Law Review: Holding ex-girlfriend over Caltrain tracks likely to produce harm?
Anthony Ray Drayton, Jr. grabbed his former girlfriend in a bear hug and pushed her toward the edge of a Caltrain platform as a train approached. He let her go, pulled back, and she escaped uninjured. Oh yes, I forgot, Drayton told her son who was standing nearby, “Do you want to see your Mom die?”
Is that “an assault likely to produce great bodily injury?”
DANGLED OVER THE TRAIN TRACKS
Several witnesses present at the Caltrain station testified at Drayton’s trial that they saw a woman being grabbed from behind and pushed towards the edge of the train platform, some saying up to and some saying beyond, the yellow-striped safety line. Some said the train was entering the platform and some said it was about to enter the platform.
The ex-girlfriend testified that Drayton lifted her off the ground and “over the train tracks,” where she could see the approaching train.
Drayton flatly denied touching or being violent or aggressive toward her. An alternative self-serving reality, which reminds me of a certain president.
LIKELY TO CAUSE GREAT BODILY HARM
The jury convicted Drayton of assault by means of force likely to cause great bodily harm and sentenced him to five years in prison. He appealed arguing the force he used (by not touching her!) was a bear hug, not likely to cause injury, with an emphasis on the element of likely. Likely was the issue de jour in this case.
The First Appellate District Court of Appeal discussed similar cases, such as where a court upheld a conviction for assault with force likely to produce great bodily injury when the defendant pushed the victim into a street, where the victim was hit by a car; and another case where the defendant pushed the victim out of a bar onto the sidewalk where the victim hit his head on a parking meter.
I remember a case in Truckee 40 years ago where a bar fight carried out onto the sidewalk in downtown Truckee. The victim (an out of town softball player) was blindsided, hit in the head by a local, partisan bystander. He hit his head on the curb and died. Defendant convicted and sent to prison.
The Court of Appeal agreed with the trial court, finding that credible evidence at the trial showed Drayton placed the ex-girlfriend in danger of being struck by the train. A serious injury was likely, even if it did not come to pass.
As the Court wrote, “likely” in the code has now been defined.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.