Filed 6/10/22 P. v. Olivera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BLISELDA MARIA OLIVERA,

Defendant and Appellant.

F081186

(Super. Ct. No. F18905181)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. David 

Andrew Gottlieb, Judge.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General, 

Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant 

Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

On June 11, 2018, defendant Bliselda Maria Olivera drove her vehicle at Nora O.,

1

causing Nora to jump out of the way to avoid being hit by the vehicle. A jury convicted 

defendant of assault with a deadly weapon and the trial court sentenced defendant to a 

three-year term of probation. Defendant contends on appeal that (1) the trial court 

violated her right to be personally present at trial by continuing to select the jury in her 

absence after she overslept and was five hours late for trial; (2) defense counsel was 

constitutionally ineffective when he implicitly agreed to continue jury selection in her 

absence; (3) the trial court erred in instructing the jury on assault with a deadly weapon 

by omitting reference to the term “deadly weapon”; (4) the trial court erred in failing to 

instruct the jury as to the lesser included offense of simple assault; (5) the cumulative 

impact of the instructional errors violated defendant’s right to due process; (6) the 

lifetime suspension of defendant’s driving privilege violates equal protection principles; 

(7) the trial court exceeded its authority in ordering the Department of Motor Vehicles 

(DMV) to revoke defendant’s driver’s license; (8) we should strike the electronic search 

condition imposed as part of her probation as overbroad; and (9) her term of probation 

must be modified to two years pursuant to Penal Code section 1203.1, subdivision (a),2 as 

amended by Assembly Bill No. 1950 (2019−2020 Reg. Sess.).

We shall reduce defendant’s term of probation to two years, reverse the trial 

court’s order revoking defendant’s driver’s license, and order the trial court to amend its 

May 4, 2020 minute order to delete the language: “DMV to Revoke Drivers License for 

a period of [sic] As to count(s): 001.” The trial court is directed to insert in the minute 

order a statement that defendant was convicted of a felony violation of section 245, 

1 Pursuant to California Rules of Court, rule 8.90, we refer to the victim and witnesses by 

their first names and last initials and thereafter by their first names. No disrespect is intended.

2 Undesignated statutory references are to the Penal Code.
3.

subdivision (a)(1) and the court found a vehicle constituted the deadly weapon or 

instrument used to commit the offense. In all other respects, we affirm the judgment.

PROCEDURAL BACKGROUND

The District Attorney of Fresno County filed an information on March 15, 2019, 

charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1)). After a fourday trial, the jury convicted defendant of the charge on January 28, 2020. On May 4, 

2020, the trial court suspended imposition of sentence and placed defendant on formal 

probation for three years, including conditions that she serve 300 days in the county jail 

(with 213 days credit for time served) and that she submit to the search of handheld 

electronic devices. The court also imposed a $300 restitution fine (former § 1202.4, 

subd. (b)), a stayed $300 probation revocation restitution fine (§ 1202.45, subd. (a)), 

victim restitution as determined by probation (former § 1202.4, subd. (f)(2)), a $40 court 

operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, 

§ 70373).3 In addition, the court ordered the DMV to revoke defendant’s driver’s license 

for life.

Defendant filed this timely appeal on May 19, 2020.

FACTS

Nora testified that at approximately 5:00 p.m. on June 11, 2018, defendant called 

William G.’s (Nora’s husband’s) cellular phone. Defendant was married to Martine G., 

William’s cousin. Nora spoke to defendant and both women ended up yelling and 

cussing at each other.4 Defendant suggested that Nora come to defendant’s house to 

3 The trial court also sentenced defendant on a separate case and imposed a $40 court 

operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, 

§ 70373) in relation to that case as well.

4 Nora denied having told the police that she did not like William receiving calls from 

women. She explained that she did not like either defendant or Martine and felt that Martine, not 

defendant, should have called her husband.
4.

settle the matter, and Nora said she would but had no intention of going to defendant’s 

house.

Thereafter, Nora used her child’s scooter to travel to the mailboxes around the 

corner from her residence. As she returned to her residence, Nora saw defendant’s red 

vehicle in the street a short distance away. Martine, defendant’s husband, got out of the 

vehicle and walked away down the street. Nora felt that defendant was stalking her and 

angrily yelled, “come on,” meaning, “if we’re going to talk, let’s talk” and did not intend 

to fight. Nora stood on the sidewalk as defendant then drove the vehicle at Nora in such 

a way as to cause her to contemplate whether to jump onto the hood of the vehicle or 

away from the vehicle. Nora testified that she did not remember hearing anything and 

could not remember the speed at which Nora drove the vehicle when it came at her. 

When the vehicle was within three feet of her, Nora dropped the scooter and jumped out 

of the way. The vehicle stopped on the sidewalk. Nora noticed that the scooter was bent 

in the middle, twisted, and no longer operational, but she did not see whether the vehicle 

hit the scooter or ran it over. Nora also observed tire marks from defendant’s vehicle at 

the edge of the sidewalk.

Defendant then backed the vehicle into the road, got out of the vehicle, and started 

verbally and physically fighting with Nora. Defendant grabbed Nora’s hair and dragged 

her head down to hit her with a knee, but William got between them. Defendant then got 

back into her vehicle and left the area. Defendant never apologized or indicated that she 

did not intend to run over Nora.

William, Nora’s husband, testified that he received a call from defendant and Nora 

answered the phone. He heard screaming in the background and then Nora and defendant 

arguing. Nora and defendant were not on friendly terms. William and Nora had an 

agreement not to receive calls from members of the opposite sex. He took Nora into the 

backyard to calm her down and, after a few minutes, Nora took off on a scooter to check 

the mail.
5.

William walked out to the driveway and saw Nora returning. She yelled to him, 

“That bitch is here.” William observed the front end of a red vehicle that he knew 

belonged to defendant across the street, approximately 90 to 100 feet from Nora. After 

Nora yelled “come on,” William heard the vehicle “rev up” twice, and then defendant 

drove toward Nora. Defendant was driving very fast, at least 30 miles per hour, and did 

not attempt to swerve or turn from Nora.

William ran toward Nora and yelled, “Get out of the way.” The vehicle jumped 

the curb and Nora flew backwards. William testified that the vehicle hit a rock and 

would have hit Nora if the rock had not been there. The scooter was bent and wedged 

against the rock. Defendant backed her vehicle into the road, parked, and then 

approached Nora. Both women started fighting. William separated the women and told 

defendant to leave. He then called the police and told them someone had tried to run over 

his wife.

Cody W. lived on the corner near Nora. He heard an engine revving for about 15 

seconds and then tires squealing. Cody looked out his window and saw a red vehicle

driving toward his neighbor. He saw the vehicle back up and park and then the driver got 

out and fought with his neighbor. The driver had the neighbor on the ground by her hair.

Defendant testified that she was friends with William but had never met Nora and 

did not have a relationship with her. Defendant called William at Martine’s request and 

left a message that William could pick up his things in a few hours because Martine and 

defendant were going out. Defendant received a call from William’s phone and a woman 

asked who she was and then said, “ ‘Oh, hell no. You better not be calling my 

husband.’ ” Nora called back and yelled and cussed at defendant again. Nora taunted 

defendant and said she would go over and “beat [defendant’s] ass.” Nora told defendant 

to come to her house, and Martine told defendant how to get there.

Defendant went to Nora’s house to explain why she called William and to tell 

Nora not to speak to her as Nora had in the phone calls. Defendant let Martine out of the 
6.

vehicle because he did not want to be involved. Defendant’s vehicle was still running 

when she saw Nora, and Nora started yelling at her. Defendant’s vehicle was in first gear 

and she never turned off the ignition. Nora yelled at defendant to come to her. 

Defendant drove toward Nora but did not intend to run her over, defendant was just 

trying to get to Nora faster to engage in a physical altercation. Defendant testified, “I 

figured if I just drove over there quickly, I’d just get to [Nora], beat her up and then get in 

my car and leave. That was my intention.”

Defendant always revved her engine to ensure that she did not pop the clutch 

because she was still learning to drive a clutch. Defendant estimated that she was only 

driving 15 miles per hour. Defendant admitted that she was interviewed and told the 

detective that she was driving 25 miles per hour. She accelerated in order to put the 

vehicle in second gear, but before she could, she got too close to the curb. Defendant 

intended to turn the vehicle and park at the sidewalk, but the vehicle would not stop or 

turn and she only stopped it by throwing on the emergency brake. Defendant surmised 

that the vehicle must have “locked up or something” and “was incapable of being 

[driven] after that.” When cross-examined, defendant admitted that she drove the vehicle 

that evening out of town for more than two hours and her brakes worked at that time.

Defendant testified that she struck Nora and then grabbed her hair. Defendant left 

when William told her he had called the police.

DISCUSSION

I. The trial court did not violate defendant’s right to be personally present during 

her trial when it continued jury selection after defendant voluntarily absented 

herself from the proceedings.

A. Background

Jury selection commenced at 1:35 p.m. on January 23, 2020, with one break 

between 2:45 p.m. and 3:00 p.m. The trial court first addressed those prospective jurors 

with hardship excuses. Voir dire commenced and, thereafter, the trial court excused one 
7.

prospective juror for prejudice and the parties each exercised three peremptory 

challenges. The trial court replaced the seven excused prospective jurors. Before 

adjourning for the day, at 4:00 p.m., the trial court ordered the prospective jurors to return

at 9:00 a.m. the next day. Prior to commencement of jury selection, the trial court 

advised defendant and counsel that they would reconvene at 8:30 a.m. the next day,

although the jury would not be present until 9:00 a.m.

On January 24, 2020, at 8:44 a.m., the trial court reconvened. Defendant was not 

present. The court noted that defendant had not yet appeared and suggested she may 

have believed that court would commence at 9:00 a.m. Defense counsel waived 

defendant’s presence “for preliminary issues.”5 The court then stated, “So I know that 

there were a couple of challenges for cause that the Court said that we would address this 

morning. I believe that it was [prospective] juror number ****5 and [prospective] juror 

number ****1.” After argument by defense counsel, the trial court denied defendant’s 

challenges for cause. Both defense counsel and prosecutor indicated they had no further 

issues.

The trial court resumed with the prospective jurors present at 9:05 a.m. The court 

advised the prospective jurors to not speculate on defendant’s absence and that they were

“going to continue though [sic] with jury selection process at this point in time.” The 

trial court asked if either counsel wished to be heard, but neither did. Voir dire 

continued. The parties each exercised three peremptory challenges, and the court 

released the prospective jurors until 10:26 a.m. The trial court excused one prospective 

juror for cause and one for hardship. The court then asked defense counsel whether he

had been able to contact defendant. Defense counsel responded that he had called the one 

5 The record is not clear if the trial court was referring to the discussion concerning 

excusing the prospective jurors in seats 1 and 5 for cause and/or to proceed with voir dire.
8.

number he had for defendant, but the number was disconnected. Defense counsel

advised that he would use the break to contact his office and see if defendant had called.

Court resumed at 10:26 a.m., and the trial court called seven additional

prospective jurors for questioning. Five prospective jurors were excused for cause, and 

the parties exercised one peremptory challenge each. The trial court released the 

prospective jurors at 11:31 a.m. with instructions to return at 1:30 p.m. The court 

addressed the parties:

“THE COURT: We’re still on the record outside of the presence of 

the [prospective] jur[ors]. So to put on the record what we discussed off 

the record and that is that [] defendant has not been here all morning. The 

Court made a decision to go forward with choosing a jury. The jury has not 

been sworn in, so jeopardy has not yet attached. It’s the Court’s 

understanding from defense counsel that he has had contact with []

defendant and it is anticipated that she will be here at 1:30[ p.m]. My 

thoughts are that maybe she should be here at 1:15[ p.m.], we can go on the 

record at 1:15[ p.m.], and make a short record about how we plan to deal 

with it.”

The prosecutor advised the court that defendant had been late multiple times and 

admonished multiple times. One time, defendant did not arrive until 9:30 a.m. and was 

admonished by the court. The next day, however, defendant did not arrive until 8:45 a.m.

“even though she was admonished again on the prior court date that she ha[d] to be 

[t]here at or before 8:30[ a.m].” The trial court expressed concern and indicated that it 

would review the court records to determine whether to remand defendant to prevent 

further court delays. The court agreed to address the matter at a later time. Defense 

counsel advised the court that he was not aware defendant moved to the Bay Area and 

offered that defendant may have believed timeliness was not an issue since other court 

appearances were on a calendar where multiple cases were heard before her case was 

called. The court replied, “[D]espite the fact that we had the discussion here yesterday to 

be here on time and she knew that she was the only one, she was the star attraction, ... 
9.

but it seems to me as though she just kind of decides, you know, I’ll get there when I get 

there.”

Court resumed at 1:25 p.m. outside the presence of the prospective jurors. The 

trial court addressed defendant who was then present:

“I’m not going to go too detailed into what the situation is, but you 

caused your case to pose some challenges for everybody by your 

nonappearance here. I don’t understand why you wouldn’t be here and 

why you wouldn’t contact your attorney as soon as there was any problems 

developing. I’m a little bit concerned because you had also told the Court 

that you were going to be staying here local, at least between yesterday and 

today, and then I found out you did not stay local. We’re going to address 

all of these things at the end of the day and I’ll determine whether or not 

you will remain out on your bond or whether you will be remanded into 

custody. But it has been an inconvenience for all of us and concerning to 

the Court, because, quite honestly, I didn’t know if we would be able to 

continue with your trial or whether I would have to discharge this panel 

who would have spent almost a full day in this courtroom going through 

this process without you here.

“It also, of course, ha[d] an impact on selection of jury. Your 

attorney was in a position where he was required to continue to select a jury 

without your presence because you decided not to be here.”

The trial court asked defense counsel to explain defendant’s absence. Defense 

counsel explained that defendant had contacted his office at approximately 9:30 a.m. and 

left a message; he saw the text message from his office at midmorning break, between 

10:00 a.m. and 10:26 a.m. Defense counsel called the number defendant provided and 

spoke with Martine, who explained that they were driving through Pacheco Pass.6 

Martine advised defense counsel that defendant should arrive in about one hour. The 

court deferred a decision on defendant’s custodial status until the end of the day.

Trial resumed at 1:37 p.m., and the trial court instructed the jury not to speculate 

as to the reasons for defendant’s absence that morning. The selected prospective jurors

6 Pacheco Pass is located between the Bay Area and Fresno, approximately two to two and 

one-half hours from Fresno Superior Court.
10.

were sworn. The trial court excused the jury for the day at 4:00 p.m. and remained in 

session to address defendant’s custodial status. The court asked for an explanation as to

why defendant was not in court at 8:30 a.m. to continue jury selection when defendant 

had advised the court that she would be staying in Fresno overnight. Defendant 

responded that she went back to the Bay Area because her daughter’s father did not show 

up to care for defendant’s daughter until 2:00 a.m. Defendant then went to bed and did 

not hear the alarm, and “[h]e didn’t wake me up and [she] ended up rushing out the 

door.” The trial court noted that defendant failed to appear two times in the instant case 

and was permitted to repost her bond. Defendant also had a failure to appear in a second 

case and her bond was reinstated. The court noted that defendant committed an offense 

while on bond on the instant case and failed to keep defense counsel advised of her 

whereabouts or contact information. In addition, the court commented, “I think it was 

abundantly clear to her when she was on trial track, both in Judge Harrell’s court and in 

this Court, that we expected her to be on time. She also heard me tell all of the jurors that 

we can’t start without them and of course we can’t start without her.” The court 

expressed concern that defendant “was not able to participate in the selection of the jury 

at least to a certain extent,” but it “believe[d] that counsel waived that.” The court also 

stated:

“Her excuse for not getting here was because her alarm clock didn’t go off.

To me that is a horrible excuse. When you’re talking about a case of such 

importance and involving so many people, you need to have two or three 

safeguards to make sure that you get to where you need to get on the right 

time. If it had been anybody else, they probably would have left the Bay 

Area at 2 o’clock in order to make sure that they were here in a timely 

manner.”

B. Applicable Law and Standard of Review

“A criminal defendant, broadly stated, has a right to be personally present at trial 

under various provisions of law, including the confrontation clause of the Sixth 

Amendment to the United States Constitution, as applied to the states through the due 
11.

process clause of the Fourteenth Amendment; the due process clause of the Fourteenth 

Amendment itself; section 15 of article I of the California Constitution; and sections 977 

and 1043 of the Penal Code.” (People v. Waidla (2000) 22 Cal.4th 690, 741.) Voir dire 

of prospective jurors is “ ‘a critical stage of the criminal proceeding, during which the 

defendant has a constitutional right to be present.’ ” (People v. Wall (2017) 3 Cal.5th 

1048, 1059.)

“Our state Constitution guarantees that ‘[t]he defendant in a criminal cause has the 

right ... to be personally present with counsel, and to be confronted with the witnesses 

against the defendant.’ (Cal. Const., art. I, § 15.)” (People v. Gutierrez (2003) 

29 Cal.4th 1196, 1202 (Gutierrez).) “ ‘The state constitutional right to be present at trial 

is generally coextensive with the federal due process right.’ ” (People v. Butler (2009) 

46 Cal.4th 847, 861.) “Sections 977 and 1043 implement the state constitutional 

protection. [Citation.] Section 977, subdivision (b)(1), provides: ‘In all cases in which a 

felony is charged, the accused shall be present at the arraignment, at the time of plea, 

during the preliminary hearing, during those portions of the trial when evidence is taken 

before the trier of fact, and at the time of the imposition of sentence....’ Section 1043, 

subdivision (a), states that ‘[e]xcept as otherwise provided in this section, the defendant 

in a felony case shall be personally present at the trial.’ ” (Gutierrez, at p. 1202.)

Although a defendant has a right to be present at trial and subsequent proceedings, 

“the right is not an absolute one. [Citation.] It may be expressly or impliedly waived.” 

(People v. Espinoza (2016) 1 Cal.5th 61, 72 (Espinoza).) “ ‘ “[I]f a defendant at liberty 

remains away during h[er] trial the court may proceed provided it is clearly established 

that h[er] absence is voluntary. [S]he must be aware of the processes taking place, of 

h[er] right and of h[er] obligation to be present, and [s]he must have no sound reason for 

remaining away.” ’ ” (Id. at pp. 73–74.) “No more [is] constitutionally required.” (Id. at 

p. 74.) “Section 1043[, subd. ](b)(2) has adopted this ... rule as state law.” (Id. at p. 72.) 

Under that provision, a defendant’s absence “in a felony case after the trial has 
12.

commenced in their presence shall not prevent continuing the trial to, and including, the 

return of the verdict in ... [¶] ... [¶] ... [a]ny prosecution for an offense which is not 

punishable by death in which the defendant is voluntarily absent.” (§ 1043, 

subd. (b)(2).)7

We look to the totality of the facts in determining whether a defendant is absent 

voluntarily. (Espinoza, supra, 1 Cal.5th at p. 72.) “The role of an appellate court in 

reviewing a finding of voluntary absence is a limited one. Review is restricted to 

determining whether the finding is supported by substantial evidence.” (Id. at p. 74.)

C. Analysis

We conclude that the court did not err by proceeding with voir dire during 

defendant’s absence from the courtroom because it impliedly deemed defendant 

voluntarily absent. As set forth above, the court had previously informed defendant to be 

present the next day at 8:30 a.m. When the trial court commenced proceedings at 

8:44 a.m., the trial court gave defendant the benefit of the doubt that perhaps she had 

mistaken the start time of the trial. However, when defendant had not arrived, the trial 

court continued voir dire in her absence at 9:05 a.m. When the court proceeded without 

her, it had no information regarding the cause of her delay because defense counsel was 

equally uninformed as to the reason. The trial court knew it had advised everyone in the 

courtroom that lateness on anyone’s part could impact the proceedings.

When defendant did arrive, five minutes before the afternoon trial session was to 

commence, she did not offer an explanation for her absence nor object to the proceedings 

that took place in her absence. After the trial recessed for the day, defendant advised the 

court that despite assurances that she would be staying in town for the trial, she traveled 

7 Contrary to defendant’s argument, section 977 did not require defendant to execute a 

written waiver of her right to be present. Where the trial has commenced in defendant’s 

presence, section 1043 applies to determine whether defendant’s absence was voluntary thereby 

waiving her right to be present. (Gutierrez, supra, 29 Cal.4th at pp. 1202–1203.)
13.

to the Bay Area out of concern for her daughter.

8 Defendant then overslept. While 

evidence showed that defendant had contacted her counsel’s office at approximately 

9:30 a.m., she did not attempt to explain why she could not have contacted her attorney 

before court commenced.

The trial court described defendant’s excuse that she was late because her alarm 

clock failed to go off as “a horrible excuse.” We conclude that ample facts supported the 

court’s decision to proceed with voir dire based on the information available to it 

contemporaneously as well as the information it subsequently learned regarding 

defendant’s absence. “Here the record, which we have described, supports the trial 

court’s view that defendant was ‘ “aware of the processes taking place,” ’ that [s]he knew 

‘ “h[er] right and of h[er] obligation to be present,” ’ and that [s]he had ‘ “no sound 

reason for remaining away.” ’ [Citation.] As such, defendant implicitly waived h[er]

right to be present. [Citation.] No more was constitutionally required.” (Espinoza, 

supra, 1 Cal.5th at p. 74.)

Defendant does not challenge the trial court’s conclusion that her failure to appear 

on time for trial was voluntary. Rather, defendant argues that we are limited to the 

information available to the trial court when it made the decision to proceed with 

defendant’s trial in her absence and “after-the-fact information is wholly irrelevant to 

assessing the propriety of the trial court’s action.” Defendant fails to cite authority for 

this limitation on our review, and we reject it.

Defendant’s argument has been rejected in People v. Connolly (1973) 

36 Cal.App.3d 379. In that case, Connolly argued that at the time the trial court initially 

learned he was absent, it did not have sufficient facts to determine that his absence was 

voluntary. (Id. at p. 384.) The court rejected that argument, as do we. “Unquestionably 

8 Defendant only explained that her daughter’s father had not arrived to care for her but did 

not provide any information regarding her daughter’s age or health, or whether anyone else was 

available to care for her daughter.
14.

section 1043, subdivision (b)(2) was designed to prevent the defendant from intentionally 

frustrating the orderly processes of h[er] trial by voluntarily absenting h[er]self. A 

crucial question must always be, ‘Why is the defendant absent?’ This question rarely can 

be answered at the time the court must determine whether the trial should proceed. 

Consequently, in reviewing a challenge to the continuation of a trial pursuant to Penal 

Code section 1043, subdivision (b)(2), it must be recognized that the court’s initial 

determination is not conclusive in that, upon the subsequent appearance of the defendant, 

additional information may be presented which either affirms the initial decision of the 

court or demands that defendant be given a new trial. It is the totality of the record that 

must be reviewed in determining whether the absence was voluntary.” (Id. at pp. 384–

385.)

Thus, the reviewing court considers not only the information available to the trial 

court at the time of its decision but any additional information presented at the time of the 

defendant’s subsequent appearance that either affirms the initial decision of the court or 

demands that the defendant be given a new trial. (See People v. Pigage (2003) 

112 Cal.App.4th 1359, 1369; Espinoza, supra, 1 Cal.5th at p. 72 [“ ‘In determining 

whether a defendant is absent voluntarily, a court must look at the “totality of the 

facts.” ’ ”].)

We conclude that substantial evidence supported the trial court’s implicit finding 

that defendant voluntarily absented herself from the conclusion of jury selection and 

resulted in her waiver of her right to be present.

II. Even if defense counsel provided ineffective assistance of counsel by failing to 

object to proceeding with the trial in defendant’s absence, defendant has not 

shown prejudice from such failure.

Defendant argues that she received ineffective assistance of counsel because trial 

counsel “implicitly assented to the resumption of voir dire in [her] absence, without any 

attempt to ascertain [her] whereabouts.” We reject defendant’s claim.
15.

A. Applicable Law and Standard of Review

“In order to establish a claim for ineffective assistance of counsel, a defendant 

must show that his or her counsel’s performance was deficient and that the defendant 

suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016) 

2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687–692.) “To 

demonstrate deficient performance, defendant bears the burden of showing that counsel’s 

performance ‘ “ ‘ “fell below an objective standard of reasonableness ... under prevailing 

professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the 

burden of showing a reasonable probability that, but for counsel’s deficient performance, 

the outcome of the proceeding would have been different.” (Mickel, at p. 198.)

We may reject the claim without determining the adequacy of counsel’s 

performance if defendant fails to show prejudice.” (Strickland v. Washington, supra, 

466 U.S. at p. 697.)

B. Analysis

Defendant argues that defense counsel was ineffective in not attempting to contact 

her before implicitly agreeing to proceed in her absence. However, the record fails to 

demonstrate that had counsel done so, that the outcome of the trial or even the court’s 

decision to proceed would have been different.

In arguing that she was prejudiced by defense counsel’s actions, defendant relies 

upon the same harmless error analysis applied where the trial court has violated a 

defendant’s constitutional right to be present at trial. Citing Hager v. United States (D.C. 

2013) 79 A.3d 296, defendant argues that the analysis focuses “on the degree to which, 

despite error, the defendant was able to meaningfully participate in voir dire.” (Id. at 

p. 303.) However, we have already concluded that defendant’s constitutional right to be 

present at trial has not been violated and defendant voluntarily absented herself from the 

proceedings by not taking care to arrive on time. Therefore, our prejudice analysis does 
16.

not focus on the effect of defendant missing the proceedings, but whether she was 

prejudiced by defense counsel’s failure to object to proceeding in her absence.

We note that during the first break, defense counsel advised the trial court that he 

had attempted to contact defendant, although the record is not clear as to whether he did 

so before trial commenced at 9:05 a.m. However, since defense counsel reported that 

defendant’s number had been disconnected, we cannot see that any call, even if earlier, 

would have provided defense counsel information as to defendant’s absence. In addition, 

defendant did not even contact defense counsel’s office until at least 9:30 a.m., an hour 

after trial was to commence.

Even assuming that defense counsel had reached defendant and obtained the 

information that she had slept through her alarm clock, we conclude that providing that 

information to the trial court would not have affected the trial court’s decision to proceed 

with the jury selection. Defendant had advised the trial court the evening before that she 

would be staying in town overnight. The trial court would have been aware that 

defendant did not mistakenly believe trial was to resume at 9:00 a.m. when she failed to 

appear by 9:05 a.m. Considering that defendant lived in the Bay Area (approximately 

three hours from Fresno depending on traffic), it is not unreasonable to assume that at the 

time trial was to commence, defendant was either still asleep or more than two hours 

from Fresno.9 Given that the trial court believed that defendant’s stated excuse of 

sleeping through her alarm was “a horrible excuse,” we do not believe that the trial court 

would have kept the jury panel waiting two to three hours for defendant to arrive.

Therefore, defendant has failed to demonstrate any prejudice from her counsel’s 

failure to object to proceeding in her absence without first attempting to contact her. 

9

If we assume that defendant would have attempted to contact her attorney’s office when 

she first determined she had overslept and would not appear on time, she was still at home at 

9:30 a.m.
17.

Defense counsel did not provide defendant constitutionally ineffective assistance of 

counsel.10

III. Any error in the trial court’s instruction to the jury on the elements of assault 

with a deadly weapon was harmless.

Defendant argues that the trial court’s modification of CALCRIM No. 875 omitted 

an element of the offense, that is, that the jury needed to determine if defendant did an act 

“with a deadly weapon” by using her vehicle in the manner she did. The People argue 

that while the court’s instructions deviated from the standard instructions, in the context 

of the instructions as a whole and the trial record, the jury could not have failed to 

recognize that it had to find that defendant’s vehicle was a deadly weapon in order to 

convict. We need not determine whether the trial court erred in instructing the jury 

because we conclude, even if the instructions omitted an element of the offense, the error 

was harmless beyond a reasonable doubt.

11

A. Background

1. The Trial Court’s Instruction to the Jury

The trial court instructed the jurors with a modified version of CALCRIM No. 875 

as to the crime of assault with a deadly weapon:12

“[D]efendant is charged in Count One with assault with a vehicle in

violation of Penal Code section 245[, subdivision ](a) (1).

10 Defendant filed a petition for a writ of habeas corpus on February 1, 2021 (case 

No. F082315), that largely repeats her contention regarding her ineffective assistance of counsel 

claim and provides a declaration of counsel explaining the reason for proceeding in defendant’s 

absence. We previously issued an order stating the petition would be considered concurrently 

with this appeal. Because defendant has failed to establish prejudice by counsel’s decision, in a 

separate order, filed concurrently with this opinion, we have denied the petition for writ of 

habeas corpus.

11 In light of our decision on the merits, we decline to reach the People’s alternate argument 

that defendant forfeited this claim of error by failing to object to the court’s instruction.

12 This same instruction, worded exactly the same, was also read to the jury before opening 

statements.
18.

“To prove that [] defendant is guilty of this crime, the People must 

prove that:

“[D]efendant did an act that by its nature would directly and 

probably result in the application of force to a person, and [] defendant did 

that act willfully. When [] defendant acted, she was aware of facts that 

would lead a reasonable person to realize that her act by its nature would 

directly and probably result in the application of force to someone. When 

[] defendant acted, she had the present ability to apply force with her 

vehicle to a person.

“[¶] ... [¶]

“A deadly weapon is any object, instrument, or weapon that is used 

in such a way that it is capable of causing and likely to cause death or great 

bodily injury.

“In deciding whether an object is a deadly weapon, consider all the 

surrounding circumstances.”

CALCRIM No. 875 includes several parenthetical sections that the court either did not 

include or modified when instructing the jury:

“The defendant is charged [in Count _________] with assault with ( ... /a 

deadly weapon other than a firearm/ ... [in violation of Penal Code 

section 245].

“To prove that the defendant is guilty of this crime, the People must prove 

that:

“<Alternative 1A—force with weapon>

“[1. The defendant did an act with (a deadly weapon other than a 

firearm/ ... ) that by its nature would directly and probably result in 

the application of force to a person;]

“[¶] ... [¶]

“4. When the defendant acted, (he/she) had the present ability to apply 

force ( ... /with a deadly weapon other than a firearm ... ) to a 

person(;/.)” (CALCRIM No. 875, boldface omitted.)

The bench notes to CALCRIM. No. 875 direct the trial court to provide the bracketed 

definitions where relevant and “[g]ive element 1A if it is alleged the assault was 
19.

committed with a deadly weapon other than a firearm.” (Judicial Council of Cal., Crim. 

Jury Instns. (2020) Bench Notes to CALCRIM No. 875, p. 629.)

A comparison of the two instructions reveals that the trial court called the offense 

“assault with a vehicle” as opposed to “assault with a deadly weapon other than a 

firearm.” The trial court also instructed, as to element 1, that “defendant did an act” as 

opposed to “defendant did an act with a deadly weapon other than a firearm” and, as to 

element 4, instructed that defendant had the “present ability to apply force with her 

vehicle to a person” rather than instructing that defendant had “the present ability to 

apply force with a deadly weapon other than a firearm.” As a result of these changes, the 

trial court never used the term “assault with a deadly weapon other than a firearm” when 

instructing as to the four elements of the offense but did include the definition of deadly 

weapon applicable when the weapon is not inherently deadly.

B. Standard of Review and Applicable Law

Trial courts have a sua sponte duty to instruct “ ‘on those general principles of law 

that are closely and openly connected with the facts before the court and necessary for the 

jury’s understanding of the case.’ ” (People v. Simon (2016) 1 Cal.5th 98, 143.) A court 

is not required to define commonly used words with no technical meaning peculiar to the 

law in the absence of a request. (People v. Nguyen (2015) 61 Cal.4th 1015, 1050–1051.)

For purposes of “ ‘section 245, subdivision (a)(1), a “deadly weapon” is “any 

object, instrument, or weapon which is used in such a manner as to be capable of 

producing and likely to produce, death or great bodily injury.” ’ ” (In re B.M. (2018) 

6 Cal.5th 528, 532–533.) “ ‘In determining whether an object not inherently deadly or 

dangerous is used as such, the trier of fact may consider the nature of the object, the 

manner in which it is used, and all other facts relevant to the issue.’ ” (Id. at p. 533.) A 

vehicle is a deadly weapon when used in a manner likely to produce death or great bodily 

injury. (See People v. Tahl (1967) 65 Cal.2d 719, 734; People v. Russell (2005) 
20.

129 Cal.App.4th 776, 782.) Great bodily injury means significant or substantial physical 

injury—an injury that is greater than minor or moderate harm. (CALCRIM No. 875.) 

“[S]ome physical pain or damage, such as lacerations, bruises, or abrasions is sufficient 

for a finding of ‘great bodily injury.’ ” (People v. Washington (2012) 210 Cal.App.4th 

1042, 1047.)

The trial court’s failure to instruct the jury that it needed to determine whether 

defendant used the vehicle as a deadly weapon is subject to harmless error analysis under 

the standard of Chapman v. California (1967) 386 U.S. 18, 24. Under the Chapman

standard, we “must determine whether it is clear beyond a reasonable doubt that a 

rational jury would have rendered the same verdict absent the error.” (People v. Merritt

(2017) 2 Cal.5th 819, 831.) “[I]n order to conclude that an instructional error ‘ “did not 

contribute to the verdict” ’ within the meaning of Chapman [citation] we must ‘ “find that 

error unimportant in relation to everything else the jury considered on the issue in 

question, as revealed in the record” ’ [citation].” (People v. Brooks (2017) 3 Cal.5th 1, 

70.)

C. Analysis

In this case, we have no difficulty concluding that even if the trial court erred in 

instructing the jury as to the elements of the offense, any such error was harmless beyond 

a reasonable doubt.

In the first place, the “deadly weapon” element of the charge was not disputed at 

trial. (See Neder v. United States (1999) 527 U.S. 1, 15 [omission of the element of 

“materiality” did not warrant reversal where defendant did not contest materiality at 

trial].) Defense counsel explained to the jury, “You’re being asked to decide whether 

[defendant] is guilty of assault with a deadly weapon as those instructions have been read 

out to you several times. And really you’re being asked to decide whether [defendant’s]

conduct was willful and that’s really the primary defense.”
21.

The jury had been instructed that assault with a deadly weapon had four elements: 

(1) defendant committed an act that by its nature would result in the application of force 

to a person; (2) defendant acted willfully;13 (3) when defendant acted, she was aware of 

facts that would lead a reasonable person to realize her act would result in the application 

of force to a person; and (4) defendant had the present ability to apply force to a person. 

Defense counsel conceded that only element 2 was in dispute:

“Willfulness is one of the elements of the crime and, for practical 

purposes, again it’s really the only one that’s in contention.

“ ... [Element] one isn’t in dispute. Certainly there was a danger of 

application of force to [Nora]. Certainly there’s a present ability to apply 

force. That’s [element] four. [Element] two, willfulness is of course the 

defense.”

Defense counsel argued that defendant intended to get closer to Nora and park the vehicle 

so defendant could physically confront Nora. In the haste of doing so, defendant drove 

recklessly and mishandled the vehicle, but she did not intend to drive onto the sidewalk 

and into Nora. That only happened because the brakes and steering failed when 

defendant attempted to stop and park near the curb.

Defense counsel urged the jury to find defendant had not used the vehicle as a 

weapon, “Someone who loses control of a car because she drove aggressively and drove 

mad can’t be fairly regarded in the same category as someone who really does seek to use 

the car as a weapon.” He concluded, “[Y]ou cannot find her guilty of using an 

automobile as a deadly weapon [unless] you find her conduct was willful[,] and 

attempt[ing] to apply the brakes before the car ever gets on that sidewalk means her 

conduct in going up on the sidewalk [was] not willful.”

13 “Whether an object is a deadly weapon under section 245 does not turn on whether the 

defendant intended it to be used as a deadly weapon; a finding that he or she willfully used the

object in a manner that he or she knew would probably and directly result in physical force 

against another is sufficient to establish the required mens rea.” (People v. Perez (2018) 

4 Cal.5th 1055, 1066.)
22.

Therefore, whether the vehicle was a deadly weapon was not contested by 

defendant at trial. Had defendant wanted to dispute whether the vehicle was a deadly 

weapon, she could have done so. (See People v. Merritt, supra, 2 Cal.5th at p. 832 

[“ ‘[W]here a reviewing court concludes beyond a reasonable doubt that the omitted 

element was uncontested and supported by overwhelming evidence, such that the jury 

verdict would have been the same absent the error, the erroneous instruction is properly 

found to be harmless.’ ”].)

In addition, the prosecutor’s discussion of the missing element is a factor to 

consider in determining prejudice. (See People v. Jennings (2010) 50 Cal.4th 616, 678, 

citing People v. Wade (1988) 44 Cal.3d 975, 994 [the jury was not misled by omission of 

the intent-to-torture element in the torture-murder special-circumstance instruction, in 

part because the prosecution specifically explained to the jury that the special 

circumstance required an intent to kill].) Here, the prosecutor argued to the jury that 

defendant’s vehicle was a deadly weapon under the definition in the trial court’s 

instructions:

“Now [CALCRIM No.] 875, ... one of the final laws that is stated in 

[CALCRIM No.] 875 is the People must prove that a deadly weapon is any 

object, instrument or weapon that is used in such a way that is capable of 

causing and likely to cause death or great bodily injury. What’s the deadly 

weapon used in this case? It’s an automobile. An automobile by itself,

everyone uses it every day. We drive to work. We drive home. We go to 

school, what have you. But the instruction says a weapon that is used in 

such a way that is capable of causing and likely to cause death or great 

bodily injury. And I’m not going to belabor this point, but if you use a car 

and you launch it at somebody and it heads towards their direction, that’s a 

deadly weapon. It’s an automobile. There should be no doubt that an 

automobile can be used as a deadly weapon if you try to run somebody 

down, without a doubt.”

The prosecutor also emphasized that there was testimony defendant was driving more 

than 25 miles per hour, the testimony showed that Nora had to jump out of the way 

because “[i]f you launch a vehicle that’s several thousand pounds and you accelerate, ... 
23.

it’s going to apply direct and probable force to somebody, ... and [Nora] had to jump out 

of the way to save her life,” and defendant crushed Nora’s scooter, which Nora had 

dropped when she jumped out of the way.

Moreover, the jury would have found the vehicle was a deadly weapon if it had 

been instructed properly. When a motor vehicle, being driven at a high rate of speed, is 

used to commit an assault, the vehicle, by virtue of its weight and power, is necessarily 

being used “ ‘in such a manner as to be capable of producing and likely to produce, death 

or great bodily injury.’ ” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.) 

“Several cases have recognized a vehicle as a deadly weapon based on the manner it was 

used.” (People v. Perez, supra, 4 Cal.5th at p. 1065, citing People v. Oehmigen (2014) 

232 Cal.App.4th 1, 6 [the defendant drove a car at two police officers]; see id. at p. 1067

[where the defendant continued driving a vehicle with victim’s arm stuck in door, “[t]he 

evidence does not reasonably support any inference but that [the defendant] used the 

vehicle ‘ “in such a manner as to be capable of producing and likely to produce ... great 

bodily injury”[ ’]—i.e., that [the defendant] used the vehicle as a deadly weapon”]; 

People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1183 [the defendant raced through a 

red light at a busy intersection and collided with another vehicle]; People v. Russell, 

supra, 129 Cal.App.4th at p. 787 [the defendant pushed the victim into the path of an 

approaching car].)

Defendant admitted she was driving 25 miles per hour, and William testified that 

defendant was driving at Nora going at least 30 miles per hour. He feared Nora would be 

hit and immediately yelled for her to get out of the way. William testified that Nora had 

to leap out of the way to avoid injury. Defendant hit the scooter that Nora left behind 

when she jumped out of the vehicle’s path. There is no reasonable doubt that the jury 

found, or would have found, that defendant used the vehicle in a manner capable of 

causing and likely to cause death or great bodily injury, as required by CALCRIM 

No. 875. (See People v. Brown (2012) 210 Cal.App.4th 1, 13–14 [ample evidence that 
24.

the defendant used a BB gun in a manner capable of inflicting and likely to inflict great 

bodily injury, as well as arguments of counsel, left no reasonable doubt the jury found the 

defendant guilty on this basis].)

We conclude that any error in instructing the jury to determine whether the vehicle 

was a deadly weapon was harmless beyond a reasonable doubt and did not contribute to 

the verdict.

IV. The trial court did not err in failing to instruct the jury with simple assault as a 

lesser included offense of assault with a deadly weapon.

The trial court instructed the jury on assault with a deadly weapon with respect to 

defendant’s use of her vehicle. Defendant did not ask the trial court to instruct on the 

lesser included offense of simple assault. Defendant argues that there was substantial 

evidence that she did not drive her vehicle in a manner likely to produce great bodily 

injury or death, and therefore an instruction on the lesser included offense of simple 

assault was required. We disagree.

A. Applicable Law and Standard of Review

“Under California law, trial courts must instruct the jury on lesser included 

offenses of the charged crime if substantial evidence supports the conclusion that the 

defendant committed the lesser included offense and not the greater offense.” (People v. 

Gonzalez (2018) 5 Cal.5th 186, 196.) “A trial court must instruct the jury sua sponte on a 

lesser included offense only if there is substantial evidence, ‘ “that is, evidence that a 

reasonable jury could find persuasive” ’ [citation], which, if accepted, ‘ “would absolve 

[the] defendant from guilt of the greater offense” [citation] but not the lesser’ [citation].” 

(People v. Cole (2004) 33 Cal.4th 1158, 1218, first & fourth bracketed insertions added.) 

“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a 

lesser included offense, but such instructions are required whenever evidence that the 

defendant is guilty only of the lesser offense is ‘substantial enough to merit 

consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
25.

Simple assault is a lesser included offense of assault with a deadly weapon. 

(People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)

“On appeal, we independently review whether a trial court erroneously failed to 

instruct on a lesser included offense.” (People v. Trujeque (2015) 61 Cal.4th 227, 271.)

B. Analysis

The question posed by defendant’s claim is whether a reasonable jury could have 

found that defendant committed only simple assault and not assault with a deadly or 

dangerous weapon when she drove her vehicle at Nora. However, there was no evidence 

that defendant committed simple assault on Nora but did not also assault Nora with a 

deadly weapon, i.e., a vehicle driving at 15 to 25 miles per hour.

Defendant initially testified that she drove at Nora while accelerating to 15 miles 

per hour but then admitted that she had previously told the detectives that she was driving 

25 miles per hour. She also testified that she intended to drive over to Nora and park at 

the curb, but her vehicle would not stop when she braked nor could she turn the wheel. 

William testified that defendant was driving at least 30 miles per hour at Nora and he 

immediately yelled for Nora to get out of the way, fearing she would be hit. Nora, 

William, and a neighbor testified that Nora had to leap out of the way to avoid injury. In 

addition, the evidence showed that defendant hit Nora’s scooter and bent it so that it was 

nonoperational.

The evidence showed that defendant assaulted Nora by driving at her at 15 to 

25 miles per hour, not hitting her only because she leapt out of the way. Defendant hit 

Nora’s scooter, which Nora left behind when she jumped out of the vehicle’s path. 

Common sense still dictates that driving a vehicle at someone, even at 15 to 25 miles per 

hour, is likely to produce great bodily injury. (Cf. People v. Golde (2008) 

163 Cal.App.4th 101, 116–117 [“there is no way that driving a car toward a person can 

constitute simple assault but not assault with a deadly weapon” when the defendant drove 
26.

car toward victim at 15 miles per hour while victim tried to avoid car].) If defendant had

hit Nora, it was likely that Nora would have suffered great bodily injury. That Nora was 

able to leap out of the way and defendant did not actually inflict great bodily injury was 

fortuitous. It did not, however, negate the likelihood that great bodily injury would result 

if defendant had hit Nora.

Furthermore, if the jury accepted defendant’s testimony that she did not willingly 

drive at Nora and only intended to park at the curb, defendant would have been acquitted. 

Therefore, if the jury believed that defendant assaulted Nora, it was because the jury 

believed that defendant willfully drove her vehicle at Nora at a high rate of speed and 

defendant’s vehicle was a deadly weapon.

Based on the evidence, the jury could not reasonably have found defendant guilty 

of only simple assault and not assault with a deadly weapon. Accordingly, the trial court 

did not err in failing to instruct on simple assault as a lesser included offense. (People v. 

Breverman, supra, 19 Cal.4th at p. 162.)

C. Harmless Error

Even assuming that it was error for the trial court to fail to instruct the jury on 

simple assault as a lesser included offense, we conclude defendant was not harmed by 

this error.

The failure to give a lesser included offense instruction in a noncapital case is, 

with limited exception not applicable here, a matter of state law to be reviewed for 

prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Beltran (2013) 

56 Cal.4th 935, 955.) Under Watson, “ ‘a defendant must show it is reasonably probable 

a more favorable result would have been obtained absent the error.’ ” (Beltran, at 

p. 955.) The test “ ‘focuses not on what a reasonable jury could do, but what such a jury 

is likely to have done in the absence of the error under consideration. In making that 

evaluation, an appellate court may consider, among other things, whether the evidence 
27.

supporting the existing judgment is so relatively strong, and the evidence supporting a 

different outcome is so comparatively weak, that there is no reasonable probability the 

error of which the defendant complains affected the result.’ ” (Id. at p. 956.)

Here, even if an instruction on simple assault had been provided, it was not 

reasonably probable that defendant would have succeeded in convincing a jury she had 

committed only the lesser offense of simple assault and not assault with a deadly weapon. 

As we noted above, this was a strong case for the prosecution, and the evidence that 

defendant drove at Nora at a speed of at least 15 miles per hour (but likely 25 or 30 miles 

per hour) was uncontroverted. Defendant testified that she was driving her vehicle over 

to Nora because she wanted to talk or fight with Nora and intended to park the car at the 

curb. Defendant claimed that her vehicle’s brakes and steering malfunctioned when she 

attempted to stop and she did not intend to hit Nora or even scare her. If the jury believed 

defendant, she would not be guilty of either simple assault or assault with a deadly 

weapon. In closing, defense counsel conceded the other elements, arguing only that 

defendant had not acted willfully in driving the vehicle at Nora. If the jury disbelieved 

defendant, she could only be guilty of assault with a deadly weapon and not simple 

assault.

Therefore, the evidence showed that defendant’s only act of assault was in the use 

of her vehicle and it is not reasonably probable the verdict would have been more 

favorable to defendant had the simple assault instruction been given. The jury would 

have found defendant guilty or not guilty of assault with a deadly weapon, but not of 

simple assault.

D. Cumulative Error

Defendant also argues she was prejudiced by the cumulative effect of the trial 

court’s errors. However, we have concluded that the trial court did not err in determining 

that defendant voluntarily absented herself from the trial, counsel was not ineffective, and 
28.

the trial court did not err in not instructing the jury on simple assault. Accordingly, there 

is no cumulative effect to weigh. (In re Reno (2012) 55 Cal.4th 428, 483 [holding that 

each of the defendant’s individual claims “cannot logically be used to support a 

cumulative error claim [where] we have already found there was no error to cumulate”].)

Furthermore, “[t]o the extent there are a few instances in which we have ... assumed [the] 

existence [of error], no prejudice resulted. The same conclusion is appropriate after 

considering their cumulative effect.” (People v. Valdez (2012) 55 Cal.4th 82, 181.)

V. The lifetime revocation of defendant’s driving privilege pursuant to Vehicle 

Code section 13351.5 does not violate equal protection principles.

During the sentencing hearing, the trial court ordered defendant to surrender her

driver’s license to the DMV and revoked defendant’s driver’s license for life based on her 

conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), a motor vehicle. 

Defendant now argues Vehicle Code section 13351.5 violates her equal protection rights 

under the state and federal Constitutions because there is no rational basis for the 

automatic lifetime bar of defendant’s driving privilege. We reject defendant’s 

constitutional challenge.

Vehicle Code section 13351.5 requires lifetime revocation of the driver’s license 

of a person who has been convicted of assault with a deadly weapon (§ 245) by means of 

a vehicle. Vehicle Code section 13351.5 provides in relevant part:

“(a) Upon receipt of a duly certified abstract of the record of any court 

showing that a person has been convicted of a felony for a violation of 

Section 245 of the Penal Code and that a vehicle was found by the court to 

constitute the deadly weapon or instrument used to commit that offense, the 

[DMV] immediately shall revoke the privilege of that person to drive a 

motor vehicle. [¶] (b) The [DMV] shall not reinstate a privilege revoked 

under subdivision (a) under any circumstances.” (Veh. Code, § 13351.5, 

subds. (a), (b).)

“ ‘The equal protection guarantees of the Fourteenth Amendment and the 

California Constitution are substantially equivalent and analyzed in a similar fashion. 
29.

[Citations.]’ [Citation.] We first ask whether the two classes are similarly situated with 

respect to the purpose of the law in question, but are treated differently. [Citation.] If 

groups are similarly situated but treated differently, the state must then provide a rational 

justification for the disparity.” (People v. Lynch (2012) 209 Cal.App.4th 353, 358, 

second & third bracketed insertions added.) Defendant argues that in enacting Vehicle 

Code section 13351.5, the Legislature distinguished between two groups of people 

convicted of crimes involving motor vehicles. The first group includes those convicted 

of felony assault with a deadly weapon (§ 245), where the weapon is a vehicle. Their 

driver’s licenses are automatically revoked for life pursuant to Vehicle Code 

section 13351.5. The second group, which defendant argues is similarly situated to the 

first group, consists of those convicted of equally or more dangerous vehicular crimes 

who are not subject to a mandatory, lifetime revocation of their driver’s licenses.

Assuming, without deciding, that violators of the two groups of vehicular crimes 

are sufficiently similarly situated with respect to the purpose of the law in question (Veh. 

Code, § 13351.5) but are treated differently, we must determine whether there is a 

rational justification for the disparity in treatment of the two groups. We must consider 

whether there is a rational justification for imposing a lifetime driver’s license ban 

pursuant to Vehicle Code section 13351.5 on those in the first group who commit felony 

assault with a deadly weapon (§ 245) by means of a vehicle, and not imposing such a 

severe penalty on all others who commit vehicular crimes.

“Where, as here, a disputed statutory disparity implicates no suspect class or 

fundamental right, ‘equal protection of the law is denied only where there is no “rational 

relationship between the disparity of treatment and some legitimate governmental 

purpose.” ’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) “ ‘This 

standard of rationality does not depend upon whether lawmakers ever actually articulated 

the purpose they sought to achieve. Nor must the underlying rationale be empirically

substantiated. [Citation.] ... [A] court may engage in “ ‘rational speculation’ ” as to the 
30.

justifications for the legislative choice [citation]. It is immaterial for rational basis review 

“whether or not” any such speculation has “a foundation in the record.” ’ [Citation.] To 

mount a successful rational basis challenge, a party must ‘ “negative every conceivable 

basis” ’ that might support the disputed statutory disparity. [Citations.] If a plausible 

basis exists for the disparity, courts may not second-guess its ‘ “wisdom, fairness, or 

logic.” ’ ” (Ibid.)

Defendant asserts the legislative history of Vehicle Code section 13351.5 fails to 

discuss the rationale for the classification and or show a plausible reason for the 

classification.14 Defendant argues the classification is irrational in the statutory scheme 

because the offense of assault with a deadly weapon (§ 245, subd. (a)) by means of a

vehicle is the only vehicular crime requiring the mandatory, lifetime revocation of a 

defendant’s driving privilege under Vehicle Code section 13351.5. Other drivers, who 

“commit equally dangerous and heinous vehicular crimes,” are not so treated.

Despite the lack of legislative history, the People provide a plausible reason for 

imposing the mandatory, lifetime revocation of a defendant’s driving privilege only on 

those who commit assault with a deadly weapon (§ 245) by means of a vehicle. The 

second group of vehicular crimes do not require a finding the defendant intentionally

used a vehicle as a means of harming another person. The second group of crimes 

includes violations of vehicular manslaughter (Veh. Code, § 13351, subd. (a)(1)), causing 

serious bodily injury (id., subd. (a)(3)), and three or more convictions in one year for hit 

and run, reckless driving with injury, or vehicular manslaughter while intoxicated (id., 

subd. (a)(2)). Conviction of these crimes results in a three-year mandatory suspension of 

driving privilege.

14 On December 7, 2020, defendant filed a request that we take judicial notice of the 

legislative history underlying amendments to Vehicle Code section 13351.5. We grant this 

request. (See Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.252.)
31.

We agree with the People that this distinction between the two groups provides a 

plausible reason for the classification and different treatment under Vehicle Code 

section 13351.5. Driving is a privilege, not a right. (People v. Linares (2003) 

105 Cal.App.4th 1196, 1199 (Linares).) A serious, intentional abuse of the driving 

privilege by using a vehicle as a weapon constitutes a rational basis for permanently 

taking away the right to drive from those who intentionally use a vehicle to harm others. 

Vehicle Code section 13351.5 protects the public from those who pose a risk of 

committing assaults by means of a vehicle, based on their past history of committing such 

acts.

Because there is a rational justification for the disparity between permanently 

revoking the driver’s licenses of those who commit assault with a deadly weapon (§ 245)

by means of a vehicle and not imposing such penalty as to all other vehicular offenses, 

we conclude Vehicle Code section 13351.5 is constitutional, facially and as applied to 

defendant.

VI. The trial court erred in ordering the revocation of defendant’s driving privilege.

Revocation of a defendant’s driver’s license under Vehicle Code section 13351.5 

is a mandatory administrative function. (In re Grayden N. (1997) 55 Cal.App.4th 598, 

604.) “Simply put, the ... court is bound, under the statute, to report to the [DMV] the 

true finding [defendant] committed an assault with a deadly weapon in violation of Penal 

Code section 245, subdivision (a), and the true finding the weapon ... used was a 

vehicle.” (Ibid.) License revocation is a civil, not a criminal, sanction. (Linares, supra, 

105 Cal.App.4th at p. 1199.) The DMV, not the court, has the power to administratively 

suspend or revoke a driver’s license under Vehicle Code section 13351.5. (In re 

Grayden N., at p. 604; Larsen v. Department of Motor Vehicles (1995) 12 Cal.4th 278, 

284 [the act of the DMV suspending a driver’s license pursuant to Vehicle Code sections 

authorizing them to do so is an administrative act in performing a mandatory function and 
32.

the DMV, having received an abstract of record, is simply required to suspend the 

defendant’s driving privilege].) The DMV’s suspension or revocation of defendant’s 

driving privilege under Vehicle Code section 13351.5 is substantively distinct from any 

punishment a court may impose as a result of a criminal conviction. In other words, the 

DMV’s lifetime revocation, imposed pursuant to Vehicle Code section 13351.5, is an 

administrative civil sanction that is independent of the trial court’s penal sanction.

Furthermore, the Legislature plainly did not intend the trial court to suspend or 

revoke a driver’s license under Vehicle Code section 13351.5, as the court purported to 

do here. Division 6 of the Vehicle Code (Veh. Code, § 12500 et seq.), which deals with 

driver’s licenses, contains a chapter covering suspension or revocation of licenses on all 

possible grounds (ch. 2; Veh. Code, § 13100 et seq.). This chapter consists mostly of two 

articles: article 2 (Suspension or Revocation by Court; Veh. Code, §§ 13200–13210) and 

article 3 (Suspension and Revocation by Department; Veh. Code, §§ 13350–13392). 

“[T]he DMV, not the court, is empowered to revoke a driver’s license.” (Linares, supra, 

105 Cal.App.4th at p. 1199.) The trial court, however, is empowered under Vehicle Code 

section 13351.5 to refer the matter to the DMV for suspension or revocation.

For driver’s license revocation or suspension under Vehicle Code section 13351.5 

to occur, the DMV must receive a certified abstract of record, which shows not only that 

the defendant was convicted of assault with a deadly weapon (§ 245), but also that the 

trial court found the defendant used a vehicle as “the deadly weapon or instrument” in 

committing the offense. (Veh. Code, § 13351.5, subd. (a).) Here, the trial court’s minute 

order does not show this. Thus, if the abstract of record were provided to the DMV, it 

would give the DMV no basis to suspend or revoke defendant’s driver’s license. Because 

only the DMV has the statutory authority to suspend or revoke defendant’s driver’s 

license, and the trial court’s minute order does not include the finding required for the 

DMV to revoke or suspend defendant’s driver’s license under Vehicle Code 

section 13351.5, the trial court’s minute order must be modified to reflect the trial court’s 
33.

finding that defendant used her vehicle as a deadly weapon to commit the section 245 

assault.

The trial court’s order revoking defendant’s driver’s license must be stricken from

the minute order because the trial court did not have authority to revoke defendant’s 

driver’s license under Vehicle Code section 13351.5.

VII. Defendant forfeited any objection to the search of handheld electronic devices 

by failing to object when sentenced.

Defendant argues that the electronics search condition of her probation is 

constitutionally overbroad. The People argue that defendant forfeited her objection to the 

condition by failing to object to the language and condition below. We agree.

A. Background

The trial court placed defendant on formal probation for three years and included a 

condition that required defendant to submit to a search of any handheld electronic 

devices. The trial court explained:

“The reason I order that is that if there is going to be any type of threats or 

any other type of contact—it was made through the phone on this occasion.

It was a device that was utilized in the assistance of committing this 

offense. So the Court feels it’s important for Probation to be able to 

determine whether or not [defendant is] involved in any type of criminal 

conduct such as what occurred in this case. So the search for the hand-held 

electronic device is limited for those purposes.”15

Defendant did not object to this condition.

B. Analysis

“The Legislature has placed in trial judges a broad discretion in the sentencing 

process, including the determination as to whether probation is appropriate and, if so, the 

conditions thereof. [Citation.] A condition of probation will not be held invalid unless it 

15 The trial court’s May 4, 2020 minute order describes the search condition simply as:

“Submit person and property to search and seizure.” We shall order the trial court to amend the 

minute order to reflect the court’s limitation on this search condition.
34.

‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to 

conduct which is not in itself criminal, and (3) requires or forbids conduct which is not 

reasonably related to future criminality ....’ [Citation.] Conversely, a condition of 

probation which requires or forbids conduct which is not itself criminal is valid if that 

conduct is reasonably related to the crime of which the defendant was convicted or to 

future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted (Lent), 

superseded by statute on other grounds as stated in People v. Moran (2016) 1 Cal.5th 

398, 403, fn. 6.)

A defendant who believes a proposed probation condition is unreasonable must 

timely object to the condition in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 

882 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 235 (Welch).) A timely 

objection provides an opportunity for the parties to present argument or evidence 

concerning the need for the condition and for the court to modify the condition if 

necessary. (Welch, at p. 235.) A defendant who fails to make a timely objection in the 

trial court typically forfeits any such argument on appeal. (Id. at pp. 234–235.) There is 

an exception to the general rule where a defendant raises a facial challenge involving a 

pure question of law capable of resolution without any reference to the trial court record. 

(Id. at p. 235; Sheena K., at p. 887.)

Defense counsel posed no objection to the condition that defendant submit to the 

search of her handheld electronic devices. Defendant now argues that the search 

condition “permits unfettered governmental access to her hand-held electronic devices—

which includes all information stored on, or that can be obtained from, her phone.” 

Defendant also argues that she did not forfeit this objection because it is one of pure law 

without regard to the sentencing record. We disagree.

As our Supreme Court recently noted, imposition of an electronics search 

condition is not improper, in itself, even when broadly imposed. (In re Ricardo P. (2019) 

7 Cal.5th 1113, 1124, 1128–1129.) Rather, under either Lent or a pure overbreadth 
35.

analysis, the question is whether, on the record, the imposition of such a condition is 

reasonable. (Ibid.) That analysis falls squarely under the forfeiture rule set forth in 

Welch. (Welch, supra, 5 Cal.4th at p. 237 [“We therefore hold that failure to timely 

challenge a probation condition on ‘[In re ]Bushman[ (1970) 1 Cal.3d 767]/Lent’ grounds 

in the trial court waives the claim on appeal.”].)

Defendant asserts a probation condition impinging on a fundamental constitutional 

right must be narrowly drawn, but her analysis relies on In re Ricardo P., supra, 

7 Cal.5th 1113 and its application of Lent, supra, 15 Cal.3d 481 to handheld electronic 

devices. Defendant also argues that the trial court’s stated nexus between the crime and 

the search is fundamentally flawed. Thus, the import of defendant’s arguments becomes 

whether that condition was appropriately tailored to her situation given the record 

developed. Such is specifically the type of analysis our Supreme Court has stated 

requires an objection to preserve as this contention necessarily requires consideration of 

the trial court record; defendant should have raised her objection to the trial court. (See 

Sheena K., supra, 40 Cal.4th at p. 887 [exception to forfeiture rule where challenge does 

not require “reference to the particular sentencing record developed in the trial court”]; 

Welch, supra, 5 Cal.4th at pp. 234–235 [timely objection allows for additional evidence, 

argument, and potential modification of the condition].)

In addition, in People v. Patton (2019) 41 Cal.App.5th 934, our sister court 

concluded the electronics search condition there was not facially overbroad, and held that 

“[a]ny challenge to the closeness of fit between the condition and facts related to [the 

defendant’s] crime or history is an as-applied constitutional claim, forfeited by [the 

defendant’s] failure to object on that basis before the trial court.” (Id. at p. 938.)

Defendant’s failure to object thus has forfeited this issue on appeal. (People v. 

Patton, supra, 41 Cal.App.5th at pp. 946–947.)
36.

VIII. Defendant’s term of probation is reduced to two years pursuant to 

section 1203.1, subdivision (a).

Effective January 1, 2021, Assembly Bill No. 1950 (2019–2020 Reg. Sess.) 

(Assembly Bill 1950) amended section 1203.1 to limit the maximum probation term a 

trial court is authorized to impose for most felony offenses to two years. (Former 

§ 1203.1, subds. (a), (m), as amended by Stats. 2020, ch. 328, § 2.)16 “[T]he ... 

limitation[s] on ... probation set forth in Assembly Bill No. 1950 [are] ameliorative 

change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d 

740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th 943, 964; 

accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore, the 

amendment to section 1203.1 applies to all cases not final on Assembly Bill 1950’s 

effective date. (Sims, at p. 964.)

Defendant’s case was not final on January 1, 2021, and she was sentenced to a 

term of felony probation exceeding two years for an offense that is not a violent felony 

exempted from the two-year limit on felony probation. (See §§ 1203.1, subd. (l), 667.5, 

subd. (c).) Defendant is therefore entitled to the benefit of Assembly Bill No. 1950. The 

People concede as much.

Both parties request that we remand this matter to the trial court to reduce the 

probation term. However, defendant’s term of probation expired on May 4, 2022. 

(§ 1203.1, subd. (a).) Under the circumstances of this case, the parties fail to persuade us 

that remand for resentencing is necessary or an appropriate use of scarce judicial 

resources. Therefore, we shall modify defendant’s term of probation to two years. 

(§ 1260; People v. Quinn, supra, 59 Cal.App.5th at p. 885.)

16 Subsequently, Assembly Bill No. 177 (2021–2022 Reg. Sess.) effected changes to 

section 1203.1, provided for repeal of the section on January 1, 2022, and then added section 

1203.1, effective January 1, 2022. (Legis. Counsel’s Dig., Assem. Bill No. 177 (2021–2022 

Reg. Sess.) Stats. 2021, ch. 257, §§ 21–22.) Those changes are not relevant to the issue raised in 

this appeal.
37.

DISPOSITION

In accordance with Assembly Bill 1950, defendant’s three-year probation term is 

reduced to two years and the trial court is directed to amend its records to reflect this 

modification. In addition, (1) the trial court’s order revoking defendant’s driver’s license 

is reversed and the trial court is directed to amend its May 4, 2020 minute order to delete 

the language, “DMV to Revoke Drivers License for a period of [sic] As to count(s): 

001.”; (2) the trial court is directed to insert into the same minute order a statement that 

defendant was convicted of a felony violation of section 245 and the court found a 

vehicle constituted the deadly weapon or instrument used to commit the offense; (3) the 

trial court is further ordered to forward a certified record of defendant’s conviction and 

the court’s finding that the deadly weapon or instrument was a vehicle to the DMV; and 

(4) the court is ordered to amend the same minute order to reflect that the search and 

seizure probation condition as to the search of handheld electronic devices is limited to a 

search for threatening communications indicative of assault or assault with a vehicle, and 

only in those portions of the devices likely to reflect such communications.

The judgment is otherwise affirmed.

HILL, P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.