Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07067
BLEASE, Acting P. J.
A jury convicted defendant of wantonly evading a peace officer. (Veh. Code, § 2800.2, subd. (a); further unspecified section references are to this code.) The trial court found defendant had two convictions that qualified as strikes and for which defendant had served prison terms. (Pen. Code, § 667, subds. (b)-(i), 667.5, subd. (b).) The trial court sentenced defendant to prison for 27 years to life, and he timely appealed.
Defendant claims section 2800.2 creates an impermissible mandatory presumption, the jury should have been given a unanimity instruction, the trial court should have excluded certain opinion evidence, and his sentence is cruel and unusual. We shall affirm the judgment.
FACTS
The trial consisted of the testimony of two peace officers.
On August 11, 2005, at 8:29 p.m., Sacramento County Sheriff’s Department Sergeant Gary Shintaku received a report by radio that a stolen white Dodge Caravan had been seen near Cal Expo. Sergeant Shintaku and his partner, Deputy Harmon, who was driving their patrol car, saw a van matching that description traveling in the opposite direction on Exposition Boulevard, turned around, and followed it to a stop light at the intersection of Arden Way and Ethan Way. They radioed the license plate to their dispatcher, followed the van into and out of a shopping center, and then followed it southbound on Howe Avenue, where they were joined by another patrol car. At that point, Deputy Harmon turned on the overhead flashing lights. The van sped up and the officers chased it. During the chase, the van ran a red light at Hallmark Drive and Howe Avenue and made a U-turn; this maneuver forced one car “to slam on its brakes to avoid colliding with that van.” At that point Sergeant Shintaku was able to see the driver, and at trial he identified defendant as the driver. The van sped northbound and ran a red light at Howe Avenue and Arden Way, turning eastbound onto Arden Way. The van ran a red light at Bell Street and Arden Way. The van turned southbound on Fulton Avenue, driving fast. At about this point the van was going 50 miles per hour, the fastest it travelled during the chase.
Sergeant Shintaku testified that a Jeep began to pull over, apparently in response to the flashing lights and sirens, but the van was trying to pass it on the right: As Sergeant Shintaku testified, the van “ran out of roadway and went up on the sidewalk.” When the van hit the sidewalk, both the front and back tires “popped[.”] The van travelled about 10 to 20 feet on the sidewalk and then returned to the street. Sparks and smoke came from the disintegrating wheel rims. The van turned left onto Larkspur Lane, as described by Sergeant Shintaku: “It was driving pretty fast for two flat tires. That’s with the tires disintegrating, and it made a left-hand turn on the two flat tires. So the van was going so fast, and the outside tires were flat, so it was just sliding across the corner making its turn. It was quite interesting.” The van turned too fast on Evelyn Lane “and it crashed into a truck that was parked on the east side of Evelyn.” The van and the truck “were both totaled.” Defendant got out of the van and ran “only a short distance. We caught up to him very quickly.” A passenger was in the van.
California Highway Patrol Officer Ken Roberts heard and investigated the collision. He described the damage as “Basically a side glancing[,]” and later described both vehicles as having “moderate” damage, but declined to say whether they were totaled, because “I’m not an insurance adjustor.”
Defendant waived his right to a jury trial on the priors and the trial court found them to be true.
DISCUSSION
I.
Section 2800.1 defines as a misdemeanor the act of willfully fleeing from a pursuing peace officer, if certain conditions are met. Section 2800.2, subdivision (a) elevates the crime to a felony if “the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property[.]” Section 2800.2, subdivision (b) provides: “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.”
Defendant contends section 2800.2 creates an impermissible mandatory presumption by equating the commission of three traffic violations with “wanton disregard,” thereby both lowering the People’s burden of proof and depriving him of adequate notice of the charges.
This court and other courts have rejected this view, finding the statute merely sets forth alternative definitions of “wanton disregard” and therefore does not create a mandatory presumption. (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1446; see People v. Pinkston (2003) 112 Cal.App.4th 387; People v. Laughlin (2006) 137 Cal.App.4th 1020.) Defendant concedes we have rejected his view, but urges us to reconsider. We decline to do so.
Within this portion of his brief, defendant argues that the application of section 2800.2, subdivision (b) to his case violated his right to notice, because the information charged him with a violation of section 2800.2, subdivision (a). But subdivision (b) does not set forth a separate offense, it provides alternative definitions of “wanton disregard” as that term is used in subdivision (a). Further, it does not appear defendant raised a notice objection in the trial court, and, as the Attorney General points out, the preliminary hearing evidence included testimony about traffic violations and property damage, thereby alerting defense counsel to a possible theory the People could invoke. (See People v. Manning (1982) 133 Cal.App.3d 159, 165 [“it is not the complaint but the totality of the evidence produced at the preliminary examination that notifies the defendant of the potential charges he may have to face”].) Therefore we reject the claim of lack of notice.
II.
The trial court instructed the jury on five traffic infractions it could find defendant committed. Defendant contends the jury should have been given a unanimity instruction, to insure that the jurors all agreed on which three traffic infractions he committed. We disagree.
First, “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 422-423; see People v. Beardslee (1991) 53 Cal.3d 68, 93 [“‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the [unanimity] instruction is not necessary’”]; see also People v. Napoles (2002) 104 Cal.App.4th 108, 115 [if acts form continuous course of conduct, unanimity instruction not needed].)
Second, “where a statute prescribes disparate alternative means by which a single offense may be committed, no unanimity is required as to which of the means the defendant employed so long as all the members of the jury are agreed that the defendant has committed the offense as it is defined by the statute. It follows that even though the evidence establishes that the defendant employed two or more of the prescribed alternate means, and the jury disagrees on the manner of the offense, there is no infirmity in the unanimous determination that the defendant is guilty of the charged offense.” (People v. Sutherland (1993) 17 Cal.App.4th 602, 613.)
We see an analogy to the drunk driving with injury statute, which in part forbids a driver to “do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle” which proximately causes bodily injury to another person. (§ 23153, subd. (a).) In People v. Mitchell (1986) 188 Cal.App.3d 216 (Mitchell), two acts “forbidden by law” were tendered to the jury, speeding and engaging in a speed contest. (Id. at pp. 218-219.) Mitchell held that no unanimity instruction was needed because the reference to an “act forbidden by law” “involves only a definitional refinement of the offense, not a legislative determination that a statutory violation such as unsafe speed or speed contest is a separate act from the standpoint of the gravamen of the offense which is, simply, driving while intoxicated. [¶] As the Attorney General argues, the charges of violating the basic speed law and engaging in a speed contest are merely theories of guilt proposed by the prosecution, as to which the rule is the jurors need not be instructed that to return a verdict of guilty they must all agree on the specific theory — it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of the crime charged as it is defined by the statute.” (Id. at pp. 221-222.)
We find the Mitchell reasoning applies equally to section 2800.2. The jury did not have to agree on three traffic violations, it had to agree that defendant drove with willful or wanton disregard for the safety of persons or property. Unanimity on the specific legal theory supporting the finding of wanton disregard was not required.
Finally, we point out that “wanton disregard” is also established when “damage to property occurs.” (§ 2800.2, subd. (b).) There was no dispute that defendant crashed into another vehicle, and therefore no rational jury would have failed to find “wanton disregard” was proven in this case. Accordingly, any instructional error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 504-507 (Flood).)
III.
Defendant contends the trial court should have excluded the opinion testimony of the peace officers.
Over objection, Sergeant Shintaku testified that not stopping at a red light, driving faster than traffic, making a U-turn against a red light, driving on the sidewalk and crashing into a parked car are or may be Vehicle Code violations. Without objection, Officer Roberts gave similar testimony, in greater detail. He also opined that defendant made an unsafe turn when he hit the truck.
In the middle of Officer Roberts’ testimony, the trial court instructed the jury that it had the duty to determine whether any Vehicle Code violations had been committed, pursuant to the trial court’s instructions, and the opinions of the officers “has to do with what they observed, not, in fact, whether or not the law was violated, only that they were cited for that.”
On appeal, defendant asserts these opinions were inadmissible, under the following rule:
“A witness may not express an opinion on a defendant’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Even if we agreed that the opinions were of no assistance to the jury and should have been excluded (given a timely objection), any reasonable jury would have found that not stopping at a red light, making a U-turn against a red light, driving on the sidewalk, and so forth, violated the various Vehicle Code definitions the jury was given in this case. Accordingly, any error was harmless. (Flood, supra, 18 Cal.4th at pp. 504-507; see, e.g., People v. Torres (1995) 33 Cal.App.4th 37, 48-52.) To the extent defendant argues prejudice hinges based on his view that section 2800.2 constitutes an impermissible mandatory presumption, we have already rejected that view.
IV.
Defendant contends his sentence of 27 years to life constitutes cruel punishment under both state and federal law. In a supplemental brief he contends that if we find these claims forfeited, his trial counsel was incompetent. We will address these claims on the merits.
Defendant blends his analysis of federal and state cruel punishment standards, and we will do the same.
The Eighth Amendment prohibits imposition of a sentence that is “grossly disproportionate” to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 20-21 [155 L.Ed.2d 108, 117] (Ewing).) In a noncapital case, however, successful proportionality challenges are “exceedingly rare.” (Ibid.; [sentence of 25 years to life for felony theft of golf clubs under California’s three strikes law, with prior felonies of robbery and burglary upheld].) In the rare case where gross disproportionality can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) sentences imposed for commission of the same crimes in other jurisdictions. (Harmelin v. Michigan (1991) 501 U.S. 957, 1005 [115 L.Ed.2d 836, 871] [life without parole for possessing 672 grams of cocaine upheld].) “[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.” (People v. Meeks (2004) 123 Cal.App.4th 695, 707.)
A punishment violates the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In applying this principle, we look to: (1) the nature of the offense and the offender, (2) a comparison with the penalty for more serious crimes in the same jurisdiction, and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-429.)
Under these standards, defendant’s sentence offends neither state nor federal standards, as we explain.
We first provide some more facts relevant to defendant’s sentencing hearing, as they bear on the cruel punishment issue.
The probation report shows that defendant served prison terms for a 1990 strike conviction for forcible rape at knifepoint and for a 1995 strike conviction for battery with serious bodily injury, where he grabbed and chased a woman, then punched her, breaking bones. He also has a 1988 conviction for possession of a controlled substance, for which he was granted probation. For his 1995 offense, he violated parole and was returned to custody seven times and he was not discharged until January 4, 2005, just seven months before he committed the instant crime.
Before sentencing, defense counsel declared a doubt about defendant’s competency. A psychological report prepared to address this issue noted that defendant had previously been given an IQ score of 65, and concluded he “suffers from developmental inadequacies and disability” and may have “some mild organic impairment.” Defendant did not meet the standards for mental retardation, but instead had “Borderline Intelligence, rather than Mild Retardation.” After defendant waived his right to a jury trial on competency, the trial court found him competent.
The defense then filed a motion asking the trial court to strike one or both strikes in the interests of justice. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The trial court denied the Romero motion, pointing out that defendant’s first strike involved a rape at knifepoint, and the second was a felony battery resulting in broken bones; further, defendant had a third felony for drug possession and the current offense endangered law enforcement and bystanders. Despite defendant’s low IQ and relatively good behavior in prison, with only one administrative infraction, he had seven parole violations. Although defendant had done charity work and had “significant community support[,]” as reflected by letters submitted on his behalf, the trial court concluded defendant was not outside the spirit of the Three Strikes law.
As stated, the trial court then sentenced defendant to 27 years to life in state prison, 25 years to life for violating section 2800.2 with two strikes, plus an additional year for each of his prior prison terms.
First, defendant asserts that his sentence is grossly disproportionate, and should shock this court’s conscience, because section 2800.2 is punishable as either a misdemeanor or a felony, and because the statute allows the jury to find wanton disregard from three traffic violations; in his view, his act of running three red lights “may have been all that stood between a sentence of 25 to life and a misdemeanor sentence.”
We do not view the current offense solely in the abstract. We consider “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (People v. Dillon (1983) 34 Cal.3d 441, 479.)
Defendant’s crime was extremely dangerous, as the trial court found at sentencing. The wild manner in which he fled from the peace officers threatened harm to defendant’s passenger, to the motorist who had to swerve out of the way, to the Jeep that was trying to pull over in response to the lights and sirens, to the peace officers themselves, and to anyone else in the area. It was a miracle nobody was hurt. For this reason, defendant’s reliance on cases involving nonviolent current offenses, such as technical sex offender registration violations, possession of small amounts of drugs, or perjury is unpersuasive. His crime, even if not violent in the abstract, was life-endangering in its commission.
Further, in considering the harshness of the penalty, we consider that defendant is a recidivist whom the Legislature may punish more severely than it punishes a first-time offender. (Ewing, supra, 538 U.S. at pp. 24-26 [155 L.Ed.2d at pp. 119-120].) His strikes, a 1990 rape at knifepoint and a 1995 felony battery with broken bones, are very violent offenses. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 570 (Sullivan).)
Contrary to defendant’s claim, the strikes were not remote. Generally, a prior may be considered remote when a substantial amount of time has passed during which the defendant has led a blameless life. (See People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 [impeachment purposes]; People v. Humphrey (1997) 58 Cal.App.4th 809, 812-813 [Romero motion].) Here, after his 1995 prison sentence, defendant violated parole seven times, and was not discharged until seven months before the current offense. In this case, we do not find defendant’s priors “remote” for sentencing purposes. (Cf. People v. Carmony (2005) 127 Cal.App.4th 1066, 1080-1081 [on unusual facts, partly characterizing priors seven years old as “remote from and bear[ing] no relation to the current offense....”])
Defendant’s comparison of his sentence with sentences for other offenses in California is flawed. Defendant compares his sentence of 27 years to life with the lower sentences for voluntary manslaughter, second degree murder and rape, but this mode of argument disregards his recidivism. Defendant is thus not comparable to offenders without strike convictions. (See Sullivan, supra, 151 Cal.App.4th at p. 571.) Defendant also argues, in essence, that as a Three Strikes offender, he would have received the same sentence had he committed a more heinous crime, for example, rape. This does not mean his sentence is grossly disproportionate, or that it shocks the conscience of the court.
The fact that defendant’s current offense might not qualify for recidivist sentencing in other states does not render the California punishment cruel or unusual. “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516; accord, Sullivan, supra, 151 Cal.App.4th at p. 573; see People v. Romero (2002) 99 Cal.App.4th 1418, 1430, 1433 [rule stated as applicable to both federal and state constitutions].)
Defendant’s low IQ and “mild organic impairment” do not demonstrate that he is somehow less responsible for his criminality than other offenders.
Defendant’s 27 year-to-life sentence is neither “grossly” disproportionate, nor does it shock this court’s conscience.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., BUTZ, J.