(Super. Ct. No. 10F07361)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Tashia Monica Smith of assault with a deadly weapon (a minivan) and found that she inflicted great bodily injury on the victim, her boyfriend Roberto Clark (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (e)--count 2);*fn1 however, the jury acquitted defendant of attempted murder (§§ 664/187, subd. (a)--count 1) and rejected the alleged enhancement on that count that defendant personally used a dangerous and deadly weapon (§ 12022, subd. (b)(1), (2)).
Sentenced to an aggregate term of seven years in state prison, defendant contends the trial court erred by refusing her requested instruction on the defense of necessity. We conclude the court ruled properly because no substantial evidence supported giving the instruction. Therefore, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of May 30, 2009, Comcast employees Lynda Dugger and Westley Lund were sitting in their company truck near the intersection of 10th and E Streets in downtown Sacramento after completing a job in that area. The truck, parked on the right side of 10th Street, was facing north; Dugger was in the driver's seat and Lund was in the passenger seat.
Lund saw an African-American male walking alone on the sidewalk at a "determined pace," coming toward them southbound on the east side of 10th Street about 50 yards away. Lund then saw a white Dodge or Chrysler minivan approaching their position, coming up behind the pedestrian. A few seconds later, Lund saw the minivan cross opposing lanes of traffic, climb the curb, drive across the grass parkway strip, and come up onto the sidewalk behind the pedestrian, possibly striking him. He began to run, with the van in pursuit. He ran across the intersection of E Street, but the van, still on the sidewalk and on the wrong side of the roadway, pinned him against a wrought-iron fence and struck him, sending his body flying into the air before it came down. The van then drove away.*fn2 Lund tried but failed to get the van's license plate number, then, joined by Dugger, administered first aid to the man, whose leg was torn open from knee to ankle. He kept saying, "I can't believe she did this to me."
Dugger testified to the same effect. Dugger estimated that the van was driving on the sidewalk south of the intersection for at least 30 seconds before it fled the scene.
Defendant's 11-year-old daughter K.S. testified that she lives with four of defendant's other children in a downtown Sacramento apartment. On May 30, 2009, according to K.S., defendant and Clark, the father of defendant's youngest child, got into an argument at the apartment. With all but one of the children present, Clark kicked defendant in the stomach, then went outside. Defendant put some beer outside and closed the front door. Clark started throwing beer bottles at the door.
Defendant rounded up her children and went outside to put them in her van, parked at the curb. Clark threw one more beer bottle, which shattered, causing some beer to go into K.S.'s eye. According to K.S., this was the last bottle he threw. After ...