California Court of Appeals, Fourth District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE325256 Evan P. Kirvin, Judge.
[Copyrighted Material Omitted]
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, ACTING P. J.
Sean Rhett Mullendore appeals from a judgment convicting him of the felony offense of throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b)) (hereafter, section 23110(b)), and the misdemeanor offenses of assault and vandalism. He argues the section 23110(b) conviction must be reversed because the trial court failed to instruct the jury on the lesser included misdemeanor offense defined in Vehicle Code section 23110, subdivision (a) (hereafter, section 23110(a)). We agree.
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 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...."
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 ...