Opinion Bank # O-182
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, No. B081782
Plaintiff and Respondent, (Super.Ct.No. TA024924)
MARIO MORA,
Defendant and Appellant.
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APPEAL from a judgment of the Superior Court of Los Angeles County. Richard P. Kalustian, Judge. Affirmed in part and reversed in part.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.,
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol
Wendelin Pollack,, Senior Assistant Attorney General, John R.Gorey, Supervising Deputy Attorney General, and Kenneth N. Sokoler, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from his conviction for involuntary manslaughter. We affirm the conviction for involuntary manslaughter and reverse the true finding that defendant personally used a deadly and dangerous weapon.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Procedural Background
In an information, appellant was charged with murder., It was further alleged that pursuant to Penal Code section [Footnote 1] 12022, subdivision (b), appellant used a deadly and dangerous weapon.
A jury found appellant guilty of involuntary manslaughter (a lesser included offense) and found true the allegation that he personally used a vehicle as a deadly and dangerous weapon. The court sentenced appellant to the mid term of three years for the involuntary manslaughter conviction and one year for the enhancement.
Appellant filed a timely notice of appeal.
II. Factual History
A. Prosecution Case
On the night of April 30 and the morning of May 1, 1993, [Footnote 2] Luis Rodriguez was driving an Oldsmobile. He had been to a party in Compton where he had about four beers to drink. Rodriguez left the party with Guillermina Cortez, Betzabeth Gill, two women named Marcella and Tina, and a man named Juan. Rodriguez drove the women to a party at Shearer and 213th where Marcella and Tina wanted to be dropped off.
As Tina and Marcella got out of the car, a white Cadillac pulled up and the driver approached Rodriguez and asked him where he was from. Rodriguez gave the name of his tagging group. A car then pulled in front of Rodriguez’ car. A man known as “Weazel” approached the car along with another unknown man. The latter two men started hitting Rodriguez’ car with a stick.
Rodriguez tried to drive away, but the car that, had pulled in front of him, together with the car in back of him, blocked his exit. Rodriguez drove forward and backed up. When Rodriguez backed up, he hit the blue car which was blocking him from the rear. Rodriguez escaped by knocking the car behind him out of his way.
The white Cadillac followed Rodriguez. Appellant was driving the Cadillac, and Weazel was sitting in the front passenger seat. The Oldsmobile accelerated. The Cadillac hit Rodriguez’ car in the back and then started hitting it in the side. After appellant hit Rodriguez’ car.at least 15 times, Rodriguez drove onto the Harbor Freeway.
On the freeway, appellant continued driving his car into Rodriguez’ car. Appellant did so at least 10 times. Both cars were traveling at high speeds. Rodriguez’ car spun around on the freeway, but Rodriguez regained control. Appellant continued to pursue Rodriguez as Rodriguez exited the freeway onto Normandie Avenue.
On Normandie, appellant continued ramming his car into Rodriguez’ car, hitting it at least 10 times. After being hit by appellant’s car, Rodriguez crashed into a light pole.
At 3 a.m. on May 1, Cryssol Corral was driving southbound on Normandie when she saw sparks flying as two cars drove side by side down Normandie. The cars were ramming each other and traveling at the same speed, about 75 to 80 miles per hour. It was not apparent which car was turning its wheels against the other car. The driver of the brown car lost control of his car and hit a light pole. The white car continued at a high rate of speed and fled the scene.
Rodriguez died from injuries sustained in the crash. Passenger Cortez suffered a foot injury, and passenger Gill suffered a broken femur and broken leg.
Detective Curtis Royer investigated the incident. On June 18, Royer spoke with appellant at the body shop where appellant worked.
Appellant initially told Royer that he had gotten involved in something he should not have. Appellant said he was driving.northbound on Shearer when the vehicle behind him hit one of his friends, who was on foot. Appellant pulled over to the side of the road to talk with someone. The car that hit his friend then backed up like it was going to hit appellant’s car, but it did not. The other car then drove away on Shearer.
According to appellant, the friend got into appellant’s car, and they followed the other car from surface streets onto the freeway and then off the. freeway. The other car would brake, trying to cause an accident. When the other car started making a left turn, appellant hit the back of the car, causing it to spin out of control and crash. Appellant signed Royer’s notes of their conversation.
B. Defense Case
Appellant testified that around midnight, he was driving a white Cadillac Seville on Shearer Avenue near 213th Street in Carson. He was alone in the car. while driving down Shearer, appellant saw a brown Oldsmobile being blocked by a blue Honda. When appellant drove closer to the Oldsmobile, it backed up and hit the front of his Cadillac. The Oldsmobile then drove away by going around the car that was blocking it.
Appellant picked up an acquaintance named Joe, who flagged him down. Appellant then followed the Oldsmobile in order to get information so the driver of the Oldsmobile could pay for the damage to appellant’s Cadillac. Appellant unsuccessfully motioned the Oldsmobile driver to stop.
Appellant knew there were at least four persons in the Oldsmobile, but it did not occur to him it was dangerous to pursue the car at high speeds. Appellant followed the Oldsmobile onto the Harbor Freeway. While on the freeway, appellant drove at 70 to 80 miles per hour, directly behind the Oldsmobile. Both drivers were moving recklessly from lane to lane. Appellant unintentionally hit the Oldsmobile while they were on the freeway. Appellant followed the Oldsmobile off the freeway at Normandie Avenue.
While following the Oldsmobile on Normandie, appellant saw its brake lights light up and its front wheels turn. Appellant unsuccessfully tried to evade the Oldsmobile. Appellant stated that he accidentally hit the Oldsmobile’in the left rear quarter panel near the bumper, causing the car to spin and crash into the pole. Appellant left because he was afraid. When appellant got home, he considered calling the police to report the accident, but did not.
DISCUSSION
Appellant contends that the court’s failure to instruct on the intent element of the enhancement was reversible error and that the enhancement must be struck because there was no evidence of intent.
After argument, the court gave an additional instruction for the enhancement. The court gave a modified version of CALJIC No. 17.19.1 (1992 revision), which is generally given for a section 12022.3 enhancement where a firearm/deadly weapon was used in sex crimes.. The court instructed the jury:
“It is alleged that the defendant personally used a deadly or dangerous weapon during the commission of the (crime).
“If you find the defendant guilty you must determine whether the defendant personally used a. deadly or dangerous weapon in the commission of such crime.
“[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 harm.]
“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
“You will include a specific finding on that question in your verdict, using a form that will be supplied for that purpose.”
Appellant was charged with an enhancement pursuant to section 12022, subdivision (b). Generally, for such an enhancement, the court gives CALJIC No. 17.16, which includes the provision: “The term ‘used a deadly or dangerous weapon,’ as used in this instruction, means to display such a weapon in a[n intentionally] menacing manner or intentionally to strike or hit a human being with it.” A similar provision appears in CALJIC No. 17.19.1, but it was deleted in this case.
Although section 12022, subdivision (b) does not contain a specific intent requirement (as do sections 12022.55, 12022.6 and 12022.7) respondent concedes that the Supreme Court has noted that there are two classes of dangerous or deadly weapons. The first class is instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that as a matter of law, they may be said to be dangerous and deadly weapons. (People v. Graham (1969) 71 Cal.2d 303, 327.)
Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly weapons as a matter of law. (Id., at pp. 327-328.) For the second class, the court determined that a fact finder could only conclude that the.instrumentality was a deadly or dangerous weapon if it could find (1) that the instrument could be used as a dangerous or deadly weapon and (2) that the defendant intended so to use it. (Id., at p. 328.)
CALJIC use notes indicate that CALJIC No. 12.42, which sets out the factors to be considered in determining the intended use,of an object, is essential when an innocent appearing instrument can be used in a dangerous manner. (See People v. Grubb (1965) 63 Cal.2d 614, 619-621.)
The instruction given here did not include the element of intent. Respondent does not dispute that a vehicle falls into the second class of weapons. However, the parties, who both note that the standard of prejudice for failure to instruct on an enhancement or an element thereof is pending review in the Supreme Court, [Footnote 3] are in disagreement as to the standard of review to be applied on this appeal.
Citing People v. Hernandez (1988) 46 Cal.3d 194, 210, respondent argues that misinstruction on an element of an enhancement is subject to a harmless error analysis. It is true that in Hernandez, the court stated ‘misinstruction on an element of an offense or special circumstance may be subject to a harmless error analysis . . . . The same might be said of misinstruction on an element of an enhancement.” (Ibid.) However, the court concluded by noting: “One must distinguish misinstruction, however, from the-situation in which the issue of intent is removed from the jury’s consideration.” (Ibid.)
Thus, it appears that harmless error is not the correct standard, but that the error is reversible per se as the element of intent was removed from the jury as there was no instruction on the intent element of the enhancement. (See People v. Cummings (1993) 4 Cal.4th 1233, 1312-1315.)
However, even under the standard of Chapman v. California (1967) 386 U.S. 18, 21-24, it appears that the error was not harmless beyond a reasonable doubt. The jury rejected the crimes of second degree murder and voluntary manslaughter. Looking at the evidence in the light most favorable to the judgment (see People v. Johnson (1980) 26 Cal.3d 557, 562), the jury rejected the claims that appellant acted intentionally and accepted appellant’s version that the crash was an accident. Moreover, the jury impliedly found incredible the testimony of the two prosecution witnesses (who were passengers in Rodriguez’ car) that appellant had hit the victim’s car over 50 times in the short distance (estimated to be about 5 miles) the two cars traveled. The jury inquired whether it had “to prove or establish the defendant’s, intent to hit the brown car.”
Furthermore, in response to appellant’s argument that there was insufficient evidence of intent, respondent argues that there was evidence appellant intended to use his car in a menacing matter. That theory was not presented to the jury either by way of argument or by instruction.
Accordingly, it appears to us in finding the enhancement to be true, the jury was simply finding a car could be used a deadly weapon as that is all it was asked to do. Under these facts, we cannot conclude as a matter of law that the error was harmless as it is likely that a result more favorable to appellant with regard to the enhancement would have been reached had the jury been properly instructed. (People v. Watson (1956) 46 Cal.2d 818, 837.)
DISPOSITION
We affirm the conviction for involuntary manslaughter. We reverse the true finding that appellant personally used a deadly or dangerous weapon and remand the cause to the superior court.
NOT TO BE PUBLISHED.
WOODS (Fred), J.
We concur:
LILLIE, P.J.
JOHNSON, J.
FOOTNOTES:
All statutory references are to the Penal Code.
There is some confusion in the record as to the date of the incident; however, it appears that May 1 is the correct date.
See People v. Wims (S036641), reprinted at 29 Cal.App.4th 1107, and People v. Winslow (S036861), reprinted at 29 Cal.App.4th 1120.
