Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF34608, Douglas E. Weathers, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P. J.
Defendant Randy Donald Sanchez was convicted of one count of driving in willful or wanton disregard for the safety of persons or property while fleeing from pursuing police officers, a felony violation of Vehicle Code 2800.2. A second charge of driving without a license was dismissed prior to trial. Defendant admitted three prior convictions within the meaning of Penal Code section 667.5, subdivision (b).
All further statutory references will be to the Vehicle Code unless otherwise indicated.
Defendant was sentenced to the midterm of two years, plus one year for one of the prior convictions. The other two prior convictions were stricken.
Defendant appeals, contending the evidence was insufficient to establish a violation of section 2800.2. He also argues that the court misinstructed the jury on the question of whether the officer was driving a distinctively marked vehicle.
FACTS
Sergeant McCarthy of the Riverside Police Department testified that he was on patrol at 4:00 p.m. on January 26, 2007, on Magnolia Avenue near the intersection of Van Buren Boulevard in Riverside. He saw a driver, identified as defendant, who was not wearing a seat belt and decided to stop him for the violation. He was about a car length behind defendant’s car when he activated his red lights and briefly activated the siren. Defendant did not slow down or stop but instead quickly turned onto a side street, Farnham Place. Farnham is a narrow residential street with cars parked on both sides.
The officer “activated the siren full-time” and defendant sped up to 60 miles an hour. Defendant slowed down at the end of the block and “ran” through a stop sign. He then turned, drove into the driveway of a residence and stopped, at which time he was arrested. The residence belonged to defendant’s grandmother.
The entire pursuit lasted about 45 seconds and covered about 350 to 400 yards—less than a quarter mile. As noted above, the jury found defendant guilty of a felony violation of section 2800.2. Defendant subsequently admitted the three prior conviction allegations.
DISCUSSION
A. Elements of the crime.
Section 2800.1, subdivision (a), states: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform.”
Section 2800.2 states: “(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. . . . [¶] (b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”
Section 12810 describes the point values given to various offenses. Subdivision (f) of that section assigns a point to “any other traffic conviction involving the safe operation of a motor vehicle upon the highway . . . .”
In this case, the prosecution relied on four Vehicle Code violations to show the requisite three points under section 2800.2, subdivision (b). These were: (1) speeding, a violation of section 22350; (2) failure to stop at a stop sign, a violation of section 22450, subdivision (a); (3) driving on the wrong side of the street, a violation of section 21650; and (4) making an unsafe turn, a violation of section 22107. If section 2800.2, subdivision (b), is applicable, willful or wanton disregard for the safety of persons or property is established for purposes of section 2800.2, subdivision (a).
B. There was substantial evidence of a section 2800.2 violation.
Defendant argues that the testimony of Sergeant McCarthy was insufficient to establish three of the four violations relied on to show a violation of section 2800.2, subdivision (b).
The first violation was speeding. Sergeant McCarthy testified that the speed limit on Magnolia is 40 miles an hour and the speed limit on Farnham is 25 miles an hour. While on Farnham, defendant accelerated to 60 miles an hour. According to the officer, speeding is a moving violation that counts as a point.
Defendant argues that the officer’s speed estimates are questionable because, at a speed of 60 miles an hour, a quarter mile would be covered in 15 seconds, not 45 seconds. If the pursuit took 45 seconds, the overall speed would be 20 miles an hour.
We reject defendant’s attempt to retry the factual issue. The officer’s testimony that the speed limit was 25 miles an hour, and that defendant accelerated to 60 miles an hour, was substantial evidence to support the jury’s implied determination that defendant was speeding.
The second violation is failure to stop at a stop sign. Defendant concedes the substantial evidence to support this violation.
The third violation is driving on the wrong side of the road. The facts of this violation are less clear. Defendant points out that Farnham is a narrow residential street with basically one lane in the center. When defendant drove down it, a car coming from the other direction had to pull over to avoid a collision. However, it is not clear that defendant was driving on the wrong side of the street.
The People argue that the violation occurred when defendant went through the stop sign at the end of Farnham and cut diagonally across the street to enter the driveway. The officer testified: “He basically cut the one corner which would basically cross over into incoming traffic and ran the stop sign.” The officer further testified that, in addition to the stop sign violation, cutting the corner in this fashion was a moving violation with a point value. This testimony is sufficient to allow the jury to conclude that defendant did drive on the wrong side of the street.
The fourth violation was making an unsafe turn. The officer testified that defendant was going 40 miles an hour on Magnolia when he suddenly turned onto Farnham. The officer testified that this was an unsafe turning movement which was a Vehicle Code violation. The officer also testified that pedestrians were running away when defendant turned onto Farnham.
In addition to the four moving violations, the prosecutor also argued that defendant’s conduct during the entire course of the pursuit showed the requisite willful and wanton disregard. The officer’s testimony was sufficient evidence to support the jury’s implied conclusion that defendant’s driving was in willful and wanton disregard for the safety of persons under section 2800.2, subdivision (b), either generally or after consideration of the four moving violations.
In People v. Bean (1988) 46 Cal.3d 919, our Supreme Court stated the applicable general principles: “We reject defendant’s claim that the evidence as to either count was insufficient. An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] The standard of appellate review is the same in cases in which the People rely primarily 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 be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (Id. at pp. 932-933.)
These are the basic principles of substantial evidence review, reiterated in countless cases. Our review of any claim of insufficiency of the evidence is therefore a limited review. If the evidence presented to the trial court is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt or innocence. (Id. at p. 319, fn. 13.)
Applying these time-tested principles, we find the officer’s testimony to be substantial evidence to support the jury’s verdict. (Evid. Code, § 411.)
C. Instructional error.
Defendant contends the trial court misinstructed the jury on another element of the crime. As set forth above, section 2800.1 requires the trier of fact to find that the officer was exhibiting a red light, that the officer was using a siren as necessary, that the officer’s vehicle was distinctively marked, and that the officer was in uniform.
The jury was instructed with a January 2006 version of CALCRIM No. 2181. Although the instruction was revised in August 2006, and the trial was in 2007, the earlier version of the instruction was used. Under this version, the jury was instructed that: “A vehicle is distinctively marked if it has a red light and siren. It may also have additional markings or devices that identify it as a peace officer’s vehicle. The vehicle’s appearance must be such that a person would know or reasonably should know that it is a law enforcement vehicle.”
In People v. Hudson (2006) 38 Cal.4th 1002 (Hudson), the trial court modified CALJIC No. 13.85 and allowed the jury to find that the officer’s vehicle was “‘distinctively marked’” under all of the circumstances of the case. (Hudson, at p. 1011.) Our Supreme Court held that being distinctively marked was a statutory requirement in addition to the requirements that the vehicle exhibit a red light and siren, and was driven by a uniformed officer: “Subdivision (a) of section 2800.1, however, requires physical features in addition to a red light and siren, and the statute limits the determination of whether a police vehicle is ‘distinctively marked’ to the vehicle’s outward appearance, without consideration of the totality of circumstances surrounding the defendant’s criminal conduct that led to the police chase.” (Id. at p. 1012.)
Following the Hudson decision, CALCRIM No. 2181 was modified. It now states: “A vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers, including a red lamp, siren, and at least one other feature that makes it look different from vehicles that are not used for law enforcement purposes.” This updated version of the instruction was not used in this trial.
Thus, even though defendant’s counsel approved the form and content of all the instructions, the instruction given was erroneous because it told the jury that “A vehicle is distinctively marked if it has a red light and siren.”
The People argue that the quoted sentence must be read as part of the entire instruction. An earlier portion of the instruction properly listed the four requirements of section 2800.1, including the requirement that the vehicle be distinctively marked. The sentence immediately after the two sentences of the instruction as given, quoted above, also tells the jury that “The vehicle’s appearance must be such that a person would know or reasonably should know that it is a law enforcement vehicle.” The People thus read the instruction as a whole and conclude that “there is ‘no reasonable likelihood the jury would parse this instruction so finely’ as to find that a red lamp and siren alone, without further identifying features, were sufficient.”
Even assuming the instruction was erroneous, we find no prejudice. In discussing the prejudice issue, the Hudson court stated: “In deciding whether a trial court’s misinstruction on an element of an offense is prejudicial to the defendant, we ask whether it appears ‘“‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’”’ [Citation.] ‘“To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”’ [Citation]” (Hudson, supra, 38 Cal.4th at p. 1013.)
In this case, Sergeant McCarthy testified that he was in uniform and was driving a standard, distinctively marked patrol car with a light bar and siren. There is simply no possibility that the jurors would find otherwise, or would conclude that the police car was distinctively marked solely because it had a red light and siren. The erroneous sentence was certainly nonprejudicial error under any standard. Applying the standard used in Hudson, we conclude that, beyond a reasonable doubt, the instructional error did not contribute to the jury’s verdict. (Hudson, supra, 38 Cal.4th at p. 1013.) Accordingly, we reject defendant’s argument.
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.