Defendant also asserts his assault and vandalism convictions must be reversed
because the court (1) declined his request to instruct the jury on the defense of accident,
and (2) refused to admit his proffered evidence from an accident reconstruction expert.
We find no reversible error as to these claims, and affirm the misdemeanor convictions.
We reverse defendant's felony conviction for violating section 23110(b). We also
reverse defendant's 32-month prison sentence because his section 23110(b) conviction
formed the basis for this sentence, and we remand the matter to the superior court for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
At about 1:00 p.m. on October 19, 2012, Alexander Savage was driving his car on
a street with two single lanes for traffic going in opposite directions, and no center
median. Traffic was congested and moving slowly, and he was driving about 25 to 30
miles per hour. As Savage was driving, defendant emerged on foot from a parking lot
and—without going to the crosswalk or looking for traffic—"walked out in the middle of
traffic." The cars in front of Savage had to slow down and drive around defendant
because he stayed standing in the lane by the yellow painted divider lines. It appeared
2
that defendant was waiting for the cross-traffic to pass so he could proceed to the other
side of the street.
As Savage drove by defendant, defendant was still standing in the lane, about two
to three feet from Savage's car. Defendant was facing away from Savage, with his back
and side visible to Savage. Defendant was "kind of facing slightly towards both lanes" as
he watched the traffic passing in the opposing lane and also watched the traffic coming
from behind him in Savage's lane. Defendant was holding what appeared to be a heavy
backpack on his left shoulder, with both of his hands on the strap. To pass defendant,
Savage had to slow down and drive around him and get "really close" to him. Feeling
annoyed at defendant for ignoring the crosswalk, walking into traffic, and just "stand[ing]
there" and expecting cars to drive around him, Savage honked and held down his car horn
as he was passing by defendant.
A couple of seconds after Savage honked, the windshield of Savage's car was
struck by defendant's backpack and "imploded." Describing what occurred, Savage
testified that as he was honking his horn and just before his windshield imploded, he saw
defendant "swing" his backpack in "one fluid motion." Savage elaborated, "I guess when
I honked the horn, he had his backpack on his left shoulder, and he swung it in an arc in
response to me driving by him. He slammed it into my left driver's side windshield.
[¶] . . . [¶] I don't really know the exact movement. I want to say he dropped it to the
bottom of his hand, and he swung it. I know that much. He swung it straight at my
windshield. He just kind of let go of it. The backpack flew wherever . . . ."
3
Savage drove 10 to 20 more feet and then stopped his car in the middle of the
street, feeling shocked and unsure "how to handle what just happened." Savage looked in
his side mirror and saw the backpack lying on the street, and defendant "with his hands
up in the air . . . yelling something" as if "inviting [Savage] to come back and fight" him.
Unable to see clearly through the shattered windshield, Savage drove into a nearby
parking lot and called 911. Savage told the 911 operator: "I was just driving down the
street and this guy was, like ran out in the middle of the street and I blared on my horn,
'cause I thought I was gonna hit him. [¶] . . . [¶] And he like threw his backpack, I think
it was like full of bricks or something."
While still speaking with the 911 operator, Savage drove his car a couple of blocks
and then returned to the parking lot. At one point as he was turning his car around in a
different parking lot, defendant approached and called out, " 'Come on, bro. Let's talk
about this.' " Back at the original parking lot, Savage could no longer see defendant, but
he encountered a police officer who told him they were looking for defendant.
Officer Daron Larkin testified that when interviewed at the scene, Savage reported
that defendant "came out of nowhere, walking in front of his vehicle, and he had to apply
his brakes abruptly to avoid colliding with" defendant. Savage told Officer Larkin that
defendant released a "barrage of unkind words" and at "about the same time, a backpack
that he was carrying had swung in at [Savage's] vehicle." At trial, Savage testified that
defendant did not jump in front of his car, and he acknowledged he "might have been
exaggerating the situation" when he described to the officer what had occurred.
4
The police arrested defendant several blocks from the scene of the incident.
Defendant was carrying his backpack. A police search of the backpack revealed various
personal effects, including some items at the bottom of the backpack that the police
assessed were heavy enough to cause the damage to Savage's windshield.
The entire left corner of Savage's windshield was shattered, and there were two or
three cracks spreading out towards the right side of the windshield. The glass in the
windshield's left corner was in "tiny chunks" being held together by a safety material, and
there were a few "tiny shards" of glass on the dashboard. Savage's driver's window had
been open, and various items from the backpack had fallen into his car. It cost Savage
about $200 to repair the windshield.
In closing arguments to the jury, the prosecutor argued that when Savage honked
at defendant, defendant turned around, took his backpack off his shoulder, and willfully
and forcefully swung it at Savage's windshield with the intent to cause serious bodily
harm. Defense counsel argued the incident was an accident that occurred when defendant
had to dodge Savage's vehicle, and as he did so his backpack hit the windshield.
Alternatively, defense counsel argued that even if the jury thought the incident was not an
accident and defendant "did it on purpose," he did not use force likely to cause, or have
the intent to cause, great bodily injury.
Jury Verdict and Sentence
Defendant was charged with assault by means of force likely to cause great bodily
injury (count 1); throwing a substance at a vehicle that is capable of causing serious
5
bodily harm and with intent to cause great bodily injury (count 2, § 23110(b)); and
misdemeanor vandalism with a prior conviction of vandalism (count 3).
The jury convicted him of the lesser included offense of misdemeanor simple
assault for count 1; the section 23110(b) offense for count 2; and the vandalism offense
for count 3. In a bifurcated proceeding, the court found true the prior vandalism
allegation for count 3, three prior prison term allegations, and a prior strike conviction
allegation.
The court struck the prison priors, and sentenced defendant to a term of two years
eight months based on the count 2, section 23110(b) conviction (i.e., the 16-month low
term, doubled based on the strike prior). The court imposed concurrent terms for the
misdemeanor assault and vandalism convictions (counts 1 and 3).1
DISCUSSION
I. Failure To Instruct on Section 23110(a) Misdemeanor Offense as
Lesser Included Offense of Section 23110(b) Felony Offense
Defendant asserts the trial court erred in failing to instruct the jury on the
misdemeanor defined in section 23110(a) as a lesser included offense of the felony
defined in section 23110(b). The Attorney General asserts the misdemeanor offense is
not a lesser included offense; even if it is, the evidence did not warrant instruction on the
lesser offense; and any instructional error was harmless.
1 The Attorney General concedes the abstract of judgment erroneously states the prior prison term enhancements were stayed, whereas it should state these enhancements were stricken. Because we are reversing the sentence, we need not order this correction. 6
A. Section 23110(a) Is a Lesser Included Offense of Section 23110(b)
The two subdivisions of section 23110 state:
"(a) Any person who throws any substance at a vehicle or any occupant thereof
on a highway is guilty of a misdemeanor.
"(b) Any person who with intent to do great bodily injury maliciously and
willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any
other substance capable of doing serious bodily harm at such vehicle or occupant thereof
is guilty of a felony and upon conviction shall be punished by imprisonment in the state
prison." (Italics added.)
A lesser offense is necessarily included in a greater offense if the greater offense
cannot be committed without also committing the lesser offense. (People v. Hughes
(2002) 27 Cal.4th 287, 366.) Thus, section 23110(a) is a lesser included offense of
section 23110(b) if a violation of subdivision (b) necessarily constitutes a violation of
subdivision (a). For purposes of the court's instructional duty, this determination can be
based on the statutory elements test as well as the accusatory pleading test; that is, " 'a
lesser offense is necessarily included in a greater offense if either the statutory elements
of the greater offense, or the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser. [Citations.]' " (People v. Smith (2013) 57 Cal.4th 232, 240.)
While discussing the instructions, the court initially stated it would instruct on
section 23110(a) because it was a lesser included offense of section 23110(b). However,
the court later decided not to give the instruction, stating that section 23110(b) could be
7
violated without violating section 23110(a) because the felony offense (unlike the
misdemeanor offense) need not occur on a highway and could be committed by
projecting, rather than throwing, a substance.
When determining the meaning of a statute, we view the enactment as a whole;
consider the plain, commonsense meaning of the language used by the Legislature; and
avoid an interpretation that is contrary to the apparent legislative intent or that would lead
to absurd results. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131; People v. Jenkins
(1995) 10 Cal.4th 234, 246.) We conclude the trial court's interpretation of the statute is
contrary to its plain language.
First, section 23110 reflects that both subdivisions (a) and (b) require that the
vehicle be on a highway. Subdivision (a) states the offense is committed when a
defendant throws a substance at a vehicle "on a highway," and subdivision (b) states the
offense is committed when the defendant throws a substance at "such vehicle" with the
intent to cause great bodily injury and with a substance capable of causing serious bodily
harm. Based on the plain language in subdivision (b), "such vehicle" refers to a vehicle
described in subdivision (a); i.e., a vehicle on a highway. Alternatively, even if we were
to construe subdivision (b) as applying even when a vehicle is not on a highway, the
information in this case alleged that the subdivision (b) offense occurred "on a highway."
Accordingly, applying the accusatory pleading test, the subdivision (b) offense as alleged
in this case included the highway element required for a violation of subdivision (a).
Second, reading section 23110 in its entirety, there is no meaningful distinction
between throwing a substance, as opposed to projecting a substance, so as to differentiate
8
the two subdivisions on this basis. As it is commonly understood, the term projecting can
include the concept of throwing. Among the definitions set forth in a standard dictionary,
"project" is defined as meaning "to throw or cast forward." (Webster's Collegiate Dict.
(10th ed. 2002) p. 930.) Although section 23110(a) refers solely to the verb "throws," it
is apparent that section 23110(b) is designed to proscribe the same conduct, only with the
added elements of intent to cause great bodily injury and use of an object capable of such
injury. Notably, the first portion of subdivision (b) refers to throwing or projecting "any
rock, brick, bottle, metal or other missile," and the second portion of subdivision (b)
refers solely to projecting "any other substance capable of doing serious bodily harm."
We are satisfied the Legislature did not intend that there would be no culpability under
the second portion of subdivision (b) if a person threw, but did not project, a substance
capable of causing serious bodily harm. Rather, the omission of the term "throwing"
from the second portion of subdivision (b) suggests that—consistent with the standard
dictionary definition—the Legislature viewed "throw" and "project" as interchangeable
terms that simply mean the propelling of a substance.
This interpretation of the statutory language is supported by a long-established
description of the section 23110 felony and misdemeanor offenses set forth in People v.
Whitney (1978) 76 Cal.App.3d 863. When rejecting an argument that the statute requires
that the vehicle be moving on the highway, the Whitney court cited case authority finding
movement was not required under subdivision (a), and then concluded movement
likewise was not required under subdivision (b) because the latter "merely adds the
additional elements of intent and capacity to do serious bodily injury" which indicated
9
the two subdivisions were enacted for the same purpose. (Whitney, at p. 868, italics
added.) Based on a plain reading of the statutory language, we also conclude that the
subdivisions prohibit the same conduct, except subdivision (b) includes the additional
elements of intent to cause great bodily injury and use of an object capable of causing this
injury. Accordingly, a violation of section 23110(b) necessarily is a violation of section
23110(a), and the latter is a lesser included offense of the former.
B. Substantial Evidence of Lesser Included Offense
A trial court must instruct on a lesser included offense " ' "whenever evidence that
the defendant is guilty only of the lesser offense is 'substantial enough to merit
consideration' by the jury." ' " (People v. Prince (2007) 40 Cal.4th 1179, 1265.)
Substantial evidence in this context is evidence from which reasonable jurors could
conclude that the lesser offense, but not the greater, was committed. (Ibid.) When
evaluating whether a lesser included offense instruction should have been given, we view
the evidence in the manner most favorable to the defendant and apply an independent
review standard. (People v. Manriquez (2005) 37 Cal.4th 547, 584-585; People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Drawing all reasonable inferences in defendant's favor, reasonable jurors could
have concluded defendant committed the misdemeanor offense, not the felony offense,
by finding he acted without the intent to commit great bodily injury. This is not a case
where the defendant directly inflicted force on the victim; rather, defendant hit the
windshield of the victim's car. Because the circumstances involved an interaction
between a pedestrian and a moving car, the jury could reasonably assess that defendant,
10
as the pedestrian, felt vulnerable when confronted by the honking, passing car, and he
lashed out in anger or frustration at the car but without the intent to injure the driver who
was seated inside the vehicle. There was evidence worthy of the jury's consideration on
the issue of defendant's specific intent, and thus the trial court was required to instruct on
the lesser misdemeanor offense.
C. Failure To Instruct on Lesser Offense Was Not Harmless
We also conclude the instructional error was not harmless because there is a
reasonable probability the outcome would have been more favorable to defendant had the
jury been instructed on the lesser offense. (See People v. Prince, supra, 40 Cal.4th at p.
1267 [reasonable probability of different outcome standard generally applies to erroneous
failure to instruct on lesser included offense].) The rationale for requiring instruction on
lesser included offenses is to avoid forcing the jury into an " 'unwarranted all-or-nothing
choice' " which creates the risk the jury will convict on the charged offense even though
one of the elements remains in doubt because " 'the defendant is plainly guilty of some
offense . . . .' " (People v. Hughes, supra, 27 Cal.4th at p. 365.) Here, the evidence
showed that defendant's backpack hit the windshield of the victim's vehicle. If the jury
found defendant acted intentionally and not accidentally, it would have recognized that
he committed the type of conduct defined in count 2 for the section 23110(b) offense, i.e.,
throwing something at a vehicle. Because he committed the vehicle-related conduct
prohibited by the statute, the jurors may have been inclined to return a guilty verdict for
this count even if one or more of them had doubts whether he had the specific intent to
inflict great bodily injury. As noted, the circumstances of the offense (involving
11
pedestrian contact with a moving vehicle) could reasonably support a finding either way
on the issue of whether defendant intended to injure the driver. Had the jury been given
the option of convicting defendant of the vehicle-related offense defined in section
23110, but without the intent to injure element, it may well have selected this lesser
offense.
This conclusion is buttressed by the jury's decision (for count 1) to find defendant
guilty of misdemeanor simple assault rather than the felony of assault by means of force
likely to produce great bodily injury. Because the jury had doubts concerning the
defendant's use of (or ability to apply) force likely to produce great bodily injury (see
CALCRIM No. 875), there is a reasonable probability it also had doubts about whether
defendant had the intent to inflict such injury.
Based on the failure to instruct on the lesser included offense, the conviction on
the count 2, section 23110(b) offense must be reversed. The sentence must also be
reversed because it was premised on this conviction.
II. Refusal To Instruct on Defense of Accident
Defendant asserts the trial court erred in refusing his request that the jury be
instructed on the defense of accident. We agree, but find the error harmless.
The accident defense applies if the defendant acted " 'without the intent required
for [the] crime, but acted instead accidentally.' " (People v. Anderson (2011) 51 Cal.4th
12
989, 996; Pen. Code, § 26; see CALCRIM No. 3404.)2 A trial court generally does not
have a sua sponte duty to instruct on an accident defense; however, it must give a
pinpoint instruction on the defense when it is requested and supported by the evidence.
(People v. Anderson, supra, at pp. 996-998.) When determining whether a defense is
supported by the evidence, the trial court does not make credibility resolutions; considers
only whether there is evidence of the defense sufficient to raise a reasonable doubt; and
resolves doubts in favor of giving the instruction. (People v. Salas (2006) 37 Cal.4th
967, 982; People v. Strozier (1993) 20 Cal.App.4th 55, 63.) On appeal, we independently
review the court's refusal to instruct on a defense. (People v. Manriquez, supra, 37
Cal.4th at p. 581.)
When refusing to instruct on accident, the trial court stated there was no evidence
that "directly supports the giving of the instruction," but defense counsel was not
prohibited from arguing that the incident was an accident. Contrary to the court's
conclusion, there was evidence from which reasonable jurors could credit the defense
claim of accident. In his statements to the authorities and in his trial testimony, Savage
stated he had to slow down or brake when he encountered defendant standing or moving
in the street; defendant was facing with his back and side towards Savage; Savage honked
and held down his horn as he passed closely by defendant; and in response defendant
2 Based on CALCRIM No. 3404, defendant requested an accident instruction stating: "The defendant is not guilty of Counts One, Two or Three if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of Assault By Means of Force Likely to Cause Great Bodily Injury; Throwing an Object at a Vehicle; or Vandalism unless you are convinced beyond a reasonable doubt that he acted with the required intent[.]" 13
swung or threw his heavily-weighted backpack at Savage's windshield. This testimony
does not foreclose inferences that defendant was startled by the sound of the horn; he
responded in a quick motion and accidentally propelled his backpack onto Savage's
moving vehicle; and the force of defendant's movement combined with the force of the
moving vehicle caused the windshield to shatter.
However, the failure to instruct on the accident defense was harmless under any
standard of review. (See People v. Wharton (1991) 53 Cal.3d 522, 571 [state law
standard of reasonable probability of different outcome applies to failure to give
requested pinpoint instruction on defense]; People v. Rogers (2006) 39 Cal.4th 826, 872,
[federal constitutional standard of harmless beyond a reasonable doubt applies when error
deprives defendant of right to present complete defense].) The jury was generally
instructed that the prosecution had to prove guilt beyond a reasonable doubt. (See
CALCRIM No. 220.) Further, the jury was told that the crimes required a union of act
and wrongful intent; wrongful intent meant the defendant intentionally committed the
prohibited act; and for the offense of throwing a substance at a vehicle the defendant also
had to act with the specific intent required for that crime. (See CALCRIM No. 252.)
When instructed on the specific charged offenses, the jury was told that the prosecution
had to prove for the assault and section 23110(b) counts that defendant acted willfully,
which meant "willingly or on purpose," and for the vandalism count that defendant acted
maliciously, which meant "intentionally does a wrongful act" or "acts with the unlawful
intent to annoy or injure . . . ." (Italics added; see CALCRIM Nos. 875, 915, 2900.)
14
From these instructions, the jury was informed that if it had doubts as to whether
defendant acted intentionally and purposefully when he hit the victim's car with his
backpack, he was entitled to an acquittal as the prosecutor had not met its burden. We
assume jurors are reasonably intelligent (People v. Lopez (2011) 198 Cal.App.4th 698,
708), and thus they would readily understand that accidental conduct is the opposite of
the required intentional conduct, and they could not convict if the prosecution failed to
establish that defendant acted on purpose rather than by accident. This conclusion is
buttressed by the closing arguments of the prosecutor and defense counsel, who noted
that the prosecution had the burden to prove guilt beyond a reasonable doubt, and
presented their differing views as to whether defendant acted purposefully or accidentally
when he swung his backpack.
Contrary to defendant's contention, this case is not in the same posture as People v.
Gonzales (1999) 74 Cal.App.4th 382, where the appellate court reversed based on the
failure to instruct on accident. In Gonzales, the jury sent notes to the trial court stating
jurors did not understand the meaning of "willful intent" as it related to an accidental
event; the court failed to provide clarification on this point; and the jury at one point
reported being deadlocked on the issue of willfulness. (Id. at pp. 388-391.) Here, there
was no such suggestion of jury confusion, and the parties' closing arguments reinforced
the import of the instructions that if the jury was not convinced that defendant acted
purposefully rather than accidentally, he must be found not guilty.
15
Because the jury was fully apprised of its duty to acquit if the prosecution did not
establish that defendant acted purposefully rather than accidentally, the failure to
explicitly instruct on the accident defense was harmless.
III. Refusal To Admit Evidence of Accident Reconstruction Expert
Defendant contends the court erred by refusing to allow him to present evidence
from an accident reconstructionist.
At a pretrial Evidence Code section 402 hearing, the defense proffered testimony
from Larry Armendariz, who worked for 28 years as a California Highway Patrol officer
and had specialized training in accident reconstruction. Armendariz opined that if
defendant became startled from the sound of a horn blaring as he was crossing the street,
and if he turned rapidly and had a backpack on his shoulder, the backpack would slide to
his elbow and slide across the car and into the windshield. On cross-examination by the
prosecutor, Armendariz also opined that it does not take a lot of force to smash a
windshield, explaining that although he was not an automobile engineer, "some of [the]
windshield carries the structural integrity of the car" and if a person hits a "soft spot" the
windshield will be cracked or smashed.
At the conclusion of the proffered testimony, defense counsel requested that the
court allow presentation of Armendariz's opinion testimony (and a computer generated
video as a demonstrative aid) to support the defense theory that defendant did not
intentionally throw or swing his backpack at the car, but rather inadvertently hit the car
with his backpack as he was "ducking out of the way" of the car. The prosecutor opposed
16
admission of the evidence, arguing it was based on speculative and insufficient
information, and would not assist the jury.
The court found Armendariz was qualified as an accident reconstruction expert,
but declined to allow admission of the expert evidence to support that defendant was
startled and, as he turned, his backpack slid down his arm and hit the vehicle. The court
reasoned the expert's opinion that the backpack hit the windshield by accident rather than
being purposefully thrown was speculative. Also, the court found the opinion testimony
was not a matter beyond common experience, stating that if the evidence supported the
defense theory, the jury could easily surmise that if a person is startled by a car horn
honking, they may twirl and their backpack may accidently fall off the person's arm and
hit the windshield, and an expert's opinion about this was not in any way helpful to the
jury to determine the facts of the case. Further, the court excluded the evidence under
Evidence Code section 352, finding any probative value was slight and outweighed by
concerns for undue time consumption, prejudice, and confusion.
To be admissible, expert opinion testimony must be related to a subject that is
sufficiently beyond common experience so that the expert's opinion would assist the trier
of fact. (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the
subject matter of the opinion to justify its admission; the test is whether the evidence
would add something to the jury's common fund of information so that it would assist the
jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) However, the expert
opinion testimony may properly be excluded when " ' "the subject of inquiry is one of
such common knowledge that men of ordinary education could reach a conclusion as
17
intelligently as the witness." ' " (Id. at p. 1300.) On appeal, we review the court's ruling
for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)
The record shows no abuse of discretion in the court's exclusion of the expert
evidence. Although Armendariz explained that he made measurements and calculations
to reach his opinion about what occurred, the proffered evidence does not indicate how
these assessments shed light on whether defendant acted accidentally or purposefully
when his backpack struck the windshield. Absent an evidentiary link between the
expert's calculations and the question of defendant's intentional versus accidental
conduct, the trial court could reasonably assess that the expert evidence would not
provide the jury with any useful information beyond what the jury could figure out on its
own.
On appeal, defendant contends the court should have admitted the expert evidence
because it provided the jury with information concerning the small amount of force that
can break a windshield. The record does not show an abuse of discretion in this regard.
Defense counsel did not attempt to qualify Armendariz as an expert regarding the
structural integrity of windshields, nor did defense counsel present this theory of
admissibility to the trial court. (See People v. Ramos (1997) 15 Cal.4th 1133, 1178 [to
preserve challenge to evidentiary ruling, party must inform court of purpose and
relevancy of evidence].) The testimony regarding the force that can shatter a windshield
was elicited by the prosecutor on cross-examination; Armendariz testified he had some
knowledge about windshield construction but qualified his answer by stating he was not
an automobile engineer; and defense counsel did not follow up with any arguments
18
requesting that the court admit the expert evidence for purposes of informing the jury
about windshield structural characteristics. Defense counsel stated in general fashion that
Armendariz was an expert "about accidents, accident reconstruction, measurements, and
how things collide," and that Armendariz's testimony was derived from the "science of
how the two individuals would have interacted" and "hard facts based on science."
However, defense counsel made no reference to windshield structural integrity as being
part of Armendariz's area of expertise. There is nothing in the record that required the
court to find Armendariz was qualified to testify about the structure of windshields, nor is
there a showing that defense counsel requested admissibility on this basis.
The court did not abuse its discretion in excluding the proffered expert evidence.
DISPOSITION
The judgment is reversed as to the count 2 felony offense of throwing a substance
at a vehicle (§ 23110(b)) and as to the sentence. In all other respects the judgment is
affirmed. The matter is remanded to the superior court for further proceedings consistent