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People v. Allee

Court of Appeals of California, Fifth Appellate District.
Nov 20, 2003
No. F042426 (Cal. Ct. App. Nov. 20, 2003)

Opinion

F042426.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. JASON MAX ALLEE, Defendant and Appellant.

Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Janis Shank McLean, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

Appellant Jason Max Allee was charged with two counts of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c), counts one & two), one count of felony evasion of a peace officer (Veh. Code, § 2800.2, count three), and one count of driving without a license (Veh. Code, § 12500, count four). A jury found Allee guilty of the lesser offense of reckless driving (Veh. Code, § 23103) on counts one and two, acquitting him of assault with a deadly weapon on a peace officer. The jury found Allee guilty of counts three and four.

The jury also acquitted Allee on counts one and two of assault with a weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)), misdemeanor assault with a deadly weapon on a peace officer (Pen. Code, § 241, subd. (b)), and misdemeanor assault (Pen. Code, § 240).

The trial court sentenced Allee to prison for three years on count three, to concurrent sentences of 90 days each on counts one and two, and to a concurrent six-month term on count four. The court imposed a restitution fine and granted Allee applicable custody credits.

On appeal, Allee contends the trial court erred in convicting him of two counts of reckless driving arising from a single act of misconduct. Respondent concedes the error. Allee also argues that his reckless driving convictions were based on the same conduct as his felony evasion conviction and should have been stricken.

FACTS

At 7:45 p.m. on January 19, 2002, Kern County Sheriffs Deputy Dennis Gagnon was dispatched to investigate a domestic disturbance at a trailer park on 15th Street West in Rosemond. Gagnon and his partner Deputy Pengilley arrived and parked their patrol car.

A gray Toyota van backed out of the driveway of unit 404 squealing its tires. The trailer park was dark. The driver of the van did not turn on his headlights.

After making a turn onto the street where they had parked, the van headed toward Gagnon and Pengilley and turned directly toward the patrol car and the position where Gagnon was standing. Both Gagnon and Pengilley had to jump behind their patrol car to avoid the oncoming van, which came to within a foot of the patrol car. Gagnon recognized the driver of the van as Jason Allee.

As Allee exited the trailer park, one patrol car just arriving to the trailer park began to pursue him. Another patrol car inside the park made a U-turn and pursued Allee. Gagnon and Pengilley entered their patrol car and joined the other patrol cars in pursuit of Allees van.

The cars engaged in the pursuit were marked patrol cars with their red lights and sirens activated. The pursuit spanned 12 to 15 miles, reaching speeds of 100 m.p.h. Allee wove in and out of traffic and ran through four red lights. When Allee entered a residential neighborhood with narrow streets, he made a sudden turn, went into a "power slide," hit a curb, and crashed into a tree and a parked car. Allee fled on foot and could not be located.

Erin Caldas lived with Allee for 11 years prior to the January 19, 2002, incident. Caldas described her relationship with Allee as rocky. The evening of January 19, Caldas saw Allee with three of his friends she had not invited in her home. Caldas yelled at them to leave but they would not do so.

Caldas called the 911 dispatcher from outside her home. Before the call ended, Caldas was talking to the dispatcher from her bedroom with the door closed. During the phone conversation, Caldas heard a banging sound like that made by a slamming car door. Caldas looked outside and her van was gone. Caldas did not see who was driving the van, but Allee and his friends were gone.

Allee denied taking the van or being in the van anytime on January 19, 2002. Allees sister testified that she picked Allee up at a liquor store adjacent to the trailer park at 8:40 p.m. on January 19, 2002.

MULTIPLE RECKLESS DRIVING COUNTS

Allee contends the trial court erred in punishing him for two counts of reckless driving where there was only one act of reckless driving. The respondent concedes the error.

The information originally alleged two counts of assault with a deadly weapon on two different peace officers. These allegations were warranted by the fact that two officers had to dodge Allees vehicle. The jury, however, found Allee guilty of reckless driving, not of a lesser-included assault.

Felony evasion is not itself an act of violence against the person. Thus, even when multiple law enforcement officers are involved in apprehending a fleeing perpetrator, the defendant may be convicted of only one count of felony evasion. (People v . Garcia (2003) 107 Cal.App.4th 1159, 1162-1163; also see Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351.)

The offense of felony evasion of peace officers is committed by one who, while fleeing or attempting to elude a pursuing peace officer, drives the pursued vehicle in a willful and wanton disregard for the safety of persons or property. (Veh. Code, § 2800.2; People v. Sewell (2000) 80 Cal.App.4th 690, 695.) The offense of reckless driving is committed by one who drives with a willful or wanton disregard for the safety of persons or property. (Veh. Code, § 23103; see People v. Schumacher (1961) 194 Cal.App.2d 335, 339.)

Both convictions for reckless driving were derived from a single criminal act. The primary difference between felony evasion of peace officers and reckless driving appears to be the element of flight from a pursuing law enforcement vehicle. Because the elements of reckless driving are nearly identical to felony evasion of peace officers, reckless driving is also an offense that is not itself an act of violence against the person.

Therefore, there can only be a single conviction for reckless driving under the facts of this case. We will remand with instructions to the trial court to strike one of Allees two convictions for reckless driving.

EVADING AN OFFICER AND RECKLESS DRIVING

Allee contends the trial court erred in punishing him for reckless driving and for felony evasion of a peace officer. Allee argues that his conduct constituted a single course of conduct, an indivisible transaction. Allee argues it violated the Penal Code section 654 proscriptions against multiple punishments to sentence him for reckless driving and for felony evasion. Allee requests that his reckless driving conviction be dismissed or stayed.

Penal Code section 654 precludes multiple punishments, including either concurrent or consecutive sentences. Penal Code section 654 permits multiple punishments when a defendants conduct injures different victims. (People v. Deloza (1998) 18 Cal.4th 585, 592.) We determined above that both reckless driving and felony evasion of a peace officer are not offenses against individual victims. Multiple punishments, therefore, cannot be imposed if there was a single course of conduct here.

The respondent argues that there was not a single course of conduct. At the time Allee nearly hit Deputies Gagnon and Pengilley, he was driving recklessly. Allee was not, however, being pursued by any peace officer. Furthermore, there was no conclusive evidence Allee was positively aware law enforcement officers had been called. The deputies had just exited their patrol car when Allee drove the van from the driveway. The officers had not initiated any contact with Allee as he drove past them.

According to respondent, the crime of felony evasion of a peace officer occurred later after Gagnon, Pengilley, and other deputies began their pursuit of Allee. Only after Allee left the trailer park did he drive at speeds in excess of 100 miles per hour, run through four red lights, and weave through traffic. As Allee was driving recklessly in this manner, there were marked patrol cars pursuing him operating their red lights and sirens. Allee drove this way for 10 to 15 miles. The degree of Allees recklessness was not as great in the trailer park. Also, there were no marked patrol cars trying to stop him at that time.

Allee argues in his reply brief that the jurys acquittal of him of assault with a deadly weapon on a peace officer, as well as the jurys rejection of the lesser-included offenses of assault with a deadly weapon and simple assault means the jury did not believe the initial act occurred. Allee argues the reckless driving verdicts were predicated upon Allees alleged driving as he fled the officers. We reject this argument. The jury instructions made the reckless driving allegation a lesser offense of the assault allegations of counts one and two. Though the jury clearly rejected the contention that Allees driving in the trailer park constituted any kind of assault, the jury did find Allees driving in the park to be reckless.

The key element of pursuit by patrol cars did not occur until Allee left the trailer park. Until there was pursuit by patrol cars, there was no violation of Vehicle Code section 2800.2. Prior to the violation of Vehicle Code section 2800.2, Allee was driving recklessly through the trailer park at a high rate of speed and without headlights. Because Allee was driving recklessly through the trailer park and was not pursued by peace officers until he drove out of the park, we find there was not a single, indivisible transaction here. Had Allee stopped after encountering the first patrol car just outside the trailer park, he would not have violated Vehicle Code section 2800.2 but he would still have violated Vehicle Code section 23103.

DISPOSITION

The judgment is affirmed, except to remand the matter for the limited purpose of having the trial court strike one of Allees two convictions for reckless driving.


Summaries of

People v. Allee

Court of Appeals of California, Fifth Appellate District.
Nov 20, 2003
No. F042426 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. Allee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JASON MAX ALLEE, Defendant and…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 20, 2003

Citations

No. F042426 (Cal. Ct. App. Nov. 20, 2003)