Opinion
F080701
04-20-2021
THE PEOPLE, Plaintiff and Respondent, v. JULIO LERMA BARRERA, Defendant and Appellant.
Vicki Hightower, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CMS4825)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Valerie R. Chrissakis, Judge. Vicki Hightower, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
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INTRODUCTION
Defendant Julio Lerma Barrera was charged with one felony count of evading a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a); count 1) and one misdemeanor count of failing to appear on a citation (Pen. Code, § 853.7; count 2). Count 2 was dismissed prior to trial. Defendant was convicted on count 1 following a trial by jury and sentenced to the middle term of two years in prison.
All further statutory references are to the Vehicle Code unless otherwise stated.
On appeal, defendant's sole claim is that his conviction is not supported by substantial evidence that he drove with "willful or wanton disregard for the safety of persons or property" under section 2800.2, subdivision (a), and he seeks modification of the judgment to reflect a misdemeanor conviction for violation of section 2800.1. The People dispute defendant's entitlement to the relief sought.
We conclude defendant's conviction is supported by substantial evidence and affirm the judgment.
FACTUAL SUMMARY
On September 1, 2018, at approximately 8:00 a.m., Kern County Sheriff's Deputy Bursiaga was in uniform and on patrol in a marked vehicle equipped with a siren, red and blue flashing lights, a forward facing solid red light, and amber lights in the back. Bursiaga was driving northbound on 14th Avenue when he saw a red vehicle traveling southbound on 14th, approaching the intersection with Hanford-Armona Road. Bursiaga had spent five years as a jail detention deputy and knew defendant through their many contacts at the jail. The driver's window of the red vehicle was down and as Bursiaga passed by, he recognized defendant as the driver. After he passed defendant's vehicle, Bursiaga saw it had no registration tags on the rear plate, which is a Vehicle Code violation and an indication that the vehicle was possibly stolen or had expired registration.
Bursiaga made a U-turn to follow the vehicle, which then accelerated, ran a stop sign and made a sharp turn onto Pimo Street. As Bursiaga approached Pimo, he saw three children on the street corner, but defendant's vehicle was not in sight. After turning onto Pimo and reaching the corner of Pimo and Dan Drive, Bursiaga saw the vehicle's taillights ahead. The speed limit in that area was 25 miles per hour and Bursiaga was driving 45 miles per hour, but not gaining on defendant. At the intersection of Dan and Hanford-Armona, defendant ran the stop sign and headed westbound on Hanford-Armona. Bursiaga turned on his siren and lights at that point.
The speed limit on Hanford-Armona Road from Dan Drive was 25 miles per hour and it increased to 55 miles per hour at Front Street. Between Dan and Front, Bursiaga reached a speed of 100 miles an hour, but was not gaining on defendant. Defendant ran another stop sign at Front Street, and Bursiaga reached speeds of 120 miles per hour on Hanford-Armona between Front and 16th Avenue as he tried to catch defendant. As the vehicles drew nearer to 16th, Bursiaga was gaining on defendant and saw brake lights.
At Hanford-Armona and 16th, defendant's vehicle veered off the road into an orchard. His vehicle hit several dirt berms hard and became stuck. Three men jumped from the vehicle and ran westbound into the orchard. Deputies searched the area, but did not locate any of the men.
The vehicle was registered to Brandon H., who was in jail at the time of the pursuit. He left his keys in the vehicle when he was arrested, and it was picked up by his family. He did not know who might have been driving it at the time of the pursuit.
DISCUSSION
I. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
II. Analysis
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. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.
"(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 2800.1, subdivision (a), in turn provides:
"(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, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform."
B. Substantial Evidence Supports Conviction
At trial, the defense focused on contesting the identity of the vehicle's driver. On appeal, defendant challenges the sufficiency of the evidence related to the recklessness of his driving. Relying on the decisions in People v. Pakes (2009) 179 Cal.App.4th 125, 132 (Pakes), People v. Diaz (2005) 125 Cal.App.4th 1484, 1488 (Diaz), and People v. Pinkston (2003) 112 Cal.App.4th 387, 389-390 (Pinkston), defendant argues that once Deputy Bursiaga activated the siren and lights, he only ran one stop sign and drove in excess of the speed limit. Given that traffic was light, other vehicles pulled off the road, and there were no people present, he maintains there was insufficient evidence to support the jury's finding that he drove with "willful or wanton disregard for the safety of persons or property ...." (§ 2800.2, subd. (a).)
The People contend that the evidence of defendant's driving pattern after the deputy activated his lights and siren is sufficient to support the jury's finding. Alternatively, they argue that the deputy's pursuit began long before he activated his lights and siren, there is no rule that a pursuit only begins once the lights and siren are activated, and we should reject defendant's contrary argument.
1. Commencement of Pursuit
As an initial matter, we are unpersuaded by the People's dismissal of the light and siren requirements. In People v. Hudson, the California Supreme Court made clear that "the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren [as may be reasonably necessary], (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform." (People v. Hudson (2006) 38 Cal.4th 1002, 1008; accord, People v. Byrd (2016) 1 Cal.App.5th 1219, 1223.) We are bound by this determination. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As the Court of Appeal recognized in People v. Byrd, "The statute does not require that either [the] defendant actually knew of the police officers' presence in pursuit or that the pursuit met the requirements listed in section 2800.1." (People v. Byrd, supra, at p. 1225.) Thus, in addition to driving pattern, the prosecutor must prove each of the aforementioned elements beyond a reasonable doubt. (Id. at p. 1223; People v. Acevedo (2003) 105 Cal.App.4th 195, 197-198.)
The People's reliance on People v. Copass (2009) 180 Cal.App.4th 37 (Copass) for the contrary proposition is misplaced. In that case, an officer was pursuing the defendant with his lights activated. When the officer lost sight of the defendant, he kept looking but deactivated his lights in part because "police emergency lights sometimes endanger other motorists [by causing] 'panic stopping.'" (Id. at p. 39.) After another officer alerted him to the defendant's location, the pursuing officer spotted the defendant at a stop sign at a highway entrance. (Ibid.) The officer delayed turning on his siren and lights because he wanted to "'get on top of [the defendant's] vehicle and have a better chance of [not being ditched] again.'" (Id. at pp. 39-40.) However, after the defendant turned suddenly onto the highway forcing another vehicle to take evasive action, the pursuing officer activated his lights and siren. (Id. at p. 40.)
The defendant in Copass challenged his failure to yield to oncoming highway traffic as a predicate traffic offense because at the time he turned suddenly onto the highway, the officer's emergency lights were deactivated. (Copass, supra, 180 Cal.App.4th at p. 40.) The Court of Appeal concluded that on those facts, there was only one pursuit and because the officer activated his lights at the beginning of the pursuit, the statutory requirements were satisfied. (Id. at p. 41.) The decision does not stand for the proposition that the statute may be satisfied so long as the lights are activated at some point during the pursuit, and this case does not involve the deactivation of the lights during a portion of the pursuit.
2. Driving Pattern
"To establish a violation of ... section 2800.2, subdivision (a), the prosecution was required to prove that while driving a vehicle in a willful or wanton disregard for the safety of persons or property, the [defendant] fled or attempted to elude a police officer pursuing in a vehicle. [Citations.] '"'Wantonness includes the elements of consciousness of one's conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.' [Citation.] ... The word 'willful' in this connection means 'intentional' [citations]. The intention here referred to relates to the disregard of safety, etc., not merely to the act done in disregard thereof."' [Citation.] [S]ection 2800.2, subdivision (b) further provides that '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 ... [s]ection 12810 occur, or damage to property occurs.'" (People v. Weddington (2016) 246 Cal.App.4th 468, 486, italics added; accord, People v. Taylor (2018) 19 Cal.App.5th 1195, 1202.)
In attempting to prove a violation of section 2800.2, the prosecutor relied on defendant's reckless driving rather than his commission of three or more qualifying traffic violations or damage to property. Deputy Bursiaga activated his lights and siren after seeing defendant run the stop sign at the intersection of Dan and Hanford-Armona. From that point on, defendant drove at least 100 miles per hour in a residential area with a speed limit of 25 miles per hour. After the speed limit increased to 55 miles per hour and the area became mostly cropland, defendant continued at a rate of speed sufficiently in excess of the speed limit that Bursiaga reached speeds of 120 miles per hour trying to catch up with him. Although traffic was light, there were other vehicles on the road and those drivers yielded to Bursiaga as he pursued defendant. In addition, defendant ran another stop sign and ultimately lost control of his vehicle, veering into an orchard and hitting some dirt berms with sufficient force to immobilize the car.
Based on defendant's extremely high rate of speed in an area where there were other vehicles on the road and residential properties along the road, and his act of running a stop sign while speeding, a reasonable trier of fact could conclude that defendant drove in "willful or wanton disregard for the safety of persons or property" within the meaning of section 2800.2. We are not persuaded otherwise by defendant's reliance on Pakes, Diaz, and Pinkston.
In Pakes, the defendant, with an unrestrained passenger in the car, drove the wrong way down a one-way street, forcing at least one of the three to four oncoming cars to swerve out of the way. (Pakes, supra, 179 Cal.App.4th at p. 132.) On appeal, the defendant advanced a claim of instructional error based on two arguments: the pursuit did not begin within the meaning of the statute until the officer began following behind him and the evidence was insufficient to support the theory that he drove with willful or wanton disregard for the safety of persons or property once the officer was behind him. (Id. at pp. 131-132.) The Court of Appeal concluded that although a pursuing officer will usually be positioned behind the defendant's vehicle, it is not required by the statute and based on the defendant's driving pattern once the officer activated his lights and siren, the prosecutor's theory was supported by sufficient evidence. (Id. at p. 132.)
In Diaz, the defendant led officers on a 29-mile pursuit with frequent lane changes and the pursuing officers testified regarding the dangers presented during pursuit. (Diaz, supra, 125 Cal.App.4th at p. 1488.) At issue was whether the failure to yield to an emergency vehicle, in violation of section 21806, could be used as one of the three predicate traffic violations under section 2800.2. (Diaz, supra, at p. 1490.) The appellate court concluded it could not and, therefore, the trial court's contrary instruction to the jury was erroneous. (Id. at p. 1491.) Because the court was unable to determine, beyond a reasonable doubt, whether the defendant's conviction was based on the legally incorrect theory that he committed three underlying traffic violations, one of which included the failure to yield to an emergency vehicle, or the legally correct theory that he performed an act with conscious disregard for safety, it found the instructional error prejudicial and reversed the conviction. (Id. at pp. 1491-1492.)
Finally, in Pinkston, the defendant was charged with evading a peace officer based on two separate incidents. (Pinkston, supra, 112 Cal.App.4th at p. 389.) In the first incident, the defendant reached speeds up to 100 miles per hour and a pursuing officer collided with another motorist who failed to yield. (Ibid.) In the second incident, which occurred approximately five weeks later, the defendant drove 50-60 miles per hour through residential zones, and he ran four stop signs and two red lights. (Id. at pp. 389-390.) On appeal, the defendant argued, in relevant part, that section 2800.2 "constitutes a constitutionally prohibited mandatory presumption which told the jury the element of willful or wanton disregard for the safety of persons or property existed if the basic fact of three Vehicle Code violations or property damage was present" and the trial court's instruction to the jury "reduced the prosecution's burden of proof." (Id. at p. 391.) With one justice dissenting, the majority rejected the argument and concluded that the statute "does not state a mandatory presumption. Rather, it merely defines, in precise terms, one way in which the People may prove the element of willful or wanton disregard for the safety of persons or property." (Id. at p. 394; accord, People v. Taylor, supra, 19 Cal.App.5th at p. 1204.)
Although these decisions involved underlying acts or events that are not present in this case, as defendant contends, they did not resolve an issue analogous to that raised here and, critically, they did not purport to establish a minimum threshold for reckless driving under the statute. Accordingly, for the reasons previously set forth, we find defendant's conviction supported by substantial evidence and affirm the judgment.
DISPOSITION
The judgment is affirmed.