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People v. Alvarez

California Court of Appeals, Second District, Fourth Division
Apr 20, 2009
No. B206363 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA059199, Meredith C. Taylor, Judge.

Deborah Blanchard, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.


MANELLA, J.

Ryan Christopher Alvarez appeals from the judgment entered following a jury trial in which he was convicted in count 1 of evading an officer with willful and wanton disregard (Veh. Code, § 2800.2, subd. (a)) and in count 2 of reckless driving, a misdemeanor (Veh. Code, § 23103, subd. (a)). Execution of appellant’s two-year sentence was suspended, and he was placed on formal probation for three years under certain terms and conditions, including that he serve 365 days in jail. He contends his conviction for evading a police officer was submitted to the jury on a legally incorrect theory, and that the trial court failed to give instructions that clarified the relevant law. He also asserts the trial court committed prejudicial error in failing to instruct the jury with Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 225, because his specific intent was the sole element proved by circumstantial evidence. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On May 19, 2007, at approximately 9:25 p.m., Highway Patrol Officer Daniel Oxley observed appellant driving a motorcycle on Summit Rose Street in the Sunland area of the City of Los Angeles. Officer Oxley began following appellant and when appellant reached Foothill Boulevard, appellant rapidly accelerated, passing all other westbound traffic at approximately 100 miles per hour. As appellant traveled westbound on Foothill Boulevard there were other vehicles next to each other traveling 35 to 40 miles per hour, and appellant “would split between the cars.” Officer Oxley was in uniform and driving a marked black and white California Highway Patrol vehicle with a light bar on the roof. The officer followed appellant for approximately one and one half miles and observed him passing all traffic and “splitting lanes.” Officer Oxley did not attempt to pull appellant over at this point because of the danger involved in attempting to stop a motorcycle traveling at such a high speed.

As appellant approached the intersection of Fenwick and Sunland Boulevard, he slowed to approximately 15 miles per hour. The officer was approximately 30 feet behind, with no cars between them, when he activated his patrol vehicle’s four red lights, the “wig-wags,” and the siren, attempting to initiate an enforcement stop. The light bar on top of the car had white, blue, and red lights and all were working that night. The posted speed limit on Fenwick Boulevard was 25 miles per hour.

When the officer activated his siren, he observed appellant look over his right shoulder and “appear to make eye contact.” The officer, however, did not see appellant’s eyes because appellant was wearing a helmet. Appellant then rapidly accelerated, shifted gears, and proceeded northbound on Fenwick at an extremely high rate of speed. Officer Oxley radioed that he was in pursuit of a motorcycle and attempted to intercept appellant. The traffic was relatively light, but there were cars on the road. Officer Oxley estimated appellant was traveling approximately 60 to 70 miles per hour. As appellant approached the red light at the intersection of Fenwick and Foothill, the motorcycle “locked up its brakes and skidded and struck a raised curb....” After striking the curb, the motorcycle and appellant became airborne and “both crashed out into the intersection.” “[T]he motorcycle struck the roadway with such force that the engine broke and spilled oil all over the road.” After the accident, Officer Oxley arrested appellant.

While the officer was traveling on Fenwick behind appellant, the officer had a “steady burning forward red light,” emitting a red light to the front, six lights that rotate, and the headlights or “wig-wags” alternating. On the back, the light bar alternated four simultaneous amber lights. The “siren was wailing.” All items remained activated until the termination of the pursuit. On Fenwick, appellant committed traffic violations for driving at an unsafe speed in violation of Vehicle Code section 22350, and for failing to stop at a red light in violation of Vehicle Code section 21453, subdivision (a).

Appellant testified in his own defense that he remembered driving on Foothill Boulevard and coming from the intersection of Mount Gleason and Summit Rose. He was driving “pretty fast,” and did not notice that the officer was behind him on Foothill. Appellant slowed down as he drove through different intersections with lights. When he got to the corner of Fenwick and Sunland, he “made the corner because the light was green. And [he] leaned [his] bike into the corner... and then... proceeded to go through the rest of the corner.” He then “slammed” on his brakes because he heard something. He looked in his rearview mirror and his bike skidded and he crashed. When he looked in the rearview mirror, he saw the “Highway Patrol.” He heard a siren and tried to slow down to get out of the way. He had no idea, “it was for [him]. And [his] bike hit the curb and [he] crashed.”

DISCUSSION

I

Appellant contends his conviction for evading a police officer was submitted to the jury on a legally incorrect theory and that the trial court failed to give instructions that clarified the relevant law. He claims the case was submitted to the jury on the theory that his subjective knowledge of the officer’s presence was irrelevant to his guilt or innocence of evading. We disagree and affirm the judgment.

Vehicle Code section 2800.2 provides, “(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.”

Vehicle Code section 2800.1 provides in relevant part, “(a) 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....”

The jury was instructed pursuant to CALCRIM No. 2181, “The defendant is charged in Count 1 with evading a peace officer with wanton disregard for safety in violation of Vehicle Code section 2800.2. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. A peace officer driving a motor vehicle was pursuing the defendant; [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer; [¶] 3. During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property; AND [¶] 4. All of the following were true: [¶] a. There was at least one lighted red lamp visible from the front of the peace officer’s vehicle; [¶] b. The defendant either saw or reasonably should have seen the lamp; [¶] c. The peace officer’s vehicle was sounding a siren as reasonably necessary; [¶] d. The peace officer’s vehicle was distinctively marked; AND [¶] e. The peace officer was wearing a distinctive uniform. [¶] A person employed as a police officer by The California Highway Patrol is a peace officer. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. [¶] A person acts with wanton disregard for safety when (1) he is aware that his actions present a substantial and unjustifiable risk of harm, (2) and he intentionally ignores that risk. The person does not, however, have to intend to cause damage. [¶] Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving. [¶] 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. [¶] A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge, without more is not enough.”

The jury was also instructed pursuant to CALCRIM No. 251: “The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crimes of evading a peace officer with wanton disregard to safety, as charged in Count 1 or simple evading a police office[r], a lesser and necessarily included offense to that charged in count 1, and reckless driving as charged in Count 2, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime.”

During closing argument the prosecution argued that while appellant claimed not to have known the officer was behind him, “that’s not what the law requires. The defendant either knew or reasonably should have known that the officer was behind him, had his lights on, had a red light facing forward, had a siren wailing, he was in a marked patrol vehicle, that the officer was in uniform. Those are all the elements of what we call evading a police officer. I don’t have to show you that he knew for certain. My burden of proof is beyond a reasonable doubt, not beyond all possible doubt. I don’t have to eliminate and erase every grain of doubt that is in your mind. I simply have to show to you that he reasonably should have known beyond a reasonable doubt that Officer Oxley was behind him, that the siren was going, the lights were on, he was in a marked patrol vehicle, and he was wearing a uniform.” The prosecution reiterated several times that while appellant’s defense was that he did not know the officer was behind him, it was the prosecution’s burden to show beyond a reasonable doubt that appellant “knew or reasonably should have known that the officer was behind him....”

Defense counsel did not object to the prosecutor’s argument but in his own closing argued that the prosecution was required to prove that appellant knew the officer was behind him; otherwise it was impossible to prove appellant had the intent to evade. The defense argued the prosecution had “a theory” that appellant “didn’t have to see the lamp. I think the statu[te] says, that he reasonably should have seen the lamp. And [the prosecution] wants you to interpret that into he didn’t have to see the light. But it can’t be that way. It can’t be that he should have, he should not have seen the lamp. Possibly yeah, but he had to at least hear the siren. Because if, in fact, he doesn’t see the light, doesn’t hear the siren, how can you possibly have an evading? And [if] he didn’t see the light, didn’t hear the siren, didn’t see the officer behind him, didn’t know he was being chased, it’s impossible for him to have an intent to evade the officer. That’s one of the elements, one of the necessary elements, she’s got to prove to you beyond a reasonable doubt. So if she says, well, there’s no way he didn’t see, he reasonably should have seen it, you know, you should convict him. No, that’s not what that means. He has to have an intent to evade. If he doesn’t know he’s back there, he can’t possibly intend to evade.”

During the prosecution’s concluding argument, the deputy district attorney stated that the law required that appellant “either saw or reasonably should have seen the red lamp. And that the officer has to sound his siren as reasonably necessary. The law doesn’t say that I have to prove to you that the defendant, in fact, saw the red lamp and, in fact, heard the siren. There’s no way I can prove that to you. I can’t get into his brain. You can’t either.”

We disagree that the case was submitted to the jury on an incorrect legal theory. (See People v. Guiton (1993) 4 Cal.4th 1116, 1127-1128.) Here the jury was instructed that in order to find appellant guilty of evading, it was required to find he “willfully fled from, or tried to elude, the officer, intending to evade the officer[.]” Further, the jury was instructed that “[S]omeone commits an act willfully when he does it willingly or on purpose.” The jury was properly instructed that in order to find appellant guilty on count 1, it was required to find that he “[willingly or on purpose] fled from, or tried to elude, the officer, intending to evade [him.]”

Further, to the extent appellant now claims the instructions needed amplification or clarification, he has waived such a claim by failing to make such a request at trial. “‘“Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 149.)

While the prosecutor may have misstated some law, that did not constitute presentation of the case on a legally incorrect theory. At most, such an error could amount to prosecutorial misconduct. Having failed at trial to timely object to the comments, however, appellant is foreclosed from raising the issue on appeal. (See People v. Morales (2001) 25 Cal.4th 34, 44.)

Moreover, even if the issue had not been waived, the comments did not rise to the level of misconduct. (People v. Morales, supra, at p. 44.) Insofar as the prosecutor suggested to the jury that in determining whether appellant saw the officer’s lamp, the standard to be applied was “saw or reasonably should have seen” the lamp, the prosecutor was correct. Further, her statement that the burden of proving the elements of the crimes beyond a reasonable doubt was not to eliminate all possible doubt was correct.

Even if the prosecutor misspoke, there is no reasonable likelihood the jury misunderstood the prosecution’s burden. Defense counsel made clear in his closing argument that in order to convict appellant of the evading charge, the jury was required to find that appellant had an intent to evade, and that if appellant did not know the officer was “back there, he can’t possibly intend to evade.” Further, the jurors were instructed pursuant to CALCRIM No. 200, that they were to follow the law as the court explained it, and if the attorneys’ comments on the law conflicted with the court’s instructions, they were to follow the court’s instructions.

Appellant faults the court for sustaining the prosecution’s objection to the question of how appellant’s ex-girlfriend “would describe the sounds of the engine” of appellant’s motorcycle. The question was apparently intended to demonstrate appellant did not hear the siren. It was undisputed, however, that the officer had activated the siren and that appellant heard it. There was no prejudice to appellant in the court’s ruling. Additionally, appellant faults the court’s refusal to allow the presentation of a videotape made by defense counsel. The court observed the proffered evidence was “an academy award effort to capture a beautiful portion of southern California, the highways and byways we’ve been discussing,” but noted that it did not relate to the time and place of the incident or to the conditions. The court’s ruling was not an abuse of discretion (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1114.)

II

Appellant contends the trial court committed prejudicial error by instructing the jury pursuant to CALCRIM No. 224 rather than No. 225. Appellant asserts his knowledge of the officer’s presence was the only element dependent on circumstantial evidence for proof, and that where specific intent is the only element dependent on circumstantial evidence CALCRIM No. 225 rather than No. 224 should be given.

CALCRIM No. 224 provides, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

Preliminarily we observe that appellant failed to object to the allegedly erroneous instruction at trial and has waived the issue on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.) Even were we to assume that appellant had not waived the issue, however, reversal is not required. We note that the trial court did give CALCRIM No. 224, and that the jury was instructed with the requisite legal principles. “[T]he correctness of jury instructions must be determined from all of the instructions given, not from a consideration of parts of an instruction or from a particular instruction. The absence of a critical element in one instruction may be supplied by another or cured by the instructions as a whole. [Citation.]” (People v. Lee (1990) 220 Cal.App.3d 320, 327-328.) CALCRIM No. 225 “focuses the jury’s attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state, while [CALCRIM No. 224] broadly covers all circumstantial evidence.” (People v. Burch (2007) 148 Cal.App.4th 862, 872.) “[T]he more general instruction logically includes the more specific....” (People v. Cole (2004) 33 Cal.4th 1158, 1222.) “Because the trial court delivered the more inclusive instruction under [CALCRIM No. 224], its [failure] to additionally instruct with [CALCRIM No. 225] clearly was not prejudicial error. [Citations.]” (People v. Rodrigues, supra, at p. 1142.)

DISPOSITION

The judgment is affirmed.

We concur: WILLHITE, Acting P. J., SUZUKAWA, J.

CALCRIM No. 225 provides, “The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude a fact necessary to find the that defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”


Summaries of

People v. Alvarez

California Court of Appeals, Second District, Fourth Division
Apr 20, 2009
No. B206363 (Cal. Ct. App. Apr. 20, 2009)
Case details for

People v. Alvarez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RYAN CHRISTOPHER ALVAREZ…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 20, 2009

Citations

No. B206363 (Cal. Ct. App. Apr. 20, 2009)