charity golf tournament in Auburn organized by members of the SWAT team.
Blake was wearing a short-sleeved olive-green polo shirt with the SWAT emblem on the left chest. His pants were tan BDU-style tactical pants, which resemble cargo pants. He wore his firearm on his belt to the right side and, next to that on his belt, his badge and badge holder. His badge holder is a black circle with the department badge, which has an emblem of the State of California in the center, and the banner around that says, "Roseville Police." There is a banner at the top of the badge that says "Captain." The badge is shiny gold and the writing on it is dark blue. Blake wore a lanyard around his neck that had "Roseville Police" written on it in bright yellow capitalized letters. The lanyard held a laminated copy of his police department identification.
Blake was driving a police-assigned 2021 Ford Explorer Police Interceptor which was an SUV-style car with no police insignias on it. The car was not equipped with emergency lights or sirens. The door panels below the windows are white and the rest of the vehicle is painted black. The car had spotlights, or takedown lights, on the "A-pillars."
Blake drove east on Pleasant Grove towards south Highway 65. As he entered the highway, a traffic metering light was active. He stopped in the left lane at the red light, and to his right was a silver pickup truck, driven by defendant. The truck received a green light first and entered the highway. Blake then followed when he had a green light. There were two southbound lanes at that stretch of Highway 65, and Blake moved into the left lane. Just before the Stanford Ranch Road exit, defendant's truck was immediately to his right, though just slightly ahead of him. Without using a signal, defendant began to move into Blake's lane. Blake stepped on his brakes, and defendant swerved back into the right lane.
Defendant held up his hand indicating he saw Blake's car, and Blake held up his hand acknowledging defendant's reaction. At this point, they were nearing an interchange to Highway 80.
When defendant looked over and saw Blake's vehicle, his demeanor changed, and he became very animated. Defendant's hands began to move, he slowed the truck down, and he began to shout in an angry tone. Defendant's reaction was so out of the ordinary that Blake was concerned about defendant's ability to safely operate a motor vehicle. Defendant slowed to a complete stop in the right lane of the highway, and Blake stopped his vehicle alongside the truck. Traffic behind them came to a stop, except one vehicle that passed Blake on the left shoulder.
At this point, defendant was leaning out the open window of the truck, waving both his hands in a sharp, angry, menacing manner, and was yelling angry words towards Blake. Defendant's face looked angry. Blake could not catch everything defendant said, but it included, "fuck you." Defendant was looking directly at Blake and Blake was looking through the front passenger side window which was rolled up.
Blake held his badge out the window and told defendant to pull over. Blake and defendant were about 15 feet apart, and Blake could see defendant clearly. Blake yelled slowly for defendant to pull over, hoping defendant would hear and understand, or at least see Blake mouth the words.
Defendant responded by becoming even more animated. Defendant clearly and loudly yelled, "Fuck you. I don't care. Fuck you." Defendant continued to wave his arms and make angry gestures. Blake then very loudly and very slowly told defendant to pull over a second time, while still showing his badge. Blake estimates he showed the badge for about 10 seconds. He did not identify himself verbally as a police officer.
When defendant did not move despite Blake's commands, Blake sought help from a patrol unit in Roseville. He used his police radio and radioed while keeping eye contact with defendant who was facing him.
As Blake was calling for backup, defendant very suddenly sped off.
Blake accelerated and got behind the truck. Defendant began weaving around other cars without signaling as the highway approached the split for the interchange onto east and west Highway 80. Because his vehicle was not equipped with lights and a siren, Blake stayed within the speed limit.
Defendant's truck was about 75 to 100 yards ahead of Blake, weaving around cars at a high rate of speed. Because he saw plumes of dust billowing in the air as the truck drove along the highway, Blake believed the truck drove on the shoulder which is surfaced by gravel and dirt. The truck was travelling faster than Blake safely could because of traffic and Blake lost sight of the truck.
Blake entered east Highway 80 driving the posted speed limit. He was not "in pursuit" of the truck but, as he entered Highway 80, Blake saw the truck about 100 yards ahead of him. He moved into the fourth, or far right lane, and was able to accelerate and get behind the truck. Traffic was traveling at a moderate speed of about 40 to 50 miles an hour, but Blake was able to drive 60 to 65 miles per hour and close the distance to the truck because there were not many cars in his lane.
As the fourth lane merged with the lane to its left, Blake stayed behind the truck. Blake closed to about two-and-one-half car lengths directly behind defendant's truck in lane 3 and was travelling about 40 to 50 miles per hour. He read the license plate on the car and radioed the number to dispatch and gave them his location. He also took photos using his cell phone.
As Blake was radioing, the truck moved into the middle lane and began to slow down to where it matched Blake's speed and was immediately to his left. As Blake was finishing his broadcast, he looked over, and the truck sharply and suddenly turned in his direction and started moving into Blake's lane of traffic. The vehicles almost collided and they started going off the road. Defendant was making angry facial gestures and sharp moving hand gestures.
The truck came within a foot, possibly inches, of Blake's vehicle. Blake had to sharply jerk his steering wheel to the right and slow down to avoid being struck. He had to move his car all the way out of the slow lane and onto the shoulder. The truck made it all the way into the slow lane and was partially off the road by the time the vehicles stopped. The shoulder is asphalt with dirt and gravel to the right of the pavement. The front end of Blake's car was on the gravel. The truck stopped to Blake's left with its back end partially in the lane of traffic but mostly occupying the paved shoulder.
Blake had been traveling between 40 and 45 miles per hour but, as the two vehicles moved to the shoulder they quickly came to a stop. Once they were stopped, Blake was unsure if he would be able to open his door given the closeness of the truck. Defendant still had an angry look on his face, and he was yelling in an angry tone. His hands and gestures were moving up and down again. Blake and defendant were stopped for approximately 20 seconds; 30 at most. At trial, Blake had difficulty accurately recalling where on Highway 80 he and defendant were.
Blake again used his radio to broadcast the incident and to call for priority over whatever else officers listening at the time might be doing. The truck then accelerated back into traffic, crossing all three lanes of traffic into lane one. Blake drove back onto the freeway but stayed in lane three, the far-right lane.
The highway went past an off ramp, then, after the off-ramp ended, again went back to three lanes. The truck moved into the middle lane. Blake remained in the slow lane, a bit closer to the truck, and was broadcasting updated information. The truck suddenly slowed down and got behind Blake. The truck then rapidly accelerated. Before the truck got behind him, Blake was increasing his speed from about 40 to 50 miles per hour.
Blake estimates the truck was seven car lengths behind him when it moved behind him, and that it accelerated and then got very close to the rear bumper of his car. He watched it in his rearview mirror and was worried he would be hit. Blake could not see the grill or headlights of the truck in the rearview mirror. Defendant was "very, very close." Blake could see defendant's face and eyes. He could see defendant's mouth moving. Defendant made more angry facial expressions and gestures.
Blake slowed down and began to pull his vehicle off the road. The truck briefly followed him, but then continued east.
The truck then crossed sharply and quickly across all lanes into the number one lane, and it accelerated to 55 or 60 miles per hour quickly. Blake returned to the highway and followed the truck. He remained in the number three, or slow, lane. He continued to keep sight of the truck.
Three times over the next quarter to one-half mile, the truck would pull partially to the left shoulder and dramatically slow down, almost to a stop. This would significantly slow down and back up traffic behind him.
There was a semi-truck in the center lane somewhat between defendant's truck and Blake's car. The semi-truck had a tractor and two trailers behind it; three pieces. Defendant's truck was traveling slightly faster than the semi-truck. Blake remained in the slow lane a few car lengths behind the semi-truck. Defendant's truck got up to the cab and tractor part of the trailer and turned aggressively in the direction of it and its lane of traffic. This caused the semi-truck to respond by swerving sharply right in front of Blake, swerving a few times before stabilizing, and remaining briefly in the slow lane of traffic. The semi-truck could have easily turned over or lost control. So Blake responded by slowing down to about 30 miles per hour to assess if the semi-truck would remain in control. Blake sped up again as the semi-truck regained control.
Blake stayed in the number three lane, the far-right slow lane. He tried to keep pace with defendant's truck, which averaged between 55 and 65 miles per hour. After the incident with the semi-truck, defendant's truck sped up to 65 or 70 miles per hour. After they passed the Penryn exit, defendant's truck moved to the far-right lane and slowed to about 60 miles per hour. Defendant did not use a signal when he changed lanes.
Defendant continued for a mile or two after moving into the slow lane and took the Newcastle exit. Blake was about 75 to 100 feet behind defendant's truck at this point and he followed defendant at the exit. The truck stopped at a red light and made a right-hand turn. It fully stopped before turning but did not use a blinker. The truck almost immediately began making a left-hand turn, eventually making a U-turn. The truck then approached the intersection where the offramp was and ran a "stale" red light, that is, one that had been red for some time. The truck did not slow down and entered the intersection against the red light at approximately 25 miles per hour
A CHP unit with its emergency lights on pulled behind the truck as the truck finished going through the intersection against the red light. Blake went through the intersection as the CHP followed defendant's truck over the freeway overpass. After turning onto the next road, the silver truck stopped. The CHP stopped behind the truck and Blake stopped slightly behind the CHP.
The CHP asked defendant to get out of the truck, and defendant walked to the rear of the truck. Defendant sat on the curb between his truck and the CHP car. Blake got out of his car, walked up to defendant, and handcuffed him.
Blake said defendant seemed apologetic. He asked the CHP officer something like, "[w]hat's the problem, Officer?" Before Blake handcuffed defendant and after the CHP officer asked defendant to sit on the curb, defendant turned to Blake, made eye contact, and smiled.
Other officers from the Roseville Police Department arrived shortly thereafter. Blake briefed the officers on what had occurred and handed control of the investigation over to Sergeant Bret Brzyscz.
Brzyscz testified at trial about his search of defendant's truck. He found pieces of burnt foil in the truck, which suggested to him that someone had smoked heroin in the vehicle. The only thing he has ever seen used on burnt foil is heroin. He also found a hollow pen with residue inside, which is consistent with smoking heroin. There was a backpack with a dollar bill inside that was rolled up and had some residue inside it, which is also consistent with smoking heroin. There was also a passport belonging to defendant inside and a clean roll of aluminum foil behind the front seats.
The jurors heard and were given a transcript of the radio calls Blake made to dispatch. In his radio calls to dispatch, Blake said a white male in a silver F-150 was trying to run him off the road. He said the truck was continuing to slow down to 20 miles per hour, while Blake drove at normal speeds. He said, "I don't have the equipment to pull him over." He then said, "he almost sideswiped the big rig now." Blake then reported defendant making a U-turn, and that he believed CHP was behind defendant. He reported defendant yielded off of Newcastle.
A recording of a call defendant made from jail in September 2021 was admitted at trial.
The following exchange occurred on the call when the person defendant was speaking with asked why defendant was in jail:
"A: Cuz, I didn't even do anything dude. I swear to God. I was getting onto Pleasant Grove on 65 and an unmarked car, Captain Blake from the fucking Roseville PD pulls up alongside of me and brand-new unmarked car . . .
"Q: Oh, you didn't even know it was a cop?
"A: Well not really, no but he fucking, he looked at me and was mugging me so I flipped him off and told him to fuck off and when I did that, he showed me his badge and I said, fuck you and your badge and he got behind me and I fuckin took him on high speed (chuckling) and got away, but then he caught me."
The Defense Evidence
Defendant testified and admitted that in 2017 and 2018 he was convicted of a violation of Vehicle Code section 10851, the unlawful taking of a vehicle.
He characterized his interactions with Blake as a misunderstanding. He claimed he was nervous, scared, and worried. He testified he saw Blake as a "random individual" that got behind him, who had just "threatened to pull [him] over," and was "chasing" him. He was under the impression that this random person was aggressive.
With respect to the incident Blake characterized as defendant suddenly swerving into his lane of Highway 80, defendant testified he had been trying to change lanes to get off the freeway, and Blake accelerated, blocking his ability to get off the freeway. He did not provide detailed testimony regarding the parties' speeds during this incident, but earlier he had estimated traffic was travelling at about 40 miles per hour on that stretch of highway.
He testified that, when he was behind Blake's vehicle, he did not make threats and did not try to hit Blake's vehicle. He testified he kept a normal freeway following distance and was travelling about 40 miles an hour. He testified he was behind Blake for about 45 seconds. Then, according to defendant, Blake pulled over to the right shoulder of the freeway.
Defendant testified the substance on the foil in his car was fentanyl. He had smoked it. When asked if had used heroin earlier in the day, he responded, "[n]o. I don't do heroin."
The jury found defendant guilty of four counts: (1) felony assault of a peace officer with a deadly weapon under section 245, subdivision (c), Count One; (2) felony assault with a deadly weapon under section 245, subdivision (a)(1), Count Two; (3) misdemeanor reckless driving in violation of Vehicle Code section 23103, subdivision (a), Count Three; and (4) misdemeanor possession of drug paraphernalia in violation of Health and Safety Code section 11364, subdivision (a), Count Four.
Bifurcated Trial on Strikes and Factors in Aggravation
Defendant waived his right to a jury trial regarding the allegation that he had suffered four prior convictions for serious or violent felonies or juvenile adjudications pursuant to section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i). He also waived his right to a jury trial regarding an allegation that the felony alleged in Count One, assault on a peace officer with a deadly weapon, was a serious or violent felony pursuant to section 1170.12, subdivision (c)(2)(A), and section 667, subdivision (e)(2)(A), which, given his prior convictions, made defendant eligible to be sentenced to an indeterminate term. And he waived his right to a jury trial regarding allegations of factors in aggravation (section 1170, subdivision (b)(2), and California Rules of Court, rule 4.421).
A bifurcated bench trial was held on these allegations.
At the bifurcated trial the court admitted recordings and transcripts of calls defendant made on September 3 and 5, 2021.
During the September 3, 2021, call defendant recounted meeting with his attorney, and he noted he was facing a charge of an assault on a peace officer. He said, "I said, . . . if I knew I was going to get struck out, I would have put a gun in that Captain's fucking mouth and blew his fuckin head off." During the September 5, 2021, call he said, "I need to beat this shit. . . . [¶] . . . [¶] I am not pleading to life, there is no fucking way. . . . [¶] . . . [¶] I can't, I would have fucking shot that dude." When the person defendant was speaking with interrupted and said, "[o]k, wait, Casey . . .," defendant responded, "[s]orry, I'm just so frustrated."
The trial court made its ruling on the record on January 27, 2022.
The trial court found that on June 7, 2012, in Placer County Superior Court, defendant was convicted of two counts of attempting to dissuade a witness in violation of section 136.1, subdivision (c)(1), and one count of first-degree residential burglary in violation of section 459.
The trial court also found that on April 22, 2009, defendant was convicted of attempted first-degree residential burglary. The trial court found that the prior convictions were for serious or violent felonies within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), and therefore, were strike convictions. The trial court also found that defendant's conviction in this action was, due to the prior strike convictions, a third strike, which made him eligible for an indeterminate sentence.
The court found true allegations of various factors in aggravation under section 1170, subdivision (b)(2), and California Rules of Court, rule 4.421.
Drug Addiction History and Social Factors Described in the Probation Report
The Placer County Probation Officer prepared a Probation Officer's Report in late February 2022.
In his opening brief, defendant highlights the following social and drug use history as stated in the report:
Defendant graduated from Rocklin High School in 2007. In high school, he was actively involved in sports, which resulted in him fracturing his leg at age 15.
When defendant broke his leg, the doctors prescribed him Norco, an opiate-based drug and he became dependent on the drug. This dependency led defendant to use OxyContin and eventually heroin.
Defendant completed an inpatient substance abuse program when he was 19. Following inpatient treatment, he entered a sober living environment and attended community college. After remaining sober for some time, defendant relapsed.
Defendant has had intermittent periods of sobriety since he began using OxyContin at age 16. One period of sobriety was two and a half years.
Defendant's most recent relapse was in 2020, when he was in an off-road accident that resulted in the loss of two of his fingers. He was prescribed fentanyl following that injury and relapsed. While defendant reported his main addiction is to opiates, in the years leading up to the present action, he had also been using methamphetamine. Defendant said during his probation interview that in the six months before the instant offense, heroin was one of the drugs he had sometimes been using. This is in contrast to his trial testimony in which he testified, "I don't do heroin."
Defendant has certifications as a heavy equipment operator and in operations for Cal Fire.
The Romero Motion and the Trial Court's Findings
Defendant filed a motion to dismiss a prior strike in the interest of justice pursuant to section 1385 and People v. Superior Court (Romero), supra, 13 Cal.4th 497.
The trial court denied the motion. On the record, the trial court stated its findings and identified factors it considered in making its ruling.
First, the court found that the felony convictions in this action involved violence, and that the convictions were the result of a "serious crime involving reckless driving and at high rates of speed, and intentionally attempting to collide [sic] the police officer's vehicle on the freeway." The court found that defendant was not cooperative with respect to the instant crime. It also found he was not on parole or probation when he committed the current offense.
The trial court considered the nature, circumstances, and defendant's age when he committed the prior strikes, noting they occurred in 2009 and 2012.
The trial court then considered whether the prior strikes involved violence or the use of deadly weapons or the taking of property of great value. It stated the 2009 conviction for attempted burglary was the result of defendant breaking a window in a house with a rock, then reaching through the broken window to unlock the door. This resulted in an alarm going off and a neighbor witnessed this. It stated the 2012 burglary conviction was the result of defendant entering a home and stealing copper wiring. The trial court stated the 2012 dissuading witness convictions were the result of defendant lunging at witnesses in a threatening manner and making hand gestures that symbolized a gun during an infield identification. The trial court in this action considered this defendant's second strike.
The trial court noted it was obligated to consider if the strikes arose from a single act or single period of abhorrent behavior.
The trial court considered the amount of time defendant was out of custody before committing the strike offenses. It observed defendant had not been in custody prior to the 2009 strike and that defendant had briefly been in custody in 2010 for his DUI offense.
The trial court then considered defendant's criminal history, listing the various offenses defendant suffered beginning with his first strike in 2009. It also noted his age at the time he was convicted of the two prior strikes. The court found, "defendant does have a history of violence, which is increasing in seriousness," and noted that defendant had a prior strike dismissed in an action in 2017.
The trial court recognized that defendant has a drug problem, stretching back to his leg injury when he began using opiates after injuring his leg, and including the use of fentanyl after he lost both of his fingers in an off-road accident. The trial court noted defendant had stated he was interested in drug rehabilitation rather than prison.
The court then considered defendant's background, character, and prospects. It recognized defendant had the support of family and friends, who had appeared in court and submitted letters in his support. It noted defendant grew up in a supportive household with parents who took care of him.
The court found defendant does not have a significant health problem other than the fact he is missing two fingers.
The court then considered defendant's prospects for living a stable and crime-free life. It noted that since the age of 20, defendant had spent a significant amount of time committing crimes or incarcerated.
The court stated it was very troubled by defendant's jail telephone conversations, in which defendant stated he would have blown the victim's head off or otherwise shot him if he had known he was facing another strike conviction.
The court found that defendant had employable skills.
The court considered the factors in aggravation and mitigation under California Rules of Court, rules 4.421 and 4.423.
The court summarized its findings: "[a]fter careful consideration of all of the above factors, the Court finds, in light of the nature and circumstances of the defendant's present felonies and prior strikes, and the particulars of his background, character, and prospects, and what the Court considers a just sentence, the Court finds the defendant's current criminal offense falls inside the spirit of [the] Three Strikes Law."
Sentence and Appeal
The trial court sentenced defendant to 25 years to life on Count One. It also imposed a sentence of 25 years to life on Count Two but stayed the sentence under section 654. It did not impose any time for the misdemeanor offenses, Counts Three and Four. At the sentencing hearing, the trial court awarded defendant 263 days credit for time served. While at the hearing the trial court did not award conduct credits, it later awarded defendant 262 days of conduct credit off the record, for total credits of 525 days.
Defendant filed a notice of appeal on May 9, 2022.
Discussion
I
Sufficient Evidence Supports the Assault Verdicts
Defendant argues there is not sufficient evidence to support the guilty verdicts on the assault charges, Counts One and Two. Defendant makes two arguments that apply to both counts. First, he argues the evidence is insufficient to show that defendant's conduct was assaultive and not simply reckless. Second, he argues the evidence was insufficient to show his truck was used as a deadly weapon. Both of these arguments rely heavily on the premise that defendant's use of the truck was not likely to cause death or great bodily injury. We address those arguments together. With respect to Count Two, assault on a peace officer with a deadly weapon, defendant also argues the evidence was insufficient to support a finding that defendant knew or reasonably should have known Blake was a police officer. We reject these arguments.
A. Standard of Review
"The 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 . . . 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." (People v. Jennings (2010) 50 Cal.4th 616, 638-639; accord People v. Reed (2018) 4 Cal.5th 989, 1006 [citing Jennings]; People v. Banks (2023) 97 Cal.App.5th 376, 384 [same].) In other words," '[a] reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
B. Elements of the Assault Crimes
Pursuant to section 240, "[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
Though the statutory definition of assault speaks to an "unlawful attempt," (§ 240) and attempt crimes usually require specific intent, "assault is a general intent crime." (People v. Chance (2008) 44 Cal.4th 1164, 1167 (Chance).) "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.' [Citation.]" (People v. Williams (2001) 26 Cal.4th 779, 782.) It also requires "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." (Ibid.) But "assault does not require a specific intent to injure the victim." (Id. at p. 788.) And a defendant "need not be subjectively aware of the risk that a battery might occur." (Ibid.) Thus, "[a]lthough 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.' (People v. McCoy (1944) 25 Cal.2d 177, 191 [] . . . .) 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." (People v. Colantuono (1994) 7 Cal.4th 206, 214-215 (Colantuono).) "The pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm." (Id. at p. 218.)
The actus reus of assault "is a defendant's action enabling him to inflict a present injury . . . ." (Chance, supra, 44 Cal.4th at p. 1172.) "A defendant has a present ability to injure when the' "defendant has attained the means and location to strike immediately"' ([Chance, supra, ] 44 Cal.4th [at p.] 1174 []), even if the injury would not 'necessarily occur as the very next step in the sequence of events, or without any delay' (id. at p. 1172). Thus, 'when a defendant equips and positions himself to carry out a battery, he has the "present ability" required by section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.' (Ibid.) 'Thus, an assault can occur even when the defendant makes no contact with the victim.' [Citation.]" (People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 279.)
Section 245, subdivision (a)(1), imposes a punishment on "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm."
Section 245, subdivision (c)(1), imposes a higher range of punishment on "[a]ny 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."
C. Sufficient Evidence Establishes the Willing Use of a Deadly Weapon
"As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276 [].) Some few objects . . . have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) "Whether an object is a deadly weapon under" the assault statute "does not turn on whether the defendant intended it to be used as a deadly weapon; a finding that he or she willfully used the object in a manner that he or she knew would probably and directly result in physical force against another is sufficient to establish the required mens rea." (People v. Perez (2018) 4 Cal.5th 1055, 1066.)
In In re B.M. (2018) 6 Cal.5th 528, 533-535 our Supreme Court identified three principles that may guide the analysis of whether an object was used as a deadly weapon.
"First, the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also' "likely to produce death or great bodily injury."' (Aguilar, supra, 16 Cal.4th at p. 1029, italics added.)" (In re B.M., supra, 6 Cal.5th at p. 533.) "Second, the Aguilar standard does not permit conjecture as to how the object could have been used. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually 'used' the object." (Id. at p. 534.) "Third, although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant. '[A] conviction for assault with a deadly weapon does not require proof of an injury or even physical contact' (Brandon T., supra, 191 Cal.App.4th at p. 1497), but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (In re B.M., supra, 6 Cal.5th at p. 535.)
Defendant suggests this was not an assault with a deadly weapon because there is insufficient evidence that the vehicles were traveling fast enough that death or great bodily injury was likely. He characterizes the "circumstances surrounding the incident" as strongly suggesting "low-speed lane drift that posed little to no risk of death or great bodily injury." We disagree with this characterization.
There are two incidents where sufficient evidence supports a finding that defendant used his truck as a deadly weapon.
Sufficient evidence supports that the first incident occurred after Blake took a photo of defendant's license plate and unfolded as follows: Blake was traveling between 40 to 50 miles per hour. As Blake was attempting to radio in the truck's license plate number, defendant moved to the lane next to Blake and slowed to match Blake's speed. Defendant then very abruptly, with a sharp and sudden movement turned the truck in Blake's direction, "almost collid[ing]" with Blake, and forcing Blake to evasively move to the shoulder and stop. When the vehicles stopped, Blake's car was entirely on the shoulder, and defendant's truck was partially in the shoulder. Though the vehicles eventually stopped, Blake estimated they were travelling 40 to 45 miles per hour during the incident. The truck got within a foot of Blake's car. The vehicles were so close that Blake did not know if he could open his car door once they stopped.
Under these facts, the jury could have fairly concluded that defendant used his truck in a manner that was likely to produce death or great bodily harm. But for Blake's evasive maneuver, defendant would have hit Blake's car, which was traveling 40 or more miles an hour when the truck turned towards it at a matched speed. And a truck is, undeniably, a large and heavy object. Even if defendant eventually slowed his truck to a stop, that does not change the likeliness that Blake could have been seriously injured, at least, by defendant's use of his truck when the assault was underway. (See People v. Claborn (1964) 224 Cal.App.2d 38, 41 ["[E]ven though the skid marks did indicate a last moment change of intent (perhaps motivated by realization that in his effort to harm the officer he himself would be injured), guilt for the consequences of the force defendant had set in motion was not thereby absolved. Abandonment of intent is only a defense if the attempt to commit the crime is freely and voluntarily abandoned before the act is put in the process of final execution"].)
The second possible instance occurred after defendant and Blake reentered traffic, when defendant got behind Blake, accelerated, and got very close to Blake's bumper. The truck was so close that Blake "could not see the front grill, front headlights, or any part of the car in [his] rearview mirror." Before the truck got behind him, Blake had been increasing his speed from 40 to 50 miles per hour. Blake slowed down and began to turn his car off the road, slowing almost to a stop, at which point the truck went by him and continued east. Here too, the jury could have reasonably concluded that defendant used his truck in a manner capable of producing and likely to produce Blake's death or great bodily injury.
In short, there is sufficient evidence that defendant used his truck as a deadly weapon as contemplated by the assault statutes. He used his truck-a heavy moving object-in a manner that risked collision with a vehicle travelling between 40 and 45 miles per hour. That Blake managed to take evasive maneuvers and avoid the collisions and that the vehicles eventually stopped does not alter the dangerous nature of defendant's actions. As used, the truck was a deadly weapon. (See People v. Oehmigen (2014) 232 Cal.App.4th 1, 5, 11 [concluding a defendant had been armed with a deadly weapon while committing an assault when during a chase "he turned the car around and drove it at one of the police cars, which had to make an evasive maneuver to avoid a 'substantial[ly] certain[]' collision"].)
Because we conclude sufficient evidence supports a conclusion that defendant used his truck as a deadly weapon, defendant's argument that his actions were reckless and not assaultive because his use of the truck was not likely to cause death or great bodily injury is unconvincing.
Blake reported that defendant had an angry look on his face, moved his hands and arms up and down, and was yelling in an angry tone when they were pulled over on the shoulder after defendant veered his truck into Blake's lane of travel. Defendant's actions caused Blake to radio in seeking three units of backup because, while he was still in the thick of the chase, he had surmised that defendant was "trying to run [him] off the road." This supports a finding that defendant's actions were not a casual lane drift, but an intentional decision to move his car towards Blake while aware of facts that would cause a reasonable person to know injury could directly and probably result from those actions. As our Supreme Court "explained more than a century ago, 'Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.' (People v. McMakin [(1857)] 8 Cal. [547,] 548, italics added; People v. McCoy, supra, 25 Cal.2d at p. 193.)" (Colantuono, supra, 7 Cal.4th at p. 219.)
D. Knowledge that Blake Wa s A Peace Officer
Conviction under section 245, subdivision (c), requires proof that the person who committed the assault knew or reasonably should have known that the victim was a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter was engaged in his or her duties. (See also CALCRIM No. 900.) Defendant argues there was insufficient evidence to establish defendant knew or reasonably should have known that Blake was a police officer engaged in the performance of his duties.
The record shows the following facts: Though unmarked and lacking sirens and lights used in police pursuits, Blake's vehicle was painted in the black and white colors often used on police vehicles. The car had spotlights affixed to it. After defendant swerved in and out of Blake's lane on Highway 65, he initially offered a casual wave of his hand. However, when defendant, who had two prior convictions for vehicle takings, looked over and saw Blake's vehicle, his demeanor "instantly changed and became very animated." At that point, defendant began shouting in an angry tone. Defendant then brought his truck to a stop. With a distance of about 15 feet between Blake and defendant, Blake held his badge to the window of his car and twice loudly and slowly told defendant to "pull over." Rather than pull over, defendant yelled, "[f]uck you. I don't care. Fuck you," in response to Blake producing his badge. Then, when defendant did not move, Blake used a police radio, which was about two feet in length with an antenna, while keeping eye contact with defendant. In a jailhouse phone call, when the person defendant was speaking with asked if he knew Blake was a cop during their chase, defendant responded, "not really, . . . so I flipped him off and told him to fuck off and when I did that, he showed me his badge and I said fuck you and your badge . . . and I . . . took him on [a] high speed."
Based on the above, there was sufficient evidence to support a finding that defendant reasonably should have known Blake was a police officer engaged in his duties. The jury could conclude the black and white car, badge, and handheld radio showed Blake's status. It could have concluded that defendant had reason to know Blake was engaged in police officer duties when-from inside that vehicle-he instructed defendant to pull over. Additionally, it could have concluded that Blake was continuing in his duties when he monitored the truck's progress, and that defendant reasonably should have known this. Moreover, sufficient evidence supports a finding by the jury that defendant's demeanor changed when he realized the person whose lane he had almost crossed into was in a black and white car and not a regular vehicle. And, given defendant's prior record, there was an explanation for why he would become angrier upon seeing a police officer. As such, sufficient evidence supports a jury finding that defendant himself believed the person he tried to run off the road was a police officer engaged in duty and not an ordinary citizen.
To make his argument that the evidence was insufficient in this case, defendant turns to statutes contained in Vehicle Code sections 2800.1 through 2800.3 that punish a person who willfully flees from an officer. Under those Vehicle Code sections, an individual is liable when willfully fleeing or evading a police officer in a motor vehicle when one or more of the following four conditions exist: "(1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform." (Veh. Code, § 2800.1, subd. (a); see also Veh. Code, §§ 2800.2, subd. (a), 2800.3, subds. (a)-(b) [incorporating Veh. Code. § 2800.1].) Defendant reasons that these elements are "instructive in assessing what would constitute proof that a defendant 'knew or reasonable should have known' that a person in another vehicle is a peace officer engaged in the performance of his or her duties."
The statute at issue here does not speak in terms of identifying police officers by "distinctive" features. It speaks to what a defendant either "knows or reasonably should know," entrusting to the trier of fact the determination of whether based on all the facts and evidence the victim's status as a police officer is something defendant knew or should have known. (§ 245, subd. (c).) This is something the jury is capable of doing and did here based on sufficient evidence. (See People v. Rodriguez (1986) 42 Cal.3d 730, 782 ["the average juror has the ability to cull from everyday experience a standard by which to assess the ability of a defendant to know the status of his or her victim"].)
Had the Legislature intended to impose liability under section 245, subdivision (c), only upon persons who assault peace officers that are driving distinctive vehicles or wearing distinctive clothing, it could have done so. "When interpreting a statute, our role is 'to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language.' (Vasquez v. State of California (2008) 45 Cal.4th 243, 253 [].)" (S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1179; see also Code Civ. Proc., § 1858 ["In the construction of a statute . . ., the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted"].)
In determining if evidence satisfied a statutory provision that applies, like this statute, when "defendant knew or reasonably should have known that the victim was a peace officer," our colleagues in the First Appellate District observed, "there is no statutory requirement that the prosecution establish the requisite knowledge only through evidence that defendant saw the victim, heard the victim, or directly interacted with the victim. We have no doubt that this type of circumstantial evidence will be the evidence most often relied upon to show a defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties. But whether defendant had knowledge of a fact is a question the trier of fact may answer with reference to all the circumstances." (People v. Sifuentes (2022) 83 Cal.App.5th 217, 235, italics added [interpreting § 189, subd. (f)].)
While evidence of a distinctively marked car, sirens, or a uniform might have helped the jury in reaching its verdict, they were not necessary. As we explained above, there was sufficient evidence that given all the circumstances, defendant knew or should have known Blake was a peace officer engaged in the performance of his duties.
II
Simple Assault Instruction
The trial court instructed the jury with CALCRIM No. 860, regarding assault on a peace officer with a deadly weapon. It also instructed the jury with CALCRIM No. 875, regarding assault with a deadly weapon. It did not instruct the jury with an instruction for simple assault. Defendant argues the trial court prejudicially erred by failing to instruct the jury on the lesser included offenses of simple assault of a peace officer and simple assault. There was no error.
"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. [Citation.] . . . [T]he court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense." (People v. Shockley (2013) 58 Cal.4th 400, 403-404.)
A trial court errs in failing to instruct on a lesser included offense supported by the evidence"' "even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given."' (People v. Breverman (1998) 19 Cal.4th 142, 154 [], quoting People v. Sedeno (1974) 10 Cal.3d 703, 715-716 [], citing People v. Mosher (1969) 1 Cal.3d 379, 393 [].)" (People v. Souza (2012) 54 Cal.4th 90, 114.) "We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant." (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
A lesser offense "is necessarily included in a greater offense if . . . the statutory elements of the greater offense . . . include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
A simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The only difference between simple assault and assault with a deadly weapon (§ 245, subd. (a)(1)) is that the latter requires proof of the additional element that in committing the assault, defendant used a deadly weapon or instrument other than a firearm. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) Because an assault with a deadly weapon cannot be committed without necessarily committing a simple assault, simple assault is a lesser included offense of assault with a deadly weapon. (Id. at pp. 747-748; People v. Lopez (1998) 19 Cal.4th 282, 288 ["if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former"].) For similar reasons, the simple assault of a peace officer is a lesser included offense to assault on a peace officer with a deadly weapon: the latter differs from the former in that it requires the additional proof that defendant committed the assault with a deadly weapon. (Compare §§ 240 & 241, subd. (c), with § 245, subd. (c).)
Defendant argues that simple assault instructions were warranted here because there was substantial evidence that he drove his truck in such a way that a jury could find that it would probably and directly result in the application of force to another, but not in such a way that was likely to cause death or great bodily injury. We do not agree for the many reasons we have set forth earlier. Reviewing the facts in the light most favorable to defendant, any assault that occurred was accomplished, according to the jury, with defendant using his truck as a deadly weapon.
If the jury accepted that an assault occurred, the assault was accomplished by defendant putting his truck on a course to either collide with Blake or to run Blake off the road. Given this evidence, the court had no duty to give a simple assault instruction because there was no substantial evidence that in assaulting Blake defendant used his truck with force that was less than force likely to produce great bodily injury. (People v. McCoy (1944) 25 Cal.2d 177, 187 ["The law is well settled in this state that the trial court may properly refuse to instruct upon simple assault where the evidence is such as to make it clear that if the defendant is guilty at all, he is guilty of the higher offense"]; cf. People v. Golde (2008) 163 Cal.App.4th 101, 117 [finding with regards to a car used in an assault of a person standing outside the car 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"].)
III
Denial of the Romero Motion
A. Applicable Standards
The Three Strikes law was enacted in 1994, "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses." (§ 667, subd. (b).) The law "consists of two, nearly identical statutory schemes . . . . The earlier provision, which the Legislature enacted, was codified as section 667, subdivisions (b) through (i). The later provision, which the voters adopted through the initiative process, was codified as section 1170.12." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504, fn. omitted.) "The well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment." (People v. Leng (1999) 71 Cal.App.4th 1, 14; see also People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 357-358.) "Prior convictions for 'serious' or 'violent' felonies, as defined by the Three Strikes law, are referred to as 'strikes.' (People v. Henderson (2022) 14 Cal.5th 34, 43-44 [].)" (People v. Dain (2024) 99 Cal.App.5th 399, 409 (Dain).)
Section 1385 allows a court to dismiss an action "in furtherance of justice." Our Supreme Court has held that, "on its own motion, 'in furtherance of justice' pursuant to [section] 1385(a), a trial court may strike an allegation or vacate a finding under the so-called 'Three Strikes' law ([§§] 667, subds. (b)-(i), 1170.12) that a defendant has previously been convicted of a 'serious' and/or 'violent' felony as defined therein. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)" (People v. Williams (1998) 17 Cal.4th 148, 151-152, fn. omitted, (Williams).) "[A] request that the trial court exercise its discretion to dismiss a prior strike conviction is commonly referred to as a 'Romero motion.' (E.g., People v. Carmony (2004) 33 Cal.4th 367, 379 [] (Carmony).)" (Dain, supra, 99 Cal.App.5th at p. 409.)
Determining what is in furtherance of justice"' "requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' (People v. Orin[ (1975) 13 Cal.3d [937,] 945.)" (Romero, supra, 13 Cal.4th at pp. 530-531.)
In Williams, supra, 17 Cal.4th at page 161, the high court articulated the factors a trial court must consider in ruling on a Romero motion: "in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to [section] 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies."
"In Carmony, our high court emphasized that the Three Strikes law 'not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so.' (Carmony, supra, 33 Cal.4th at p. 378.) The court described the Williams guidance as 'stringent standards that sentencing courts must follow in order to find' a defendant outside the scheme's spirit. (Carmony, at p. 377, italics added.) More recently, the high court reiterated, '[T]he Three Strikes law establishes a "strong presumption" in favor of a harsher sentence . . . .' (People v. Salazar (2023) 15 Cal.5th 416, 428 [], citing Williams and Carmony.)" (Dain, supra, 99 Cal.App.5th at pp. 413-414.)
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374; see Williams, supra, 17 Cal.4th at p. 162.) "The abuse of discretion standard is highly deferential. When,' "as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'"' ([People v. ]Jefferson[ (2016)] 1 Cal.App.5th [235,] 242-243; see Carmony, supra, 33 Cal.4th at pp. 376-377.)" (People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza).)"' "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [].)" (People v. Barrera (1999) 70 Cal.App.4th 541, 554.)
When we consider a trial court's decision not to dismiss a prior serious felony when exercising its discretion under section 1385," '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.) "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The circumstances "where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme" must be particularly "extraordinary." (Carmony, at p. 378; see also People v. Strong (2001) 87 Cal.App.4th 328, 332 (Strong).)
B. Analysis
The trial court did not abuse its discretion when it denied defendant's Romero motion. The trial court listed the Williams standards, then identified various factors that informed its assessment of defendant's motion under those standards and carefully considered those factors.
The factors the trial court considered included the violence of the current offense.
The factors also included the nature and date of the prior strike offenses, and defendant's age when he committed the strike offenses. The court also noted other misdemeanor and felony offenses defendant committed between the strikes and the current offense.
The court considered defendant's background, character, and prospects. As part of this, the court noted defendant had stated he was interested in drug rehabilitation rather than prison, had support from friends and family, and had job prospects. The court also noted that, since he was 20, defendant had spent a significant amount of time engaged in committing crimes or incarcerated. It also fairly characterized as "troubl[ing]" defendant's statements during phone calls while in jail in which he stated had he known he was facing a strike he would have blown Blake's head off or shot him.
Taken together, these factors demonstrate that the trial court's determination was not arbitrary, capricious, or reached in a" '" 'patently absurd manner that resulted in a manifest miscarriage of justice.'"' ([People v. ]Jefferson, supra, 1 Cal.App.5th at pp. 242-243; see Carmony, supra, 33 Cal.4th at pp. 376-377.)" (Mendoza, supra, 88 Cal.App.5th at p. 298.) Defendant's efforts to convince us otherwise are unavailing.
First, defendant argues that the trial court incorrectly found that "defendant [has] a history of violence, which is increasing in seriousness." In making this argument, he notes that none of the prior strikes involved actual violence. They involved the burglary or attempted burglary of unoccupied homes or lunging at victims making threatening gestures. Defendant's fixation on the lack of harm in the prior strikes is misplaced. The 2009 attempted burglary involved breaking a window with a rock. The 2012 convictions involved lunging at witnesses and making hand gestures in the threatening manner. The instant offense involved propelling his truck towards Blake's vehicle in freeway traffic. Though these crimes might not have resulted in anyone getting hurt, they involved the possibility or threat of violence, and the seriousness of that threat has increased over time. In this context, to characterize defendant as having a history of violence which is increasing in seriousness is not inaccurate.
Next defendant argues the court's finding that the current crime was serious in that it involved "reckless driving" and at "high rates of speed" was incorrect because a finding that the parties were traveling at high rates of speed is unsupported. To the contrary, the evidence supports a finding that defendant was traveling at least 40 miles an hour when he assaulted Blake with his truck. That is a high speed at which to project-and potentially crash-a truck that weighs thousands of pounds at a vehicle. This was not a slow rolling crawl.
Defendant also suggests the trial court's statement that the instant crime was violent was improper because section 245, subdivisions (a)(1) and (c), offenses are not violent crimes under section 667.5, subdivision (c). But crimes can be violent and show increasing violence even if they do not fall onto the list contained in section 667.5, subdivision (c). Section 667.5, subdivision (c), specifically limits the list of crimes it defines as "violent felon[ies]" to those considered "extraordinary crimes of violence." (Italics added.) That a crime might not involve "extraordinary" violence does not mean it is not violent. Nor does it mean that a court should not consider the extent to which an unlisted crime threatens violence or is violent when it considers if a defendant's record of convictions reflects an increasing trajectory of seriousness and tendency towards violence.
Additionally, contrary to defendant's suggestion the trial court did not adopt the probation report's treatment of defendant's conviction here as a violent offense under section 667.5, subdivision (c). While at the sentencing hearing the trial court incorrectly declined to award conduct credits, it did so on the basis that defendant's sentence was an indeterminate term-i.e., it did not tie this ruling to a finding that the crime was violent under section 667.5, subdivision (c). When the trial court revisited the conduct credit award off the record, it awarded defendant credits of just one day short of his actual time served. Had the trial court concluded the crime was one of "extraordinary" violence under section 667.5, subdivision (c), it would have limited conduct credits to only 15 percent of defendant's presentence time served. (§ 2933.1, subd. (a).) Thus, defendant's argument that the trial court made an incorrect finding regarding the nature of his criminal history and present offense is inapt.
Noting he pulled over and cooperated when CHP officers turned on their lights, defendant also argues the trial court's finding that he was not cooperative is incorrect. This argument ignores all defendant's actions before CHP pulled him over, a period in which the trier of fact concluded he either knew or reasonably should have known that Blake was a police officer. Pulling over for the CHP in this scenario does not reflect defendant was cooperative. It reflects that, at that point, defendant understood he was outnumbered and his efforts to evade peace officers was no longer going to work.
Defendant also argues the remoteness of his prior strikes and his youth when he committed them support vacating one of his strikes here. He suggests the crimes he committed in the interim do not, in fact reflect increasing seriousness. Yet, remoteness does not significantly support vacating a strike when a defendant's "continuous crime spree . . . has substantially spanned his entire adult life." (People v. Gaston (1999) 74 Cal.App.4th 310, 321.) "[A] defendant who falls squarely within the law's letter does not take himself outside its spirit by the additional commission of a virtually uninterrupted series of nonviolent felonies and misdemeanors over a lengthy period. After all, the Three Strikes law was devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences . . . for those who commit a felony' as long as they were previously convicted of at least one strike." (Strong, supra, 87 Cal.App.4th at pp. 331-332, fns. omitted; People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) "[R]emoteness, by itself, cannot be the basis for dismissing a prior strike conviction." (Dain, supra, 99 Cal.App.5th at pp. 415-416.)" '[O]lder strike convictions do not deserve judicial forgiveness unless the defendant has used them as a pivot point for reforming his ways.' (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107-1108 [] [reversing the trial court's dismissal of one of two prior strike convictions where the defendant 'failed to reform his behavior during the decade plus that elapsed between his first strike conviction and his third strike conviction'].)" (Dain, supra, 99 Cal.App.5th at p. 416.)
Finally, defendant argues that while the trial court acknowledged his drug addiction, it did not indicate whether it considered it a factor in mitigation and it ought to have considered it as such. It is true that in some cases a criminal's drug addiction can serve as a factor in mitigation. (See People v. Garcia (1999) 20 Cal.4th 490, 503 [identifying crimes related to drug addiction as one of a list of factors that rendered a trial court's decision to dismiss a strike as not outside the bounds of reason]; People v. Avila (2020) 57 Cal.App.5th 1134, 1144 (Avila) [identifying a defendant's past efforts to seek treatment for drug addiction as one of a variety of mitigating factors when finding a trial court improperly denied a Romero motion]). In considering the weight to give drug dependency, courts will look to a defendant's efforts to root his dependency out. (See People v. Gaston, supra, 74 Cal.App.4th 322.) Here, though defendant may have stated he wanted treatment for his addition when facing sentencing and had, in fact, gone through treatment when he was 19, he only admitted to the full extent of his addiction and current use after he was found guilty, and he was not forthcoming about his heroin use under oath at trial. That is, defendant's representations regarding the extent of his addiction and what he might do to remedy it reflected as much a tendency to say what he thought would behoove him in the moment. In this circumstance, and considered with other factors, the trial court did not abuse its discretion in not treating defendant's addiction as a factor in mitigation that tipped the balance to place defendant outside the spirit of the Three Strikes law.
IV
Amendments to Section 1385 and Alternative Sentencing Schemes
Defendant asserts that under guidelines added to section 1385 by Senate Bill No. 81 (2021-2022 Reg. Sess.) the trial court was required to strike his prior serious felonies.
Among other things, Senate Bill No. 81 added subdivision (c) to section 1385. As relevant here, subdivision (c) provides, in part: "(c)(1) [n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(1)-(2), as amended by Stats. 2021, ch. 721, § 1.)
Defendant contends the trial court was required to strike his prior strike convictions given some of the enumerated mitigating circumstances.
In People v. Burke (2023) 89 Cal.App.5th 237 (Burke), another panel of this court concluded: "Subdivision (c) of section 1385 expressly applies to the dismissal of an 'enhancement.' [Citation.] 'Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.' [Citation.] The term 'enhancement' has a well-established technical meaning in California law. [Citation.] 'A sentence enhancement is "an additional term of imprisonment added to the base term."' [Citations.] It is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense. [Citations.] We presume the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law. [Citation.] The Legislature did not otherwise define the word 'enhancement' in section 1385. Because the statutory language is clear and unambiguous, we follow its plain meaning and do not consider the legislative history cited by defendant. [Citation.] The plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement. We therefore conclude that section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law." (Burke at pp. 243-244, fn. omitted.) Defendant acknowledges Burke but urges it was wrongly decided and asks us to reconsider. We agree with the analysis in Burke and will adopt it here.
Defendant's reliance on dictionary and legal dictionary definitions of the term "enhancement" does not persuade us that, contrary to Burke's conclusion, that term as used in section 1385 encompasses Three Strikes law alternative sentencing within its meaning. (See People v. Carter (1996) 48 Cal.App.4th 1536, 1540 ["words used in a statute are presumed to be used in accordance with their established legal or technical meaning"].) Nor are we persuaded by defendant's argument that Burke's interpretation violates the canon against surplusage. "If the plain language of a statute or regulation is clear and unambiguous, our task is at an end and there is no need to resort to the canons of construction or extrinsic aids to interpretation." (Butts v. Board of Trustees of California State University (2014) 225 Cal.App.4th 825, 838.)
We also disagree with defendant's contention that the term "enhancement" in this context has not been judicially construed. Defendant suggests that, in Romero, supra, 13 Cal.4th 497, the California Supreme Court did not decide that the Three Strikes law "articulates an alternative sentencing scheme for the current offense rather than an enhancement," but rather was describing defendant's argument. (Id. at p. 527.) We need not determine whether defendant is correct. Subsequent cases have employed this language and affirmatively distinguished enhancements from alternative sentencing schemes in this way. (See, e.g., People v. Frutoz (2017) 8 Cal.App.5th 171, 174, fn. 3 ["It has long been settled that the three strikes law 'articulates an alternative sentencing scheme for the current offense rather than an enhancement' "], quoting Romero, at p. 527; People v. Williams (2014) 227 Cal.App.4th 733, 744 [the "Three Strikes law is a penalty provision, not an enhancement"].) Whether or not Romero did, other courts have plainly construed the Three Strikes law alternative sentencing scheme as distinguishable from, and something other than, an enhancement." '[W]hen the Legislature amends a statute without changing those portions of the statute that have previously been construed by the courts, the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction.'" (People v. Atkins (2001) 25 Cal.4th 76, 89-90.)
Defendant unnecessarily discusses the legislative history of Senate Bill No. 81 at length. "[R]esort to legislative history is appropriate only where statutory language is ambiguous." (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29.) We agree with the characterization in Burke that the statute is clear and unambiguous, and we "follow its plain meaning and do not consider the legislative history cited by defendant." (Burke, supra, 89 Cal.App.5th at p. 243, fn. omitted.) Defendant emphasizes certain parts of the legislative history that are inconsistent with the well-established definition of the term "enhancement." However, to the extent the Legislature did not intend to use the term "enhancement" in accordance with its well-established definition, "that is a matter for the Legislature to correct." (Id. at p. 243, fn. 3.)
Lastly, because the statute is clear and unambiguous, the rule of lenity, requiring a preference for the interpretation most favorable to defendant, is inapplicable. (People v. Manzo (2012) 53 Cal.4th 880, 889.)
V
Cruel and/or Unusual Punishment
Defendant argues that his sentence is cruel and/or unusual, in violation of the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. We disagree.
A. Standard and Principles of Review
The Eighth Amendment of the United States Constitution prohibits the infliction of "cruel and unusual punishments." (Italics added.) It is applicable to the states through the Due Process Clause of the Fourteenth Amendment of the United States Constitution. (People v. Braum (2020) 49 Cal.App.5th 342, 360.) Article I, section 17, of the California Constitution contains a similar, though not identical, provision that prohibits the infliction of "cruel or unusual punishment." (Italics added.) "Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Palafox (2014) 231 Cal.App.4th 68, 82; accord People v. Wilson (2020) 56 Cal.App.5th 128, 166-167.)
In conducting this review, we are mindful that, "[t]he doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." (People v. Wingo (1975) 14 Cal.3d 169, 174; see also Rummel v. Estelle (1980) 445 U.S. 263, 274, fn. omitted ["one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative"].)
The judiciary "should not interfere in" the Legislative process of defining crimes and fixing punishments "unless a statute prescribes a penalty 'out of all proportion to the offense' (Robinson v. California (1962) [] 370 U.S. 660, 676[] (concurring opinion of Douglas, J.); In re Finley (1905) [] 1 Cal.App. 198, 202)." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) Under this standard, punishment must not be so excessive that it transgresses the limits of civilized standards. (Ibid.)
Thus, "[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
B. Analysis Under the California Constitution
"A punishment is cruel or unusual in violation of the California Constitution if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' ([Lynch, supra, ] 8 Cal.3d [at p.] 424 [].) Three techniques are employed to make this determination: first, we examine the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; second, compare the challenged penalty with the punishments for more serious offenses in California; and third, compare the challenged penalty with the punishments prescribed for the same offense in other states. (Lynch, at pp. 425-427.) Disproportionality need not be established in all three areas. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38 [] (plur. opn.).)" (Avila, supra, 57 Cal.App.5th at p. 1145, fn. omitted.) Defendant focuses his argument regarding the California Constitutional ban on the first and second techniques.
1. Nature of the Offense and the Offender
"The first Lynch technique requires considering the nature of the offense in the abstract as well as the facts of the crime in question, 'i.e., the totality of the circumstances surrounding the commission of the offense . . ., including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' [Citation.] Courts must view the nature of the offender in the concrete rather than the abstract, considering the defendant's age, prior criminality, personal characteristics, and state of mind. [Citation.] Stated simply, the punishment must fit the individual criminal. (Lynch, supra, 8 Cal.3d at p. 437.)
"Where, as here, the defendant is a recidivist, it is not as a general rule cruel or unusual to enhance a sentence based on the defendant's status as a recidivist; still, 'the ultimate punishment, all facts considered,' must not be disproportionate to the crime. (People v. Mantanez (2002) 98 Cal.App.4th 354, 359 [; see Solem v. Helm (1983) 463 U.S. 277, 284-288 [].) 'Accordingly, the current offense must bear the weight of the recidivist penalty imposed.' (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072 [].) Because the penalty is imposed for the current offense, the focus must be on the seriousness of that offense: past offenses alone will not justify imposing an enhanced sentence. (Id. at pp. 1079-1080.)" (Avila, supra, 57 Cal.App.5th at p. 1146, italics omitted.)
In considering the instant offense, defendant observes no one was injured and there was no collision. He also again advances the argument that the parties were traveling at a relatively low speed. He notes the role his drug addiction has played in his criminal record, and correctly points out that his status as an addict itself cannot be punished. (Avila, supra, 57 Cal.App.5th at p. 1149.) He notes the continuum of actions and harms that may result in a felony conviction that could technically trigger the Three Strikes law, and likens the facts in this case to those in Avila, supra, 57 Cal.App.5th 1134, in which our Second District Court of Appeal found a 25-year-to-life sentence imposed under the Three Strike law on a defendant found guilty of robbery and extortion to be cruel and unusual. (See id. at pp. 1138-1139, 1140.) We do not agree that the facts here are similar to those in Avila and find that defendant's argument, once again, downplays the significance of his actions.
In Avila, defendant's prior strikes were 26 and 28 years old. (Avila, supra, 57 Cal.App.5th at p. 1141.) Here, defendant's strikes were approximately 10 and 12 years old. In Avila, defendant had two other prior felonies: a 1999 conviction for unlawful sexual intercourse with a minor, whom he later married; and a 2008 conviction for drug possession that would have been a misdemeanor in 2020. (Id. at p. 1148.) After that, the Avila defendant incurred a few misdemeanor offenses before his 2018 strike offense that was the subject of the appeal. (Id. at p. 1143.) Here, in addition to misdemeanor convictions between 2012 and the instant conviction, defendant suffered a felony conviction in 2017 and another one in 2018.
Most significantly, in Avila, the attempted robbery and extortion convictions that were punished with the 25-years to-life sentence were the result of a fact pattern in which defendant twice demanded money from vendors selling oranges near a freeway exit. (Avila, supra, 57 Cal.App.5th at p. 1139.) In the first instance, when the seller said he did not have the money, defendant squashed two bags of oranges then left. (Ibid.) In the second instance, the Avila defendant stomped on one bag and said, "money, money, money," and then stomped on another bag, then left. (Ibid.) In finding the 25-years-to-life sentence cruel and unusual in Avila, the court stressed that defendant had not used violence against the victims, he had not verbally or physically threatened them, and the total property damage was about $20. (Id. at p. 1146.) The court concluded while these offenses might not be at the "bottom of the well" on the spectrum of felony offenses that could lead to a third strike conviction they are "certainly in that neighborhood." (Id. at p. 1148.) Here, notwithstanding defendant's efforts to downplay the seriousness and riskiness of his current offense, defendant put the physical safety, vehicle, and life of a police officer in great danger when he used his truck as a deadly weapon against Blake.
Here, using a deadly weapon to assault a peace officer engaged in their job to protect the public poses a very real risk to not only the officer, but to the public peace officers protect. And the way defendant carried out this particular assault endangered Blake. It endangered other drivers in the immediate vicinity of the two vehicles in the moments the assaults occurred. Moreover, other drivers on the road as defendant sped by them on the shoulder, made unpredictable changes in his speed, stopped in an active lane on a freeway, and attempted lane changes without signaling or exercising due caution- e.g., the semi-truck that had to correct itself-were put at risk over the course of the events. This was not in the same neighborhood as destroying fruit.
Avila also does defendant no favors when we consider his prior offenses. His prior strikes are more recent than those in Avila. The Avila court was able to consider the Avila defendant's prior felony convictions given circumstances that mitigated their seriousness-i.e., one felony would be a misdemeanor today, and one arose out of a relationship with a minor defendant later married-which are not present here. Moreover, here, the trajectory of defendant's criminal record, when one compares the details of the instant offense and how it was committed to his two prior serious offenses, shows that defendant's behavior is getting more serious and dangerous overtime. The same was not true when one compared the conviction at issue in Avila with the Avila defendant's prior strikes.
In short, defendant has not shown under the first Lynch technique that his sentence here transgresses the limits of civilized standards.
2. Punishments for Other Offenses in California
"The second prong of the Lynch analysis involves a comparison of the 'challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction.' [Citation.] . . . 'However, as the court pointed out in People v. Ayon (1996) 46 Cal.App.4th 385, 400 [], this step is inapposite to three strikes sentencing because it is a defendant's "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." [Citation.]' [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)
Defendant acknowledges he is being punished as a recidivist, but points to language in Avila, where the court looked to "the evolving state of California's criminal jurisprudence" to analyze possible disproportionality. (Avila, supra, 57 Cal.App.5th at p. 1150.) Again, defendant's reliance on Avila is misplaced because it relies too much on the premise that the crime here was minor and in the neighborhood of "destroying fruit" that was the crime in Avila. For example, in making this argument he characterizes his sentence in relation to his actions as a "life in prison for a reckless and unsafe lane change." This is an oversimplification of defendant's actions and his prior history and are unconvincing.
C. Federal Constitution
"A sentence violates the federal Constitution if it is 'grossly disproportionate' to the severity of the crime. (U.S. Const., 8th & 14th Amends.; People v. Carmony[, supra, ] 127 Cal.App.4th [at p.] 1076.)" (People v. Russell (2010) 187 Cal.App.4th 981, 993.)
Defendant rests his argument of gross disproportionality, once again, on his premise that his offense was not really all that serious. Defendant argues, "the circumstances of the instant offense would certainly place it among the least egregious examples of assault with a deadly weapon on a police officer." Defendant's underplaying of his actions remains unpersuasive. This argument ignores the fact that he committed an assault with a deadly weapon on a police officer no matter how he carried out that assault. This is not the "rare case that violates the prohibition against cruel and/or unusual punishment." (People v. Carmony, supra, 127 Cal.App.4th at pp. 1071, 1072 [application of the Three Strikes Law to impose a life sentence when defendant failed to update his sex offender registration under the fact of the case was cruel and/or unusual].) Defendant's actions were dangerous and put the victim and others at risk of deadly harm.
Disposition
We affirm the judgment.
We concur: RENNER, J. MESIWALA, J.