Filed 10/30/20 P. v. Douglas CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076038
Plaintiff and Respondent,
v. (Super. Ct. No. SCE375859)
PATRICK C. DOUGLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Herbert J. Exarhos, Judge. Affirmed.
Mary Woodward Wells, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Patrick C. Douglas of two counts of premeditated
attempted murder (Pen. Code,1 §§ 187, subd. (a), 664, 189; counts 1 and 3);
two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 and
4); assault with a deadly weapon on a peace officer (§ 245, subd. (c); count 5);
and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a);
count 6). The jury also found true allegations that during the commission of
counts 1 through 4, Douglas personally used a deadly or dangerous weapon
(a knife) (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and personally inflicted
great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and that in the
commission of count 5, he personally used a deadly and dangerous weapon
(a vehicle) (§ 12022, subd. (b)(1)).
The trial court found true allegations that Douglas suffered two prior
serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and
three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, 668).
The court sentenced Douglas to prison for a determinate term of 30
years four months and an indeterminate term of life (with parole eligibility
after 14 years) plus 25 years to life. The sentence consists of 25 years to life
plus nine years for count 3, a life term (with parole eligibility after 14 years)
plus nine years for count 1, 11 years for count 5, plus one year four months
for count 6. The court stayed Douglas’s sentence for counts 2 and 4.
Douglas appeals, contending substantial evidence does not support his
conviction under count 5 and the trial court prejudicially erred in instructing
the jury that an automobile is an inherently deadly weapon. We affirm.
FACTUAL BACKGROUND
During the early morning of November 7, 2017, Shantey P. was on a
bench outside a church on El Cajon Boulevard and 54th Street in San Diego
1 Statutory references are to the Penal Code unless otherwise specified.
2
when Douglas pulled up in a Mercedes Benz and offered her a ride. Shantey
got into Douglas’s car and agreed to go to a “room” with him. Although he
began by driving normally, Douglas started to drive erratically when he
began traveling on the 94 freeway. Shantey asked Douglas to pull the car
over several times, but he refused. Despite not having a gun, she told him
that she was going to shoot him if he did not let her out of the car.
At 2:48 a.m., Douglas pulled into a parking lot, got out of his car, and
walked toward an ATM. He then walked to the trunk of his car and said
words to the effect, “I am going to kill this bitch.” He also asked Shantey
something like, “Why are you treating me like this? It is my birthday.”
Douglas came around to the passenger side of the car and began hitting
and stabbing Shantey several times. Surveillance video from a nearby
business showed Douglas making 12 to 17 punching and lunging motions into
the front passenger side window.
David F., who was walking in the area at the time, watched as Douglas
opened the passenger’s side door, threw a purse out of the car, yelled at
Shantey to get “the F” out of the car, called her a “bitch,” and started
“whaling” on her. David ran toward the car screaming, “Hey, what are you
doing?” Douglas ran to the driver’s side of his vehicle, got in, drove over
Shantey’s purse, and headed in the direction of the 7-Eleven on Avocado
Boulevard.2
2 At trial, David testified that Douglas was not the person he saw
attacking Shantey. Nevertheless, the prosecutor impeached David on the
stand by offering evidence that he was on methamphetamine on the subject
morning and was in custody at the time of trial. The prosecution offered
evidence implying that David did not want to appear to be a snitch while
incarcerated. However, David testified that he was not afraid of identifying
someone for fear of being labeled a snitch.
3
Shantey, who had managed to get out of the car, started stumbling
away. After David picked up her belongings, he noticed she had been
stabbed. David grabbed a charging wire from her purse and wrapped it
around her leg to stop the bleeding. He then summoned help.
Shortly after 2:57 a.m., an El Cajon police officer arrived at the scene,
where he found Shantey lying in the fetal position with a large amount of
blood on her. She said that the person who stabbed her was named Patrick,
and he was driving a four-door Mercedes. Shantey was taken to the hospital
where she was treated for multiple stab wounds as well as fractures to the
bones in her face.
While at the scene, the officer heard a report on the radio of a stabbing
at the 7-Eleven on Avocado Boulevard, about 3.7 miles away. The description
of the vehicle in that broadcast was similar to the description of the vehicle
fleeing the scene in Shantey’s case.
Around 3:00 a.m., Frito-Lays delivery driver Dina H. was walking out
of the 7-Eleven on Avocado Boulevard after making a delivery when Douglas
approached and started attacking her. When a San Diego sheriff’s deputy
responded to the scene, she found Dina on the ground covered in blood. Dina
had labored breathing, was turning blue, and was not responding to the
deputy’s questions. The deputy called the paramedics. Dina was transported
to the hospital, where she was treated for a stab wounds.
The surveillance video from the 7-Eleven showed a sedan driving into
the parking lot at 3:03 a.m. It made an abrupt stop and then the front
driver’s side door opened up. Someone in dark pants and a light-colored long
sleeve shirt walked and then ran across the parking lot toward Dina’s Frito-
Lays truck. The actual attack occurred outside the range of the cameras.
Dina ran to the front door of the 7-Eleven and said something to the store
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clerk, which was later determined to be, “I got stabbed.” The person in the
parking lot walked toward where the sedan was parked and drove away.
As San Diego County Sheriff’s Deputy Nic Gowanlock was driving
toward the 7-Eleven on Avocado Boulevard in response to a call reporting the
stabbing, he observed a light-colored Mercedes driving in the opposite
direction on Avocado Boulevard. With his lights and siren activated,
Gowanlock made a U-turn, got behind the Mercedes, and broadcast his
location over the radio.
Instead of pulling over, Douglas continued driving slowly and then
turned west onto Don Pico Road. Gowanlock got on his loud speaker and
ordered Douglas to stop his vehicle. Douglas ignored the command and
turned left onto Don Pico Court. Once Douglas got to the end of the cul-de-
sac, he drove into a driveway, backed out, and began driving back toward
Gowanlock and the four or five other patrol vehicles that had joined the
pursuit.
San Diego County Sheriff’s Deputy Nicholas Hvizdzak, who was in one
of those patrol vehicles, activated his overhead camera,3 holstered his gun,
and got out of his car. He then stood in Douglas’s pathway, pointed his gun
at the Mercedes, and ordered Douglas to get out of the car. Douglas kept
driving toward Hvizdzak at about five or ten miles per hour and got within a
foot of the deputy’s shins.
Hvizdzak moved out of the way of Douglas’s car to avoid being hit.
However, Hvizdzak kicked under the passenger’s side headlight of Douglas’s
car as it drove by. Hvizdzak believed that it was Douglas’s intent to run him
over and had he not moved, he would have been hit by Douglas’s car.
3 A portion of the recording from Hvizdzak’s camera was played for the
jury.
5
Douglas then led deputies on a high-speed pursuit, reaching speeds
over 100 mph. He committed several traffic violations during the chase.
Eventually, deputies lost sight of Douglas near Steele Canyon and the
94 freeway. Later, they spotted his abandoned Mercedes stopped in the
middle of a lane on the 94 freeway.
Douglas’s bloody fingerprints were found on the rear of the Mercedes,
just below the license plate holder. His blood was also found on the steering
wheel. Shantey’s blood was found on the passenger’s side of the vehicle.
Douglas’s iPhone and driver’s license were also found inside the Mercedes.
His license showed that the date of the attack was his birthday, as he told
Shantey.
With the help of the Border Patrol using an infrared scope and a
helicopter, Douglas was located hiding under a tree. There was blood on
Douglas’s sleeve when he was taken into custody. Douglas identified himself
as Patrick. He had a cut on his hand.
Douglas recorded a video on his phone at 3:04 a.m., about 10 minutes
after he stabbed Shantey and two to three minutes before he stabbed Dina.
The video showed Douglas holding a knife while driving the Mercedes. It
also showed blood inside the vehicle on the passenger’s seat and floorboard.
In the video, Douglas stated, “I’m about to go on killing spree. I’m going to
kill everyone I can kill. You’ll never see me again.”
Several threatening text messages showing Douglas’s anger at an
unrelated individual also were sent from his cell phone between 10:51 p.m.
and 11:12 p.m. the night before the stabbings.
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DISCUSSION
I
SUBSTANTIAL EVIDENCE
A. Douglas’s Contentions
Douglas contends substantial evidence does not support his conviction
for assault with a deadly weapon against a peace officer (count 5).
Specifically, he argues there was insufficient evidence that he used his car in
a manner likely to produce death or great bodily injury.
B. Standard of Review
We review a sufficiency of the evidence claim under the familiar and
deferential substantial evidence standard of review. (See People v. Hicks
(1982) 128 Cal.App.3d 423, 429.) Substantial evidence is evidence that is
“reasonable, credible, and of solid value.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11.) In reviewing for substantial evidence, we presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. (See People v. Lee (2011) 51 Cal.4th 620, 632.)
“Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or falsity
of the facts upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for substantial
evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“When a jury’s verdict is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record, there is any
substantial evidence, contradicted or uncontradicted, which will support it,
and when two or more inferences can reasonably be deduced from the facts, a
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reviewing court is without power to substitute its deductions for those of the
jury. It is of no consequence that the jury believing other evidence, or
drawing different inferences, might have reached a contrary conclusion.”
(People v. Brown (1984) 150 Cal.App.3d 968, 970.) Whether the evidence
presented at trial is direct or circumstantial, the relevant inquiry on appeal
remains whether any reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt. (See People v. Manibusan (2013)
58 Cal.4th 40, 92; Jackson v. Virginia (1979) 443 U.S. 307, 319.) Moreover,
unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction. (See
People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
C. Analysis
“An assault is an unlawful attempt, coupled with present ability, to
commit a violent injury on the person of another.” (§ 240.) Section 245,
subdivision (c) makes it a crime to commit an assault with a deadly weapon
on a police officer. The elements of assault with a deadly weapon, as applied
to Douglas’s use of his car here, are as follows: “1. The defendant did an act
with a deadly weapon that by its nature would directly and probably result in
the application of force to a person; [¶] 2. The defendant did that act
willfully; [¶] 3. 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; [¶] 4. When the
defendant acted, he had the present ability to apply force with a deadly
weapon to a person; [¶] 5. When the defendant acted, the person assaulted
was lawfully performing his duties as a peace officer; [¶] and [¶] 6. When the
defendant acted, he knew, or reasonably should have known, that the person
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assaulted was a peace officer who was performing his duties.” (CALCRIM
No. 860; see §§ 240, 245, subd. (c).)
Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th
779, 788.) 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.” (Id. at p. 790.)
Cars can be used as deadly weapons. (People v. Bipialaka (2019) 34
Cal.App.5th 455, 458 (Bipialaka); People v. Oehmigen (2014) 232 Cal.App.4th
1, 10.) The question for the jury below was whether the way Douglas used
his car was likely to cause or produce death or great bodily injury.
(Bipialaka, at p. 459.)
Here, Douglas contends substantial evidence does not support his
conviction for assault with deadly weapon (a car) because there was no
collision, no injuries, and his focus was on evading apprehension, not striking
Hvizdzak. He also claims he “slowly maneuvered . . . past . . . [a] patrol
vehicle . . . didn’t reve his engine, suddenly grip the wheel or accelerate
toward [Hvizdzak].” In support of his position, Douglas relies on several
cases wherein he notes the “strong fact patterns” as compared to the
relatively weak evidence he claims exists in the instant action. (See, e.g.,
Bipialaka, supra, 34 Cal.App.5th at p. 458 [car driven at another car in an
intersection]; People v. Golde (2008) 163 Cal.App.4th 101, 116-117 [defendant
accelerated vehicle toward victim as she tried to run away]; People v. Finney
(1980) 110 Cal.App.3d 705, 716 [defendant rammed several well-marked
patrol cars while avoiding civilian vehicles during high speed car chase];
People v. Claborn (1964) 224 Cal.App.2d 38, 41 [defendant altered course and
9
aimed vehicle at police officer, colliding head-on with him].) Although we
acknowledge that the facts in these cases might be more severe than what
was presented to the jury in the instant matter, we find a comparison
between the facts of this case to the facts of those other cases not particularly
helpful in a substantial evidence review. (See People v. Thomas (1992)
2 Cal.4th 489, 516 [“When we decide issues of sufficiency of the evidence,
comparison with other cases is of limited utility, since each case necessarily
depends on its own facts.”].) Accordingly, the cases cited by Douglas provide
fact patterns supporting a conviction for assault with a deadly weapon
(a car), but they do not provide us with the only fact patterns on which we
could find substantial evidence to exist here.
In the instant matter, the evidence adduced at trial supports the jury’s
finding that Douglas willfully committed an act that, by its nature, would
probably and directly result in great bodily injury to Hvizdzak. Douglas
drove his car toward Hvizdzak and there is no evidence that he intended to
stop. As Hvizdzak testified at trial, with Douglas driving toward him, he had
two choices: shoot or move. He moved. He further stated that had he not
moved, he would have been hit by Douglas’s car. Indeed, he was so close to
Douglas’s car, he was able to kick under the passenger’s side headlight.
Additionally, the fact that Douglas was only traveling five to 10 miles
per hour does not undermine the jury’s verdict. The evidence at trial showed
that, had Hvizdzak not moved out of the way, the car would have hit him.
There was no evidence that Douglas intended to stop his car or tried to stop
his car, and the jury could reasonably infer that the car would have run over
Hvizdzak, causing great bodily injury.
In short, witness testimony along with the video footage of the subject
incident is sufficient to support the conviction here. Based on the record, we
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are satisfied that “ ‘ “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ ” (People v.
Tripp (2007) 151 Cal.App.4th 951, 955.)
II
JURY INSTRUCTIONS
The court instructed the jury with CALCRIM No. 875, which stated
among other things: “A deadly weapon other than a firearm is any object,
instrument, or weapon that is inherently deadly or one that is used in such a
way that it is capable of causing and likely to cause death or great bodily
injury.” It also gave CALCRIM No. 860, which provided, in part: “A deadly
weapon is any object, instrument, or weapon that is inherently deadly or one
that is used in such a way that it is capable of causing or likely to cause great
bodily injury.” The court also instructed the jury under CALCRIM No. 3145,
which included a similar definition of deadly weapon.
Douglas contends the court erred by instructing that a weapon could be
either inherently deadly or deadly in the way it is used because a car is not
an “inherently deadly” weapon. “We review defendant’s claims of
instructional error de novo.” (People v. Johnson (2009) 180 Cal.App.4th 702,
707.)
In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), the defendant
used a box cutter by thrusting the blade at another man. (Id. at p. 4.) The
court instructed the jury with CALCRIM No. 875, which defined a deadly
weapon as one that is inherently deadly or used in such a way that it is
capable of causing and likely to cause death or great bodily injury.
(Aledamat, at p. 4.) Our Supreme Court held that “[b]ecause a knife can be,
and usually is, used for innocent purposes, it is not among the few objects
that are inherently dangerous weapons.” (Id. at p. 6.) The Supreme Court
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accordingly held the jury instruction was erroneous but found the error was
harmless beyond a reasonable doubt. (Id. at pp. 7, 15.)
Likewise, here, a car is not an inherently deadly weapon. (People v.
Montes (1999) 74 Cal.App.4th 1050, 1054 [noting that a car is not inherently
dangerous but can be found to be a deadly weapon].) The court accordingly
erred by referring to an inherently deadly weapon in the jury instructions.
We next consider whether the instructional error was prejudicial. The
“usual ‘beyond a reasonable doubt’ standard of review established in
Chapman v. California (1967) 386 U.S. 18, 24 . . . for federal constitutional
error applies. The reviewing court must reverse the conviction unless, after
examining the entire cause, including the evidence, and considering all
relevant circumstances, it determines the error was harmless beyond a
reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 3; see id. at p. 13.)
Here, the record shows the instructional error was harmless beyond a
reasonable doubt. At trial, no party argued that simply using a car was
“inherently deadly.” During closing argument, the prosecutor did not explain
the phrase “inherently deadly.” Nor did he argue that Douglas’s car
constituted a deadly weapon as a matter of law. Rather, the prosecutor
stated that he was proceeding on a theory that Douglas used his car as a
deadly weapon, that is he used it in a manner that could cause death or great
bodily injury: “It is a moving vehicle being used as a battering ram to escape
law enforcement capture, a deadly weapon. If Deputy Hvizdzak did not get
out of the way and allow the defendant to run him over, would you consider
that car a deadly weapon.”
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The prosecutor later focused the jury on the manner in which Douglas
drove the car when interacting with Hvizdzak:
“When you specifically use a car as a battering ram to
get through a police blockade, sure you’re using it as a
deadly weapon. What would have happened to Deputy
Hvizdzak if he didn’t get out of the way? There’s no
indication that the defendant was going to stop. Deputy
Hvizdzak had two options that day: get out of the way or
shoot him. He chose to get out of the way for his own
safety.”
Moreover, in discussing the lesser included offense to count 5, the
prosecutor again told the jury to focus on how Douglas was using his car:
“So there’s a lesser-included count to count 5, also.
Simple assault on a peace officer. The way I like to think of
this, basically if you don’t think a moving car being used as
a battering ram to avoid being caught is a deadly weapon or
was being used as a deadly weapon in that case, then you
move on to the lesser. Because that doesn’t include the
deadly weapon element. It’s just a simple assault. So
again, if you find him guilty of the assault with that deadly
weapon, the car, count 5, you leave the lesser-included
blank.”
Like the prosecutor, Douglas’s trial counsel did not argue that the car
was an inherently deadly weapon. To this end, defense counsel focused on
how Douglas was maneuvering the car (“he swerved”), claiming Douglas
“moved [the car] out of the way.” However, counsel did not argue that
Douglas’s car could not be a deadly weapon. Again, similar to the prosecutor,
defense counsel emphasized how Douglas was driving his car.
As in Aledamat, we conclude the jury necessarily found: “(1) defendant
did an act with a deadly weapon (either inherently or as used) that by its
nature would directly and probably result in the application of force;
(2) defendant 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
13
application of force to someone; and (3) defendant had the present ability to
apply force with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th
at p. 15.) It is unlikely the jury would have found these above elements
without considering how Douglas used his car. The error accordingly was
harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
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