IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
February 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JUBA JAMIL COWAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F9220)
The opinion of the court was delivered by: Butz, J.
P. v. Cowan
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Juba Jamil Cowan was convicted by jury of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)*fn1 The trial court subsequently found that defendant had previously been convicted of armed robbery, a serious felony (§ 667, subd. (a)) and a strike offense within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and that he had served two prior prison terms (§ 667.5, subd. (b)). Following an unsuccessful motion to strike defendant's strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced him to an aggregate term of 13 years in state prison (upper term of four years, doubled pursuant to the three strikes law, plus a consecutive five-year term for the prior serious felony conviction).
On appeal, defendant challenges the sufficiency of the evidence to support his conviction for assault with a deadly weapon, and further asserts that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. We disagree and shall affirm the judgment.
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
In November 2008, defendant and his girlfriend, Stacie B., were engaged in a heated argument over finances at their house on Leland Avenue in Redding. At some point, defendant decided to abandon the argument and started to get dressed to leave the house. While defendant was getting dressed, Stacie picked up their infant daughter and left the house to take a walk around the neighborhood. They reached the corner of Leland Avenue and Fell Street when it started to rain. Defendant, now dressed and in a green Ford Expedition, pulled up alongside Stacie, rolled down the window, and yelled at her to either take the baby back to the house or "get the 'F' in the vehicle right now." When Stacie declined and tried to continue on her walk, defendant got out of the Expedition and the two yelled at each other on the sidewalk.
The commotion drew the attention of several neighbors, including Janice Pearson, who lived on Fell Street, one house away from the intersection where the argument was taking place. Pearson grabbed her phone and walked to the end of her driveway to investigate. She became worried when she saw that the woman involved in the argument was carrying a baby, and dialed 911.
While Pearson was on the phone with emergency services, defendant returned to the Expedition and noticed Pearson on the phone. Defendant then yelled to Pearson: "You nosy, F-ing bitch neighbor, I'll run your F-ing ass over." Defendant got in the Expedition, which was facing away from Pearson's house, made a sweeping turn in the middle of the intersection, and drove the vehicle at a speed of 10 to 15 miles per hour directly at Pearson. Pearson ran into her house. As she ran, she looked behind her and saw defendant's Expedition drive over the curb in front of her house, across a grassy median separating the curb from the sidewalk, and across the driveway where she had previously been standing.
Stopping in front of Pearson's house, defendant yelled profanities at her, again called her "an F-ing nosy bitch," and told her that "if he wanted to run [her] over, he could drive his vehicle right through [her] house." Still on the phone with emergency services, Pearson informed the operator that defendant had just tried to run her over. She then provided the Expedition's license plate number and reported that defendant was also threatening her. Defendant drove away, only to return a few minutes later to hurl further profanities in her direction. Pearson told him her "only concern was the child," to which defendant responded, "That's my F-ing child, you F-ing bitch." Defendant again departed.
When police arrived in the neighborhood, they immediately came upon defendant's Expedition and followed it to his house. When defendant got out of the vehicle, he said: "I know, I know, I've got to go to jail because I tried to run some lady over."
I. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for assault with a deadly weapon: to wit, his vehicle. We find more than sufficient evidence to support the conviction.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] . . . [Citation.] [A] reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.'" (People v. Avila (2009) 46 Cal.4th 680, 701.)
Section 245 defines the crime of assault with a deadly weapon to require "an assault on the person of another" and the use of either "a deadly weapon or instrument other than a firearm" or "any means of force likely to produce great bodily injury." (§ 245, subd. (a)(1); People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) A vehicle can be used as a "deadly weapon" within the meaning of this provision. (People v. Russell (2005) 129 Cal.App.4th 776, 782.) The crime of "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790; People v. Colantuono (1994) 7 Cal.4th 206, 214-215; People v. Golde (2008) 163 Cal.App.4th 101, 108-109.)
Here, after announcing that he was going to run Pearson over, defendant drove his Expedition directly at her as she ran into her house. Then, when he was contacted by police, he admitted that he "tried to run some lady over." Driving a vehicle directly at another person, even at the relatively slow speed of 10 to 15 miles per hour, is certainly an intentional act that by its nature will probably and directly result in the application of physical force against another. And there can be no doubt that striking a person with an Expedition would likely exert enough force upon the person to produce great bodily injury.
Nevertheless, defendant argues that "[w]hile [he] may have wanted to scare Pearson, nothing shows he intended to hit her with his car," and "given the presence of [a] tree in front of Pearson's house, it was physically impossible to have done so." We are not persuaded. Defendant announced his intent to hit Pearson with his car immediately before he chased her into her house with it. Moreover, as explained above, in order to be convicted of assault with a deadly weapon, defendant need not have intended to hit Pearson. It was enough that he intentionally drove the vehicle in her direction with knowledge of facts sufficient to establish that this action would probably and directly result in the application of physical force against her. (People v. Williams, supra, 26 Cal.4th at p. 790.) Nor does the presence of a tree in front of Pearson's house make the application of physical force against her improbable, let alone impossible. Viewing the record in the light most favorable to the judgment, as we must, defendant drove past this tree and continued across Pearson's driveway where she would still have been standing had she not fled into her house. The fact that she outran the Expedition does not make this any less of an assault with a deadly weapon.
Accordingly, we conclude that defendant's conviction for assault with a deadly weapon is supported by substantial evidence.
II. Romero Motion
Defendant also asserts that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. We disagree.
Under section 1385, subdivision (a), a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, our Supreme Court held that a trial court may utilize section 1385, subdivision (a) to strike or vacate a prior strike conviction for purposes of sentencing under the three strikes law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
We are also mindful that "'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (Carmony, supra, 33 Cal.4th at p. 377.) "[T]he 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." (People v. Williams (1998) 17 Cal.4th 148, 161; Carmony, at p. 377.)
Thus, the three strikes law "creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378, italics added.) This presumption will only be rebutted in an "extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ . . . ." (Carmony, at p. 378.)
We cannot find that the trial court abused its discretion by declining to strike the prior conviction.
Defendant's present felony conviction is for assault with a deadly weapon. Following a public domestic dispute with his girlfriend over whether their infant daughter should be out in the rain, defendant directed his anger towards Pearson, a neighbor who called 911 out of concern for the baby, and drove his Expedition directly at her, jumping the curb in front of her house, and causing her to flee from his moving vehicle. Defendant's attempts to mitigate the severity of this crime notwithstanding, assault with a deadly weapon is a serious felony. (§ 1192.7, subd. (c)(31).)
Nor do the nature and circumstances of defendant's prior strike conviction manifestly support the striking of this conviction for purposes of sentencing under the three strikes law. This prior conviction was for an armed robbery committed in 1994 during which defendant personally used an assault weapon.
While this prior strike offense was committed roughly 14 years before the commission of the present offense, defendant has repeatedly violated the law in the intervening years. Following his release from prison in October 1998, defendant was convicted of assault by means likely to produce great bodily injury in April 1999. After he was paroled in May 2000, his grant of parole was twice revoked for parole violations. While the record does not clearly reveal the details of these violations, the first appears to have involved an altercation he had with his father, and the second involved associating with someone who was carrying a firearm. Following defendant's release from prison in May 2004, he remained free of trouble until November 2008, when he drove his vehicle at Pearson. However, given the severity of defendant's prior strike offense, and his repeated violations of law until his release from prison in 2004, we cannot find that this four-and-a-half-year respite clearly brings him outside the spirit of the three strikes law.
Finally, defendant's background, character, and prospects for the future do not bring him outside the spirit of the three strikes law. We have already chronicled his criminal background. With respect to defendant's character, following an outburst during the sentencing hearing, the trial court commented: "Mr. Cowan, right up to this very moment, you have illustrated, unfortunately, an unbroken pattern of unrelenting explosive bouts of anger and anger control problems. Every one of your crimes [is a crime] of violence." The record supports this conclusion. With respect to defendant's prospects for the future, the record reveals that, aside from a few months of temporary employment, he has been unemployed since his release from prison in 2004.
Nevertheless, defendant asserts that he is in a "stable relationship" with Stacie, in which he helped raise Stacie's teenage son and acted as the "primary caretaker" of his own infant daughter while Stacie went to school and worked several jobs. Defendant also asserts that he "does not have a drinking or drug problem" and has no history of gang activity. First, defendant's relationship with Stacie, according to Stacie, has had its "ups and downs," including calls to the police in November of 2007. Second, and more importantly, caring for his and Stacie's children, and staying away from drugs, alcohol, and gang activity--as laudable as these achievements are--do not, by themselves, bring defendant outside the spirit of the three strikes law.
Simply put, the trial court did not abuse its discretion by declining to strike defendant's prior conviction under Romero.
The judgment is affirmed.
We concur: RAYE, P. J. NICHOLSON, J.