(Super. Ct. No. 09F07147)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Can a vehicle that does not move significantly forward or backward, despite repeated efforts to make it do so, constitute a deadly weapon for purposes of assault? We say no. While a jury may make reasonable inferences based on circumstantial evidence, mere speculation that a lurching pickup truck might overcome its apparent disability, break free, and injure someone does not constitute substantial evidence of the present ability to commit a violent injury, as required to prove assault.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant Alfonso Valeriano De La Cruz guilty of six felonies and one misdemeanor. Defendant challenges one of those verdicts: assault with a deadly weapon on a peace officer.
The alleged assault occurred late on September 21, 2009, after defendant shot a woman and drove away. After receiving a dispatch about the shooting, Sacramento County Sheriff's Deputy Robert White and his partner spotted defendant's pickup and followed it. Defendant led the deputies on a chase before crashing his pickup in a yard.
The deputies stopped one and one-half to two car lengths behind the pickup and ordered defendant out. Instead, defendant stayed inside, gunning the engine and shifting into drive and reverse gears repeatedly. The pickup lurched back and forth and the wheels spun and kicked up dirt, but appeared unable to actually travel in either direction.
Deputy White testified that the pickup "wasn't moving because, as you can see in the picture, the front left tire was busted and was underneath the vehicle." He testified further that when defendant put the pickup into gear, "the vehicle was lurching forward and backward" and "moved a little bit." Another deputy testified the front left wheel had broken off, the axle appeared to be snapped, and the truck likely was resting on the tire rim.
The deputies were parked in the pickup's backward path. They moved their patrol car because they feared the pickup might "potentially break free" and "ram right into us." After attempting several more times to put the truck into motion, defendant eventually complied with the orders, left his vehicle, and was arrested.
A patrol car camera recorded the chase, crash, and events at the crash scene. The jury watched portions of the recording showing the pickup's obviously broken front wheel, spinning rear wheel, smoke and debris in the air, and slight lurching motion as defendant shifted gears and stepped on the gas. The recording showed defendant tried repeatedly to drive the pickup forward and backward without success. No additional evidence was presented to the jury regarding the truck's actual ability to travel any significant distance given its poor condition as described by the deputies.
An amended information charged defendant with seven felonies, including attempted murder, and one misdemeanor. The jury did not reach a verdict on the attempted murder charge and reached guilty verdicts on the other seven counts, including assault on a peace officer with a deadly weapon.
The trial court sentenced defendant to 32 years to life in prison, which included 16 months for the assault on a peace officer. Defendant timely appealed and raises two issues for review: present ability to assault and the imposition of jail booking and classification fees.