The People v. McGilbery CA1/5

Filed 8/28/13 P. v. McGilbery CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A136554 v. SUMARTRA LAKISA McGILBERY, (Contra Costa County Super. Ct. No. 05-110700-2) Defendant and Appellant.

Defendant Sumartra Lakisa McGilbery (appellant) appeals from the judgment entered following her conviction after jury trial of assault (Pen. Code, § 241, subd. (a)), misdemeanor child abuse (Pen. Code, § 273a, subd. (b)), and leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)). She contends the trial court erred in declining her request to recall a witness and to instruct the jury on self-defense. We affirm. PROCEDURAL BACKGROUND In May 2011, an information was filed in the Contra Costa County Superior Court charging appellant with assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, former § 245, subd. (a)(1); now § 245, subd. (a)(1) & (4)), felony child abuse (Pen. Code, § 273a, subd. (a)), and leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)). In April 2012, a jury found appellant guilty of simple assault (Pen. Code, § 241, subd. (a)), misdemeanor child abuse (Pen.

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Code, § 273a, subd. (b)), and leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)). In June, the trial court placed appellant on probation for four years. This appeal followed. FACTUAL BACKGROUND The victim, Christine King, was driving on the Carquinez Bridge on March 24, 2010, at approximately 8:15 a.m. King noticed in her rear view mirror a dark car darting in and out of traffic. She moved her car to the right lane because she intended to exit the freeway, and she braked as she approached the exit. King was rear-ended by the dark car as King was taking the off ramp. King’s car went into a cement wall and she was injured in the crash. It is undisputed that appellant was the driver of the car that struck King’s car. King did not interact with appellant before the collision. Travis Swafford and Barbara Romero were also driving on the Carquinez Bridge the morning of March 24, 2010. Swafford observed appellant’s car tailgating other cars and swerving into various lanes. Romero observed two cars speeding, the car behind (driven by appellant) looked like it was chasing the front car. Both Swafford and Romero observed King’s car brake, causing appellant’s car to brake as well. Both Swafford and Romero then observed appellant’s car accelerate, hit King’s car from the rear, and leave the scene. Swafford saw King’s car spin from the impact and hit the guard rail. Romero followed appellant’s car to a school, where a female passenger who looked about 12 years old exited the vehicle. California Highway Patrol Officer Don Johnson located appellant, who told Johnson that King had driven next to her and given her the finger. King then cut in front of appellant and hit the brakes, causing appellant to hit her. At trial, appellant provided the same basic description of the accident. She acknowledged she was darting in and out of traffic before she encountered King’s car, she was always behind King’s car, and King’s car was exiting the freeway at the moment of the collision. Appellant did not exchange words with King and she did not see a weapon in King’s possession.