THE PEOPLE, Plaintiff and Respondent, v. SERGIO DEALBA, Defendant and Appellant, 242 Cal. App. 4th 1142

Opinion EDMON, P. J. Defendant and appellant Sergio Dealba raises contentions of sufficiency of the evidence and admissibility of prior domestic violence evidence following his conviction of assault with a deadly weapon and spousal battery, with a prior serious felony conviction finding. While acknowledging the well-recognized rule that an “indirect touching” is sufficient to constitute a battery, Dealba contends there was no indirect touching here because the only thing that happened was that his car collided with another car being driven by the victim, i.e., his car did not directly touch the victim.

However, for the reasons discussed below, we conclude Dealba did commit a battery because the evidence demonstrated that the force of the collision he intentionally caused almost made the victim lose control of her car and, as a result, she had to wrestle with the steering wheel in order to keep her car on the road and avoid hitting other vehicles parked along the curb.

Although there is a dearth of California case law addressing criminal battery consisting of this type of indirect touching — one vehicle striking another without direct contact with the victim — our decision is consistent with case law from other jurisdictions which have considered the issue. The judgment is affirmed. BACKGROUND Viewed in accordance with the usual rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]), the evidence established the following.

D.D. and defendant Dealba had been married for seven or eight years before separating in late February 2012. At that time they had two children, six-year-old S.S. and four-year-old T.T. Disagreements arose between D.D. and Dealba regarding custody of the children. At the end of March or during the first week of April, D.D. pulled the children out of the school they had been attending in response to Dealba’s behavior; “He would take them out of school during the day in the middle of the day . . . and he would keep them from me. He wouldn’t let me see them.

He would threaten me that I would never see them again.” Around this time, D.D. had been trying to work out a custody arrangement with Dealba, and she was awaiting an upcoming custody hearing. 1. The charged April 2012 incident. On the morning of April 30, D.D. drove the children to a new school on 52nd Street where she hoped to enroll them. As D.D. was preparing to parallel park her Volkswagen Beetle on 52nd, which is a narrow two-way street, Dealba pulled up alongside her in a gray Mazda that belonged to one of his Mends.

When Dealba got out of the car and walked toward her, D.D. drove away because she was “afraid” and “temfied.” Dealba got back into his car, came alongside D.D. by driving in the wrong traffic lane, and began “smashing into [her] car.” D.D. testified Dealba collided with the driver’s side of her Volkswagen three or four times: “Q. Well, tell us what you mean by ‘smashing.’ “A. He was hitting my car with his car, and I was just trying to keep it straight because my kids were crying and screaming, and I was getting nervous. And there [were] kids walking on the sidewalk, and I just didn’t want to hit anybody.” “Q.

Now, when ... he was smashing his car into you, it was so hard, I think you said, you almost lost control; right? “A. Yes. “Q. And at least the third or fourth hit, it kept knocking your car over to the side; right? “A. Yes. “Q. So far to the side that it seemed like you were about to hit the parked cars that were on the right side of the road? “A. Yes.” D.D. testified she could see Dealba turning his steering wheel and trying to smash the front of his car into her car.

After the last time Dealba crashed into the Volkswagen, he collided head on with a pickup truck coming the other way in the left-hand traffic lane. Because she was afraid of taking her eyes off the road, D.D. watched the collision in her rearview mirror: “I never turned. I was afraid that if I even turned for a second, I would lose control, so I saw it through my mirrors.” Dealba’s Mazda had crashed into a vehicle being driven by Aida Arteaga, who testified she was driving on 52nd Street when she saw two cars coming toward her side by side.

The two cars “were right next to each other.” One of them was driving in the proper lane; the other was driving in Arteaga’s lane against the flow of traffic. Arteaga did not see the two cars coming at her touch each other. Arteaga testified she “hit the brakes” and came to a stop, but the car in her lane hit the front of her vehicle. Dealba remained at the accident scene, but D.D. kept driving. She called 9-1-1 and drove to a police station. D.D. testified the collision with Dealba had knocked askew her Volkswagen’s side view mirror, which was now attached to her car only by some wires.

The collision also left tire marks and scratches on the side of her car. D.D. agreed with counsel’s characterization of the Mazda as riding “higher from the ground than [her] Volkswagen.” S.S. and T.T., the couple’s children, who were sitting in the backseat of the Volkswagen during the incident, both testified they saw Dealba collide with D.D.’s car. S.S. testified the scratches on D.D.’s car had been caused when “[m]y dad tried to crash us over” with another car. S.S. testified he saw Dealba trying to crash into them, but that he did not feel anything or receive any injuries as a result of the collision.

T.T. also testified she saw Dealba crash into them, but she too did not feel anything. Los Angeles Police Officer Juan Ordaz testified he responded to the accident scene, finding two damaged vehicles; Arteaga’s Chevy S-10 pickup truck and Dealba’s gray Mazda. When Ordaz subsequently examined D.D.’s Volkswagen at the police station, he saw black marks and scratches running the entire length of the driver’s side of the car. The black marks were circular and looked like rubber marks, as if a tire had been rubbing against the side of the Volkswagen. 2. The prior domestic violence evidence. a.

The March 2012 incident involving D.D. D.D. testified that on March 2, she was in the car with Dealba and their children. She was sitting in the front passenger seat and Dealba was driving. At this time, D.D. and Dealba were in the middle of working out their separation. D.D. testified she “was trying to make some kind of agreement [regarding visitation], but he was reluctant.” D.D. testified they argued about Dealba “trying to keep the kids. He was threatening that I would never see the kids again if I didn’t get back with him. He was grabbing me, and he was pulling my hair, and he was holding me down.

And he threw me out of the car while it was moving.” While guiding the steering wheel with his knee, Dealba had held her down with his right hand and unbuckled her seat belt with his left hand. Then he opened the door and threw her out of the car while it was still moving at 15 to 20 miles per hour. D.D. fell to the ground, rolled over a couple of times and then jumped up. She was running toward the Inglewood Police Station when she flagged down a passing patrol car. She reported the incident to officers who later photographed the marks on her arms and wrists made by Dealba holding her down.

D.D. was afraid Dealba would kill her and hurt the children. Police Officer Frederick Osorio testified he observed D.D.’s injuries: “there were markings, redness on her wrists.” S.S. and T.T. both testified they saw Dealba push D.D. out of the car. b. The February 2002 prior incident involving Martha A. In 2002, Dealba was married to Martha A. At the instant trial, Martha testified as follows: She and Dealba divorced sometime in 2002 or in 2003.

On February 10, 2002, they were living together in an apartment when an argument erupted during which they hit each other and Dealba whipped Martha one time with a leather belt. Martha could not recall having sustained any injuries, but acknowledged she might have shown police officers some bruising on her arms and legs caused by the belt. Martha’s sister and her sister’s children were present in the apartment when this incident occurred. Dealba, Martha and Martha’s sister then got into the car because Martha’s sister needed a ride home.

Dealba, who was driving, stopped at a friend’s house, leaving the others in the car after locking the doors and activating the car alarm. After a while, Martha opened the car door, setting off the alarm. Dealba returned to the vehicle and they argued. When Martha said she was going to leave him, Dealba got upset. Martha’s sister intervened and also argued with Dealba. Martha did not recall having told the police that Dealba retrieved a gun and threatened her with it, but she did remember that he told her to get back in the car or he would kill both her and her sister.

Martha testified she was not now afraid of Dealba and she denied having told the prosecutor otherwise. District attorney investigator Jennifer Dubois testified she was present when Martha spoke to the prosecutor just before testifying. Martha told the prosecutor that on February 10, 2002, Dealba whipped her repeatedly and threatened her with a gun. She indicated where her arms had been bruised by the belt. Martha also told the prosecutor that she was afraid of Dealba. 3. Defense evidence. The defense did not present any evidence. 4. Trial outcome.

Dealba was convicted of assault with a deadly weapon and spousal battery, with a prior serious felony conviction finding (Pen. Code §§ 245, subd. (a)(1), 243, subd. (e)(1), 667, subds. (b)-(i)). He was sentenced to state prison for a term of eight years, consisting of the upper term of four years for the assault conviction, which was then doubled under the “Three Strikes” law. The trial court stayed sentencing on the spousal battery conviction under

section 654, which proscribes multiple punishment for a single act. CONTENTIONS Dealba contends (1) there was insufficient evidence to support his conviction of spousal battery, and (2) the trial court erred by admitting evidence that he committed domestic violence against a former spouse. DISCUSSION 1. There was sufficient evidence to sustain the spousal battery conviction. Dealba contends there was insufficient evidence to sustain his conviction of spousal battery (§ 243, subd. (e)(1)) because there was no evidence of the “touching” element of battery. We disagree. a.

Legal principles. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ’ ” (People v.

Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618].) “ ‘An appellate cotut must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [43 Cal.Rptr.3d 741].) As our Supreme Court said in People v.

Rodriguez, supra, 20 Cal.4th 1, while reversing an insufficient evidence finding because the reviewing court had rejected contrary, but equally logical, inferences the jury might have drawn: “The [Court of Appeal] majority’s reasoning . . . amounted to nothing more than a different weighing of the evidence, one the jury might well have considered and rejected. The Attorney General’s inferences from the evidence were no more inherently speculative than the majority’s; consequently, the majority .erred in substituting its own assessment of the evidence for that of the jury.” (Id. at p. 12, italics added.)

Section 242 defines a “battery” as “any willful and unlawful use of force or violence upon the person of another.” (§ 242.) “ ‘Any harmful or offensive touching constitutes an unlawful use of force or violence’ under this statute. [Citation.] ‘It has long been established that “the least touching” may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.’ [Citations.]” (People v.

Shockley (2013) 58 Cal.4th 400, 404-405 [165 Cal.Rptr.3d 497, 314 P.3d 798].) Therefore, “[o]nly a slight unprivileged touching is needed to satisfy the force requirement of a criminal battery.” (People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2 [20 Cal.Rptr.3d 371], disapproved on other grounds in People v.

Santana (2013) 56 Cal.4th 999, 1011, fn. 6 [157 Cal.Rptr.3d 547, 301 P.3d 1157].) “The force may be directly applied, as by punching, kicking, or tripping the victim. [Citations.] Or it may be indirectly applied, e.g., by forcing a person to jump from a window or vehicle. [Citations.]” (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 14, p. 805; see, e.g., People v.

Flores (2009) 176 Cal.App.4th 924, 931 [97 Cal.Rptr.3d 924] [battery by prisoner (§ 4501.5) was committed when defendant spat in guard’s face because “the touching can be done indirectly by causing an object to touch the other person, and ... the slightest touching can constitute a battery”]; People v.

Duchon (1958) 165 Cal.App.2d 690, 692-693 [332 P.2d 373] [defendant committed battery when he threw electric garden shears at victim, who was cut on the arm by blades of the shears and hit on the head by the handle of the shears]; see also CALCRIM No. 960 [alternative instructional language for battery elements reads: “The touching can be done indirectly by causing an object [or someone else] to touch the other person”].) b. Discussion.

Dealba acknowledges the general rule that battery can be committed indirectly by use of an object, but he contends “there was no evidence that [his] automobile caused a touching upon [D.D.].” He argues that although D.D. “testified that [he] used his car to hit her car three or four times, and that he left scratches and black marks on her car,” D.D. “did not say that any object touched her as a result of appellant using his car to hit her car. [¶] There were no dents in her car, and she did not testify that as a result of the hitting, that her car touched her.

She testified that she did not hit the cars that were parked along the street, and that she kept her hands on the steering wheel and tried to drive straight ahead. Not even the children felt the impact. Therefore, there can be no circumstantial finding that appellant caused a touching of [D.D.].” The Attorney General argues there was sufficient evidence of a touching because D.D. testified that Dealba “rammed her car with enough force that she almost lost control of her car. Each time appellant rammed D.D.’s car, it knocked her car closer to parked cars on the side of the road.

D.D. was afraid of losing control of her car and had to keep her hands on the steering wheel. [¶] Given such evidence, a reasonable trier of fact could have concluded not only that appellant’s repeated acts resulted in sufficient force to move or jostle D.D. within her car, but also that appellant’s acts caused the steering wheel, which D.D. grasped with her hands, to move, jostle, and exert force within her hands — as the collisions shoved her car closer to the side of the road and caused her to almost lose control of her car.

It was reasonable to infer that D.D. braced herself in order to maintain control of her car by keeping her hands on the steering wheel.” Dealba responds to this argument by acknowledging “[i]t is true that D.D. testified that the force of the impacts from appellant’s car caused her car to move closer and closer to the cars parked along the side of the road.

It is also true that D.D. testified she almost lost control of her car as a result of appellant hitting her car with his car, and that she had to hold onto the steering wheel tightly.[] What is missing from the record, however, is any ‘reasonable, credible, [or] solid . . .’ evidence ‘from which a rational [juror] could find [the touching element] beyond a reasonable doubt.’ ” We are not persuaded by Dealba’s argument. As he concedes, it is well established that battery can be committed indirectly, i.e., that the crime does not require a direct touching of the victim’s person by the defendant’s person.

At the same time, we have found no California cases discussing the type of indirect touching that occurred when Dealba’s vehicle struck D.D.’s vehicle without making direct contact with D.D. herself. However, at least two other state supreme courts have held that a battery can be committed in this kind of situation. In State v. Townsend (1993) 124 Idaho 881 [865 P.2d 972] (Townsend), the defendant intentionally drove his pickup truck into his wife’s car while both vehicles were traveling 30 or 35 miles per hour, forcing his wife off the road.

The Idaho Supreme Court held the defendant had committed a battery— despite not having directly touched his wife with his truck — reasoning: “[T]he willful use of force or the intentional striking of another person which is made criminal by [Idaho’s battery] statute may be committed indirectly through an intervening agency which the defendant set in motion.

Likewise, it need not be committed directly against the victim; it may be committed against anything intimately connected with the person of the victim. [Citations.] Under this view, the use of a motor vehicle to intentionally strike another occupied motor vehicle may constitute battery. [Citations.]” (Id., 865 P.2d at pp. 976-977.) Although the court’s conclusion appeared to rest solely on the proposition that the victim had been “intimately connected” to her car, Townsend relied on a different rationale in responding to the defendant’s assertion that he could not have committed battery because there was no evidence the victim had suffered any injury. (Id. at p. 976.) To that claim Townsend replied: “[W]e have little difficulty in concluding that intentionally striking a car with a pickup truck, when both vehicles are being operated at 35 miles per hour, would generate whatever physical disturbance may be implicitly required by the statute.” (Id. at p. 977, italics added.) In Clark v.

State (Fla. 2001) 783 So.2d 967 (Clark), the Florida Supreme Court applied a similar rationale where the defendant drove his truck into the victim’s stationary truck at 25 to 30 miles per hour, spinning the victim around.

Clark rejected the defendant’s argument that the court should enforce “a per se rule that the intentional striking of an automobile can never constitute the touching of the vehicle’s occupant for battery purposes unless the occupant suffers some bodily injury.” (Id. at p. 968.) Instead, Clark held that “the circumstances of the case will determine whether a vehicle is sufficiently closely connected to a person so that the striking of the vehicle would constitute a battery on the person.

Thus, this is generally a question of fact for the jury. [Citation.]” (Id. at p. 969, italics added.) Clark then went on to add: “There is sufficient connection between a vehicle and a person where there is evidence of the touching required for a battery, such as the impact of the vehicle contact ‘spun’ the occupant of the vehicle.” (Ibid.) Applying this rule, Clark held that — because the victim “was ‘spun’ about when Clark’s vehicle impacted his truck” — the evidence “certainly qualifies as intentionally touching another person for purposes of proving a simple battery.” (Ibid.) While agreeing with the majority’s conclusion that the defendant was guilty of battery, the concurring justice in Clark urged a different rationale: “I concur in the majority’s opinion, but I have difficulty with the legal issue being framed in terms of a ‘sufficient connection’ between the occupant and his or her vehicle, [citation], when the real issue is whether the victim was ‘touched’ through the force of impact by being jostled or otherwise impacted through the transference of energy from the collision.” (Clark, supra, 783 So.2d at p. 969 (cone. opn. of Pariente, J.).) We believe the concurring opinion in Clark was properly focused on the key issue raised by the facts of both Clark and Townsend: Was there evidence that the indirect impact generated by a particular vehicular collision had been sufficiently forceful to establish the “touching” element of battery?

Applying this kind of “force/impact” analysis, we conclude there was sufficient evidence to sustain Dealba’s battery conviction. The evidence amply demonstrated that it was precisely D.D.’s struggle to keep her Volkswagen from veering into the parked cars that constituted the unprivileged “touching” inflicted on her by Dealba. Dealba concedes the evidence demonstrated that in order to counteract the force generated by the colliding vehicles, D.D. had to grip the steering wheel tighter and struggle to keep the Volkswagen from crashing into cars parked along the curb.

Defense counsel essentially acknowledged this fact during closing argument by telling the jury: “According to [D.D.], he is slamming his car over and over into hers at least four times. Hit her so hard her car is getting knocked to the side where she almost loses control twice.” Further, D.D.’s testimony established that when Dealba collided with her, she had to wrestle with the steering wheel to prevent the Volkswagen from veering toward the right: “He was hitting my car with his car, and I was just trying to keep it straight....

And there [were] kids walking on the sidewalk, and I just didn’t want to hit anybody.” It was this increased force on D.D.’s hands and arms, as she was compelled to tighten her grip on the steering wheel, that constituted the “touching” element of the battery. This increased force on D.D. was caused by Dealba’s intentional act of crashing into D.D.’s car as they were driving along the street. It does not matter that D.D. already was touching the steering wheel before Dealba collided with her. If A gently places his hand on B’s shoulder with B’s permission, there is no battery.

However, if A then — without moving the position of his hand — suddenly exerts sufficient force to push B over (assuming B did not consent to being pushed), A has committed a battery although the position of his hand on B’s shoulder never changed. This is similar to what happened here, except that the force exerted by Dealba was indirect rather than direct: he drove his car into D.D.’s car, the force of which “touched” her hands and arms through the steering wheel. In sum, we conclude there was sufficient evidence to sustain Dealba’s spousal battery conviction. [[]] DISPOSITION The judgment is affirmed.

Aldrich, J., and Jones, J., concurred. Appellant’s petition for a rehearing was denied March 30, 2016, S232013. Kruger, J., did not participate therein. All further date references are to the year 2012 unless otherwise specified. Although Arteaga testified her vehicle was “totally destroyed” in the collision and had to be towed away, other evidence indicates it was towed because Arteaga had been taken to a hospital for observation and there was no one else to drive it.

At the first trial in this matter, which resulted in a hung jury, D.D. described the Mazda as “[mjore like a SUV.” Dealba went to prison for the February 2002 incident, although the jury was not informed of that fact. All further statutory references are to the Penal Code unless otherwise specified. Although we agree the only reasonable

interpretation of the evidence is that D.D. had to grasp the steering wheel “tightly,” she never used that word during her testimony. “[T]he common-law concept of ‘force’ encompasses even its indirect application. ‘Force’ in this sense ‘describ[es] one of the elements of the common-law crime of battery,’ [citation], and ‘[t]he force used’ in battery ‘need not be applied directly to the body of the victim.’ [Citation.] ‘[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance,’ such as a laser beam.” (United States v.

Castleman (2014) 572 U.S. _, _ [188 L.Ed.2d 426, 134 S.Ct. 1405, 1414-1415].) A somewhat related question was addressed in the recently decided case of In re B.L. (2015) 239 Cal.App.4th 1491 [192 Cal.Rptr.3d 154], which involved a juvenile who knocked a walkie-talkie out of a teacher’s hand. The Court of Appeal held, as a matter of first impression in California, that the juvenile had committed a battery. See footnote, ante, page 1142.