Filed 2/28/14 P. v. Johnson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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



THE PEOPLE,                                                                                  C070275

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F02240)

         v.

DONNELL DOMNICK JOHNSON,

                   Defendant and Appellant.




         Defendant Donnell Domnick Johnson was charged with corporal injury to a
co-parent (Pen. Code, § 273.5, subd. (a))1 and assault with a deadly weapon (§ 245,
subd. (a)(1)), along with one strike, three prior serious felony and four prior prison term
allegations (§§ 1170.12, 667.5, subd. (b), 667, subds. (a), (b)-(i)). Following a jury trial,
defendant was acquitted of the corporal injury charge and convicted of assault with a
deadly weapon. The trial court sustained the strike and serious felony allegations, struck
the prior prison term allegations, and sentenced defendant to 19 years in state prison.




1   Undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the trial court erred in failing to give a requested
pinpoint instruction on false imprisonment, and should have instructed on corpus delicti
and viewing admissions with caution. He also contends that there is insufficient evidence
to sustain his conviction for assault with a deadly weapon. We affirm.
                                      BACKGROUND
       Toni Ousley-Harps knew defendant for 23 years and had a daughter with him. In
March 2011 she was estranged from her husband and rekindling a romance with
defendant.
       On March 26, 2011, Ousley-Harps and defendant went to the Adam and Eve adult
store to pick up a few items. Defendant got a text from his ex-wife; Ousley-Harps heard
defendant say his ex-wife’s name while he was looking at a book of sex positions. She
looked at defendant’s phone and determined the text contained a sexually suggestive
song. This angered Ousley-Harps, who threw the cell phone at defendant and left the
shop, waiting for him in her car. Defendant joined her a moment later.
       According to Ousley-Harps’s testimony, the two started an argument that
continued when they got into the car. Ousley-Harps was so angry she refused to listen to
defendant. When they argued defendant typically tried to remove himself from the
situation. As Ousley-Harps drove, defendant repeatedly asked to be let out of the car.
       Ousley-Harps drove westbound on Interstate 80, entering at the Greenback
on-ramp as defendant kept asking to be let out of the car. As the argument continued,
Ousley-Harps drove 70 miles per hour in the number four lane. She had no problems
controlling her car or staying in the lane.
       According to Ousley-Harps, defendant hit his hands on the dashboard as he
demanded to be let out as the car traveled on Interstate 80. After repeatedly asking to be
let out of the car, defendant reached over and pulled on the steering wheel, making
contact with Ousley-Harps’s face. Ousley-Harps then “pulled” on the steering wheel,
losing control of the car and crashing it.

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       Ousley-Harps’s car struck a light pole in the freeway’s emergency lane, causing
the air bags to deploy. Defendant and Ousley-Harps were both able to get out of the car;
Ousley-Harps sustained minor cuts and a cracked rib. Another motorist called for
emergency personnel who arrived soon thereafter.
       California Highway Patrol (CHP) Officer Michael Macias and his partner arrived
at the scene of the accident at around 9:00 p.m. Ousley-Harps’s heavily damaged car was
on the shoulder and dirt embankment of Interstate 80, west of Greenback Lane. A
25-foot light pole was knocked over, blocking the number five lane and partially blocking
lane number four. Ousley-Harps was yelling and appeared angry, while defendant argued
aggressively with her. As the officers separated the couple, Officer Macias heard
Ousley-Harps yell in defendant’s direction: “You tried to kill me. You grabbed the
steering wheel.”
       Ousley-Harps was taken to U.C. Davis Medical Center. Her husband was initially
in the emergency room with her, but left at her request. After her husband left,
Ousley-Harps told Officer Macias that she and defendant went to the Adam and Eve store
to get some toys and books, and got into an argument before she drove onto the freeway.
Defendant asked her to get out of the car at some moment during the argument. At some
point she was hit on the right side of her jaw. The next thing she knew, defendant yelled:
“You are going with me,” and grabbed the steering wheel, probably steering it to the
right. Officer Macias noticed some redness and swelling where Ousley-Harps indicated
she had been hit.
       In April 2011 Ousley-Harps wrote a notarized three-page letter giving her version
of the incident. She wrote that defendant: “struck me under the right side of my chin and
grabbed the steering wheel causing me to lose control.”
       Ousley-Harps testified that defendant did not intentionally strike her. She did not
recall defendant making any statement other than “Let me the fuck out of the car.” She
lied about the incident to the CHP officer because she did not want to cause more

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problems with her estranged husband, who was within earshot at the hospital. The
notarized letter was written when she was still mad at defendant.
       Ousley-Harps was also called as a defense witness. Her husband was there for
most of her interview at the hospital; she did not want him there after noticing he was
angry and upset. She asked him to leave because she would be traveling home with him
and did not want him to hear the details of the incident. She did not feel comfortable
telling the truth even after he left the room, as she believed that whatever she said to
Officer Macias would get back to her husband.
                                       DISCUSSION
                                               I
       Defendant contends the trial court committed prejudicial error in denying his
request for a pinpoint instruction on false imprisonment. We disagree.
       Defendant asked the trial court give the following pinpoint instruction on
misdemeanor false imprisonment, a modified version of CALCRIM No. 1242:
       “A person is guilty of this crime if: [¶] 1. A person intentionally . . . confined . . .
a person; [¶] AND [¶] 2. A person’s act made that person stay or go somewhere
against that person’s will. [¶] An act is done against a person’s will if that person does
not consent to the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act. [¶] False imprisonment does not require that the person
restrained or detained be confined in jail or prison.”
       In support of the instruction, defense counsel argued he wanted to explain to the
jury that defendant “was confined against his will at that time and had a lawful right to
use some force in order to be able to remove himself from the situation.” The trial court
denied the request, stating: “You can certainly argue that in your argument, in any event.
But there is no evidence, whatsoever, that he was forced into that car from the Adam &
Eve store.”



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       A defendant has a right, upon request, to an instruction that pinpoints the theory of
the defense. (People v. Earp (1999) 20 Cal.4th 826, 886.) A proper pinpoint instruction
does not pinpoint specific evidence, but the theory of the defendant’s case. (People v.
Wright (1988) 45 Cal.3d 1126, 1137.) “The pinpoint instruction highlights the burden of
persuasion applicable to a decisive element of the case. It does not cast doubt upon the
credibility of the prosecution evidence but stresses the burden which the prosecution
bears in the jury’s evaluation of the evidence on the point. ‘ “It is not for the trial judge
to say that certain testimony should raise a reasonable doubt in the minds of the jurors as
to an essential element of the People’s case.” ’ ” (People v. Adrian (1982)
135 Cal.App.3d 335, 341.)
       “[A] trial court need not give a pinpoint instruction if it is argumentative [citation],
merely duplicates other instructions [citation], or is not supported by substantial evidence
[citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.) “It is of course virtually
axiomatic that a court may give only such instructions as are correct statements of the
law. [Citation.] Accordingly, a court may refuse an instruction that is incorrect.
[Citation.] It may also refuse an instruction that is confusing. [Citation.]” (People v.
Gordon (1990) 50 Cal.3d 1223, 1275, disapproved on other grounds in People v. Tully
(2012) 54 Cal.4th 952, 1031.)
       There was no charge of false imprisonment and thus CALCRIM No. 1242 was not
applicable. Nonetheless, defendant asserts he was unlawfully imprisoned when
Ousley-Harps refused to let him leave the car. According to defendant, the requested
pinpoint instruction “was . . . a clear indication that he sought to rely upon the defense of
lawful resistance.” Claiming the force he used to resist the offense was reasonable,
defendant contends the trial court was obligated to give the pinpoint instruction.
       Lawful resistance to the commission of a public offense may be made by a party
about to be injured in order to prevent an offense against his person. (§§ 692, 693.) A
person’s right to resist a crime is not a license to respond with unrestricted force. Instead,

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“ ‘any right of self-defense is limited to the use of such force as is reasonable under the
circumstances. [Citation.]’ [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055,
1065, 1064.)
       Defendant did not request an instruction on self-defense, which would have
informed the jury that any use of force would have to be reasonable under the
circumstances. Assuming, as defendant asserts, that trial counsel was “inartfully” trying
to set forth a defense of necessity or lawful resistance, neither the law nor the evidence
supports either defense.
       “To justify an instruction on the defense of necessity, there must be evidence
sufficient to establish that defendant violated the law (1) to prevent a significant evil,
(2) with no adequate alternative, (3) without creating a greater danger than the one
avoided, (4) with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not substantially
contribute to the emergency. [Citations.]” (People v. Pepper (1996) 41 Cal.App.4th
1029, 1035, fn. omitted.)
       The “evil” defendant allegedly tried to prevent here was being in the car with his
paramour while she was angry. Defendant entered the car voluntarily and his victim was
driving defendant to his intended destination. The only reason for his wanting to leave
was that he preferred to withdraw from arguments with Ousley-Harps. Balanced against
this harm was the significant danger of defendant’s action -- grabbing the steering wheel
of a car traveling on the freeway at 70 miles per hour. The resulting crash not only
injured defendant’s victim, but created a significant traffic hazard and potential danger to
other motorists -- a 25-foot long light pole obstructing two lanes of a freeway at night.
The balance of harm to be avoided and harm incurred from defendant’s action would
have justified rejecting an instruction on necessity or on self-defense. Since the requested
instruction was premised on an inapplicable defense, it was properly rejected.



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        We also agree with the reason given by the trial court for rejecting the instruction.
Relying on People v. Camden (1976) 16 Cal.3d 808 (Camden), defendant claims it was
irrelevant that he voluntarily entered the car he later sought to leave. In Camden the
victim accepted a ride offered by defendant, whom she had recently met in passing. (Id.
at p. 811.) Defendant drove a short distance in the victim’s intended direction, but then
veered off and forcibly prevented her from leaving after she asked to be dropped off or
taken home. (Ibid.) She did not try to escape when he drove on the freeway, but was
able to jump out of the car 30 to 45 minutes later. (Id. at pp. 811-812.)
       In rejecting the contention that defendant was guilty of false imprisonment rather
than kidnapping because his victim voluntarily entered the car (Camden, supra, 16 Cal.3d
at p. 812), the Supreme Court noted: “An accused forceful enough to restrain his victim
inside the car could, under the contention urged by defendant, only be convicted of false
imprisonment regardless of the amount of force used or how far asportation continued.
On the other hand the careless or relatively passive accused who allowed his victim
momentarily to leave the vehicle before being forced to return during the course of
asportation would be guilty of kidnaping,” a result it termed an “absurdity.” (Id. at
p. 815, fn. 3.)
       Defendant argues this shows that “using force to restrain a person who tries to
escape from a car in which [they] voluntarily entered is kidnap [and] simply restraining
them in the car (i.e., not stopping) is false imprisonment.” This contention ignores
another passage in the Camden opinion: “Evidence that asportation was initiated
voluntarily remains relevant to a determination by the trier of fact on the issue of the
alleged victim’s consent to continued asportation. Although not involved in the instant
case, evidence of a prior close relationship between the parties, such as marriage or other
romantic or family ties, is similarly relevant although likewise not dispositive where there
is substantial evidence that asportation was induced or continued by means of threat or
force.” (Camden, supra, 16 Cal.3d at p. 815, fn. 4.)

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       We do not need to define the precise contours of the crime of false imprisonment
to reject defendant’s argument. Here, defendant entered the car willingly, he had a
longstanding relationship and a romantic involvement with the driver who was taking
him to his intended destination, and the driver declined to stop the car on a freeway and
let defendant out when defendant simply wanted to avoid an argument. There is no
evidence of false imprisonment. Since there was not substantial evidence to support the
crime, the trial court did not have to give the requested pinpoint instruction.
                                              II
       Defendant contends the trial court committed reversible error by failing to instruct
sua sponte on the corpus delicti rule, CALCRIM No. 359. In the alternative, he asserts
the trial court should have instructed the jury to view defendant’s extrajudicial statement
with caution. We find the trial court erred, but the error was harmless.
       A.
       In a criminal trial, the prosecution must prove the corpus delicti of the crime -- that
is, the fact of injury, loss, or harm, and the existence of a criminal agency as its cause --
without relying exclusively upon the defendant’s extrajudicial statements, confessions, or
admissions. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) This
requirement of independent proof precludes conviction based solely on a defendant’s
out-of-court statements. (Id. at p. 1178.) It “requires corroboration of the defendant’s
extrajudicial utterances insofar as they indicate a crime was committed, and forces the
People to supply, as part of their burden of proof in every criminal prosecution, some
evidence of the corpus delicti aside from, or in addition to, such statements.” (Ibid.,
italics omitted.) The corpus delicti of a crime may be proven by circumstantial evidence
and need not amount to proof beyond a reasonable doubt. (Id. at p. 1171.) Once the
corpus delicti has been established, the defendant’s statements may be considered for
their full value and used to strengthen the prosecution’s case. (Id. at pp. 1171, 1181.)



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       The trial court has a duty to instruct sua sponte on the corpus delicti rule where the
People rely in part on defendant’s extrajudicial statement. (Alvarez, supra, 27 Cal.4th at
pp. 1170, 1178, 1180, 1181.) However, “[e]rror in omitting a corpus delicti instruction is
considered harmless, and thus no basis for reversal, if there appears no reasonable
probability the jury would have reached a result more favorable to the defendant had the
instruction been given. [Citations.]” (Id. at p. 1181.) As long as there is “ ‘a slight or
prima facie showing’ ” permitting an inference of injury, loss, or harm from a criminal
agency, the jury may consider the defendant’s statements to strengthen the case on all
issues. (Ibid.) “If, as a matter of law, this ‘slight or prima facie’ showing was made, a
rational jury, properly instructed, could not have found otherwise, and the omission of an
independent-proof instruction is necessarily harmless.” (Ibid.)
       Section 245 defines the crime of assault with a deadly weapon to require “an
assault upon the person of another” and the use of either “a deadly weapon or instrument
other than a firearm” or “any means of force likely to produce great bodily injury.”
(§ 245, subd. (a)(1); People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) A
vehicle can be used as a “deadly weapon” within the meaning of this provision. (People
v. Russell (2005) 129 Cal.App.4th 776, 782.) The crime of “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.” (People v. Williams (2001) 26 Cal.4th
779, 790.)
       During an argument while Ousley-Harps was driving 70 miles per hour on the
freeway at night, defendant grabbed the steering wheel and probably steered it to the
right. The highly dangerous nature of defendant’s act, coupled with evidence of motive,
a romantic evening soured into a highly contentious argument, supports an inference that
defendant intended to crash the car by grabbing the steering wheel. This establishes a

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prima facie case of assault with a deadly weapon, rendering harmless the error in failing
to instruct on the corpus delicti rule.
       B.
       As relevant here, CALCRIM No. 358 provides: “You have heard evidence that
the defendant made [an] oral . . . [statement] . . . before the trial . . . . You must decide
whether the defendant made any [such statement], in whole or in part. If you decide that
the defendant made such [a statement], consider the [statement], along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to
give to the [statement]. [¶] . . . Consider with caution any statement made by [the]
defendant tending to show [his] guilt unless the statement was written or otherwise
recorded . . . .”
       This instruction must be given sua sponte when warranted by the evidence.
(People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter).) “The rationale behind the
cautionary instruction suggests it applies broadly. ‘The purpose of the cautionary
instruction is to assist the jury in determining if the statement was in fact made.’
[Citation.] This purpose would apply to any oral statement of the defendant, whether
made before, during, or after the crime.” (Id. at pp. 392-393.) Since the People relied in
part on defendant’s statement to Ousley-Harps “You are going with me,” as he grabbed
the steering wheel, the trial court was required to give the instruction.
       Omission of the cautionary instruction is reviewable under “the normal standard of
review for state law error: whether it is reasonably probable the jury would have reached
a result more favorable to defendant had the instruction been given. [Citations.]”
(Carpenter, supra, 15 Cal.4th at p. 393.)
       The admission consists of a single statement from defendant, as related by
Ousley-Harps in her interview with Officer Macias. At trial, Ousley-Harps testified that
defendant did not make the statement, and she could not recall telling the officer
defendant had made such a statement. Although it was not instructed to view defendant’s

                                              10
statement with caution, the jury was nonetheless instructed to determine whether the
statement was made in light of Ousley-Harps’s conflicting statements. The jury was
instructed with CALCRIM No. 302 that “[i]f you determine that there is a conflict in the
evidence, you must decide what evidence to believe.” In addition, the jury was instructed
with CALCRIM No. 226 that “[y]ou may believe all or part or none of the witnesses’
testimony.” CALCRIM No. 226 also instructed the jury to consider “[d]id the witness
make a statement in the past that is consistent or inconsistent with his or her testimony”
when evaluating a witness’s testimony. Instructing the jury on evaluating a witness’s
credibility mitigates the prejudice from failing to give the cautionary instruction.
(Carpenter, supra, 15 Cal.4th at p. 393.)
       Defendant’s statement was evidence of the mental element of assault with a deadly
weapon, “ ‘the general intent to willfully commit a battery, an act which has the direct,
natural and probable consequences, if successfully completed, of causing injury to
another. [Citations.]’ ” (People v. Lee (1994) 28 Cal.App.4th 1724, 1734.) This was far
from the only evidence of defendant possessing the necessary mental element for assault
with a deadly weapon. The act of pulling on a steering wheel of a car traveling on a
freeway at 70 miles per hour is itself powerful circumstantial evidence of defendant’s
intent to willfully commit a battery, and was coupled with the uncontradicted evidence of
motive, defendant’s argument with his paramour.
       In light of the other instructions, the nature of defendant’s statement, and the other
evidence of his guilt, it is not reasonably probable that giving CALCRIM No. 358 would
have lead to a different result.
                                             III
       Defendant’s final contention is the evidence was insufficient to sustain his
conviction for assault with a deadly weapon.
       “To determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution to determine

                                             11
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
       A conviction for violation of section 245, subdivision (a)(1) requires proof that the
defendant: (1) willfully committed an unlawful act which by its nature would probably
and directly result in the application of physical force on another person; (2) he was
aware of facts that would lead a reasonable person to realize that as a direct, natural and
probable result of this act that physical force would be applied to another person; (3) he
had the present ability to apply physical force to the person of another; (4) he committed
the assault by means of force likely to produce great bodily injury or used a deadly
weapon in the assault. (CALCRIM No. 875.)
       Defendant relies on People v. Jones (1981) 123 Cal.App.3d 83 (Jones) and People
v. Cotton (1980) 113 Cal.App.3d 294 (Cotton). In those cases, the defendants were being
pursued by police and, during the chases, struck vehicles and injured victims. (Jones,
supra, 123 Cal.App.3d at p. 87; Cotton, supra, 113 Cal.App.3d at pp. 296-298.) In Jones,
the assault with a deadly weapon conviction was reversed because the Court of Appeal
concluded there was insufficient evidence to show Jones intended to commit a battery.
(Jones, supra, 123 Cal.App.3d at pp. 96-97.) In Cotton, the trial court erred in
concluding that reckless driving in violation of Vehicle Code section 23104 “per se
generated a transferable intent to commit a battery via automobile in violation of Penal
Code section 245, subdivision (a).” (Cotton, supra, 113 Cal.App.3d at p. 307.) Relying
on these cases, defendant argues the evidence shows no more than recklessness, and the
evidence does not establish that he had knowledge of the “facts sufficient to establish that
momentarily grabbing the wheel would probably and directly result in the application of
physical force against another.”
       Neither Jones nor Cotton is applicable to this case. Here, defendant (the
passenger) grabbed the steering wheel as the car was going 70 miles per hour on the

                                             12
freeway, at night, in moderate traffic. The risk of harm to the driver and the occupants of
the other vehicles on the roadway was not the consequence of evading an officer, but the
intended result of defendant’s action. Defendant’s action was not merely reckless, it was
an intent to commit an act whose natural and probable consequence was a car accident --
the application of force to another person as a result of defendant’s act of grabbing the
steering wheel. Since the remaining elements of assault with a deadly weapon are
uncontested, we reject defendant’s contention. Moreover both Jones and Cotton predate
the Supreme Court’s decision in People v. Williams (2001) 26 Cal.4th 779, 790, which
altered the law of assault reflected in CALCRIM No. 875.
                                      DISPOSITION
       The judgment is affirmed.


                                             BLEASE                    , Acting P. J.


We concur:


         MAURO                     , J.


         MURRAY                    , J.




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