Filed 10/21/14


                     CERTIFIED FOR PARTIAL PUBLICATION*


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D064675

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCE325256)

SEAN RHETT MULLENDORE,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Evan P.

Kirvin, Judge. Affirmed in part; reversed in part and remanded.

        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.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of Discussion parts II. and III.
       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,

§ 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, § 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

                                              2
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 . . . ."



                                             3
       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 hands

up in the air . . . yelling something" as if "inviting [Savage] to come back and fight" him.

Unable to see clearly through the shattered windshield, Savage drove into a nearby

parking lot and called 911. Savage told the 911 operator: "I was just driving down the

street and this guy was, like ran out in the middle of the street and I blared on my horn,

'cause I thought I was gonna hit him. [¶] . . . [¶] And he like threw his backpack, I think

it was like full of bricks or something."

       While still speaking with the 911 operator, Savage drove his car a couple of blocks

and then returned to the parking lot. At one point as he was turning his car around in a

different parking lot, defendant approached and called out, " 'Come on, bro. Let's talk

about this.' " Back at the original parking lot, Savage could no longer see defendant, but

he encountered a police officer who told him they were looking for defendant.

       Officer Daron Larkin testified that when interviewed at the scene, Savage reported

that defendant "came out of nowhere, walking in front of his vehicle, and he had to apply

his brakes abruptly to avoid colliding with" defendant. Savage told Officer Larkin that

defendant released a "barrage of unkind words" and at "about the same time, a backpack

that he was carrying had swung in at [Savage's] vehicle." At trial, Savage testified that

defendant did not jump in front of his car, and he acknowledged he "might have been

exaggerating the situation" when he described to the officer what had occurred.



                                             4
       The police arrested defendant several blocks from the scene of the incident.

Defendant was carrying his backpack. A police search of the backpack revealed various

personal effects, including some items at the bottom of the backpack that the police

assessed were heavy enough to cause the damage to Savage's windshield.

       The entire left corner of Savage's windshield was shattered, and there were two or

three cracks spreading out towards the right side of the windshield. The glass in the

windshield's left corner was in "tiny chunks" being held together by a safety material, and

there were a few "tiny shards" of glass on the dashboard. Savage's driver's window had

been open, and various items from the backpack had fallen into his car. It cost Savage

about $200 to repair the windshield.

       In closing arguments to the jury, the prosecutor argued that when Savage honked

at defendant, defendant turned around, took his backpack off his shoulder, and willfully

and forcefully swung it at Savage's windshield with the intent to cause serious bodily

harm. Defense counsel argued the incident was an accident that occurred when defendant

had to dodge Savage's vehicle, and as he did so his backpack hit the windshield.

Alternatively, defense counsel argued that even if the jury thought the incident was not an

accident and defendant "did it on purpose," he did not use force likely to cause, or have

the intent to cause, great bodily injury.

Jury Verdict and Sentence

       Defendant was charged with assault by means of force likely to cause great bodily

injury (count 1); throwing a substance at a vehicle that is capable of causing serious



                                             5
bodily harm and with intent to cause great bodily injury (count 2, § 23110(b)); and

misdemeanor vandalism with a prior conviction of vandalism (count 3).

       The jury convicted him of the lesser included offense of misdemeanor simple

assault for count 1; the section 23110(b) offense for count 2; and the vandalism offense

for count 3. In a bifurcated proceeding, the court found true the prior vandalism

allegation for count 3, three prior prison term allegations, and a prior strike conviction

allegation.

       The court struck the prison priors, and sentenced defendant to a term of two years

eight months based on the count 2, section 23110(b) conviction (i.e., the 16-month low

term, doubled based on the strike prior). The court imposed concurrent terms for the

misdemeanor assault and vandalism convictions (counts 1 and 3).1

                                       DISCUSSION

              I. Failure To Instruct on Section 23110(a) Misdemeanor Offense as

                 Lesser Included Offense of Section 23110(b) Felony Offense

       Defendant asserts the trial court erred in failing to instruct the jury on the

misdemeanor defined in section 23110(a) as a lesser included offense of the felony

defined in section 23110(b). The Attorney General asserts the misdemeanor offense is

not a lesser included offense; even if it is, the evidence did not warrant instruction on the

lesser offense; and any instructional error was harmless.



1      The Attorney General concedes the abstract of judgment erroneously states the
prior prison term enhancements were stayed, whereas it should state these enhancements
were stricken. Because we are reversing the sentence, we need not order this correction.
                                              6
          A. Section 23110(a) Is a Lesser Included Offense of Section 23110(b)

       The two subdivisions of section 23110 state:

       "(a) Any person who throws any substance at a vehicle or any occupant thereof

on a highway is guilty of a misdemeanor.

       "(b) Any person who with intent to do great bodily injury maliciously and

willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any

other substance capable of doing serious bodily harm at such vehicle or occupant thereof

is guilty of a felony and upon conviction shall be punished by imprisonment in the state

prison." (Italics added.)

       A lesser offense is necessarily included in a greater offense if the greater offense

cannot be committed without also committing the lesser offense. (People v. Hughes

(2002) 27 Cal.4th 287, 366.) Thus, section 23110(a) is a lesser included offense of

section 23110(b) if a violation of subdivision (b) necessarily constitutes a violation of

subdivision (a). For purposes of the court's instructional duty, this determination can be

based on the statutory elements test as well as the accusatory pleading test; that is, " 'a

lesser offense is necessarily included in a greater offense if either the statutory elements

of the greater offense, or the facts actually alleged in the accusatory pleading, include all

the elements of the lesser offense, such that the greater cannot be committed without also

committing the lesser. [Citations.]' " (People v. Smith (2013) 57 Cal.4th 232, 240.)

       While discussing the instructions, the court initially stated it would instruct on

section 23110(a) because it was a lesser included offense of section 23110(b). However,

the court later decided not to give the instruction, stating that section 23110(b) could be

                                              7
violated without violating section 23110(a) because the felony offense (unlike the

misdemeanor offense) need not occur on a highway and could be committed by

projecting, rather than throwing, a substance.

       When determining the meaning of a statute, we view the enactment as a whole;

consider the plain, commonsense meaning of the language used by the Legislature; and

avoid an interpretation that is contrary to the apparent legislative intent or that would lead

to absurd results. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131; People v. Jenkins

(1995) 10 Cal.4th 234, 246.) We conclude the trial court's interpretation of the statute is

contrary to its plain language.

       First, section 23110 reflects that both subdivisions (a) and (b) require that the

vehicle be on a highway. Subdivision (a) states the offense is committed when a

defendant throws a substance at a vehicle "on a highway," and subdivision (b) states the

offense is committed when the defendant throws a substance at "such vehicle" with the

intent to cause great bodily injury and with a substance capable of causing serious bodily

harm. Based on the plain language in subdivision (b), "such vehicle" refers to a vehicle

described in subdivision (a); i.e., a vehicle on a highway. Alternatively, even if we were

to construe subdivision (b) as applying even when a vehicle is not on a highway, the

information in this case alleged that the subdivision (b) offense occurred "on a highway."

Accordingly, applying the accusatory pleading test, the subdivision (b) offense as alleged

in this case included the highway element required for a violation of subdivision (a).

       Second, reading section 23110 in its entirety, there is no meaningful distinction

between throwing a substance, as opposed to projecting a substance, so as to differentiate

                                              8
the two subdivisions on this basis. As it is commonly understood, the term projecting can

include the concept of throwing. Among the definitions set forth in a standard dictionary,

"project" is defined as meaning "to throw or cast forward." (Webster's Collegiate Dict.

(10th ed. 2002) p. 930.) Although section 23110(a) refers solely to the verb "throws," it

is apparent that section 23110(b) is designed to proscribe the same conduct, only with the

added elements of intent to cause great bodily injury and use of an object capable of such

injury. Notably, the first portion of subdivision (b) refers to throwing or projecting "any

rock, brick, bottle, metal or other missile," and the second portion of subdivision (b)

refers solely to projecting "any other substance capable of doing serious bodily harm."

We are satisfied the Legislature did not intend that there would be no culpability under

the second portion of subdivision (b) if a person threw, but did not project, a substance

capable of causing serious bodily harm. Rather, the omission of the term "throwing"

from the second portion of subdivision (b) suggests that—consistent with the standard

dictionary definition—the Legislature viewed "throw" and "project" as interchangeable

terms that simply mean the propelling of a substance.

       This interpretation of the statutory language is supported by a long-established

description of the section 23110 felony and misdemeanor offenses set forth in People v.

Whitney (1978) 76 Cal.App.3d 863. When rejecting an argument that the statute requires

that the vehicle be moving on the highway, the Whitney court cited case authority finding

movement was not required under subdivision (a), and then concluded movement

likewise was not required under subdivision (b) because the latter "merely adds the

additional elements of intent and capacity to do serious bodily injury" which indicated

                                             9
the two subdivisions were enacted for the same purpose. (Whitney, at p. 868, italics

added.) Based on a plain reading of the statutory language, we also conclude that the

subdivisions prohibit the same conduct, except subdivision (b) includes the additional

elements of intent to cause great bodily injury and use of an object capable of causing this

injury. Accordingly, a violation of section 23110(b) necessarily is a violation of section

23110(a), and the latter is a lesser included offense of the former.

                   B. Substantial Evidence of Lesser Included Offense

       A trial court must instruct on a lesser included offense " ' "whenever evidence that

the defendant is guilty only of the lesser offense is 'substantial enough to merit

consideration' by the jury." ' " (People v. Prince (2007) 40 Cal.4th 1179, 1265.)

Substantial evidence in this context is evidence from which reasonable jurors could

conclude that the lesser offense, but not the greater, was committed. (Ibid.) When

evaluating whether a lesser included offense instruction should have been given, we view

the evidence in the manner most favorable to the defendant and apply an independent

review standard. (People v. Manriquez (2005) 37 Cal.4th 547, 584-585; People v.

Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

       Drawing all reasonable inferences in defendant's favor, reasonable jurors could

have concluded defendant committed the misdemeanor offense, not the felony offense,

by finding he acted without the intent to commit great bodily injury. This is not a case

where the defendant directly inflicted force on the victim; rather, defendant hit the

windshield of the victim's car. Because the circumstances involved an interaction

between a pedestrian and a moving car, the jury could reasonably assess that defendant,

                                             10
as the pedestrian, felt vulnerable when confronted by the honking, passing car, and he

lashed out in anger or frustration at the car but without the intent to injure the driver who

was seated inside the vehicle. There was evidence worthy of the jury's consideration on

the issue of defendant's specific intent, and thus the trial court was required to instruct on

the lesser misdemeanor offense.

               C. Failure To Instruct on Lesser Offense Was Not Harmless

       We also conclude the instructional error was not harmless because there is a

reasonable probability the outcome would have been more favorable to defendant had the

jury been instructed on the lesser offense. (See People v. Prince, supra, 40 Cal.4th at p.

1267 [reasonable probability of different outcome standard generally applies to erroneous

failure to instruct on lesser included offense].) The rationale for requiring instruction on

lesser included offenses is to avoid forcing the jury into an " 'unwarranted all-or-nothing

choice' " which creates the risk the jury will convict on the charged offense even though

one of the elements remains in doubt because " 'the defendant is plainly guilty of some

offense . . . .' " (People v. Hughes, supra, 27 Cal.4th at p. 365.) Here, the evidence

showed that defendant's backpack hit the windshield of the victim's vehicle. If the jury

found defendant acted intentionally and not accidentally, it would have recognized that

he committed the type of conduct defined in count 2 for the section 23110(b) offense, i.e.,

throwing something at a vehicle. Because he committed the vehicle-related conduct

prohibited by the statute, the jurors may have been inclined to return a guilty verdict for

this count even if one or more of them had doubts whether he had the specific intent to

inflict great bodily injury. As noted, the circumstances of the offense (involving

                                              11
pedestrian contact with a moving vehicle) could reasonably support a finding either way

on the issue of whether defendant intended to injure the driver. Had the jury been given

the option of convicting defendant of the vehicle-related offense defined in section

23110, but without the intent to injure element, it may well have selected this lesser

offense.

       This conclusion is buttressed by the jury's decision (for count 1) to find defendant

guilty of misdemeanor simple assault rather than the felony of assault by means of force

likely to produce great bodily injury. Because the jury had doubts concerning the

defendant's use of (or ability to apply) force likely to produce great bodily injury (see

CALCRIM No. 875), there is a reasonable probability it also had doubts about whether

defendant had the intent to inflict such injury.

       Based on the failure to instruct on the lesser included offense, the conviction on

the count 2, section 23110(b) offense must be reversed. The sentence must also be

reversed because it was premised on this conviction.

                      II. Refusal To Instruct on Defense of Accident

       Defendant asserts the trial court erred in refusing his request that the jury be

instructed on the defense of accident. We agree, but find the error harmless.

       The accident defense applies if the defendant acted " 'without the intent required

for [the] crime, but acted instead accidentally.' " (People v. Anderson (2011) 51 Cal.4th




                                             12
989, 996; Pen. Code, § 26; see CALCRIM No. 3404.)2 A trial court generally does not

have a sua sponte duty to instruct on an accident defense; however, it must give a

pinpoint instruction on the defense when it is requested and supported by the evidence.

(People v. Anderson, supra, at pp. 996-998.) When determining whether a defense is

supported by the evidence, the trial court does not make credibility resolutions; considers

only whether there is evidence of the defense sufficient to raise a reasonable doubt; and

resolves doubts in favor of giving the instruction. (People v. Salas (2006) 37 Cal.4th

967, 982; People v. Strozier (1993) 20 Cal.App.4th 55, 63.) On appeal, we independently

review the court's refusal to instruct on a defense. (People v. Manriquez, supra, 37

Cal.4th at p. 581.)

       When refusing to instruct on accident, the trial court stated there was no evidence

that "directly supports the giving of the instruction," but defense counsel was not

prohibited from arguing that the incident was an accident. Contrary to the court's

conclusion, there was evidence from which reasonable jurors could credit the defense

claim of accident. In his statements to the authorities and in his trial testimony, Savage

stated he had to slow down or brake when he encountered defendant standing or moving

in the street; defendant was facing with his back and side towards Savage; Savage honked

and held down his horn as he passed closely by defendant; and in response defendant


2       Based on CALCRIM No. 3404, defendant requested an accident instruction
stating: "The defendant is not guilty of Counts One, Two or Three if he acted without the
intent required for that crime, but acted instead accidentally. You may not find the
defendant guilty of Assault By Means of Force Likely to Cause Great Bodily Injury;
Throwing an Object at a Vehicle; or Vandalism unless you are convinced beyond a
reasonable doubt that he acted with the required intent[.]"
                                             13
swung or threw his heavily-weighted backpack at Savage's windshield. This testimony

does not foreclose inferences that defendant was startled by the sound of the horn; he

responded in a quick motion and accidentally propelled his backpack onto Savage's

moving vehicle; and the force of defendant's movement combined with the force of the

moving vehicle caused the windshield to shatter.

       However, the failure to instruct on the accident defense was harmless under any

standard of review. (See People v. Wharton (1991) 53 Cal.3d 522, 571 [state law

standard of reasonable probability of different outcome applies to failure to give

requested pinpoint instruction on defense]; People v. Rogers (2006) 39 Cal.4th 826, 872,

[federal constitutional standard of harmless beyond a reasonable doubt applies when error

deprives defendant of right to present complete defense].) The jury was generally

instructed that the prosecution had to prove guilt beyond a reasonable doubt. (See

CALCRIM No. 220.) Further, the jury was told that the crimes required a union of act

and wrongful intent; wrongful intent meant the defendant intentionally committed the

prohibited act; and for the offense of throwing a substance at a vehicle the defendant also

had to act with the specific intent required for that crime. (See CALCRIM No. 252.)

When instructed on the specific charged offenses, the jury was told that the prosecution

had to prove for the assault and section 23110(b) counts that defendant acted willfully,

which meant "willingly or on purpose," and for the vandalism count that defendant acted

maliciously, which meant "intentionally does a wrongful act" or "acts with the unlawful

intent to annoy or injure . . . ." (Italics added; see CALCRIM Nos. 875, 915, 2900.)



                                            14
       From these instructions, the jury was informed that if it had doubts as to whether

defendant acted intentionally and purposefully when he hit the victim's car with his

backpack, he was entitled to an acquittal as the prosecutor had not met its burden. We

assume jurors are reasonably intelligent (People v. Lopez (2011) 198 Cal.App.4th 698,

708), and thus they would readily understand that accidental conduct is the opposite of

the required intentional conduct, and they could not convict if the prosecution failed to

establish that defendant acted on purpose rather than by accident. This conclusion is

buttressed by the closing arguments of the prosecutor and defense counsel, who noted

that the prosecution had the burden to prove guilt beyond a reasonable doubt, and

presented their differing views as to whether defendant acted purposefully or accidentally

when he swung his backpack.

       Contrary to defendant's contention, this case is not in the same posture as People v.

Gonzales (1999) 74 Cal.App.4th 382, where the appellate court reversed based on the

failure to instruct on accident. In Gonzales, the jury sent notes to the trial court stating

jurors did not understand the meaning of "willful intent" as it related to an accidental

event; the court failed to provide clarification on this point; and the jury at one point

reported being deadlocked on the issue of willfulness. (Id. at pp. 388-391.) Here, there

was no such suggestion of jury confusion, and the parties' closing arguments reinforced

the import of the instructions that if the jury was not convinced that defendant acted

purposefully rather than accidentally, he must be found not guilty.




                                              15
       Because the jury was fully apprised of its duty to acquit if the prosecution did not

establish that defendant acted purposefully rather than accidentally, the failure to

explicitly instruct on the accident defense was harmless.

            III. Refusal To Admit Evidence of Accident Reconstruction Expert

       Defendant contends the court erred by refusing to allow him to present evidence

from an accident reconstructionist.

       At a pretrial Evidence Code section 402 hearing, the defense proffered testimony

from Larry Armendariz, who worked for 28 years as a California Highway Patrol officer

and had specialized training in accident reconstruction. Armendariz opined that if

defendant became startled from the sound of a horn blaring as he was crossing the street,

and if he turned rapidly and had a backpack on his shoulder, the backpack would slide to

his elbow and slide across the car and into the windshield. On cross-examination by the

prosecutor, Armendariz also opined that it does not take a lot of force to smash a

windshield, explaining that although he was not an automobile engineer, "some of [the]

windshield carries the structural integrity of the car" and if a person hits a "soft spot" the

windshield will be cracked or smashed.

       At the conclusion of the proffered testimony, defense counsel requested that the

court allow presentation of Armendariz's opinion testimony (and a computer generated

video as a demonstrative aid) to support the defense theory that defendant did not

intentionally throw or swing his backpack at the car, but rather inadvertently hit the car

with his backpack as he was "ducking out of the way" of the car. The prosecutor opposed



                                              16
admission of the evidence, arguing it was based on speculative and insufficient

information, and would not assist the jury.

       The court found Armendariz was qualified as an accident reconstruction expert,

but declined to allow admission of the expert evidence to support that defendant was

startled and, as he turned, his backpack slid down his arm and hit the vehicle. The court

reasoned the expert's opinion that the backpack hit the windshield by accident rather than

being purposefully thrown was speculative. Also, the court found the opinion testimony

was not a matter beyond common experience, stating that if the evidence supported the

defense theory, the jury could easily surmise that if a person is startled by a car horn

honking, they may twirl and their backpack may accidently fall off the person's arm and

hit the windshield, and an expert's opinion about this was not in any way helpful to the

jury to determine the facts of the case. Further, the court excluded the evidence under

Evidence Code section 352, finding any probative value was slight and outweighed by

concerns for undue time consumption, prejudice, and confusion.

       To be admissible, expert opinion testimony must be related to a subject that is

sufficiently beyond common experience so that the expert's opinion would assist the trier

of fact. (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the

subject matter of the opinion to justify its admission; the test is whether the evidence

would add something to the jury's common fund of information so that it would assist the

jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) However, the expert

opinion testimony may properly be excluded when " ' "the subject of inquiry is one of

such common knowledge that men of ordinary education could reach a conclusion as

                                              17
intelligently as the witness." ' " (Id. at p. 1300.) On appeal, we review the court's ruling

for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)

       The record shows no abuse of discretion in the court's exclusion of the expert

evidence. Although Armendariz explained that he made measurements and calculations

to reach his opinion about what occurred, the proffered evidence does not indicate how

these assessments shed light on whether defendant acted accidentally or purposefully

when his backpack struck the windshield. Absent an evidentiary link between the

expert's calculations and the question of defendant's intentional versus accidental

conduct, the trial court could reasonably assess that the expert evidence would not

provide the jury with any useful information beyond what the jury could figure out on its

own.

       On appeal, defendant contends the court should have admitted the expert evidence

because it provided the jury with information concerning the small amount of force that

can break a windshield. The record does not show an abuse of discretion in this regard.

Defense counsel did not attempt to qualify Armendariz as an expert regarding the

structural integrity of windshields, nor did defense counsel present this theory of

admissibility to the trial court. (See People v. Ramos (1997) 15 Cal.4th 1133, 1178 [to

preserve challenge to evidentiary ruling, party must inform court of purpose and

relevancy of evidence].) The testimony regarding the force that can shatter a windshield

was elicited by the prosecutor on cross-examination; Armendariz testified he had some

knowledge about windshield construction but qualified his answer by stating he was not

an automobile engineer; and defense counsel did not follow up with any arguments

                                             18
requesting that the court admit the expert evidence for purposes of informing the jury

about windshield structural characteristics. Defense counsel stated in general fashion that

Armendariz was an expert "about accidents, accident reconstruction, measurements, and

how things collide," and that Armendariz's testimony was derived from the "science of

how the two individuals would have interacted" and "hard facts based on science."

However, defense counsel made no reference to windshield structural integrity as being

part of Armendariz's area of expertise. There is nothing in the record that required the

court to find Armendariz was qualified to testify about the structure of windshields, nor is

there a showing that defense counsel requested admissibility on this basis.

       The court did not abuse its discretion in excluding the proffered expert evidence.

                                      DISPOSITION

       The judgment is reversed as to the count 2 felony offense of throwing a substance

at a vehicle (§ 23110(b)) and as to the sentence. In all other respects the judgment is

affirmed. The matter is remanded to the superior court for further proceedings consistent

with this opinion.



                                                                     HALLER, Acting P. J.

WE CONCUR:



MCDONALD, J.



AARON, J.

                                            19
