Filed 9/21/16 P. v. Cook CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071479
         Plaintiff and Respondent,
                                                                                  (Super. Ct. No. 11358)
                   v.

JEFFERY DAVID COOK,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Mariposa County. Michael A.
Fagalde, Judge.
         Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Christopher
J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P.J., Franson, J. and Smith, J.
       Jeffery David Cook was convicted of two counts of assault, evading a police
officer, and cruelty to animals after he led police on a chase with his dogs in the back of
his pickup. He argues the evidence is insufficient to support one of the assault counts
because the undisputed facts fail to prove he had the necessary mental state to support the
crime. We disagree and affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       The first amended information charged Cook with assault with a deadly weapon
upon a peace officer (Pen. Code, § 245, subd. (c))1, assault with a deadly weapon upon
Kelly Salonen (§ 245, subd. (a)(1)), evading a police officer with willful disregard for the
safety of others while operating a vehicle (Veh. Code, § 2800.2, subd. (a)), and cruelty to
animals (§ 597, subd. (b)). The information also alleged as enhancements to the first
three counts that Cook suffered a prior conviction which constituted a strike within the
meaning of section 667, subdivisions (b)-(i), and that the same conviction was a serious
felony within the meaning of section 667, subdivision (a)(1). Cook pled not guilty and
not guilty by reason of insanity to the charges.
       Our summary of the trial proceedings will focus on the testimony relevant to the
issue in this appeal, the assault count wherein Salonen was the victim. The events
leading up to the charges against Cook began with Cook presenting himself to animal
control officer Eric Vogel and making bizarre statements and unreasonable demands.
Eventually Cook made a statement which Vogel interpreted as a threat, so Vogel called
the sheriff’s department dispatch officer.
       Sergeant Kim Miller of the Mariposa County Sheriff’s Department was on duty
when she heard the call from the dispatch center advising of the encounter between Vogel
and Cook. Miller was familiar with Cook and his vehicle from past encounters with
Cook. As Miller was driving in town, she spotted Cook driving his vehicle. Cook

1      All statutory references are to the Penal Code unless otherwise indicated.


                                             2.
appeared to see Miller, and changed his direction of travel to avoid Miller. Miller
activated the lights and siren on the marked patrol vehicle. Miller observed dogs in the
bed of Cook’s pickup truck, which were bouncing around as a result of Cook’s erratic
driving.
       Cook turned onto a cul-de-sac. Cook drove around the roadway so he was facing
Miller’s vehicle. Miller drove her vehicle across the street, effectively blocking Cook
from exiting the area of the circular roadway. Cook looked at Miller and began
accelerating his vehicle. Miller moved her vehicle to avoid a collision. Cook drove
down a dirt embankment to return to a different roadway, Highway 140. The dogs in the
back of Cook’s vehicle were being jostled continuously during the chase. Miller saw a
flatbed pickup truck parked on the side of Highway 140 near where Cook was
approaching the roadway. A pedestrian was near the flatbed pickup truck. Cook drove
his vehicle past the flatbed pickup, across the nearest lanes of the roadway, across the
median, and into the far traffic lane driving away from the area. Using surface streets,
Miller drove to Highway 140 in an attempt to follow Cook.
       On cross-examination, Miller admitted she did not know if Cook saw the
pedestrian.
       Salonen testified she was jogging along Highway 140 on that day. She heard
sirens from a police vehicle or an ambulance as she approached the flatbed pickup. She
checked both directions of the roadway and did not see any emergency vehicle so she
continued on her jog past the flatbed pickup. When she was approximately two to three
feet past the flatbed pickup she caught movement in her peripheral vision and saw a
pickup driving down the embankment. She jumped back to avoid being hit by the
pickup. When the pickup passed her, she probably could have touched it. She also saw a
dog in the bed of the pickup which appeared to be struggling to stay in the bed. Salonen
did not think the driver of the pickup saw her or tried to hit her. He never looked at her
or made eye contact with her.

                                             3.
       Mariposa County Deputy Sheriff Tim Lewis testified that he located and followed
Cook’s pickup after it drove down the embankment. Cook drove at an unsafe speed, and
crossed over the center lane divider at least twice. Cook did not stop his pickup even
though Lewis was in a marked patrol vehicle with his lights and sirens activated. At one
point during the pursuit, Cook stuck his left arm out the window of the pickup with his
middle finger extended. Lewis terminated the pursuit when ordered to do so by his
captain.
       The jury found Cook guilty as charged. Prior to proceeding to the insanity phase
of the trial, Cook accepted the prosecution’s offer of a stipulated prison term of five years
eight months in exchange for Cook’s dismissal of the not guilty by reason of insanity
plea. This resolution required the prosecutor to dismiss both the prior strike and the prior
serious felony allegations. Cook was thereafter sentenced to the agreed upon term.2
                                      DISCUSSION
       Cook presents a single argument in this appeal which, even if successful, would
not change the sentence. He argues there was insufficient evidence to support the jury’s
verdict of guilty in count II, the assault with a deadly weapon wherein Salonen was the
victim. Cook does not dispute the evidence presented, but instead asserts this evidence
was inadequate to establish the mental state required to commit an assault.
       In this count, the testimony established Cook, in an attempt to avoid Sergeant
Miller, drove down the embankment and onto a roadway at an unsafe speed and in
apparent disregard for vehicular and pedestrian traffic. Salonen was jogging on the
roadway, and had to jump out of the way to avoid being hit by Cook’s pickup as Cook
drove onto the roadway. Salonen testified that it did not appear Cook saw her, and she
did not believe he was attempting to hit her. Cook’s argument, in essence, is that he

2      As part of the agreement, Cook also agreed to plead guilty to a misdemeanor
driving under the influence case that had been trailing this case. He was sentenced to
time served.


                                             4.
could not have had the required mental state to commit an assault with a deadly weapon
if he neither saw nor intended to hit Salonen.
       With regard to this count, the trial court instructed the jury that only a general
criminal intent was required, and then defined the crime for the jury with CALCRIM
No. 875, the relevant portion of which stated:

              “The Defendant is charged in Count 2 with assault with force likely
       to produce great bodily injury.

              “To prove that the Defendant is guilty of this crime, the People must
       prove that:

              “The Defendant did an act that by its nature would directly and
       probably result in the application of force to a person, and the force used
       was likely to produce great bodily injury;

              “Two, the Defendant did that act willfully;

               “Three, when the Defendant acted, he was aware of facts that would
       lead a reasonable person to realize that his act by its nature would directly
       and probably result in the application of force to someone;

              “And, four, when the Defendant acted, he had the present ability to
       apply force likely to produce great bodily injury.

              “Someone commits an act willfully when he or she does it willingly
       or on purpose. It is not required that he or she intended to break the law,
       hurt someone else, or gain any advantage.

              “[¶] … [¶]

              “The People are not required to prove that the Defendant actually
       intended to use force against someone when he acted.”
       The People argue it is irrelevant whether Cook was aware of Salonen’s presence
when he drove down the embankment, because the act of driving down the embankment
to avoid the sheriff’s department was an act that “by its nature would directly and
probably result in the application of force to a person, and the force used was likely to
produce great bodily injury.” Since Cook “was aware of facts that would lead a



                                              5.
reasonable person to realize that his act by its nature would directly and probably result in
the application of force to someone,” the evidence established the required mental state.
       Although the parties cite numerous cases, this case may be resolved by the
Supreme Court’s latest attempt to define the mental state for the crime of assault, People
v. Williams (2001) 26 Cal.4th 779 (Williams). Williams and the victim were competing
for the affections of a woman. The victim drove to the woman’s home and left a note
asking her to come outside and talk to him. Williams was present, found the note, and
told the victim to leave. Williams then retrieved a shotgun from his vehicle, loaded it,
and shot a “warning shot” at the victim. Williams was convicted of assault. The
appellate court overturned the conviction concluding the jury was improperly instructed.
       The Supreme Court affirmed the conviction, and once again revisited the required
mental state to commit an assault. It explained that an “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.” (Williams, supra, 26 Cal.4th at p. 790.)
“In other words, a defendant guilty of assault must be aware of the facts that would lead a
reasonable person to realize that a battery would directly, naturally and probably result
from his conduct. He may not be convicted based on facts he did not know but should
have known. He, however, need not be subjectively aware of the risk that a battery might
occur.” (Id. at p. 788.) The Supreme Court explained this concept with an example:
“For example, a defendant who honestly believes that his act was not likely to result in a
battery is still guilty of assault if a reasonable person, viewing the facts known to
defendant, would find that the act would directly, naturally and probably result in a
battery.” (Id. at p. 788, fn. 3.)
       The Supreme Court acknowledged the required mental state for assault
incorporated the language of probability because the defendant is being punished for that

                                               6.
which might have occurred, not that which actually occurred. (Williams, supra, 26
Cal.4th at p. 787 [“Because assault criminalizes conduct based on what might have
happened—and not what actually happened—the mental state for assault incorporates the
language of probability, i.e., direct, natural and probable consequences.”].) Finally, the
Supreme Court affirmed that assault does not require a specific intent to injure the victim.
(Id. at p. 788.)
       With these principles in mind, it is clear there is sufficient evidence to support the
assault conviction in count II. The evidence established Cook was attempting to evade
Sergeant Miller, and in doing so he drove down a steep embankment at an unsafe speed
to illegally enter Highway 140, apparently without concern for pedestrian or vehicular
traffic. The jury could logically infer from the evidence Cook knew Sergeant Miller was
attempting to stop him, and Cook chose to drive down the embankment as a shortcut to
return to Highway 140 and escape from Sergeant Miller. As Salonen explained, this was
especially dangerous because one would not expect a vehicle to be driven in such a
manner, i.e., Salonen was startled when she saw a vehicle coming down the embankment
and turning onto the roadway without stopping and without concern for pedestrians or
vehicular traffic. From an objective standpoint, a reasonable person would believe that a
natural and probable consequence of Cook’s driving would be injury to someone.
       Williams also reaffirmed that “mere recklessness or criminal negligence” would
not be sufficient to establish the mental state required for an assault. (Williams, supra, 26
Cal.4th at p. 788.) To the extent Cook suggests his actions constituted “mere
recklessness or criminal negligence,” we disagree. Cook was aware of the facts (driving
down an embankment at an unsafe speed to reach Highway 140 to escape Miller, and
with poor visibility of both oncoming pedestrians and oncoming traffic) that would lead a
reasonable person to realize that a battery would directly, naturally and probably result
from his conduct, i.e., it was probable Cook would strike someone when he entered the
roadway. (Ibid.) Whether Cook subjectively was aware of the risk a battery might occur

                                              7.
is irrelevant, as is the assertion that Cook did not see Salonen jogging down the roadway.
(Ibid.) We accept for the purposes of this argument that Cook did not realize Salonen
was jogging on the roadway. However, the jury could conclude a reasonable person
would know there is both vehicular and pedestrian traffic on this roadway and Cook
would not be able to avoid either while driving in the manner in which he chose to drive.
Or, to paraphrase footnote 3 in Williams, even if Cook honestly did not believe his
actions would result in an accident, the jury could infer the facts known to Cook would
lead a reasonable person to conclude his actions would directly, naturally and probably
result in a battery.
       Although Williams resolves Cook’s argument, we feel it necessary to discuss
People v. Miller (2008) 164 Cal.App.4th 653 (Miller), which Cook asserts requires a
different result. Miller was convicted of numerous crimes including assault with a deadly
weapon. The charges arose out of Miller’s operation of a vehicle on a single day. Miller
first drove away from the scene of an accident she caused, then drove to a beach access
road and eventually onto a bicycle path. Numerous pedestrians and bicyclists were
forced to jump out of Miller’s path. Miller, who was driving between 25-35 miles per
hour, eventually struck a pedestrian. A short distance later she stopped, claiming she did
not see the pedestrian she struck. Responding police officers described Miller as
disoriented, speaking with slurred speech, and at times speaking in a manner that did not
make sense. Another officer described Miller as shaking violently, with breath that
smelled of a chemical.3 He also described Miller as incoherent, and fading in and out of
a semiconscious state. Miller failed several field sobriety tests. (Id. at pp. 657-659.)




3     Attempts to draw a blood sample for testing were unsuccessful. (Miller, supra,
164 Cal.App.4th at pp. 657-659.)


                                             8.
       As relevant here, the trial court instructed the jury with CALJIC No. 9.00, which
was similar in relevant respects to the instructions given in this case.4 During
deliberations, the jury submitted a question concerning the second element of assault,
whether “The person committing the act was aware of facts that would lead a reasonable
person to realize that as a direct, natural and probable result of this act that [sic] physical
force would be applied to another person.” (Miller, supra, 164 Cal.App.4th at p. 661.)
The jury asked, “ ‘ Regarding count 4, element 2, it states, [“] was the person aware[,”]
etc. Is there a temporal portion to this count? At what point in time was the defendant
charged with this count? Which assault is this count referring to?’ ” (Ibid.) After
consulting with the attorneys, the court replied to this question with “ ‘1. There is no
“awareness” element. [¶] 2. There is no “temporal” element. [¶] 3. This count refers to
the same incident which comprises the event charged in Count I.’ ” (Ibid.)
       The appellate court concluded the trial court’s statement that “ ‘there is no
“awareness” element’ ” constituted instructional error, and the error was prejudicial.
(Miller, supra, 164 Cal.App.4th at p. 661.) The appellate court reasoned the trial court’s
response permitted the jury to find Miller “guilty of assault without considering whether
she was aware of facts that would lead a reasonable person to realize that physical force
would be applied to” the victim, which was “clear error” in light of the Supreme Court’s
opinion in Williams. (Miller, supra, 164 Cal.App.4th at p. 663.)



4       The appellate opinion stated the jury was instructed as follows: “ ‘In order to
prove an assault, each of the following elements must be proved: 1. A person willfully
committed an act which by its nature would probably and directly result in the application
of physical force on another person; [¶] 2. The person committing the act was aware of
facts that would lead a reasonable person to realize that as a direct, natural and probable
result of this act that [sic] physical force would be applied to another person; and [¶] 3. At
the time the act was committed, the person committing the act had the present ability to
apply physical force to the person of another.’ ” (Miller, supra, 164 Cal.App.4th at
p. 661.)


                                               9.
       Appellate counsel for Cook argues in her reply brief that because of the “near-
identical facts, [and] the reasoning, and holding” in Miller, we must conclude that Cook’s
decision to drive down the embankment at an unsafe speed without concern for vehicular
traffic or pedestrians cannot support the assault conviction. It appears appellate counsel
is asserting that Cook’s actions constituted no more than reckless driving or criminal
negligence, which Williams held was an insufficient mental state to support an assault
conviction. (Williams, supra, 26 Cal.4th at p. 788.) But Miller provides no support for
this argument. The appellate court in Miller found instructional error based on the trial
court’s response to the question submitted by the jury. Cook does not argue the jury was
incorrectly instructed. Therefore, Miller is inapposite.
       The undisputed evidence in this case established that Cook decided to drive down
the embankment at an unsafe speed without concern for vehicular or pedestrian traffic.
The jury could reasonably infer from this evidence that such conduct constituted more
than criminal negligence or reckless driving. Instead, the jury could reasonably and
logically infer that Cook acted with the mental state necessary to support an assault
conviction.
                                      DISPOSITION
       The judgment is affirmed. We noted, however, a minor mistake in the Abstract of
Judgment, filed March 10, 2015. The sentence imposed for count II is indicated to be
two months concurrent. The actual sentence was two years concurrent. We will remand
the matter to the trial court to correct the Abstract of Judgment.




                                             10.
