People v. Lee CA1/1

Filed 3/28/14 P. v. Lee CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A138641 v. PAUL A. LEE, (San Mateo County Super. Ct. No. SC072206A) Defendant and Appellant.

Defendant, while driving his motorcycle, encountered a police officer at a control area set up to protect the area ravaged by the San Bruno gas line explosion and fire. Defendant came to a stop, but when asked for his identification, began to continue on. The officer attempted to stop defendant by grabbing him, and held on as defendant accelerated. After eight to 12 feet, the officer let go, suffering a minor injury to his toe. A jury convicted defendant of several crimes, including assault with a deadly weapon against a peace officer. Defendant contends he lacked the requisite intent for that crime, claiming he only intended to leave the scene, not to injure the officer. As assault is a general intent crime, we conclude substantial evidence supports the conviction. We also reject defendant’s argument that the trial court abused its discretion in excluding proffered expert testimony. FACTUAL AND PROCEDURAL BACKGROUND We recite only the facts relevant to the issues on appeal. On the evening of September 9, 2010, San Bruno Police Sergeant Kurt Likins was summoned in response to a major gas line explosion. He was wearing a black shirt and vest; the vest had a sheriff’s

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badge sewn on, and the sleeves, back and front of the vest were emblazoned in yellow with the word “sheriff.” Likins and three other officers were sent to the intersection of Crestmoor and Trenton, where residents had been evacuated. The officers were to keep order, prevent looting, and stand ready should the fire from the explosion come nearer. To this end, the officers stopped all traffic to make sure anyone entering had a legitimate reason to be in the area. At about 12:15 a.m. the following day, Likins saw defendant approach on a motorcycle, a 2001 Kawasaki—approximately 500 pounds. A female passenger was sitting behind him. Likins flagged defendant down with a flashlight, and defendant stopped. Likins asked where he was coming from, and defendant, whose demeanor was “perfectly calm,” said he had come from San Francisco to see the fire. Likins then asked defendant to shut off his bike and provide identification. Defendant started to drive away. As the motorcycle slowly moved forward, Likins grabbed, with his left hand, the front of defendant’s jacket (where a lapel would be) and, with his right hand, grabbed the jacket near the back of defendant’s neck. Likins intended to stop defendant by pulling him off the bike. But defendant continued driving, and began to speed up. While Likins was pulling defendant toward him, the officer was bracing himself with his feet, but as the bike moved, he had to take steps in the direction it moved. This went on for eight to 12 feet. The whole time, defendant was accelerating, but Likins was able to remain on his feet. Ultimately, while the bike was “[n]ot that fast,” it was “fast enough” that Likins “was being pulled” and he eventually had to let go. Defendant and his female companion continued on. Likins did not recall having any contact with the bike during the incident, except possibly as he made a final attempt to grab defendant. He planted his left foot, then let go, then felt something hit his foot. At the time, Likins thought it was the rear tire of the bike, but during testimony at trial, he was no longer sure. Likins sought medical treatment for his left big toe, which had some blood under the nail, and recovered after a couple days of limping.