P. v. Santacruz

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Filed 5/10/07 P. v.Santacruz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS RUIZ SANTACRUZ et al.,
Defendants and Appellants.
E039277
(Super.Ct.No. FVI021584)
O P I N I O N
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant Jesus Ruiz Santacruz.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and
Appellant Ignacio Erudiel Nieblas.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,

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and David Delgado-Rucci, Bradley A. Weinreb and Marissa Bejarano, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
On May 6, 2005, defendants led sheriff’s deputies and California Highway Patrol
(CHP) officers on a high speed chase in two stolen vehicles, a Chevy Avalanche and a
Dodge pickup truck. The chase spanned four Southern California counties from the
Palmdale area to Fallbrook. Defendant Jesus Ruiz Santacruz was the driver of both
vehicles; defendant Ignacio Erudiel Nieblas was the only passenger.
Defendants were tried before the same jury and convicted of numerous offenses
stemming from the incident, including carjacking, unlawful driving, receiving a stolen
vehicle, and child abuse, two counts of felony evading, and three counts of assault with a
deadly weapon. The prosecution’s theory of liability was that each defendant either
directly perpetrated or aided and abetted the other in the commission of the crimes.
Santacruz was sentenced to 17 years 4 months in prison. Nieblas admitted a
prison prior, and received a sentence of 18 years 8 months. Defendants appeal, and
Nieblas joins Santacruz’s contentions. We consider each defendant’s contentions to the
extent they may benefit the other defendant. We remand the matter for resentencing in
light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]
(Cunningham). In all other respects, we affirm the judgments.

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II. SUMMARY OF CONTENTIONS
We first address Nieblas’s claim that the court erroneously denied his two Faretta1
motions. The first motion was made shortly before jury selection began, and the second
was made during jury selection. We conclude that both motions were properly denied.
We next consider defendants’ claims that insufficient evidence supports several of
their convictions; that the jury was improperly instructed on the natural and probable
consequences doctrine; and that the use of that doctrine violated their right to due process
because it permits criminal liability to be based on ordinary negligence. We conclude
that substantial evidence supports each of defendant’s convictions. We agree that the
jury was erroneously instructed on the natural and probable consequences doctrine;
however, we find the error harmless, and we reject defendants’ due process claims.
Defendants further contend that their felony evading convictions in counts 4 and 7
were based on an impermissible “mandatory presumption” affecting the burden of proof
on the “willful or wanton disregard” element of the offense. (Veh. Code, § 2800.2, subd.
(b).) We reject this contention, following decisions of the Second, Third, and Fifth
District Courts of Appeal. We also reject Nieblas’s claim that the trial court had a duty to
instruct sua sponte on the defense of accident in connection with the assault with a deadly
weapon charges in counts 3 and 9.
1 Faretta v. California (1975) 422 U.S. 806, 819-822 [95 S.Ct. 2525, 45 L.Ed.2d
562] (Faretta).

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Santacruz claims the trial court erroneously limited his cross-examination of Los
Angeles County Sheriff’s Deputy Carl Osterthaler regarding the deputy’s age and weight.
Even if Santacruz should have been allowed to ask the deputy these two brief questions,
we find the error harmless.
We also reject defendants’ claim the trial court coerced several of the verdicts by
rereading CALJIC No. 17.41 to the jury following the foreperson’s complaint that one
juror was refusing to deliberate. The trial court reasonably concluded that rereading the
instruction would assist the jurors in reaching a verdict. Moreover, no reasonable juror
would have understood the instruction as pressuring him or her to reach a verdict or
change his or her views to conform to the majority jurors’ views.
Lastly, we address defendants’ claims of sentencing error. We reject defendants’
claims their sentences on count 4 (felony evading in the Avalanche) should have been
stayed because that crime involved the same intent and objective as count 3 (assault upon
Osterthaler with the Avalanche). However, because the trial court sentenced both
defendants to the aggravated term of nine years on count 5 (carjacking), the matter must
be remanded for resentencing. (Cunningham, supra, 127 S.Ct. 856.)
III. FACTS AND PROCEDURAL HISTORY
A. Prosecution Evidence
1. The Crimes Involving the Avalanche
On the morning of May 6, 2005, Sergio Calderon discovered that his blue
Avalanche was missing from the driveway of his Redlands home. He had not given

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anyone permission to drive the vehicle. There was broken tinted glass on the driveway,
apparently from a break-in. Calderon reported the vehicle stolen.
At around 2:00 p.m. on May 6, Los Angeles County Sheriff’s Deputy Jim Jorian,
operating out of the Lancaster station, received a call regarding the location in Lancaster
of a possibly stolen Avalanche. When Jorian arrived at the location, he saw a blue
Avalanche parked on the street, with a Hispanic man standing just inside the open
driver’s side door. Another man was in the front passenger seat. As Jorian was waiting
for a backup unit to arrive, he drove away from where the Avalanche was parked. When
he returned, the Avalanche had left. Shortly thereafter, Jorian and another unit began
looking for the Avalanche.
Osterthaler was on patrol when he spotted the Avalanche driving eastbound on
Highway 138, just inside San Bernardino County. Osterthaler and another uniformed
patrol officer, Deputy Mike Rust, pursued the Avalanche in separate patrol vehicles.
They followed the Avalanche as it pulled off the highway and drove into the parking lot
of a real estate office.
Osterthaler positioned his patrol vehicle at a 45-degree angle to the driver’s side of
the Avalanche, detained the occupants at gunpoint, and ordered them to show him their
hands. As Osterthaler was directing the driver to show his hands, Rust positioned his
patrol vehicle on the passenger side of the Avalanche. Rust also drew his weapon. At
this point, Osterthaler was within 15 feet of the driver of the Avalanche. In court, he
identified the driver as Santacruz.

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Santacruz suddenly put the Avalanche in reverse, backed out of the parking space,
smiled at his passenger, defendant Nieblas, then shifted into drive and drove between the
two patrol vehicles. Santacruz accelerated so quickly that the rear tires of the Avalanche
left track marks. Osterthaler jumped back to avoid the Avalanche. If he had not done so,
the Avalanche would have hit him or hit the driver’s door of his patrol vehicle, pinning
him in the doorway of his vehicle. Instead of accelerating and driving through the two
patrol vehicles and nearly striking Osterthaler, Santacruz could have gotten out of the
realty parking lot by driving in the other direction.
After leaving the realty parking lot, Santacruz drove the Avalanche back onto
eastbound Highway 138. Osterthaler and Rust continued to pursue it with their lights and
sirens activated. The Avalanche began to drive recklessly in heavy traffic. It passed
vehicles on the right shoulder, cut across traffic, and drove eastward in the westbound
lanes, causing vehicles to leave the roadway. Osterthaler put out a broadcast that there
was a stolen vehicle heading eastbound on Highway 138. After Osterthaler and Rust
pursued the Avalanche for several minutes, their watch commander canceled their
pursuit.
2. The Carjacking and Pursuit of the Dodge Truck
Los Angeles County Sheriff’s Deputy Dale Ryken was searching for the
Avalanche in a helicopter when he spotted it in a ditch off Highway 138 near the

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Mountaintop Cafe.2 Ryken also saw two individuals running from the Avalanche and up
an embankment toward the Mountaintop Cafe. As Ryken hovered over the area in his
helicopter, he saw the two suspects approach a white Dodge truck in the parking lot of
the Mountaintop Cafe.
Michael M., Sr. (Michael Sr.) was in the driver’s seat of the Dodge truck. His six-
year-old son, Michael M., Jr. (Michael Jr.), was in the passenger seat. Michael Sr.’s wife
and their daughter were in another vehicle parked next to the truck. Michael Sr. had just
parked the truck and turned off the ignition when Santacruz opened the driver’s side
door. Santacruz was holding a knife with a serrated edge, and telling Michael Sr. to get
out of the truck. Nieblas opened the passenger door and pointed a collapsible knife with
a four-inch blade directly at Michael Jr. Santacruz held his knife within one foot of
Michael Sr. Nieblas held his knife approximately 18 inches from Michael Jr.
Michael Sr. begged Santacruz to let his son out of the truck. Santacruz told him to
get out and his son would not be hurt. After Michael Jr. got out of the truck, Michael Sr.
got out. Santacruz got into the driver’s seat and Nieblas got into the passenger seat. As
Santacruz started the truck and began to back it up, Michael Jr. ran behind the truck and
over to the driver’s side, where his father, Michael Sr., was standing. The truck nearly
struck Michael Jr. as he ran behind it, but he made it safely to the other side. Michael Sr.
2 The Avalanche was later recovered from the ditch. Its motor was running, the
keys were in the ignition, and its rear window was broken.

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and Michael Jr. were frightened by the incident. The truck contained around $600 worth
of personal belongings, including clothing, compact discs, a wallet, and spare keys.
From his helicopter, Ryken saw the Dodge truck speed out of the parking lot and
proceed onto eastbound Highway 138. Ryken followed the truck and never lost sight of
it. As the truck traveled on Highway 138, it reached speeds between 90 and 100 miles
per hour.
Osterthaler and Rust joined the pursuit of the truck in their separate patrol
vehicles. As the truck traveled southbound on Interstate 15 (I-15) past Interstates 210
and 10 and approached Interstate 60, it reached speeds in excess of 80 to 100 miles per
hour. It also switched back and forth between driving in the center divider and on the
right shoulder, while crossing several lanes of traffic.
Eventually, CHP officers took the primary position in the pursuit of the truck. The
CHP officers in pursuit were uniformed, and were driving marked patrol vehicles with
their lights and sirens activated. Santacruz continued to drive recklessly as he proceeded
south on I-15. Again, he drove in the center divider and on the right shoulder, cut off
vehicles, made unsafe turning maneuvers, and reached speeds of up to 100 miles per
hour. At one point, he sideswiped a vanpool van.
Santacruz evaded two sets of spike strips on I-15. A third set of spike strips was
deployed on I-15 near Murietta. Santacruz drove over the third set of spike strips after
driving in the center divider and on the right shoulder.
Santacruz exited I-15 at Murietta Hot Springs Road, but failed to stop at the
intersection. He ran a stop sign, crossed over both lanes of the road, and got back onto

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I-15 south. The pursuit proceeded into Temecula, where the truck veered across several
lanes and exited at Rancho California Road. Again, the truck failed to stop at the
intersection, crossed several lanes of traffic, and reentered southbound I-15.
At this point, one of the CHP officers noticed that the truck was riding lower on its
right side and chunks of tire were flying off. The right tires of the truck were beginning
to separate from the rims. On I-15 south of Rainbow, the right tires caught fire from the
rims hitting the asphalt. The pursuit continued into San Diego County. Near Highway
76, the truck veered off I-15 to avoid another spike strip. It went over an embankment,
rolled over several times, and came to rest at the bottom of the embankment.
Santacruz was found lying face down and unconscious on the passenger side of
the truck, approximately five feet from the door. Nieblas attempted to flee on foot, but
was apprehended. Both defendants were taken into custody. During a search of Nieblas,
a sheath containing a knife with a three-inch blade was found.
B. Defense Case
Neither defendant testified or presented any affirmative evidence.
C. The Verdicts and Findings
The jury found defendants guilty as charged of unlawfully driving the Avalanche
(Veh. Code, § 10851, subd. (a); count 1); receiving a stolen vehicle, the Avalanche (Pen.
Code, § 496d, subd. (a); count 2);3 carjacking the Dodge truck from Michael Sr. (Pen.
Code, § 215, subd. (a); count 5); assaulting Osterthaler with a deadly weapon, the
3 All further statutory references are to the Penal Code unless otherwise indicated.

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Avalanche (Pen. Code, § 245, subd. (a)(1); count 3); assaulting Michael Jr. with a deadly
weapon, the Dodge truck (Pen. Code, § 245, subd. (a)(1); count 9); assaulting Michael Sr.
with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1); count 10); felony evading
in the Avalanche and Dodge truck (Veh. Code, § 2800.2, subd. (a); counts 4 & 7); and
felony child abuse upon Michael Jr. (Pen. Code, § 273a, subd. (a); count 8). The jury
found that both defendants personally used knives in the commission of the carjacking,
and that defendant Nieblas personally used a knife in the commission of the child abuse.
(Pen. Code, § 12022, subd. (b).)
The jury found defendants not guilty of robbing Michael Sr. of the personal
property in the Dodge truck. (§ 211; count 11.) The jury deadlocked 11 to 1 in favor of
convicting defendants of carjacking the passenger of the truck, Michael Jr. (§ 215; count
6), and a mistrial was declared on that count. Nieblas admitted the truth of a prison prior.
(§ 667.5, subd. (b).) Santacruz was on probation at the time the crimes were committed.
IV. DISCUSSION
A. Nieblas’s Faretta Motions Were Properly Denied
Nieblas contends the trial court violated his Sixth Amendment right to represent
himself by erroneously denying his Faretta motions. Nieblas made two Faretta motions.
The first was made on September 1, 2005, immediately before jury selection began. The
second was made on the following trial day, September 6, while jury selection was
continuing. We conclude that both motions were properly denied.

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1. Background
On June 2, 2005, the first amended information was filed, and defendants’ joint
trial was set for July 18. On July 8, trial was reset for August 29, and defendants waived
time for trial, plus 60 days. At a pretrial conference on August 19, the court ordered a
copy of the preliminary hearing transcript be prepared for Nieblas’s conflict panel
attorney, Brandon Wood, who had defended Nieblas at the preliminary hearing. The
August 29 trial date was confirmed, and the matter was set for the August 25 trial
readiness calendar.
On August 25, Nieblas made the first of two Marsden4 motions to relieve Attorney
Wood and replace him with another conflict panel attorney on the ground Attorney Wood
had not sufficiently “looked into” his case. The motion was denied, and trial was reset
for August 30, because Attorney Wood was engaged in another trial. The estimated time
for defendants’ joint trial was 30 days.
On August 30, the first day of trial, Attorney Wood was still engaged in the other
trial and the matter was trailed to August 31. Both defendants told the court they were in
the process of hiring private attorneys. The court ordered that both defendants, who were
in custody, be allowed three phone calls each so they could arrange hiring new counsel.
Still, the court admonished defendants that the matter would proceed as scheduled unless
new counsel appeared the next day, August 31.
4 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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On August 31, the second day of trial, both defendants said they had not been
allowed to make their phone calls, and the trial court again ordered that defendants be
allowed to make the calls. Still, the matter proceeded as scheduled. The district attorney
filed a second amended information, and both defendants pled not guilty. The trial court
heard motions in limine, and ordered a bifurcated trial on Nieblas’s prison prior.
On September 1, the third day of trial, Attorney Wood told the court that Nieblas
had been refusing to speak with him and that Nieblas wished to make a second Marsden
motion followed by a Faretta motion. Both motions were denied. At the hearing on the
Marsden/Faretta motion, the following colloquy occurred:
“THE DEFENDANT: . . . I would like to try to do something with my case. I
would like to do something for myself.
“THE COURT: What would you like to do?
“THE DEFENDANT: Look into the case and try to do some -- at least like try to
do something about it, try for myself.
“THE COURT: Mr. Nieblas, let me ask you a couple of questions, okay? And
please don’t take this personally. I just need it for information, okay?
“What’s the highest education that you’ve gotten?
“THE DEFENDANT: High school graduation.
“THE COURT: Have you had any law school training?
“THE DEFENDANT: No, sir.
“THE COURT: Paralegal training?
“THE DEFENDANT: No, sir.

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“THE COURT: Trial training? Have you ever been like in a mock trial program?
“THE DEFENDANT: No, sir.
“THE COURT: Okay. Do you understand that . . . under Ferretta [sic], you have
the right to represent yourself if the Court determines that it doesn’t become a sham or a
farce? Have you ever heard the old saying that a doctor that diagnoses himself has a fool
for a client? Have you ever heard that?
“THE DEFENDANT: No, sir.
“THE COURT: So when a doctor thinks that there’s something wrong with him
and he diagnoses it himself, that it’s a problem because he doesn’t know what he’s doing.
The same is true in the law. It’s actually even worse, especially when you’re looking at
the significance of the charges for which you’re being tried.
“Do you know what the elements of a case -- of a crime is [sic]?
“THE DEFENDANT: I’m not sure, sir.
“THE COURT: Do you know what the elements of the carjacking is [sic]? Do
you know what the district attorney has to prove on carjacking?
“THE DEFENDANT: That’s the reason that I’m trying to ask for that, because as
long as I’m with -- that I could, if you would let me go to the law library for myself.
That’s all I’m trying to do, do something for myself, at least try to do something.
“THE COURT: What I would be willing to do, Mr. Nieblas -- first of all, your
Marsden motion is denied and your request for Ferretta [sic] is denied.

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“But here’s what I’m willing to do for you, is to allow you law library privileges
during the course of this trial for the purposes -- I’m going to grant you for the purposes
of law library privileges cocounsel status.
“Now, what that means is that you can go to the law library, do the research. . . .
We’ll give you an order to do that. Then you can talk with Mr. Wood regarding things
that you read, things that you see, and he can explain them to you and how that works and
whatnot. [¶] . . . [¶]
“. . . I have seen young men like yourself go down very hard. I’ve seen defendants
who have represented themselves just get blasted in court because they don’t know what
they’re doing. And even though you think this piece of evidence should come in, if you
can’t present it properly it doesn’t come in. So you’re even in a worse situation than you
were previously.
“That’s why the lawyer who knows how to get things in, the evidence that you
need or to ask what questions are appropriate to ask of the officers, for example, because
. . . when you act as your own attorney you’re expected to act as an attorney, not as a
defendant. And that’s the reason why I’m denying your Ferretta [sic] motion at this time.
But I will grant you cocounsel status for the law library purposes because I think that
your request is legitimate. You want to know more about your case and you want to look
at some books and I’m going to give you the opportunity to do that.” (Italics added.)
Thereafter, defendant told the court he had still not been allowed to make his
phone calls (regarding hiring private counsel), and the court issued another order

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directing that defendant be allowed to make the calls. Jury voir dire was conducted
through the remainder of the day.
On September 6, the fourth day of trial, jury voir dire continued. During a break
in voir dire, Nieblas renewed his Faretta motion. He told the court, “Your Honor, on the
record I would like to exercise my constitutional right under [Faretta, supra, 422 U.S.
806] and be granted pro[.] per[.] status.” He also said he had hired a private investigator,
had not been allowed to use the law library over the weekend, and wanted “to go to the
law library to do some more research about this.” The court denied the renewed Faretta
motion, saying “Based on the same issues that you brought up at the Marsden, your issue
under Ferrata [sic] is denied.” On the afternoon of September 6, the trial court put the
following additional remarks on the record:
“I wanted to put on the record a little bit more regarding the Ferrata [sic] issue. I
wanted to put down the fact that Mr. Nieblas has previously told me about his lack of
education, he has shown during the course of this time a certain inability to communicate;
that he’s relying on a criminal handbook and a private investigator who is not a criminal
investigator, or at least for the types of charges that we’re here for; that he has previously
stated he had no experience in presenting evidence, picking a jury, or acting as an
attorney. And also I will find that it is not timely as we are in our third day of trial.
“The Court is citing a 199[0] case [People v. Manago (1990)], 220 Cal.App.3d
982 at [pages] 985 through 9[8]8 where our district [C]ourt of [A]ppeal indicated that the
Court has the discretion in not allowing the defendant to represent himself if it became a

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sham or a farce. And that’s what I would find it would do if I were to allow Mr. Nieblas
to represent himself.
“Further, People v. [C]randall (1988) 46 Cal.3d 833, that this appears [sic] to be
and this is in the Court’s view an attempt given the number of times that the defendants
have sought to seek other counsel, to put the case over and have counsel appear that [sic]
this is simply another attempt to delay the trial. And for those reasons the Court is
denying the Ferrata [sic].”
2. Analysis
A defendant in a criminal trial has a Sixth Amendment right to represent himself.
(Faretta, supra, 422 U.S. at p. 836.) A trial court must grant a Faretta motion and has no
discretion to deny it provided three conditions are met: The motion is (1) unequivocal,
(2) knowing and intelligent, and (3) made “a reasonable time before trial.” (People v.
Welch (1999) 20 Cal.4th 701, 729 (Welch); People v. Windham (1977) 19 Cal.3d 121,
127-128.) Motions made on the eve of trial are addressed in the sound discretion of the
trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.)
Nieblas insists that his September 1 Faretta motion was timely because it was
made before jury selection began. He also argues that his September 1 and September 6
Faretta motions were knowing, intelligent, and unequivocal. Thus, he suggests the trial
court had no discretion to deny his September 1 motion. Alternatively, he argues the trial
court abused its discretion in denying both Faretta motions.
First, it is clear the trial court had discretion to deny both Faretta motions because
neither was made a reasonable time before trial. There is no “rigid rule” that a motion for

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self-representation is to be deemed timely because it is made before actual
commencement of trial. (People v. Clark (1992) 3 Cal.4th 41, 99.) Moreover, the
purpose of the timeliness requirement is to prevent a defendant from misusing a Faretta
motion to unjustifiably delay trial or obstruct the orderly administration of justice.
(People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Burton (1989) 48 Cal.3d
843, 852.) Here, the timing of both motions certainly raised the possibility that they were
designed to delay or obstruct the trial.
It is also clear that Nieblas’s September 1 Faretta motion, made in the alternative
to his Marsden motion, was properly denied on the grounds it was equivocal. (Faretta,
supra, 422 U.S. at p. 835.) “‘[T]he right of self-representation is waived unless
defendants articulately and unmistakably demand to proceed pro se.’” (People v.
Marshall (1997) 15 Cal.4th 1, 21, quoting United States v. Weisz (D.C. Cir. 1983) 718
F.2d 413, 426; see also People v. Valdez (2004) 32 Cal.4th 73, 99 [conditional demand
for self-representation was ambivalent and equivocal].)
In making his September 1 motion, Nieblas did not tell the court he wanted to
represent himself at trial. Instead, he said he wanted to “try to do something” for himself,
such as investigate the facts and “go to the law library.” In response, the trial court
ordered that Nieblas be given law library access. Nieblas was satisfied with this and did
not insist he be allowed to represent himself. Indeed, at the conclusion of the hearing, he
complained he had not been allowed to make the phone calls the court had ordered he be
allowed to make for the purpose of hiring private counsel.

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Nevertheless, on the following trial day, September 6, Nieblas made a clear and
unequivocal demand for self-representation. We therefore address whether the trial court
abused its discretion in denying the motion. In exercising its discretion, the trial court
was required to consider all relevant circumstances, including: (1) the quality of
defendant’s representation; (2) the defendant’s prior proclivity to substitute counsel; (3)
the reasons for the request; (4) the length and stage of the proceedings; and (5) the
disruption or delay which might reasonably be expected to follow. (People v. Windham,
supra, 19 Cal.3d at pp. 128-129; accord, People v. Jenkins (2000) 22 Cal.4th 900, 959.)
Nieblas argues the trial court abused its discretion in denying the motion because
it made no effort to consider any of the Windham factors. Instead, he argues, the court
denied the motion based solely on his low education level and his apparent inability to
competently represent himself at trial.
A defendant’s ability to competently represent himself is not a proper factor for a
court to consider under Faretta. (Welch, supra, 20 Cal.4th at pp. 732-734.) “[T]he
competence that is required of a defendant seeking to waive his right to counsel is the
competence to waive the right, not the competence to represent himself.” (Godinez v.
Moran (1993) 509 U.S. 389, 399 [113 S.Ct. 2680, 125 L.Ed.2d 321], fn. omitted; accord,
Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529.) Thus, the trial court erred

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to the extent it relied on Nieblas’s lack of education or inability to competently represent
himself in denying his September 6 motion. (Welch, supra, 20 Cal.4th at p. 734.)5
Although the trial court erred to the extent it relied on Nieblas’s evident inability
to represent himself, the court also based its ruling on evidence that both motions were
made for the purpose of delaying the trial. This was a proper reason for denying both
5 In denying the September 6 motion, the trial court relied on this court’s decision
in People v. Manago (1990) 220 Cal.App.3d 982 (Manago). There, we held it was not an
abuse of discretion to deny a Faretta motion where the defendant demonstrated he was
unable to “present a rudimentary defense.” (Manago, supra, at p. 988.) We noted that
granting the Faretta motion under these circumstances would have allowed the defendant
to turn his trial into “a mockery,” or “a sham and a farce.” (Manago, supra, at p. 988.)
Thus, here, the trial court said it was not going to allow Nieblas to represent himself
because his lack of legal skills and experience would have allowed his trial to become a
“sham or a farce.”
In Manago, we followed People v. Burnett (1987) 188 Cal.App.3d 1314 (Burnett),
which interpreted Faretta’s knowing and intelligent waiver of counsel requirement as
also requiring that a defendant possess a minimal ability to competently represent
himself. (Manago, supra, 220 Cal.App.3d at pp. 986-988.) But Manago and Burnett
were decided before Godinez and Welch. In Godinez, the high court clarified that a trial
court may not ascertain or measure a defendant’s competence to waive his right to
counsel by evaluating his ability to represent himself. (Welch, supra, 20 Cal.4th at pp.
733-734, citing Godinez v. Moran, supra, 509 U.S. at pp. 399-400.) Instead, Faretta’s
knowing and intelligent waiver requirement means that the defendant must be “‘made
aware of the dangers and disadvantages of self-representation, so that the record will
establish that “he knows what he is doing and his choice is made with eyes open.”
[Citation.]’” (Welch, supra, at p. 733, citing Faretta, supra, 422 U.S. at p. 835.)
Thus, the court in Welch concluded that a defendant’s ability to represent himself
at trial, no matter how abysmal, is not a proper factor to consider in denying his Faretta
motion. (Welch, supra, 20 Cal.4th at pp. 733-734.) In reaching this conclusion, the
Welch court implicitly overruled Burnett and Manago. Earlier, in People v. Nauton
(1994) 29 Cal.App.4th 976, 979 through 981 and footnote 2, the Third District Court of
Appeal disagreed with Manago and Burnett for the same reasons expressed in Welch.

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Faretta motions (People v. Windham, supra, 19 Cal.3d at p. 128), and the record amply
supports it.6
Nieblas waited until August 25, four days before trial was scheduled to begin on
August 29, to make his first Marsden motion to relieve Attorney Wood. After the trial
court found no grounds to grant the Marsden motion and explained to Nieblas that
Attorney Wood was an experienced, competent attorney and “a fighter,” Nieblas made a
second Marsden motion on September 1, the third day of trial, and immediately followed
that motion by making an equivocal Faretta motion. The September 1 Faretta motion
devolved into a simple request to conduct some legal research at the law library. Still, on
the following trial day, September 6, Nieblas made an unequivocal Faretta motion. In
the meantime, Nieblas was attempting to hire private counsel.
In view of these circumstances, the trial court reasonably concluded that Nieblas
made both his Faretta motions for the purpose of delaying the trial. Indeed, it was
reasonable to conclude that on September 6, Nieblas was not serious about representing
himself, because on the previous trial day, September 1, he made it clear that all he
wanted to do was “[l]ook into” his case and conduct some of his own legal research.
6 We also note that the trial court’s September 1 inquiry concerning Nieblas’s
educational level and legal experience was appropriate to the extent it sought to ascertain
whether Nieblas’s waiver of his right to counsel was knowing and intelligent -- that is,
whether Nieblas understood the consequences of his decision and the “dangers and
disadvantages of self-representation.” (See, e.g., People v. Phillips (2006) 135
Cal.App.4th 422, 428.) This is a fundamental requirement of Faretta. (Faretta, supra,
422 U.S. at p. 835.)

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Moreover, “‘by juggling his Faretta rights with his right to counsel interspersed
with Marsden motions,’” the trial court reasonably concluded that Nieblas was “‘playing
“the Faretta game,”’” that is, he was playing games with the court in an effort to delay
the trial. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1049; People v. Williams
(1990) 220 Cal.App.3d 1165, 1168-1170.) Accordingly, both Faretta motions were
properly denied.7
Lastly, we note that Nieblas’s reliance on People v. Nicholson (1994) 24
Cal.App.4th 584 (Nicholson) is misplaced. There, it was held that the trial court abused
its discretion in denying the defendants’ Faretta motions, because they did not request a
continuance, they had not demonstrated a proclivity to substitute counsel, and there was
no showing that granting the motion would have delayed or disrupted the proceedings.
(Nicholson, supra, at p. 592.) Nieblas emphasizes that he never requested a continuance
of the trial, either on September 1 or 6. But Nieblas’s failure to request a continuance
does not undermine the trial court’s conclusion that he was using his Faretta motions to
delay the proceedings, in view of his demonstrated proclivity to substitute counsel and
“play the Faretta game.” As the Nicholson court said, had the defendants “suggested or
7 Contrary to Nieblas’s claim that the trial court failed to consider any of the
Windham factors, the trial court implicitly considered all of the Windham factors in
denying the second Faretta motion -- the quality of defendant’s representation, his prior
proclivity to substitute counsel, his reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might reasonably be expected to follow
the grant of the motion. (People v. Windham, supra, 19 Cal.3d at p. 128.)

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expressed an intent to delay the proceedings, the trial court would have been justified in
denying their Faretta motions.” (Nicholson, supra, at p. 592.)
B. Substantial Evidence Supports Defendants’ Convictions in Counts 1, 2, 3, 8, and 9
Defendants challenge the sufficiency of the evidence supporting several of their
convictions. Santacruz claims insufficient evidence supports his child abuse conviction
(count 8), on the ground this crime was not a natural and probable consequence of the
carjacking. He also claims insufficient evidence supports his conviction for assaulting
Michael Jr. with the Dodge truck (count 9), on the ground there was no evidence he had
the requisite mental state for assault.
We reject these contentions. As we explain, substantial evidence showed that
Santacruz directly aided and abetted the child abuse in count 8. It is not necessary, as
Santacruz argues, to analyze the sufficiency of the evidence on count 8 solely under the
natural and probable consequences doctrine. We also find sufficient evidence to support
Santacruz’s conviction for assaulting Michael Jr. with the Dodge truck.
Nieblas claims there is insufficient evidence he aided and abetted the driving or
taking away of the Avalanche (count 1) or the receipt of the Avalanche as stolen property
(count 2). He further claims there is insufficient evidence to support his convictions for
assaulting Osterthaler with the Avalanche (count 3) and assaulting Michael Jr. with the
Dodge truck (count 9) because neither of these crimes were natural and probable
consequences of the underlying target offenses of felony evading and carjacking,
respectively. We also find sufficient evidence to support each of Nieblas’s convictions.

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1. Standard of Review
In reviewing a claim that insufficient evidence supports a criminal conviction, we
review the entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence -- that is, evidence which is reasonable, credible, and of
solid value -- from which a jury comprised of reasonable persons could have found the
defendant guilty of the crime beyond a reasonable doubt. (Welch, supra, 20 Cal.4th at p.
758.) We presume in support of the judgment the existence of every fact the jury could
have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.)
2. Aider and Abettor Liability
The law imposes criminal liability on all “principals” to a crime. (§ 31; People v.
Nguyen (1993) 21 Cal.App.4th 518, 529.) Principals include persons “concerned” in the
commission of the crime, “whether they directly commit the act constituting the offense,
or aid and abet in its commission . . . .” (§ 31.) “A person aids and abets the commission
of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator,
(ii) and with the intent or purpose of committing, facilitating or encouraging commission
of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the
commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v.
Beeman (1984) 35 Cal.3d 547, 560-561.) Intent is rarely susceptible of direct proof, but
may be inferred from all the facts and circumstances. (People v. Kwok (1998) 63
Cal.App.4th 1236, 1245.) A person’s mere presence at the scene of a crime, even if he or
she knows or suspects a crime is occurring or is about to occur, is by itself insufficient to

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sustain a conviction based on aiding and abetting. (People v. Nguyen, supra, at pp. 529-
530, citing People v. Durham (1969) 70 Cal.2d 171, 181.)
3. The Natural and Probable Consequences Doctrine
Under the natural and probable consequences doctrine, “‘[An aider and abettor] is
guilty not only of the offense he intended to facilitate or encourage, but also of any
reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It
follows that a defendant whose liability is predicated on his status as an aider and abettor
need not have intended to encourage or facilitate the particular offense ultimately
committed by the perpetrator. His knowledge that an act which is criminal was intended,
and his action taken with the intent that the act be encouraged or facilitated, are sufficient
to impose liability on him for any reasonably foreseeable offense committed as a
consequence by the perpetrator. It is the intent to encourage and bring about conduct that
is criminal, not the specific intent that is an element of the target offense, which . . . must
be found by the jury.’ [Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 261
(Prettyman).)
“The determination whether a particular criminal act was a natural and probable
consequence of another criminal act aided and abetted by a defendant requires application
of an objective rather than subjective test.” (People v. Nguyen, supra, 21 Cal.App.4th at
p. 531.) The question is “whether, under all of the circumstances presented, a reasonable
person in the defendant’s position would have or should have known that the charged
offense was a reasonably foreseeable consequence of the act aided and abetted by the
defendant.” (Ibid.)

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4. Evidence Supporting Santacruz’s Convictions
(a) Child Abuse (Count 8)
Child abuse is committed by willfully placing a child in a situation likely to cause
the child great bodily harm and causing the child to suffer. (People v. Odom (1991) 226
Cal.App.3d 1028, 1032-1033; § 273a, subd. (a).) Santacruz was convicted of child abuse
(count 8), as a result of Nieblas’s holding a knife to Michael Jr. when Santacruz and
Nieblas carjacked the Dodge truck from Michael Sr.
Santacruz argues that insufficient evidence supports his child abuse conviction
because Nieblas’s commission of the crime was not a natural and probable consequence
of his (Santacruz’s) perpetration of the carjacking. Santacruz argues it was not
reasonably foreseeable to him that Nieblas would take out a knife and threaten Michael
Jr., because he (Santacruz) already had a knife pointed at Michael Sr., and pointing a
knife at Michael Jr. was not necessary to accomplish the carjacking.
We disagree with Santacruz’s analysis. It is not necessary to analyze Santacruz’s
liability for the child abuse based on the natural and probable consequences doctrine,
because the evidence showed he directly aided and abetted Nieblas’s commission of the
child abuse. In other words, the People did not have to prove that the child abuse was a
natural and probable consequence of the carjacking, because the two crimes were
committed by both defendants, acting in concert, and the same conduct underlay both
crimes.
Indeed, the carjacking of the Dodge truck from Michael Sr. was accomplished by
both defendants, acting in concert. Defendants had just abandoned the Avalanche in the

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ditch and were running from police on foot. Santacruz went to the driver’s door of the
Dodge truck and Nieblas went to the passenger door. Together, they pulled knives on the
two occupants, Michael Sr. and Michael Jr., and quickly forced them out of the truck. By
acting in concert, defendants were likely to realize their goal of escaping from police.
Moreover, the joint conduct underlying the carjacking of Michael Sr. was the same
joint conduct underlying the child abuse of Michael Jr. with the knife (count 8). Based
on the manner in which the crimes were committed, the jury could have reasonably
inferred that Santacruz aided and abetted Nieblas’s direct commission of the child abuse.
Or, the jury could have reasonably inferred that Santacruz aided and assisted Nieblas in
pointing a knife at Michael Jr. as a means of facilitating the carjacking of Michael Sr.
(b) Assaulting Michael Jr. With the Dodge Truck (Count 9)
Santacruz challenges the sufficiency of the evidence supporting his conviction for
assaulting Michael Jr. with the Dodge truck (§ 245, subd. (a)(1)) on the ground there is
no evidence he had the mental state required to commit the assault. He specifically
argues there is no evidence he “knew of the facts necessary to make him aware that, in
backing the pickup truck, he almost struck young Michael [Jr.].” In other words, he
argues he is not guilty of the assault because there is no evidence he knew that Michael
Jr. was either behind the truck or about to run behind the truck.

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An assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.)8 Assault is a general intent crime
which has “always focused on the nature of the act and not on the perpetrator’s specific
intent.” (People v. Williams (2001) 26 Cal.4th 779, 785-786.) “‘The gravamen of the
crime [of assault] . . . is the likelihood that the force applied or attempted to be applied
will result in great bodily injury.’ [Citation.]” (People v. Colantuono, supra, 7 Cal.4th at
p. 217.) Accordingly, specific intent to injure is not an element of assault. (People v.
Williams, supra, at p. 786.) Instead, an assault 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.)
More specifically, “a defendant is only guilty of assault if he intends to commit an
act ‘which would be indictable [as a battery], if done, either from its own character or that
of its natural and probable consequences.’ [Citation.] Logically, a defendant cannot have
such an intent unless he actually knows those facts sufficient to establish that his act by
its nature will probably and directly result in physical force being applied to another, i.e.,
a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the
facts that would lead a reasonable person to realize that a battery would directly, naturally
and probably result from his conduct. He may not be convicted based on facts he did not
8 “The required mental state for simple assault and assault with a [deadly
weapon], as charged here [citation], is the same. The greater crime varies from the lesser
only in that it contains the additional element of the use of a firearm. There is no
additional or different mental element.” (People v. Colantuono (1994) 7 Cal.4th 206,
223, fn. 1 (conc. opn. of Mosk, J.).)

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know but should have known. He, however, need not be subjectively aware of the risk
that a battery might occur.” (People v. Williams, supra, 26 Cal.4th at pp. 787-788, italics
added.)
Thus, to be guilty of assaulting Michael Jr. with the truck, Santacruz had to be
“aware of the facts that would lead a reasonable person to realize” that his act of backing
up the truck “would directly, naturally and probably result” in a battery upon the child.
(People v. Williams, supra, 26 Cal.4th at p. 788.) A defendant cannot be guilty of assault
based on facts he did not know but should have known, and mere recklessness or criminal
negligence is still not enough to constitute an assault. (Ibid., citing People v. Colantuono,
supra, 7 Cal.4th at p. 219.) Although, as Santacruz points out, there is no evidence he
knew that the child was running behind the truck, the evidence showed he was aware of
“facts that would lead a reasonable person to realize” that his act of backing up the truck
was likely to result in a battery upon the child.
The entire incident happened within seconds. There were bushes directly in front
of the truck, and little room for a pedestrian to walk in front of the truck. Michael Jr. got
out on the passenger side before his father got out on the driver’s side. Nieblas had just
pointed a knife at Michael Jr. and had forcibly separated him from his father. After
Michael Sr. got out of the truck, he began yelling for Michael Jr. and was moving toward
the back of the truck. The evidence suggests that Michael Jr. began moving toward the
back of the truck while the passenger door was still open. All of these facts were
apparent to Santacruz before he began to back up the truck. And as Santacruz began to
back up the truck, Michael Sr. began yelling to his son to run faster to avoid being hit.

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A reasonable person in Sanacruz’s position, knowing these facts, would have
realized before beginning to back up the truck, and while doing so, that the child was in
danger of being hit by the truck. Under these circumstances, substantial evidence
supports the jury’s conclusion that Santacruz’s action in backing up the truck would
directly, naturally, and probably result in a battery upon the child.
5. Evidence Supporting Nieblas’s Convictions
(a) Unlawful Driving and Receiving (Counts 1 and 2)
Nieblas was a passenger in the Avalanche; Santacruz was the driver. Nieblas
claims there is insufficient evidence that he aided and abetted Santacruz’s unlawfully
taking or driving of the Avalanche (count 1) or that he aided and abetted Santacruz’s
receipt of the Avalanche as stolen property (count 2). We disagree. We conclude there is
substantial evidence that Nieblas aided and abetted these crimes.
Vehicle Code section 10851, subdivision (a) provides that “[a]ny person who
drives or takes a vehicle not his or her own, without the consent of the owner thereof, and
with intent either to permanently or temporarily deprive the owner thereof of his or her
title to or possession of the vehicle, whether with or without intent to steal the vehicle, or
any person who is a party or an accessory to or an accomplice in the driving or
unauthorized taking or stealing, is guilty of a public offense . . . .”
Section 496d, subdivision (a) provides: “Every person who buys or receives any
motor vehicle . . . that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, selling, or withholding any motor

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vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be
punished . . . .”
A defendant may not be convicted of unlawfully taking and receiving the same
stolen vehicle. (People v. Garza (2005) 35 Cal.4th 866, 880-881.) He may, however, be
convicted of unlawfully driving and receiving the same stolen vehicle following the
taking of the vehicle (i.e., posttheft driving of the vehicle). (Ibid.) Both defendants’
convictions in count 1 must have been based on the unlawful posttheft driving of the
Avalanche. The prosecutor conceded there was no evidence that defendants stole the
Avalanche, and argued only that defendants were unlawfully driving the Avalanche,
knowing it was stolen.
As Nieblas points out and as the jury was instructed, being a mere passenger in a
car, without more, is insufficient to establish a violation of Penal Code section 496d,
subdivision (a) or Vehicle Code section 10851. (Special Instruction No. Two.) (People
v. Clark (1967) 251 Cal.App.2d 868, 874; People v. Champion (1968) 265 Cal.App.2d
29, 32.) But here, the evidence of Nieblas’s guilt in counts 1 and 2 was based on more
than his status as a mere passenger in the Avalanche. It was based on substantial
evidence that Nieblas, knowing the Avalanche was stolen, actively aided and abetted
Santacruz’s unlawful driving of the Avalanche and jointly possessed the Avalanche with
Santacruz.
CALJIC No. 2.15 (Possession of Stolen Property) correctly instructed the jury: “If
you find that the defendant[s were] in conscious possession of recently stolen property,
the fact of that possession is not by itself sufficient to permit an inference that the

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defendants are guilty of the crime of unlawful driving or taking of a motor vehicle and
possession of stolen property. Before guilt may be inferred, there must be corroborating
evidence tending to prove the defendant’s [sic] guilt. However, this corroborating
evidence need only be slight and need not by itself be sufficient to warrant an inference
of guilt. [¶] As corroboration[,] you may consider the attributes of possession -- time,
place, and manner, that the defendants had an opportunity to commit the crimes charged,
and the defendant’s [sic] conduct and any other evidence which tends to connect the
defendants with the crimes charged.”
CALJIC No. 2.15 reflects the settled principle that: “Possession of recently stolen
property is so incriminating that to warrant conviction there need only be, in addition to
possession, slight corroboration in the form of statements or conduct of the defendant
tending to show his guilt. [Citations.] . . . ‘[P]ossession of stolen property, accompanied
by no explanation, or an unsatisfactory explanation of the possession, or by suspicious
circumstances, will justify an inference that the goods were received with knowledge that
they had been stolen. . . .’” (People v. McFarland (1962) 58 Cal.2d 748, 754, italics
added.) This rule applies “whether the crime charged is theft, burglary, or knowingly
receiving stolen property.” (Id. at p. 755; see also People v. Mendoza (2000) 24 Cal.4th
130, 176 [upholding burglary conviction based on adequate corroborating evidence].)
As used in CALJIC No. 2.15, “conscious possession” means the defendant must
knowingly possess the stolen property or exercise knowing dominion and control over it;
it does not mean there must be direct evidence the defendant knew the property was
stolen. (People v. Williams (2000) 79 Cal.App.4th 1157, 1171-1172.) The requisite

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possession may be actual or constructive, and it need not be exclusive. (In re Anthony J.
(2004) 117 Cal.App.4th 718, 728.)
Regarding count 2, there is no question that Nieblas was in conscious possession
of the Avalanche and that he possessed it jointly with Santacruz. Initially, the Avalanche
was observed by Jorian parked on a street with one man in the front passenger seat and
the other standing at the open driver’s door. When Jorian returned after briefly leaving
the area, the truck was no longer present. And, after Osterthaler and Rust pursued the
Avalanche on Highway 138, both Santacruz and Nieblas refused to follow Osterthaler’s
order to get out of the Avalanche. Nieblas’s refusal to follow Osterthaler’s order showed
that he, together with Santacruz, was exercising joint dominion and control over the
Avalanche.
Regarding counts 1 and 2, the attributes of Nieblas’s possession also showed he
knew the Avalanche was stolen. He was in possession of the Avalanche shortly after it
was stolen, and the Avalanche had a broken window. And he refused to follow
Osterthaler’s order to get out of the truck in the realty parking lot. Together, these facts
support a reasonable inference that Nieblas knew the Avalanche was stolen.
Regarding count 1, the evidence also showed that Nieblas encouraged Santacruz’s
unlawful driving of the Avalanche away from the presence of Osterthaler. His refusal to
get out of the Avalanche when he had the opportunity to do so and his subsequent actions
in aiding and abetting the carjacking, indicated he actively aided and encouraged
Santacruz’s unlawful driving of the Avalanche.

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(b) Assaults of Osterthaler and Michael Jr. (Counts 3 and 9)
Nieblas claims the evidence is insufficient to support his convictions for aiding
and abetting Santacruz’s assault on Osterthaler with the Avalanche (count 3) and for
aiding and abetting Santacruz’s assault on Michael Jr. with the Dodge truck (count 9).
He argues there is no evidence that Santacruz’s commission of these crimes was a natural
and probable consequence of the underlying or target crimes. We disagree.
To have found Nieblas guilty as an aider and abettor to the assaults on Osterthaler
and Michael Jr. under the natural and probable consequences doctrine, the jury did not
have to find that Nieblas intended to aid, encourage, or facilitate the actual assaults.
Instead, the jury only had to find that the assaults were a natural and probable
consequence of the underlying target crimes. In the case of the assault on Osterthaler, the
underlying target crimes were unlawful driving (count 1), and defendants’ initial attempt
to evade Osterthaler in the realty parking lot (count 4). In the case of the assault with the
truck on Michael Jr. (count 9), the underlying target crime was the carjacking of the
Dodge truck from Michael Sr. (count 5).
As discussed, “‘[An aider and abettor] is guilty not only of the offense he intended
to facilitate or encourage, but also of any reasonably foreseeable offense committed by
the person he aids and abets. . . .” (Prettyman, supra, 14 Cal.4th at p. 261.) Whether the
assaults were natural and probable consequences of the underlying offenses is a question
of fact for the jury, and requires the application of an objective test. (People v. Nguyen,
supra, 21 Cal.App.4th at p. 531.) The question is whether, in view of all the
circumstances, a reasonable person in Nieblas’s position would have or should have

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known that the assaults were a reasonably foreseeable consequence of the acts or crimes
Nieblas aided and abetted. (Ibid.)
Applying these principles, the jury could have reasonably inferred that the assault
on Osterthaler was a reasonably foreseeable consequence of the unlawful driving and
attempt to evade police in the Avalanche. Defendants were in the process of committing
these crimes when the assault on Osterthaler was committed. And, when defendants
disobeyed Osterthaler’s order to get out of the Avalanche at gunpoint, it was reasonably
foreseeable to Nieblas that Santacruz was going to attempt to flee in the Avalanche. A
natural and probable consequence of this was that Osterthaler might well be assaulted in
the process of defendants’ continued unlawful driving and escape from the realty parking
lot. Although Santacruz did not have to drive between the two police vehicles to get out
of the parking lot, a reasonable person in Nieblas’s position would have realized that, in
attempting to escape from the parking lot, Santacruz might strike one of the officers,
particularly Osterthaler, who was standing near one of the avenues of escape.
Similarly, in view of the particular circumstances in which the carjacking was
committed, the jury could have reasonably inferred that Santacruz’s assault on Michael
Jr. with the Dodge truck was a reasonably foreseeable consequence of the carjacking.
The circumstances of the carjacking were that Michael Jr. was left standing outside the
passenger side of the truck, separated from his father, and unaccompanied by an adult,
after Nieblas forcibly removed him from the truck at knifepoint. In view of this
circumstance, it was reasonably foreseeable to a person in Nieblas’s position that Michael

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Jr. would attempt to run to his father and, in backing up the truck, Santacruz would
commit an assault upon the child.
C. The Jury Was Inadequately Instructed on the Natural and Probable Consequences
Doctrine Regarding Nieblas’s Liability in Counts 3 and 9, But the Errors Were Harmless
Santacruz and Nieblas contend the jury was inadequately instructed on the natural
and probable consequences doctrine relative to several of the charged crimes. Nieblas
claims the trial court prejudicially erred in failing to instruct the jury to specifically
determine whether the charged crimes of Santacruz’s assaults on Osterthaler and Michael
Jr. (counts 3 and 9, respectively) were natural and probable consequences of the unlawful
driving (count 1) and felony evading (count 4) in the case of the assault on Osterhaler, or
the carjacking (count 5), in the case of the assault on Michael Jr. Regarding Nieblas’s
claims, we agree that the instructions on the natural and probable consequences doctrine
relative to counts 3 and 9 were erroneous. Nevertheless, we find the errors harmless.
Santacruz claims the trial court prejudicially erred in failing to instruct the jury to
specifically determine whether the charged crime of Nieblas’s child abuse (count 8) was
a natural and probable consequence of Santacruz’s carjacking of the truck from Michael
Sr. (count 5). He also claims the trial court had a duty to instruct the jury to determine
whether his assault on Michael Jr. with the Dodge truck (count 9) was a natural and
probable consequence of the commission of carjacking (count 5) or the felony evading in
the Dodge truck (count 7). We need not address these claims in light of our conclusion
that Santacruz directly perpetrated the assault on Michael Jr. with the truck (count 9) and

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that he aided and abetted Nieblas’s commission of the child abuse upon Michael Jr.
(count 8).
1. Error in CALJIC No. 3.02
As given, CALJIC No. 3.02 (Principals—Liability for Natural and Probable
Consequences) failed to identify each charged offense for which defendants were alleged
to be liable, under the natural and probable consequences doctrine, and failed to tie each
charged offense to the underlying target offenses. In lieu of identifying any charged
crimes and underlying target offenses, the instruction identified uncharged, lesser
included offenses of several charged, greater offenses.9 But under the natural and
9 As given, CALJIC No. 3.02 instructed the jury: “One who aids and abets
another in the commission of a crime or crimes is not only guilty of that crime but is also
guilty of any other crime committed by a principal which is the natural and probable
consequence of the crimes originally aided and abetted.
“In order to find the defendant guilty of the crimes charged you must be satisfied
beyond a reasonable doubt that:
“1. The crimes as charged were committed;
“2. That the defendant aided and abetted those crimes;
“3. That a co-principal in that crime committed the crimes as charged;
“4. That the crimes committed were a natural and probable consequence of the
crimes charged.
“a. The crime of Penal Code Section 240, assault, was a natural and probable
consequence of the commission of the crime of Penal Code Section 245[, subdivision]
(a)(1), assault with a deadly weapon.
“b. The crime of Vehicle Code Section 2800.1[, subdivision] (a), evading an
officer, was a natural and probable consequence of the commission of the crime of
Vehicle Code Section 2800.2[, subdivision] (a), evading an officer with willful or wanton
disregard.
“c. The crime of Penal Code Section 273a[, subdivision] (b), child endangerment,
was a natural and probable consequence of the commission of the crime of Penal Code
Section 273a[, subdivision] (a)[,] child abuse.
“d. The crime of [Penal Code section] 487, grand theft, was a natural and
probable consequence of the crime of Penal Code Section 211, robbery.
[footnote continued on next page]

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probable consequences doctrine, the issue is not whether a lesser included offense is a
natural and probable consequence of a greater offense.10 The issue is whether a charged
crime was a natural and probable consequence of an intended, target crime that the
defendant aided and abetted. (Prettyman, supra, 14 Cal.4th at p. 261.)
Where, as here, the prosecution relies on the natural and probable consequences
doctrine as a theory of a defendant’s liability, and the jury is instructed on the doctrine,
the trial court has a duty to identify and describe for the jury, on its own initiative, the
underlying target offenses which are supported by substantial evidence. (Prettyman,
supra, 14 Cal.4th at pp. 266-267.) Identifying and describing the target offenses is
necessary to “minimize the risk that the jury, generally unversed in the intricacies of
[footnote continued from previous page]
“e. The crime of Penal Code Section 484, petty theft, was a natural and probable
consequence of the commission of the crime of Penal Code Section 211, robbery.
“In determining whether a consequence is ‘natural and probable,’ you must apply
an objective test, based not on what the defendant actually intended, but on what a person
of reasonable and ordinary prudence would have expected likely to occur. The issue is to
be decided in light of all the circumstances surrounding the incident. A ‘natural’
consequence is one which is within the normal range of outcomes that may be reasonably
expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.
“You are not required to unanimously agree as to which originally contemplated
crime the defendant aided and abetted as long as you’re satisfied beyond a reasonable
doubt and unanimously agree that the defendant aided and abetted the commission of an
identified and defined target crime and that the crime alleged were [sic] the natural and
probable consequence of the commission of that target crime.”
10 Other instructions identified lesser, necessarily included offenses to the charged
offenses. For example, CALJIC No. 9.00 instructed that assault was a lesser, necessarily
included offense of assault with a deadly weapon; CALJIC No. 12.85 instructed that
misdemeanor evading was a lesser, necessarily included offense of felony evading; and
CALJIC No. 14.02 instructed that theft was a lesser, necessarily included offense of
robbery.

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criminal law, will ‘indulge in unguided speculation’ [citation] when it applies the law to
the evidence adduced at trial.” (Id. at p. 267.) Identifying and describing the target
offenses also assists the jury in properly determining whether a defendant who aids and
abets a target crime is liable for another, charged crime under the natural and probable
consequences doctrine. (Ibid.)
Under the natural and probable consequences doctrine, “the jury must decide:
whether the defendant (1) with knowledge of the confederate’s unlawful purpose; and (2)
with the intent of committing, encouraging, or facilitating the commission of any target
crime(s); (3) aided, promoted, encouraged, or instigated the commission of the target
crime(s). The jury must also determine whether (4) the defendant’s confederate
committed an offense other than the target crime(s); and whether (5) the offense
committed by the confederate was a natural and probable consequence of the target
crime(s) that the defendant encouraged or facilitated.” (Prettyman, supra, 14 Cal.4th at
p. 271.)
Here, the trial court’s instructions encompassed each of these five aspects of the
natural and probable consequences doctrine.11 Thus, the instructions did not withdraw an
11 The jury was further instructed that, “One who aids and abets another in the
commission of a crime or crimes is not only guilty of that crime but is also guilty of any
other crime committed by a principal which is the natural and probable consequence of
the crimes originally aided and abetted.” (CALJIC No. 3.02.) And, “In determining
whether a consequence is ‘natural and probable,’ you must apply an objective test, based
not on what the defendant actually intended, but on what a person of reasonable and
ordinary prudence would have expected likely to occur. The issue is to be decided in
light of all the circumstances surrounding the incident. A ‘natural’ consequence is one
which is within the normal range of outcomes that may be reasonably expected to occur
[footnote continued on next page]

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element of an offense from the jury’s codetermination. (Prettyman, supra, 14 Cal.4th at
pp. 271-272.) Instead, the instructions were somewhat ambiguous because they left open
the possibility that the jury might engage in unguided speculation concerning what
specific target offenses underlay Nieblas’s alleged liability for the assaults in counts 3
and 9. (Id. at p. 272.)
In reviewing an ambiguous instruction that does not withdraw an element of an
offense from the jury’s consideration, “‘we inquire “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way” that violates the
Constitution.’” (Prettyman, supra, at p. 272, citing Estelle v. McGuire (1991) 502 U.S.
62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) And here, it is not reasonably likely that the
jury misapplied CALJIC No. 3.02 or the natural and probable consequences doctrine in
finding Nieblas guilty on counts 3 and 9.
First, it was clear from the facts surrounding the crimes that the unlawful driving
of the Avalanche (count 1) and felony evading in the Avalanche (count 4) were the target
offenses underlying the assault on Osterthaler with the Avalanche (count 3), and that the
carjacking (count 5) was the target offense underlying the assault on Michael Jr. with the
[footnote continued from previous page]
if nothing unusual has intervened. ‘Probable ‘ means likely to happen. [¶] You are not
required to unanimously agree as to which originally contemplated crime the defendant
aided and abetted as long as you’re satisfied beyond a reasonable doubt and unanimously
agree that the defendant aided and abetted the commission of an identified and defined
target crime and that the crime alleged were [sic] the natural and probable consequence of
the commission of that target crime.” (Ibid.) The jury was also instructed that mere
presence at the scene of a crime and mere knowledge that a crime is being committed do
not amount to aiding and abetting. (CALJIC No. 3.01.)

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Dodge truck (count 9). Indeed, defendants were in the process of unlawfully driving the
Avalanche and evading police in the Avalanche when Santacruz assaulted Osterthaler
with the Avalanche. And they were in the process of committing the carjacking when
Santacruz assaulted Michael Jr. with the Dodge truck.
The prosecutor also made it clear to the jury that unlawful driving was one of the
target offenses underlying count 3. In closing argument, the prosecutor asked the jury,
“Is it a natural and probable consequence of riding in a stolen car [the Avalanche] that the
driver would attempt to run over a police officer in an effort to get away?”
For these reasons, it is not reasonably likely that the jury was confused or engaged
in “unguided speculation” regarding other possible target offenses underlying the assaults
on Osterthaler or Michael Jr. For the same reasons, it is not reasonably probable that the
outcome of the trial would have been any different had the error not occurred. (See
Prettyman, supra, 14 Cal.4th at pp. 270-274 [applying Watson12 standard of review to
failure to instruct on alleged target offense of burglary].)
D. The Natural and Probable Consequences Doctrine Did Not Violate Defendants’ Due
Process Rights
Santacruz contends that the natural and probable consequences doctrine violated
his right to due process of law, because it allowed the jury to find him criminally liable
for child abuse of Michael Jr. based on his mere negligence, even though his direct
liability for the crime requires a more culpable mental state. Nieblas joins this contention
12 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

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relative to his aggravated assault convictions in counts 3 (Osterthaler) and 9 (Michael
Jr.), without further argument.
The same due process challenge to the natural and probable consequences doctrine
was raised and rejected in People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108
(Coffman). There, one of the defendants, Coffman, was convicted of murder, and the
jury was instructed on the natural and probable consequences doctrine relative to the
charged offense of murder. (Id. at pp. 16, 106, 108.) In rejecting Coffman’s due process
claim, the court reasoned that, “Liability as an aider and abettor requires knowledge that
the perpetrator intends to commit a criminal act together with the intent to encourage or
facilitate such act; in a case in which an offense that the perpetrator actually commits is
different from the originally intended crime, the natural and probable consequences
doctrine limits liability to those offenses that are reasonably foreseeable consequences of
the act originally aided and abetted.” (Id. at p. 108.)
We are bound by Coffman (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455); accordingly, we reject defendants’ identical due process claims.
Furthermore, the Coffman court implicitly reasoned that the liability of an aider and
abettor under the natural and probable consequences doctrine is predicated on much more
than mere negligence; it is also predicated on the aider and abettor’s intentional act of
aiding, facilitating, or encouraging a direct perpetrator’s commission of a target offense,
with knowledge of the direct perpetrator’s criminal purpose. (Coffman, supra, 34 Cal.4th
at p. 108; see also Prettyman, supra, 14 Cal.4th at p. 261.)

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As Santacruz points out, the jury in Coffman necessarily found that the defendant
intended to kill based on special circumstance findings. (Coffman, supra, 34 Cal.4th at p.
106; CALJIC No. 8.81.17.) This fact, however, does not change our conclusion.
Regardless of whether the jury had found that Coffman intended to kill, it could have
convicted her of murder based on her liability as an aider and abettor under the natural
and probable consequences doctrine.
E. Defendants’ Felony Evading Convictions (Counts 4 and 7) Were Not Based on an
Impermissible Presumption Affecting the Prosecution’s Burden of Proof
Santacruz claims the statute on felony evading, Vehicle Code section 2800.2,
contains an impermissible “mandatory presumption” on the “willful or wanton disregard”
element of the offense, in violation of his due process right to have the jury determine the
element of the offense. Nieblas joins this claim without further argument. We do not
agree.
The same argument defendants raise here has been considered and rejected by the
Second, Third, and Fifth District Courts of Appeal. (People v. Pinkston (2003) 112
Cal.App.4th 387 [Second District]; People v. Williams (2005) 130 Cal.App.4th 1440
[Third District]; People v. Laughlin (2006) 137 Cal.App.4th 1020 [Fifth District]; see
also People v. Mutuma (2006) 144 Cal.App.4th 635 [Fifth District].) For the reasons
explained in these opinions, we reject defendants’ claims.

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It is a misdemeanor to attempt to evade a uniformed peace officer in a marked
patrol car with its lights and sirens activated. (Veh. Code, § 2800.1, subd. (a).)13 It is an
alternate misdemeanor felony if the evader drives with “willful or wanton disregard for
the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a).)14 Here, Nieblas and
Santacruz were charged and convicted of two counts of felony evading. (Ibid.; counts 4
and 7.)
Subdivision (b) of Vehicle Code section 2800.2, the statute in issue here, states:
“For purposes of this section, a willful or wanton disregard for the safety of persons or
property includes, but is not limited to, driving while fleeing or attempting to elude a
pursuing peace officer during which time either three or more violations that are assigned
a traffic violation point count under [Vehicle Code] Section 12810 occur, or damage to
13 Vehicle Code section 2800.1, subdivision (a) provides: “Any person who,
while operating a motor vehicle and with the intent to evade, willfully flees or otherwise
attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor . . .
if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is
exhibiting at least one lighted red lamp visible from the front and the person either sees or
reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is
sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor
vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by
a peace officer . . . and that peace officer is wearing a distinctive uniform.”
14 Vehicle Code section 2800.2, subdivision (a) provides: “If a person flees or
attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued
vehicle is driven in a willful or wanton disregard for the safety of persons or property, the
person driving the vehicle, upon conviction, shall be punished by imprisonment in the
state prison, or by confinement in the county jail for not less than six months nor more
than one year. . . .”

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property occurs.” The jury was given CALJIC No. 12.85, which set forth the statutory
definition of “willful or wanton disregard.”15
Defendants argue that subdivision (b) of Vehicle Code section 2800.2 contains a
constitutionally impermissible “mandatory presumption.” They argue that the statute and
the instruction reflecting it, CALJIC No. 12.85, lessened the prosecution’s burden of
proof on the “willful or wanton disregard” element of felony evading, because it required
the jury to infer “willful or wanton disregard” based on three or more traffic point
violations.
“A mandatory presumption tells the trier of fact that if a specified predicate fact
has been proved, the trier of fact must find that a specified factual element of the charge
has been proved, unless the defendant has come forward with evidence to rebut the
presumed connection between the two facts. [Citations.] In criminal cases, a mandatory
presumption offends constitutional principles of due process of law because it relieves the
prosecutor from having to prove each element of the offense beyond a reasonable doubt.
[Citations.]” (People v. Williams, supra, 130 Cal.App.4th at pp. 1444-1445.)
15 As pertinent here, CALJIC No. 12.85 told the jury: “A willful or wanton
disregard for the safety of persons or property also includes, but is not limited to, driving
while fleeing or attempting to elude a pursuing peace officer during which time the
person driving commits three or more Vehicle Code violations, such as failing to stop in
the event of an accident, reckless driving, excessive speed, unsafe lane change or damage
to property occurs. [¶] ‘Willful or wanton’ means an act or acts intentionally performed
with a conscious disregard for the safety of persons or property. It does not necessarily
include an intent to injure.”

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Vehicle Code section 2800.2, subdivision (b), however, does not contain a
mandatory rebuttable presumption. Rather, “it sets out the Legislature’s definition of
what qualifies as willful and wanton conduct . . . [and] establishes a rule of substantive
law . . . .” (People v. Pinkston, supra, 112 Cal.App.4th at p. 392; accord, People v.
Williams, supra, 130 Cal.App.4th at pp. 1445-1446, People v. Mutuma, supra, 144
Cal.App.4th at p. 641, and People v. Laughlin, supra, 137 Cal.App.4th at p. 1025.) “A
rule of substantive law defines in precise terms conduct that establishes an element of an
offense as a matter of law. [Citation.] There is no presumption and there is nothing to
rebut.” (Id. at p. 1026.)
In other words, Vehicle Code section 2800.2, subdivision (b) does not lessen the
prosecution’s burden of proving the element of “willful or wanton disregard.” Instead, it
defines one way the element can be proved as a matter of law -- that is, by proof of three
or more violations that are assigned a traffic point count. (See People v. Pinkston, supra,
112 Cal.App.4th at pp. 392-393.) “Three point violations are willful and wanton
disregard by definition, so there is nothing other than their existence for the jury to find.”
(People v. Mutuma, supra, 144 Cal.App.4th at p. 641.)
Although three or more point violations do not necessarily compel the conclusion
that a defendant acted with a willful or wanton disregard for the safety of persons or
property, “as that term has traditionally been defined,” Vehicle Code section 2800.2,
subdivision (b) has “greatly expanded the meaning of the phrase ‘willful or wanton
disregard for the safety of persons or property’ to include conduct that ordinarily would
not be considered particularly dangerous.” (People v. Laughlin, supra, 137 Cal.App.4th

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at p. 1025, italics added, citing People v. Howard (2005) 34 Cal.4th 1129, 1138 [felony
evading is not an inherently dangerous felony for purposes of second degree felony-
murder rule].) We therefore reject defendants’ claims that Vehicle Code section 2800.2,
subdivision (b) and the instruction reflecting it, CALJIC No. 12.85, lessened the
prosecution’s burden of proof on the “willful or wanton disregard” element of the felony
evading counts.
F. The Trial Court Did Not Have a Duty to Instruct on the Defense of Accident
Nieblas was convicted of aiding and abetting Santacruz’s assaults upon Osterthaler
and Michael Jr., respectively, with the Avalanche and Dodge truck (counts 3 and 9).
Relative to these counts, he contends the trial court prejudicially erred in failing to give,
on its own motion, a modified version of CALJIC No. 4.45 on the defense of accident.
He did not request any form of the instruction.16 We conclude there was no duty to give
the instruction sua sponte.
A trial court must instruct sua sponte on defenses, but only if there is substantial
evidence to support the defense and the defense is not inconsistent with the defendant’s
theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The defense of
16 In its standard form, CALJIC No. 4.45 reads: “When a person commits an act
or makes an omission through misfortune or by accident under circumstances that show
[no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she]
does not thereby commit a crime.” But when, as here, the charged crimes are general
intent crimes, the reference to criminal negligence in CALJIC No. 4.45 should be deleted.
(People v. Lara (1996) 44 Cal.App.4th 102, 110.) Thus, Nieblas argues, the instruction
should have been modified to read: “‘When a person commits an act through misfortune
or accident under circumstances that show no criminal intent or purpose, he does not
thereby commit a crime.’”

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accident, as reflected in CALJIC No. 4.45, is based on section 26, which provides, in
pertinent part, “All persons are capable of committing crimes except those belonging to
the following classes: [¶] . . . [¶] Five—Persons who committed the act or made the
omission charged through misfortune or by accident, when it appears that there was no
evil design, intention, or culpable negligence.”
It is important to remember that Nieblas’s liability for the assaults in counts 3 and
9 was based on the prosecution’s theory that the assaults were a natural and probable
consequence of Nieblas’s aiding and abetting Santacruz’s unlawful driving and felony
evading (relative to the assault on Osterthaler) and carjacking (relative to the assault on
Michael, Jr.). There was no evidence that Nieblas aided and abetted the underlying
crimes of unlawful driving, felony evading, or carjacking, by accident. Nor is it a
defense that the assaults occurred by accident. The proper defense or argument would be
that the assaults were not reasonably foreseeable or were not natural and probable
consequences of the underlying target crimes, in view of all of the circumstances.
(Prettyman, supra, 14 Cal.4th at p. 261.)
Indeed, Nieblas’s newly discovered defense of accident is based on the remarks of
Santacruz’s counsel during closing argument that the assault upon Osterthaler happened
“really fast,” and that Santacruz did not realize he nearly hit Michael Jr. because the
boy’s head could barely be seen above the truck bed. These arguments, and the evidence
supporting them, effectively constituted a defense that the assaults were not reasonably
foreseeable, or were not natural and probable consequences of the underlying target

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crimes. In sum, there was no duty to instruct on the defense of accident, because there
was no evidence to support the defense.
G. The Trial Court Did Not Coerce the Jury’s Verdict
Santacruz claims the trial court coerced several of the verdicts by rereading
CALJIC No. 17.41 during deliberations. Nieblas joins this contention without further
argument. We find it without merit.
1. Background
During the second full day of deliberations and after the jury had been deliberating
for nearly five hours, the jury foreperson sent a note to the court listing, by number,
several complaints about the conduct of one of the jurors. In the note, the foreperson
indicated the juror did not appear to be impartial, refused to follow the law and
instructions, and was steadfastly holding to her views while refusing to consider the
views of the other jurors. After conferring with counsel, the court discussed the matter
with the foreperson outside the presence of the other jurors. The following exchange
occurred:
“THE COURT: Would you please take your seat up here? [¶] I got a note and
it’s one that concerns us.
“THE JURY FOREPERSON: Yes.
“THE COURT: What I would like to do is go number by number [in your note]
and just kind of get an idea of what it is that you’re talking about.
“THE JURY FOREPERSON: Okay.

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“THE COURT: All right. [Reading the note,] ‘One juror does not seem to be able
to be impartial by way of actions. Example, calling the defendants ‘kids,’ ‘teenagers,’
and making statements like the [district attorney] is piling on charges to these kids.’
“Now, the one thing that I want to point out is that every juror is entitled to their
own opinion.
“THE JURY FOREPERSON: Right.
“THE COURT: I don’t know that No. 1 in and of itself is -- is that the extent of
that number?
“THE JURY FOREPERSON: That’s the extent of . . . No. 1.
“THE COURT: Okay. Now, No. 2 says: ‘Using conjecture and scenarios not
following the jury instructions. Example, not willing to follow the law as stated.’ [¶]
Now, that one really concerns me.
“THE JURY FOREPERSON: Yeah.
“THE COURT: Can you give me an example of how this person is not following
the law?
“THE JURY FOREPERSON: This is what the other jurors were saying, because
this person is coming up with different scenarios than what we heard from the jury box of
what was happening.
“How do I explain that one? That’s a good one. They’re stating that, Well, one
person was completely innocent of all charges and just a passenger, and we should just
give it to the other person. Or that person will agree that that person needs to be charged

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with all the charges; that aiding and abetting is not -- that nothing else is coming into
play. And she’s using her personal opinion against the witnesses. Does that make sense?
“THE COURT: Well, it does but it depends on what the opinion is. Is it an
opinion from her own experience? Is it an opinion -- is it just her opinion that she’s
stating? Is it something that somebody told her to say?
“THE JURY FOREPERSON: We’re not sure. I believe that it’s coming from her
own personal belief, and as the other jurors were stating to me -- there’s about four of
them that came to me. [¶] . . . [¶]
“THE JURY FOREPERSON: And as far as following the law, we’ve had it stated
to us or stated outright. We’ve read it from the jury thing and it’s pretty self-explanatory
in there, and she’s like, Nope. And that’s it. And she’s arguing with everyone else.
“THE COURT: Is it a situation where you guys are talking about facts, talking
about the law, and she’s basically crossing her hands and saying, I’m not going to
deliberate?
“THE JURY FOREPERSON: Yes.
“THE COURT: All right.
“No. 3: ‘Labeling witnesses, making derogatory remarks, doubting the integrity of
witnesses.’
“Again, everybody is entitled to their opinion.
“THE JURY FOREPERSON: Yeah.

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“THE COURT: And I’m not sure that -- I mean, they shouldn’t be making
derogatory opinions about anybody, I don’t think, but that’s my own personal, opinion,
okay?
“THE JURY FOREPERSON: Yeah.
“THE COURT: But certainly jurors are entitled to do that.
“THE JURY FOREPERSON: Okay.
“THE COURT: So I don’t know that [No.] 3 in and of itself is that bad.
“THE JURY FOREPERSON: No. Just she was calling certain witnesses chubby
and things like this. And it was --
“THE COURT: Child what?
“THE JURY FOREPERSON: Chubby.
“THE COURT: Oh, chubby.
“THE JURY FOREPERSON: Yeah. It just causes a little more dissention in
there, and we didn’t -- I don’t feel that that’s appropriate, you know. [¶] . . . [¶]
“THE COURT: No. 4 is: ‘Causing disruption and delays in the jury room, not
allowing others to speak.’
“What do you mean by that?
“THE JURY FOREPERSON: She just is pushing her point over and over and
over again, the same arguing with everyone, arguing with everyone and constantly just
sitting there going, No. I will not do it. This is what it is, and saying the same thing over
and over again. And it’s causing more and more delays because we can’t get a word in
edgewise with her.

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“THE COURT: When she says that is she referring to a jury instruction that she’s
relying on or just her own personal feeling?
“THE JURY FOREPERSON: A jury instruction. We are reading the jury
instructions and then she -- it’s her own opinion that she is applying to this.
“THE COURT: Okay. Is there anything else while we’re out here that you would
like to tell me about this situation?
“THE JURY FOREPERSON: I just -- I think that she is a little bit biased on some
things, on the defendants almost.
“THE COURT: Is it bias based on a personal feeling or experience, or is it a bias
based on her interpretation of the law and the facts?
“THE JURY FOREPERSON: Her interpretation of the law and the facts.”
Following this discussion, the trial court held a conference with the prosecutor and
defense counsel. Thereafter, the jury was called back into the courtroom, the court reread
CALJIC No. 17.41 to the jury, and directed the jurors to continue with their deliberations.
As Santacruz points out, CALJIC No. 17.41 was reread to the jury at 2:08 p.m. on
September 22, 2005. On the preceding day, September 21, the foreperson signed the
verdict forms on counts 1 (unlawful driving) and 5 (carjacking), finding both defendants
guilty on these counts. Also on September 21, the jury found true the allegation that both
defendants personally used knives in count 5.
But the verdict forms finding defendants guilty on counts 4, 7, 8, 9, and 10, and
Nieblas’s personal use finding on count 8 were signed on September 22 or 23.

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Defendants argue that the verdicts signed on September 22 and 23 were coerced, because
they were reached after the court reread CALJIC No. 17.41.
2. Applicable Law
Section 1140 provides: “Except as provided by law, the jury cannot be discharged
after the cause is submitted to them until they have agreed upon their verdict and
rendered it in open court, unless by consent of both parties, entered upon the minutes, or
unless, at the expiration of such time as the court may deem proper, it satisfactorily
appears that there is no reasonable probability that the jury can agree.”
“The determination whether there is a reasonable probability of agreement rests
within the sound discretion of the trial court. [Citation.] ‘Although the court must take
care to exercise its power without coercing the jury into abdicating its independent
judgment in favor of considerations of compromise and expediency [citation], the court
may direct further deliberations upon its reasonable conclusion that such direction would
be perceived “‘as a means of enabling the jurors to enhance their understanding of the
case rather than as mere pressure to reach a verdict on the basis of matters already
discussed and considered.’”’ [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 363-
364.)

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3. Analysis
Defendants contend that the rereading of CALJIC No. 17.4117 after deliberations
had already begun “was almost certainly perceived as coercive by the minority juror, who
must have known that the comments were directed at her.” They also argue “it cannot be
doubted that her fellow jurors used the instruction to encourage, cajole or harass her into
changing her views” to conform to the majority’s views. We disagree.
Under the circumstances presented here, the trial court reasonably concluded that
rereading CALJIC No. 17.41 after only five hours of deliberations would better enable
the jurors to communicate with each other. Nor would a reasonable juror in the minority
juror’s position have understood the instruction as coercive. Indeed, although the
minority juror may have perceived that the instruction was directed at her, the instruction
in no way suggested that she should change her views to conform to the majority’s views.
Nor was there anything in the instruction that permitted the majority jurors to “cajole” or
“pressure” the minority juror into changing her views.
Although defendants acknowledge that CALJIC No. 17.41 “is not coercive in the
abstract,” they maintain it was coercive simply because it was reread after deliberations
had already begun. Not so. The instruction itself stated, “The attitude and conduct of
17 As originally given and as reread to the jury, CALJIC No. 17.41 stated: “The
attitude and conduct of jurors at all times are very important. It is rarely helpful for a
juror at the beginning of deliberations to express an emphatic opinion on the case or to
announce a determination to stand for a certain verdict. When one does that at the outset,
a sense of pride may be aroused, and one may hesitate to change an opinion even if
shown it is wrong. Remember that you are not partisans or advocates in this matter. You
are impartial judges of the facts.”

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jurors at all times are very important. It is rarely helpful for a juror at the beginning of
deliberations to express an emphatic opinion on the case or to announce a determination
to stand for a certain verdict. When one does that at the outset, a sense of pride may be
aroused, and one may hesitate to change a position even if shown it is wrong. . . .”
(Italics added.) There was nothing inappropriate about rereading the instruction after
only five hours of deliberations.
Defendants further argue that the rereading of CALJIC No. 17.41 would not have
been perceived as coercive if the court had also reread CALJIC No. 17.40. The latter
instruction would have reminded the jury that, “The People and the defendant are entitled
to the individual opinion of each juror,” and the jurors should “not decide any question in
a particular way because a majority of the jurors, or any of them, favor that decision.”
Although it would have also been appropriate to reread CALJIC No. 17.40, the fact it was
not reread does not support defendants’ argument that rereading CALJIC No. 17.41, by
itself, was error.
H. The Limited Cross-examination of Osterthaler
On direct examination, Osterthaler testified he had to “jump” into his police
vehicle to avoid being struck by the Avalanche as it backed out of the realty parking lot.
On cross-examination, Santacruz’s counsel asked Osterthaler his age. The prosecutor
objected on relevance grounds. At sidebar, counsel explained that Osterthaler’s age and
weight were relevant to impeach “the believability of his story” that he was agile enough
to “jump” to avoid being struck by the Avalanche. The court sustained the objection

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under Evidence Code section 352, on the ground “the undue consumption of time will
outweigh the [probative] value [of the evidence].”
Santacruz claims the trial court abused its discretion in excluding the evidence of
Osterthaler’s age and weight under Evidence Code section 352. He further claims the
exclusion of the evidence violates his due process right to present relevant defense
evidence, and his Sixth Amendment right to confrontation. Nieblas joins the former
argument, without further argument.
1. Applicable Law
Under Evidence Code section 352, a trial court has discretion to exclude evidence
“if its probative value is substantially outweighed by the probability that admission will
unduly consume time . . . .” (People v. Mincey (1992) 2 Cal.4th 408, 439.) On appeal,
the court’s exercise of discretion will not be reversed absent a clear showing of abuse.
(Ibid.)
And, even though “‘Evidence Code section 352 must bow to the due process right
of a defendant to a fair trial and to his right to present all relevant evidence of significant
probative value to his defense’ . . . the proffered evidence must be ‘competent, substantial
and significant.’ . . .” (People v. De Larco (1983) 142 Cal.App.3d 294, 305.) Thus, the
exclusion of defense evidence under Evidence Code section 352 ordinarily “does not
impermissibly infringe on a defendant’s right to present a defense.” (People v. Mincey,
supra, 2 Cal.4th at p. 440.)
Nor will the exclusion of impeachment evidence under Evidence Code section 352
violate the confrontation clause “unless a reasonable jury might have received a

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significantly different impression of the witness’s credibility had the excluded cross-
examination been permitted. [Citations.]” (People v. Quartermain (1997) 16 Cal.4th
600, 623-624.)
2. Analysis
Osterthaler’s testimony was the only evidence presented in support of the charge
in count 3 of assault with a deadly weapon. Evidence of Osterthaler’s age and weight
was of some probative value on the issue of whether he was telling the truth when he
testified he had to “jump” out of the way of the Avalanche as Santacruz was backing it
out of the realty parking lot. Even so, the jury was able to observe Osterthaler and assess
whether he was agile enough to, as he put it, “jump” out of the way of the Avalanche.
Moreover, defense counsel fully explored the precise location of Osterthaler and his
patrol vehicle in relation to the Avalanche at the time of the alleged assault. Indeed, the
trial court implicitly and reasonably concluded that asking Osterthaler his age and weight
would have distracted the jurors and confused the issues.
But even if the trial court abused its discretion in excluding the evidence of
Osterthaler’s age and weight under Evidence Code section 352, it is not reasonably
probable that the error affected the outcome. (Watson, supra, 46 Cal.2d at p. 836.) For
the same reasons, the exclusion of the evidence did not violate defendants’ rights to
present a defense. Nor would the jury have received a significantly different impression
of Osterthaler’s credibility had the evidence been admitted; thus, the exclusion of the
evidence did not violate defendants’ confrontation rights.

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I. The Trial Court Properly Refused to Stay Defendants’ Sentences for Felony Evading
in the Avalanche (Count 4)
Defendants were convicted of felony evading based on their evading police in the
Avalanche (count 4). They were each sentenced to eight months (one-third the midterm)
on count 4, plus a consecutive one-year term (one-third the midterm) for assaulting
Osterthaler with the Avalanche (count 3).
Santacruz contends the trial court erroneously failed to stay his sentence on count
4, on the grounds the assault upon Osterthaler with the Avalanche and the felony evading
in the Avalanche were part of a continuous course of conduct in which he harbored the
single intent and objective of evading the police. Nieblas joins this claim without further
argument. We find it without merit.
1. Applicable Law
“Section 654 [18] precludes multiple punishments for a single act or indivisible
course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) The
purpose of section 654 is to prevent multiple punishment for a single act or omission, or
indivisible course of conduct, even though that act or omission or indivisible course of
conduct violates more than one statute and thus constitutes more than one crime. (People
v. Harrison (1989) 48 Cal.3d 321, 335; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
18 Section 654, subdivision (a) provides: “An act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”

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Section 654 is intended to ensure that a defendant’s punishment is “commensurate with
his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
“It is defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48
Cal.3d at p. 335.) If the defendant’s crimes “were merely incidental to, or were the
means of accomplishing or facilitating one objective, [the] defendant may be found to
have harbored a single intent and therefore may be punished only once.” (Ibid., citing
Neal v. State of California (1960) 55 Cal.2d 11, 19.) Multiple punishment is proper,
however, where the defendant entertained multiple criminal objectives which were
independent of each other. (People v. Harrison, supra, at p. 335, citing People v.
Beamon (1973) 8 Cal.3d 625, 639.)
“‘“The defendant’s intent and objective are factual questions for the trial court; . . .
there must be evidence to support a finding the defendant formed a separate intent and
objective for each offense for which he was sentenced. . . .”’” (People v. Green (1996)
50 Cal.App.4th 1076, 1085, citations omitted.) An implied finding that the crimes were
divisible must be upheld on appeal if substantial evidence supports it. (People v. Blake
(1998) 68 Cal.App.4th 509, 512.) Where, however, the relevant facts are undisputed, the
application of section 654 is a question of law. (Neal v. State of California, supra, 55
Cal.2d at p. 17.)
2. Analysis
On this record, substantial evidence supports the trial court’s implicit finding that
defendants harbored separate criminal objectives in evading the police in the Avalanche

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and in assaulting Osterthaler with the Avalanche. Osterthaler testified that the driver of
the Avalanche, Santacruz, could have exited the realty parking lot by driving straight
ahead rather than by backing up and nearly striking him and his patrol vehicle. In
Osterthaler’s opinion, Santacruz was either trying to strike him personally or trying to
strike his vehicle and disable it so he could escape. But neither of these objectives was
necessary to facilitate the escape. In other words, Santacruz did not have to attempt or
risk striking Osterthaler or his patrol vehicle in order to escape in the Avalanche. Thus,
the trial court could have reasonably concluded defendants harbored a separate intent and
objective in assaulting Osterthaler in the Avalanche (count 3) and in evading police in the
Avalanche (count 4).
J. Defendant’s Claims of Sentencing Error
Santacruz was sentenced to an aggregate term of 17 years 4 months; Nieblas to 18
years 8 months. Both defendants were sentenced to the upper base term of nine years for
their carjacking convictions in count 5. (§ 215, subd. (b).) In addition, both defendants
were sentenced to the upper term of three years for their personal use enhancements on
count 5. (§ 12022, subd. (b)(2).) Nieblas’s sentence also includes a one-year term for his
having served a prior prison term within the meaning of section 667.5.
Defendants claim their upper term sentences on count 5 (their nine-year base terms
and their three-year personal use enhancement terms) must be reduced to the middle
terms of five and two years, respectively, in light of the United States Supreme Court’s
recent decision in Cunningham, supra, 127 S.Ct. 856 (imposition of upper term sentence
based on facts found by judge under California’s determinate sentencing law (DSL)

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violates Sixth and Fourteenth Amendment right to jury trial). Defendants further argue
that the matter must not be remanded for resentencing; rather, this court must reduce their
sentences to the middle terms, because there is no provision under California law for a
jury trial on factors in aggravation.
For the reasons explained below, we conclude that the trial court did not violate
Cunningham in sentencing Santacruz to the upper base term on count 5, because, as
Santacruz acknowledges, the trial court based its selection of this upper term on the fact
that Santacruz was on probation at the time of the carjacking. (Cal. Rules of Court, rule
4.421(b)(4).)19 As we explain, this falls within the “recidivism exception” to a
defendant’s constitutional right to a jury trial on factors in aggravation, or factors that
increase a sentence beyond the statutory maximum. (People v. McGee (2006) 38 Cal.4th
682, 709 (McGee).) However, we reduce the term imposed for Santacruz’s personal use
enhancement on count 5 from three years to two years, because it is also clear from the
record that this upper term sentence was not based on any recidivism exception, separate
and apart from the fact that Santacruz was on probation. (§ 1170, subd. (b); rule 4.420(c)
[prohibiting dual use of factors in imposing upper base term and enhancement term].)
We remand this matter with directions to resentence Nieblas, because it is clear
from the record that the trial court impermissibly based its selection of his upper base
term on count 5 on the fact that Nieblas had served a prior prison term (rule 4.421(b)(3)),
the same factor it used to impose the one-year term for the prison prior (§ 667.5). This
19 All further references to rules are to the California Rules of Court.

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was an impermissible dual use of factors. (§ 1170, subd. (b); rule 4.420(c).)
Furthermore, it is unclear from the record whether the court would have sentenced
Nieblas to both upper terms, based on its finding that Nieblas had a prior conviction and
its separate finding that Nieblas had served a prior prison term. For these reasons, the
matter must be remanded to the trial court with directions to exercise its discretion in
resentencing Nieblas, based on the fact of his prior conviction and his prison prior.
1. Santacruz’s Upper Base Term Sentence of Nine Years on Count 5 Was
Properly Imposed, But His Upper Term of Three Years for the Personal Use
Enhancement on Count 5 Must Be Reduced to the Middle Term
The People argue that, because Santacruz’s upper base term sentence was based
on the court’s finding that he was on probation at the time he committed the carjacking, it
falls (rule 4.421(b)(4)) under the Almendarez-Torres20 or “recidivism exception” to the
Apprendi21 rule, upon which Cunningham is based. We agree, because the record clearly
indicates that Santacruz’s upper term sentence was based on the fact that he was on
probation. This falls under the recidivism exception. We therefore uphold Santacruz’s
upper term sentence on count 5.
20 Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140
L.Ed.2d 350] (Almendarez-Torres).
21 Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [120 S.Ct. 2348, 147
L.Ed.2d 435] (Apprendi) (other than the fact of a prior conviction, any fact used to
increase the maximum penalty for a crime must be submitted to a jury and found true
beyond a reasonable doubt).

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The Almendarez-Torres or recidivism exception clearly applies to the “fact” of a
prior conviction. (Apprendi, supra, 530 U.S. at p. 590; Almendarez-Torres, supra, 523
U.S. 224, 226, 228.) And, as the People point out, various courts, including the
California Supreme Court, have recognized that the Almendarez-Torres exception applies
not only to the mere fact of a defendant’s prior conviction, but more broadly to “matters
relating to recidivism.” (McGee, supra, 38 Cal.4th at pp. 700-706, citing and discussing
People v. Thomas (2001) 91 Cal.App.4th 212, 216-223, and decisions from other
jurisdictions.)
As these courts have observed, matters relating to recidivism are unrelated to the
elements of the crime for which the defendant is on trial, and as such do not require “full
due process treatment” or findings by a jury beyond a reasonable doubt. (See McGee,
supra, 38 Cal.4th at pp. 700-706, and cases cited.) Santacruz disagrees, arguing that the
Almendarez-Torres exception must be narrowly construed and applies only to the “mere
fact” of a prior conviction. (Shepard v. United States (2005) 544 U.S. 13, 24-26 [125
S.Ct. 1254, 161 L.Ed.2d 205].)
Indeed, the scope of the Almendarez-Torres exception has not been settled by the
United States Supreme Court. (See McGee, supra, 38 Cal.4th at pp. 707-709.) But as the
McGee court recognized, “there is a significant difference between the nature of the
inquiry and the factfinding involved in the type of sentence enhancements at issue in
Apprendi and its progeny [e.g., whether the defendant had a particular mens rea in
committing the charged crime] as compared to the nature of the inquiry involved in
examining the record of a prior conviction to determine whether that conviction

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constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute
. . . .” (McGee, supra, at p. 709.)
Thus, in McGee, the court held that the defendant was not entitled to have a jury
decide whether his Nevada robbery convictions qualified as strikes under California law.
(McGee, supra, 38 Cal.4th at p. 709.) And in Thomas, the court held that the defendant
was not entitled to a jury trial on whether he had served two prior prison terms within the
meaning of section 667.5. (People v. Thomas, supra, 91 Cal.App.4th at pp. 222-223; see
also People v. Belmares (2003) 106 Cal.App.4th 19, 28 [no right to jury trial on whether
defendant was person identified in section 969b packet as having served two prior prison
terms] and People v. Garcia (2003) 107 Cal.App.4th 1159, 1165 [same].)
As the McGee court recognized, the United States Supreme Court may, in future
decisions, extend the Apprendi rule to encompass matters related to recidivism, including,
as pertinent to Santacruz, a court’s imposition of an upper term sentence based on the
court’s finding that the defendant (Santacruz) was on probation at the time of the crime.
But until the United States Supreme Court limits or abolishes the Almendarez-Torres
exception in this manner, we are bound by the McGee decision. (Auto Equity Sales, Inc.
v. Superior Court, supra, 57 Cal.2d at p. 455.)22
22 The Sixth District Court of Appeal recently held in People v. Guess (Apr. 24,
2007, H029808) __ Cal.App.4th __ [2007 D.A.R. 5681], that a defendant “being
admitted to parole” did not fall within the recidivism or exception to the Apprendi rule,
because it involved “action by the Department of Corrections [and Rehabilitation], which
is not subject to the same ‘procedural safeguards’ or ‘reliability factors’ as a conviction.”
(Id. at [p. 5687].) Based on the reasoning set forth in McGee, we believe we are bound to
read the recidivism exception more broadly than the court did in Guess. Thus, we
[footnote continued on next page]

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It is also clear from the record, however, that the court did not rely upon a separate
and distinct recidivism exception -- apart from the fact that Santacruz was on probation --
in imposing the upper term of three years for Santacruz’s personal use enhancement on
count 5. Neither the court nor the jury found, for example, that Santacruz had a prior
conviction or had served a prior prison term. Nor could the court have permissibly relied
upon the fact that Santacruz was on probation in imposing both the upper base term on
count 5 and the upper term for the personal use enhancement on count 5, because this
would have constituted a dual use of factors in violation of section 1170, subdivision (b)
and rule 4.420(c). We therefore reduce Santacruz’s personal use enhancement term from
three years to two years.
2. Nieblas Must Be Resentenced
The People argue that Nieblas’s upper term sentence on count 5 also falls under
the recidivism exception, because it was based on Nieblas’s admission that he had served
a prior prison term at the time of the carjacking. However, as Nieblas points out, it
appears that the court may have used the same factor -- the fact of his prior prison term --
in imposing both the upper term of nine years on count 5 and a one-year term for his
prison prior. (§ 667.5.) If so, this was an impermissible dual use of factors. (§ 1170,
subd. (b); rule 4.420(c).)
[footnote continued from previous page]
conclude that the trial court’s finding that Santacruz was on probation at the time of the
carjacking fell within the recidivism or Almendarez-Torres exception to the Apprendi or
Cunningham rules.

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Alternatively, the People argue that the error in sentencing Nieblas to the upper
base term on count 5 was harmless beyond a reasonable doubt. (Washington v. Recuenco
(2006) ___ U.S. ___ [126 S.Ct. 2546, 165 L.Ed.2d 466]; People v. Sengpadychith (2001)
26 Cal.4th 316, 327.) We disagree, because we cannot discern from the record whether
the court would have imposed the upper base term of nine years on count 5, or only the
one-year prison prior, had it known it could only use the fact of Nieblas’s prison prior to
impose one term or the other, but not both. And, although the court also found that
Nieblas, like Santacruz, was on probation at the time of the carjacking, it is unclear from
the record how this affected the court’s exercise of its sentencing discretion. This factor,
in combination with the fact that Nieblas’s prior performance on probation was
unsatisfactory, may have properly served as the basis for imposing the upper term of
three years for Nieblas’s personal use enhancement on count 5 (rule 4.421(b)(4) & (5)),
but it is not clear whether it did.
V. DISPOSITION
The sentence imposed upon Santacruz for his personal use enhancement on count
5 is hereby reduced from three years to two years. The matter is remanded to the trial
court with directions to amend Santacruz’s abstract of judgment accordingly, and to
forward a copy of Santacruz’s amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment against Santacruz is
affirmed.

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The matter is remanded to the trial court with directions to exercise its discretion
in resentencing Nieblas, consistent with the reasons expressed in this opinion. In all other
respects, the judgment against Nieblas is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Miller
J.

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