P. v. Wilson

Filed 12/11/06 P. v. Wilson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD LEON WILSON,
Defendant and Appellant.
G035837
(Super. Ct. No. 04CF0703)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County,
Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct., assigned by the
Chief Justice pursuant to Cal. Const., art. VI, § 6.) Affirmed.
Harvey L. Goldhammer, under appointment of the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and
James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

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Alleging insufficient evidence and sentencing error, Richard Wilson
challenges his convictions for assault and forcibly resisting arrest. We find his
arguments unpersuasive and affirm the judgment.
* * *
Early one morning, Tustin Police Officer Sean Quinn and officer trainee
John Frahm noticed a Toyota 4Runner parked in a red zone with its hazard lights
flashing. Quinn ran a records check and discovered the vehicle had been reported
stolen. Hoping to catch the thief, he parked his patrol car in an alley and walked with
Frahm to an area from which they could conduct surveillance. They were joined by
officers Chupp and Howard, who laid spike strips under the 4Runner’s wheels. A
short time later, Wilson exited a nearby apartment and headed toward the 4Runner.
As he began to enter the vehicle, the officers ran up and confronted him.
With their guns drawn, they identified themselves as police officers and
ordered Wilson to put up his hands. Wilson looked at the officers but did not comply.
Instead, he got in the driver’s seat and closed the door. The officers then formed a
containment line parallel to the 4Runner. Quinn was near the front of the vehicle,
standing next to a truck that was parked in front of the 4Runner; Chupp was to the
right of him, toward the front of Wilson’s window; Frahm was next in line, facing
Wilson’s window; and Howard stood toward the rear of the 4Runner.
Wilson started the engine, reversed rapidly and stopped momentarily.
He then cranked the steering wheel to the left and accelerated so fast the tires
squealed and smoke poured out of the vehicle’s back end. Frahm and Howard moved
to their right, staying parallel with the driver’s side door. However, Quinn and Chupp
were directly in Wilson’s path. As the 4Runner was coming at them, they ducked out
of the way and fired five shots at the vehicle. Wilson then drove over the very spot
where they had been standing just moments earlier. He was going about 20 miles per
hour and missed the officers by only a couple of feet. Continuing down the street, he

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abandoned the vehicle about a block away and escaped. He was arrested a few
months later.
The defense sought to prove Wilson never intended to hit the officers
and was merely trying to get away from them when they opened fire. It also tried to
establish Wilson never really came that close to hitting the officers. As to that issue,
Frahm testified on cross-examination that Quinn and Chupp were off to the side of the
4Runner as Wilson made his getaway. That was also the opinion of forensic scientists
Jon Souw and Thomas Matsudaira. Based on their examination of the bullet holes
that were found in the 4Runner, they believed Quinn and Chupp were not standing in
Wilson’s path when they fired their guns. However, Souw and Matsudaira failed to
take into consideration the movement of the shooters or the 4Runner, factors which
they admitted could very well have changed their opinion about where the officers
were located.
The defense also argued the fact the officers’ shell casings were found
between 66 and 89 feet from where they allegedly fired their weapons. Again, this
evidence was offered to discredit the officers’ testimony that Wilson nearly ran them
over. However, Matsudaira acknowledged that shell casings can travel a considerable
distance after they hit the ground, depending on such factors as the angle of the gun,
the grip and movement of the shooter, and the nature of the ground surface, which in
this case was asphalt.
The jury convicted Wilson of assaulting Quinn and Chupp with a deadly
weapon and resisting or deterring them in the performance of their duties. The jury
also convicted Wilson of unlawfully taking the 4Runner. The court sentenced him to
the upper term of five years for the assault on Quinn and a combined consecutive term
of two years on the other counts.

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I
Wilson argues there was insufficient evidence to support his convictions
for assaulting and resisting the officers. We disagree.
“When considering a challenge to the sufficiency of the evidence to
support a criminal conviction, we review the whole record in the light most favorable
to the verdict, drawing all inferences that reasonably support it, and determine
whether it contains substantial evidence — that is, evidence which is reasonable,
credible, and of solid value — from which a trier of fact could rationally find the
defendant guilty beyond a reasonable doubt. [Citations.] In making this
determination, we do not reweigh the evidence, resolve conflicts in the evidence,
draw inferences contrary to the verdict, or reevaluate the credibility of witnesses.
[Citation.] Moreover, because it is the jury, not the reviewing court, that must be
convinced of the defendant’s guilt beyond a reasonable doubt, we are bound to sustain
a conviction that is supported by only circumstantial evidence, even if that evidence is
also reasonably susceptible of an interpretation that suggests innocence. [Citation.]”
(People v. Little (2004) 115 Cal.App.4th 766, 771; see also People v. Kraft (2000) 23
Cal.4th 978, 1053.)
Assault is defined as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) In
challenging his convictions for that offense, Wilson claims he did not intend to exert
force on the officers, but simply wanted to make a safe getaway without causing them
any harm. Even if that were true, however, it would not help his cause because
assault “does not require a specific intent to injure the victim.” (People v. Williams
(2001) 26 Cal.4th 799, 788.) Even “a defendant who honestly believes that his act
was not likely to result in a battery is . . . 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.)

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Wilson undoubtedly knew of the officers’ presence when he made his
getaway at the scene. As he was getting into the 4Runner, the officers identified
themselves and ordered him to put up his hands. He then looked at the officers,
backed up the 4Runner and accelerated the vehicle very rapidly in their direction.
According to the officers, they were forced to duck out of the way and barely
managed to avoid being hit. Wilson then drove over the very spot they had been
standing moments earlier. On these facts, even if Wilson was simply trying to get
away from, and not harm, the officers, the jury was entitled to find his actions would
probably and directly result in the application of physical force against the officers.
Wilson reminds us he presented evidence indicating the officers were
not in harm’s way when he made his escape. However, as we noted in the statement
of facts, this evidence was not beyond reproach. In fact, the forensic witnesses
Wilson presented admitted they did not take into account certain relevant factors in
drawing their conclusions from the evidence, such as the movement of the officers
and the movement of the 4Runner. This provided the jury a reasonable basis to
discredit their testimony.
The broader point is that the jury heard the testimony supporting
Wilson’s defense and obviously decided the case against him based on the relative
strength of the prosecution’s witnesses. We are not at liberty to second-guess the
jury’s decision to believe the officers’ testimony over the testimony put forth by the
defense. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Suffice it to say, there is
substantial evidence Wilson’s actions would probably and directly result in physical
force against the officers. The presence of some evidence to the contrary does not
compel reversal of his convictions for assault.
Wilson’s convictions for resisting or deterring the officers are also
supported by substantial evidence. Penal Code section 69 provides, “Every person
who attempts, by means of any threat or violence, to deter or prevent an executive

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officer from performing any duty imposed upon such officer by law, or who
knowingly resists, by the use of force or violence, such officer, in the performance of
his duty, is” guilty of a crime. While the statute does not define “force,” the term
“implies the exertion of physical strength or the operation of circumstances that
permit no alternative to compliance.” (American Heritage Dict. (2d college ed. 1982)
p. 523; cf. People v. Modiri (2006) 39 Cal.4th 481, 494 [relying on dictionary
definition of force in analyzing elements of great bodily injury enhancement].)
Wilson did not actually make physical contact with Quinn and Chupp.
However, the officers had no real alternative but to comply with Wilson’s unspoken
demand to get out the way when he drove the 4Runner toward them. Their only other
option was to hold their ground and risk serious injury or death, which was surely not
a viable choice. That being the case, we find Wilson’s conduct constituted forcible
resistance to the officers’ performance of their duties in violation of Penal Code
section 69.
II
Relying on Blakely v. Washington (2004) 542 U.S. 296, Wilson argues
the trial court’s decision to sentence him to upper and consecutive prison terms
violated his Sixth Amendment right to a jury trial. He recognizes the California
Supreme Court rejected this argument in People v. Black (2005) 35 Cal.4th 1238, and
that we are bound by this decision. (See Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) He simply wants to preserve the issue for further review
in the event the federal courts disagree with Black. That day may come (see People v.
Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.] cert. granted sub nom.
Cunningham v. California, Feb. 21, 2006, No. 05-6551, __ U.S. __, on the issue of
whether Blakely applies to California’s sentencing law), but until it does, we are
powerless to grant Wilson relief.

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The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
O’LEARY, J.
IKOLA, J.

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