P. v. Blackwell CA1/5 filed 6/30/26

Filed 6/30/26 P. v. Blackwell CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
v.
TRACY ROBERT BLACKWELL,
Defendant and Appellant.

A171835

(AlamedaCounty
Super. Ct. No. 23-CR-008592)

Tracy Robert Blackwell (appellant) appeals following his conviction after a jury trial of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),with a true finding that the offense was a hate crime (§ 422.75, subd. (a)).We remand for resentencing and otherwise affirm.
BACKGROUND
Prosecution Evidence
Jane Doe was the primary witness for the prosecution. She testified that on May 16, 2023 in the mid-afternoon, she was driving with her three children, ages 14, 10, and 5. Doe was in the far-right lane waiting to merge onto the freeway, when appellant suddenly cut in front of her. Doe honked briefly at appellant. In response, appellant slammed on his brakes, gave Doe the middle finger, and yelled racial slurs and curses at her.
When the freeway on-ramp split into multiple lanes at themetering lights, which were on, appellant was in the far-right laneand Doe went to the far-left lane, with amiddle lane between them. After merging onto the freeway, Doe moved a couple of lanes to the left. Appellant pulled up along her right side and continuedyelling racial slurs and curses at her.Appellant’s driver’s side window and the front passenger window in Doe’s car were both partly or fully open. The cars were traveling at approximately 65 or 70 miles per hour. Appellant’s car suddenly swerved toward Doe’s car. Doe braked and swerved to avoid a collision.
Doe’s teenage daughter was sitting in the front passenger seat and recorded a 23-second video while the cars were driving next to each other on the freeway, which was played for the jury.The video clearly shows appellant yelling numerous racial slurs and curses while looking at Doe’s car. As he shouts, “I’ll take that fucking phone,” appellant’s car suddenly swerves toward Doe’s. Appellant then appears to overcorrect and drive onto the right shoulder and then aheadof Doe’s car.
Doe testified that, after this nearcollision, she slowed down and mergedinto the right lane so she could take the next exit. Appellant stopped slightly past the exit, then reversed and followed Doe off the exit ramp. Doe pulled into a gas station, got out of her car, and yelled for help. Appellant pulled into the same gas station, got out of his car, and continued yelling racial slurs and curses at Doe. Doecalled 911 and appellant left.
Adistrict attorney’s officeemployee testified as an expert in audiovisual technology. At the request of the prosecution team, she stabilized an excerpt from the cell phone video taken on the freeway by Doe’s oldest daughter, slowed it toapproximately six times slower than the original, and created a15-second video that showed the driver’s door area next to a close up of appellant’s steering wheel. This video was played for the jury, and clearly shows appellant’s hand turning the wheel sharply to the left.
Defense Evidence
Appellant testified in his own defense. On the day in question, while stopped at a traffic light, Doe’s car came up fast behind him and nearly rear-ended him. After the light turned green, Doe began honking her horn continuously. Doe moved one lane to the right and, when appellant put on his turn signal to move into her lane, Doe called out to him, “ ‘Whatnow, white devil,’ ” and “ ‘honky.’ ” Doe would not let appellant merge into the right lane, where he needed to be to get onto the freeway on-ramp. Appellant grew frustrated and angry, slammed on his brakes, and moved into the right lane behind Doe. After merging onto the freeway, appellant stayed in the right lane. Doe approached on his left, driving fast, honking and yelling names at appellant.
Appellant testified he felt “disgusted” watching himself use racial slurs in the cellphone video. The only racial slurs he used that day were those captured on the video; he did not use them before or after. He denied intentionally swerving towards Doe’s vehicle. When their cars nearly hit each other, appellant swerved away from Doe to the right side of the freeway and came to a stop at the freeway exit. When Doe exited, he followed her off the freeway to get her license plate number. At the gas station, appellant wrote down Doe’s plate number and took photographs on his phone. He tried to talk to Doe,but she told him to get away.
Subsequently, when appellant learned the incident had been on the news, he turned himself in so he could tell police his side of the story. He told an officer, “ ‘I lose my patience very, very fast, you know. I mean, I gofrom zero to a hundred.’ ”
Verdict and Sentence
The jury found appellant guilty of assault with adeadly weapon (§ 245, subd. (a)(1)), and found true a specialallegation that the offense was a hate crime (§ 422.75, subd. (a)). The jury acquitted appellant of two misdemeanor charges: vandalism (§ 594, subd. (a))andthrowing a substance at a vehicle on a highway (Veh. Code, § 23110, subd. (a)).
The court sentenced appellant to six years in prison, consisting of the upper term of four years for the assault count and a consecutive two-year term for the hate crime allegation.
DISCUSSION
I.Intent
Appellant first argues there was insufficient evidence that he intended to swerve his car towards Doe’s.(See People v. Wyatt (2010) 48 Cal.4th 776, 780[“[T]he criminal intent required for assault is ‘the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another’ ”].) We disagree.
In considering a substantial evidence challenge, “‘ “we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’” (People v. Williams (2015) 61 Cal.4th 1244, 1281.)
Appellant argues he acted recklessly but did not intentionally swerve toward Doe’s car. Substantial evidence supports the jury’s contrary finding. First, the cellphone video clearly shows appellant’s hand turning the steering wheel sharply to the left. This alone gives rise to a reasonable inference of intent, as opposed to a slight turn that may have been accidental. Second, the video shows appellant yelling racial slurs and curses continuously at Doe’s car, and yelling, “I’ll take that fucking phone” as his car swerves towards hers. This gives rise to a reasonable inference thatappellant intentionally swerved toward Doe, either in anger or in an attempt to scare Doe’s daughter from continuing to record him, or both.
Appellant relies on two cases involving high-speed police chases resulting in collisions. (People v. Cotton (1980) 113 Cal.App.3d 294; People v. Jones (1981) 123 Cal.App.3d 83.)They are unavailing. As an initial matter, as subsequently explained in People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1190, both cases “reasoned among other things that intent to commit a battery, i.e., attempted battery, is an element of assault with a deadly weapon.”“Subsequent controlling authority fatally undermines both of these opinions. [Citation.] As we have explained, a defendant need not intend to commit a battery, or even be subjectively aware of the risk that a battery might occur. [Citation.] He need only be aware of what he is doing. The foreseeability of the consequences is judged by the objective ‘reasonable person’ standard.”(Ibid.) In any event, the cases are distinguishable, as they contained “no evidence to show or infer defendant drove his vehicle at the other car involved in the collision.” (Jones,at p. 96; see also Cotton, at p. 301.)
II.Slow Motion Video
Appellant argues the trial court’s admission of the slow motion video over his Evidence Code section 352 objection was prejudicial error. We disagree.
“ ‘ “Unless the dangers of undue prejudice, confusion, or time consumption ‘ “substantially outweigh” ’ the probative value of relevant evidence, a[nEvidence Code] section 352 objection should fail.” ’ ” (People v. Scott (2011) 52 Cal.4th 452, 490–491.) “On appeal, we review the trial court’s rulings on the admissibility of evidence for abuse of discretion.” (Id. at p. 491.)
Appellant argues the prejudicial effect of the video outweighed its probative value, relying on a social science research study finding “slowmotion [video] can systematically increase perceptions of premeditation.” (Caruso et al., Slow motion increases perceived intent (Aug. 1, 2016)113 (33) Proceedings of the Nat. Academy of Sciences9250, 9253<www.pnas.org/cgi/doi/10.1073/pnas.1603865113> [as of June 30, 2026].)The study noted that it did not “determine whether slow motionreplay makes viewers more or less accurate in judging premeditationin these situations,” and further found “that giving viewers the opportunityto view both speeds [original and slow motion] reduces the intentionality bias,but does not eliminate it.” (Id. at pp. 9253, 9252.) The study concluded that “perceived time was . . . at the cruxof participants’ inferences about this fact. For example, [in one of the studies using a scenario of an attempted robbery,] once thestore clerk appeared, did the shooter have time for forethoughtor did he fire reflexively? Although timing will be irrelevant oruncontroversial in some behavioral sequences submitted for thecourt’s inspection, the question of whether an actor had a ‘longenough’ window to assess and prepare to inflict the harm islikely to be central in many disputes.” (Id. at p. 9253.) The study did not conclude that slow motion video should never be permitted, but instead advised that, “in determining whether, and under what conditions,slow motion evidence should be admissible in court, its potentialbenefits must be weighed against its potential costs.” (Ibid.)
The trial court could reasonably find the benefits outweighed any potential prejudice. First, as appellant does not dispute, the slow motion video is highly probative. The primary disputed issue regarding the assault charge was whether appellant intended to swerve towards Doe’s car. While the original video does appear to show appellant’s steering wheel turning to the left, it happens very quickly and is difficult to see. The slow motion video plainly shows appellant’s hand sharply turning the wheel. Second, the jury was shown the original video before being shown the slow motion video, mitigating some of the potential prejudicial impact according to the study relied on by appellant.Third, unlike the study’s attempted robbery scenario, this case did not present a situation in which appellant’s reaction time was critical to his intent. As shown in the original video, appellant was driving parallel to Doe and shouting racial slurs and curses for at least 15 seconds before turning the wheel, and there is no suggestion that Doe or any of her children did anything to prompt appellant’s swerving.Thus, the study’s concern about a jury’s perception of the amount of time a defendant has to react was not an issue here. Finally, as the prosecutor stated during argument on the video’s admissibility, defense counsel could “argue [to the jury] what she juststated to the Court” regarding the potential prejudice.The trial court did not abuse its discretion in admitting the slow motion video.
Appellant also complains the trial court did not watch the slow motion video before ruling on its admissibility. The trial court had seen the original video and defense counsel did not ask the court to view the slow motion version before issuing its ruling. People v. Holford (2012) 203 Cal.App.4th 155, relied on by appellant, is therefore inapposite as it involves a video not seen by the court in any version and multiple requests by defense counsel that the court watch the video to assess its probative value and prejudicial effect. (Id. at pp. 162, 164–165.)In any event, the Holford court found the trial court did not abuse its discretion in admitting the unseen video, noting that courts “may rely on an offer of proof,” even whilethe better practice is to review the video before ruling on its admissibility. (Id. at p. 174.)
III.Accident Instruction
Defense counsel requested the court instruct the jury with CALCRIM No. 3404. For assault with a deadly weapon, the CALCRIM No. 3404 instruction is as follows: “The defendant is not guilty of assault with a deadly weapon if (he/she) acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of assault with a deadly weapon unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.” The trial court refused the request.
Appellant argues this refusal was prejudicial error. We need not decide whether the court erred or which standard of prejudice applies, because any error was harmless under any standard.
The jury was instructed that, to convict appellant of assault with a deadly weapon, the People had to prove (among other elements): “1. Thedefendant did an act with a deadly weapon other than a firearmthat by its nature would directly and probably result in theapplication of force to a person” and “2. The defendant did thatact willfully.” (Italics added.) The jury was further instructed: “Someone commits an act willfullywhen he or she does it willingly or on purpose.” (Second italics added.)These instructions plainly informed the jury that, if appellant did not turn the steering wheel “on purpose”—in other words, if he turned it by accident—he was not guilty of assault with a deadly weapon.
Defense counsel’s closing argument emphasized appellant’s accident defense: “Element No. 2 talks about the willfulness of theact. So [the prosecutor] stated that this was no accident. I submit to you that this was an accident, that it was an unintentional movement by [appellant]. If you find that [appellant] unintentionally moved his hand to the left, that’s not guilty. If you find that he accidentally moved his hand to the left, that’s also not guilty. He has to have willfully moved his hand to the left.”In rebuttal, the prosecutor did not contradict this statement of the law, but instead contended the movement was not accidental, arguing there was“evidence to support thefact that he did move his hand intentionally.”
The jury was instructed they had to find appellant acted “on purpose” and defense counsel argued appellantaccidentally turned the steering wheel. Thus, by finding appellant guilty, the jury necessarily rejected appellant’s claim that he turned the steering wheel by accident.Any error in refusing to instruct with CALCRIM No. 3404 was harmless under any standard. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1315–1316 [failure to instruct jury on accident defense was harmless beyond a reasonable doubt because “it is clear, beyond credible argument, that the jury necessarily rejected the evidence adduced at trial that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense . . . was valid, thus implicitly resolving the question of that defense adversely to defendant”], disapproved on another ground inPeople v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3; cf. People v. Gonzales (1999) 74 Cal.App.4th 382, 391 [failure to instruct on accident defense was prejudicial in light of “the jury’s assertion that it was confused regarding how an accident would affect whether appellant’s conduct was willful, and the jury’s indication that it was deadlocked regarding whether appellant acted willfully”], disapproved on another ground inAnderson, at p. 998, fn. 3.)
IV.Sentencing Issues
A.Aggravating Factors
Appellant argues the trial court prejudicially relied on aggravating factors not found true by a jury to sentence him to the high term on the assault count. We agree, and will remand for resentencing.
A bifurcated court trial was held on aggravating factors alleged in the information. The People presented certified documents of five prior felony convictions: a 1984 conviction for receiving stolen property (§496); a 1995 conviction of being a felon in possession of a firearm (former§ 12021, subd. (a)); two 2002 convictions of lewd andlascivious acts upon a child under the age of 14 (§ 288, subd. (a)); and one 2002 conviction for stalking (§646.9, subd. (a)). The certified documents showed that appellant had served a prison term for the 2002 convictions. The trial court found the People proved two aggravating factors beyond a reasonable doubt: that appellant’s prior convictions were numerous or of increasing seriousness, and that appellant had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(2) & (b)(3).)At sentencing, the trial court relied on thesetwo factors in imposing the upper term on the assault count.
Under the federal constitution, “a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.” (People v. Wiley (2025) 17 Cal.5th 1069, 1086 (Wiley), fn. omitted.) “When the constitutional right to jury trial is involved, we have required an express waiver . . . .” (People v. French (2008) 43 Cal.4th 36, 47.)It is undisputed that appellant made no such express waiver.
“When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. ([Citation]; Chapman v. California (1967) 386 U.S. 18 [citation].) Under that standard, ‘a sentence imposed under ...section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.’” (Wiley, supra, 17 Cal.5th at p. 1087.)
Appellant concedes that, in light of the certified records submitted by the prosecution, it is beyond a reasonable doubt that the jury would have found he had served a prior prison term. The parties dispute whether a jury would also find his prior crimes were numerous or of increasing seriousness.
With respect to numerosity, appellant was convicted of five offenses over a period of 18 years, with an additional 22 years elapsing between the most recent prior offense and the instant offense. Appellant was 63 years old at the time of trial. We cannot conclude beyond a reasonable doubt that a jury would have found appellant’s prior crimes numerous. (See People v. Wright (2025) 113 Cal.App.5th 832, 848 [“Three robberies in the course of 49 years of life may strike some jurors as an obviously ‘numerous’ number of convictions, but we are unsure 12 people unanimously would agree with this evaluation beyond a reasonable doubt”].) That as few as three crimes have been found numerous, as the People argue, does not impact our analysis. “[W]hile the evidence may have been sufficient to support a finding [that the aggravating factor was true], that is not the proper inquiry when assessing prejudice under Chapman. [Citation.] Instead, we must ask ‘whether any rational fact finder could have come to the opposite conclusion.’ ”(Wiley, supra, 17 Cal.5th at p. 1090.)
As for increasing seriousness, “[u]nder current case law, the determination that a defendant’s prior convictions are of increasing seriousness may be made by ‘reference to the range of punishment provided by statute for each offense.’ [Citation.] Or it may be determined by ‘a comparison of the offenses’ respective elements.’ ” (Wiley, supra, 17 Cal.5th at p. 1082.) As appellant argues, the punishment is the same—the triad 16 months, two years, and three years—for the felonies receiving stolen property (§§ 496, 1170,subd. (h)(1)), being a felon in possession of a firearm (§§ 18, subd. (a),29800, subd. (a)(1)), and stalking (§§18, subd. (a),646.9, subd.(a)). While lewd and lascivious acts upon a child has a higher triad—three, six, and eight years—it is not dramatically higher. (§ 288, subd. (a).) While a jury certainly could find increasing seriousness, we are not persuaded beyond a reasonable doubt that they wouldhave, particularly in light of our Supreme Court’s recent cautionregarding increasing seriousness that “the determination is a comparative and qualitative one. These realities make it ‘ “‘difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.’ ”’” (Wiley, supra, 17 Cal.5th at p. 1090.)
As we are unable to conclude beyond a reasonable doubt that appellant did not suffer prejudice, we will remand for resentencing.
B.Hate Crime Enhancement
Appellant argues the trial court abused its discretion in not granting his request to strike the hate crime enhancement. We affirm.
In appellant’s sentencing brief, he requested the court dismiss the hate crime enhancement in light of the mitigating circumstance that assault with a deadly weapon is not a violent felony under section 667.5, subdivision (c). At the sentencing hearing, the trial court did not expressly address this request and did not dismiss the enhancement.
A court “shalldismiss an enhancement if it is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1).) “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that . . . [certain] mitigating circumstances . . . are present,” including that “[t]he current offense is not a violent felony as defined in subdivision (c) of Section 667.5.” (Id., subd. (c)(2), (c)(2)(F).) “Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (Id., subd. (c)(2).)
As an initial matter, appellant complains that the court did not expressly rule or state its reasons on the record.“Section 1385, subdivision (a), requires a trial court to state its ‘reasons for the dismissal ... orally on the record,’ but there is no similar statutory requirement when a court denies a request to dismiss an enhancement.” (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 (Bravo); see also ibid. [“[N]o particular language was required for the trial court to decline to dismiss one of the four enhancements for great bodily injury”].)
Appellant next argues the trial court erroneously found no mitigating circumstances, pointing to a statement by the court that “[t]here are nofactors in mitigation whatsoever.”Although not entirely clear, based on the surrounding discussion, this statement appears to have been referring to mitigating factors under rule 4.423 rather than section 1385.“ ‘[A] ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance.’[Citations.] Only ‘[w]hen the record clearly demonstrates what the trial court did’ will the reviewing court ‘not presume it did something different.’ ” (In re Eli B. (2022) 73 Cal.App.5th 1061, 1069.)Appellant has not established the court erroneously found no mitigating circumstances present for purposes of section 1385.
Appellant alternatively argues the court abused its discretion in declining to strike the enhancement in light of the mitigating circumstance. We need not decide whether the court could properly find that dismissing the enhancement would endanger public safety, as the parties dispute.Even “absent a finding that dismissal would endanger public safety, a court retains the discretion to impose” an enhancement if it “finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ”(People v. Walker (2024) 16 Cal.5th 1024, 1029; see also Bravo, supra, 107 Cal.App.5th at p. 1157 [“Section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety”].)
Such countervailing factors were present here. Appellant’s conduct captured in the 23-second video is an astonishing display of racial hatred at 60 miles per hour. Doe testified that this conduct continued both before and after the recording, testimony the trial court credited.The trial court spoke at length at the sentencing hearing about the impact of appellant’s conduct on Doe and her children, including the following admonishment to appellant: “Three kids.That didn’t honk the horn, didn’t do anything to you, but youlit into their mother, their mother like she was a piece oftrash. Like she was less than human. Now, she has got to dealwith that for the rest of her life. Those kids have to dealwith that for the rest of their lives. When they see otherpeople that are not African American, they have to deal withthat. That could affect their ability to welcome other people,other cultures into their lives, because of what you have done.There are consequences for this behavior. You deserve all ofthat sentence, because you should have known better. . . . They didn’t deserve to be treated that way. And people who actlike you, and who have done that, they need to learn and theyneed to be taught and this is how you deter future conduct.” The trial court did not abuse its discretion.
C.Presentence Credits
Appellant arguesthat he is entitled to 166 days of presentence conduct credit in addition to the 167 days of actual credit awarded by the trial court.The People concede the error and we accept the concession. (§ 4019, subd. (f).) Because we are remanding for resentencing on the aggravated factors, appellant’s request that we direct the court to amend the presentence credits on the abstract of judgment and sentencing minutes is moot.
DISPOSITION
The judgment is remanded for resentencing, including an award of an additional 166 days of presentence conduct credit, and is otherwise affirmed. Following resentencing, the trial court shall forward a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation.

SIMONS, J.

We concur.
JACKSON, P. J.
CHOU, J.

(A171835)