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The People v. Gary Steven Loesch

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY STEVEN LOESCH, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F06806)

The opinion of the court was delivered by: Hull , Acting P.J.

P. v. Loesch

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After a jury convicted defendant Gary Steven Loesch of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); unspecified section references that follow are to the Penal Code), the trial court found true an allegation that a prior Oregon conviction for attempted assault in the first degree qualified as a strike under the three strikes law. As a result, the court imposed an aggregate prison term of 12 years, consisting of the middle term of three years doubled for the prior strike conviction (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus five years for the habitual criminal sentencing enhancement (§ 667, subd. (a)) and one year for a prior prison term (§ 667.5, subd. (b)). (The court imposed and stayed sentencing on a second prior prison term allegation.)

On appeal, defendant contends that (1) the Oregon conviction did not qualify as a serious felony under the three strikes law and (2) the court erred in failing to instruct the jury on the lesser included offense of simple assault. Neither claim has merit and we therefore affirm the judgment.

FACTS AND PROCEEDINGS

Given the nature of defendant's claims, we provide only a brief synopsis of the underlying facts.

Defendant got into an argument with a roommate and their disagreement moved from their apartment to the parking lot. As the argument became more physical, defendant got into his truck, put it in gear, revved the engine and drove toward his roommate and some others. Defendant pinned the victim between his truck and another vehicle, lifting the victim off the ground. The victim was released only when defendant put the truck into reverse, backed out, and sped out from the parking lot.

Defendant was charged with assault with a deadly weapon. He raised claims of accident, self-defense, and necessity, asserting that he hit the victim unintentionally as he tried to escape being attacked. An automotive services director testified that defendant's truck was in poor shape and leaked power steering fluid, making it difficult to steer when fluid ran low. The witness testified that he did not know the condition of defendant's truck on the date of the accident.

The jury convicted defendant of assault with a deadly weapon as charged.

As discussed in further detail below, the trial court found a prior Oregon felony conviction to be true and also found that it qualified as a prior serious felony under the three strikes law.

This appeal followed.

DISCUSSION

I

Oregon Conviction

Defendant contends that the trial court erred in concluding that his Oregon conviction qualified as a strike under California law.

A prior conviction in another jurisdiction qualifies as a strike if it "includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (§ 667, subd. (d)(2).) Section 1192.7, subdivision (c)(23) defines as a serious felony "any felony in which the defendant personally used a dangerous or deadly weapon."

In determining whether a prior conviction is a serious felony and a strike, "the trier of fact may look to the entire record of the conviction" but may look "no further[.]" (People v. Guerrero (1988) 44 Cal.3d 343, 355, italics omitted.) The record of the conviction includes all relevant documents found in the court file of the prior conviction. (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172.) "[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense." (People v. Miles (2008) 43 Cal.4th 1074, 1083.)

In 1992, defendant was convicted in Oregon of attempted assault in the first degree. (Or. Revised Stats. § 163.185.) Defendant contends that this conviction does not qualify as a prior serious felony for three strikes purposes because the documents submitted to prove the prior did not establish that defendant personally used a dangerous or deadly weapon. Because a conviction might have been based on an aider and abettor theory of liability, defendant argues, the Oregon conviction is not a strike.

The record proves personal use.

The Oregon indictment charged defendant with attempted assault in the first degree, and specified that defendant "did unlawfully and intentionally attempt to cause serious physical injury [to the victim] by means of a deadly weapon, to-wit: a handgun by firing the handgun at the said [victim]." Contrary to defendant's claim, the record of conviction establishes that defendant shot at the victim.

Because the record of conviction shows how the prior offense was committed, we need not resolve the question of whether the Oregon crime of attempted assault in the first degree constitutes a crime in California under the least-adjudicated-means test.

Defendant's challenge to the Oregon prior conviction is meritless.

II

Lesser Included Offense

Defendant contends that the court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault. There was no error.

Even in the absence of a request, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation extends to giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense are present, but not when there is no evidence that the offense was less than that charged. (Ibid.)

Here, there was no question that defendant hit the victim with his truck. As defense counsel reminded the jury, the issue was whether defendant acted with criminal intent. Defendant argued the incident was an unfortunate accident, or, alternatively, that he acted out of self-defense or necessity, claims that would have resulted in acquittal if believed by the jury. The jury was presented with two choices: either defendant was guilty of the charged offense or he was not guilty of anything. Under these circumstances, there was no evidence to warrant giving an instruction on a lesser included offense.

Equally unpersuasive is defendant's assertion that the evidence raised a question as to whether his truck could be used as a deadly weapon due to its poor condition. He compares his situation with that in People v. Beasley (2003) 105 Cal.App.4th 1078, 1087-1088, in which the court analyzed whether a broomstick could be a deadly weapon. It is glaringly obvious that a wielded broomstick and a moving truck are not remotely comparable. As we have previously noted, "there is no way that driving a [truck] toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (People v. Golde (2008) 163 Cal.App.4th 101, 117.)

While an expert in auto mechanics testified that leaking steering fluid would make steering difficult once fluids dropped below a certain level, the expert also testified that steering would work normally when levels were full. He had no knowledge of the condition of the truck at the time of the incident, the only time of relevance.

Defendant's argument is essentially a reframing of his defense at trial, namely, that he acted to escape an assault. For reasons already explained, an instruction on lesser included offenses is not required under these circumstances. Defendant was guilty of assault with a deadly weapon or no crime at all.

DISPOSITION

The judgment is affirmed.

We concur: ROBIE ,J. DUARTE ,J.

20110907

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