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People v. Briggs

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
F061223 (Cal. Ct. App. Feb. 6, 2012)

Opinion

F061223

02-06-2012

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE BRIGGS, Defendant and Appellant.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Beinstein, and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Fresno Super. Ct. No. F10901778)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Beinstein, and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

On July 9, 2010, the Fresno County District Attorney filed a first amended information in superior court charging appellant Johnny Lee Briggs as follows:

Count 1 - possession of an assault weapon (Pen. Code, § 12280, subd. (a));

Count 2 - transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a));

Count 3 - resisting an executive officer (Pen. Code, §69);

Count 4 - evading a peace officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a));

Counts 5 and 6 - possession of a firearm by a convicted felon (Pen. Code, §12021, subd. (a)(10); and

Count 7 - possession of ammunition by a convicted felon (Pen. Code, §§ 12316, subd. (b)(1), 12021, 12021.1).

The district attorney specially alleged appellant served three prior prison terms (Pen. Code, § 667.5, subd. (b)).

On July 21, 2010, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On September 8, 2010, jury trial commenced.

On September 15, 2010, the jury returned verdicts finding appellant guilty as charged of the substantive counts and finding the special allegations to be true.

On October 22, 2010, the court sentenced appellant to a total term of 13 years 8 months in state prison. The court imposed the upper term of five years on count 2, a consecutive five-year term for the related firearm enhancement, a consecutive term of eight months (one-third of the middle term) on count 4, and three consecutive one-year terms for the prior prison term enhancements. The court imposed a concurrent three-year upper term on count 1 and stayed three-year upper terms of imprisonment on counts 5, 6, and 7 (Pen. Code, § 654). The court imposed a $2,600 restitution fine (Pen. Code, §1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, §1202.45), and awarded 400 days of custody credits.

On October 25, 2010, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

At 1:30 a.m. on April 6, 2010, Fresno Police Officer Richard Morales was on duty in a marked patrol car in downtown Fresno. Officer Morales stopped for a red light at the intersection of Kern and F Streets, and his patrol car faced north on F Street. As Morales waited at the signal, a vehicle proceeded south through the intersection without stopping for the red light. Morales made a U-turn, activated the overhead lights and siren on the patrol car, and began to follow the vehicle. The vehicle continued southbound on F Street and then turned left onto Inyo Street.

At the intersection of Inyo and F Streets, the vehicle traveled in a circle three times in the intersection. Officer Morales followed the vehicle and saw appellant behind the wheel. Morales said appellant's tires were "breaking traction." After appellant completed the third circle in the intersection, he drove south at a high rate speed on F Street toward Ventura Street.

Appellant turned right onto Ventura and did not stop for a posted stop sign. Morales said there was a great deal of "pedestrian traffic" on Ventura and he turned off the overhead lights of the patrol car for that reason. Appellant proceeded west on Ventura and did not stop for red lights at the intersections of Ventura and C and B streets. Appellant eventually turned left and drove south on Elm Avenue. Morales lost sight of appellant's car as it went through a curve on Elm Avenue but then saw the vehicle again at the intersection of Elm and Church Avenues. Morales lost sight of appellant's car a second time when it made a westbound turn onto Jensen Avenue. Morales was able to see appellant's car again on Bardell Avenue. Morales said the car was in a cul-de-sac about one-quarter mile from where he had last seen it.

Fresno Police Officer Brandon Brown was on patrol duty at 1:30 a.m. on April 6, 2010, and heard Officer Morales on the police radio. According to Brown, Morales said he was attempting to stop a vehicle. Officer Brown and his partner, Officer Nancy Vue, drove south on C Street, turned onto Ventura, proceeded west to Martin Luther King, Jr. Boulevard, and then went south. As Officers Brown and Vue approached the intersection of Martin Luther King, Jr. Boulevard and East Church Avenue, they heard Officer Morales say he had last seen the vehicle going west on Jensen Avenue near Elm Avenue. Brown and Vue traveled south on Martin Luther King, Jr. Boulevard to the intersection of Jensen Avenue. Brown saw a car turn onto the street from East Kaviland Avenue and followed the vehicle.

Brown accelerated the patrol car to catch up to the vehicle. The car failed to stop for a red light at the intersection of Martin Luther King, Jr. Boulevard and Jensen Avenue. The officers continued their pursuit onto East Vine Avenue. When the car turned onto South Bardell Avenue, Officer Brown activated the overhead lights of the patrol car. The car turned into a cul-de-sac, and Officer Brown drove his patrol vehicle near the car. Officer David Wilkin pulled up in his patrol car and also stopped. Brown got out of his patrol car, pulled his service weapon, and ordered the driver to stop his car. Officer Wilkin also got out of his patrol car, pointed his weapon, and ordered the driver to stop the vehicle and to show his hands.

Officer Morales heard a fellow officer say that there was a gun in the car. Morales and Officer Wilkin pulled appellant out of his vehicle. As appellant was removed from his car, Brown looked through the windshield and saw a rifle in the front passenger seat. Brown told Officer Wilkin about the rifle and then Brown heard appellant say he was "strapped." Wilkin picked up a loaded handgun from appellant's lap and placed it on the roof of his car. Officers then escorted appellant to the rear seat of one of the patrol cars.

Officer Brown described the rifle as "an AK-47 type rifle" with a wooden stock, a 30-round magazine, and "a pistol grip just below the action of the weapon." Brown said the handgun was a revolver, and a search of the interior of the car yielded several .38-caliber bullets. Officer Wilkin searched appellant incident to his arrest and found a plastic bag in appellant's left front jacket pocket. The bag contained an off-white rock-like substance. Wilkin also found a similar bag containing the same type of substance in appellant's right front jacket pocket.

According to Officer Wilkin, appellant became agitated after he was handcuffed. Appellant told Officer Wilkin he was going to be out of jail within four hours, was going to find out where Wilkin lived, and was going to visit his home. Wilkin said appellant's threat was cause for concern. At 1:40 a.m., Officer Marcus Gray went to the scene and took appellant into custody. Officer Gray drove appellant in his patrol car to University Medical Center to have a blood sample taken. Gray said appellant was extremely quiet en route to the hospital. Upon arrival, Gray said appellant "began rapping, making different threats through his lyrics in the raps." Appellant eventually threatened to beat Officer Gray and other police personnel at the medical center.

After medical personnel completed the blood test, Officer Gray took appellant to be booked at Fresno County Jail. On the way to the jail, appellant told Officer Gray that he should not make any statements or write any reports. According to Gray, appellant said, " 'The [police] department was using me [Gray] as [a] pawn just because I was black.' " Although both appellant and Gray are African-American, appellant threatened to kill Gray because " 'that uniform's all the same.' " " 'It's not disrespect, it's nothing personal, strictly business.' " Appellant also told Gray not to enter the jail with him because if Gray did so, "I wrote myself a death certificate." Gray said appellant was booked in the jail without incident.

The parties stipulated that the off-white substance in the plastic bag taken from appellant's front jacket pocket consisted of 13.99 grams of cocaine base, a usable amount. The parties further stipulated that appellant had a blood-alcohol content of 0.07 at the time his blood was drawn at the hospital, but hospital personnel did not detect any cocaine, opiates, PCP, or methamphetamines in the blood.

Defense Evidence

Appellant did not present any documentary or testimonial evidence but chose to rely on the state of the prosecution evidence.

DISCUSSION

I. THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE

JUDGMENT OF CONVICTION OF FELONY EVASION OF A PEACE

OFFICER.

Appellant contends the judgment of conviction on count 4 must be reversed because "there was insufficient evidence to prove that while evading Officer[s] Morales and Brown, appellant drove his vehicle with willful or wanton disregard for the safety of persons or property." Appellant maintains "[t]he evidence ... merely showed that appellant drove his vehicle in a negligent manner, which fell short of the level of reckless driving."

Appellant notes: "The prosecutor limited the evidence of appellant's evading to the sequence of events involving Officers Morales and Brown, and CALCRIM 3500, a unanimity instruction, was given specifically relating to count 4. [Citations.]"

The California Supreme Court has held: "[Vehicle Code] [s]ection 2800.2 makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer's vehicle in 'violation of [Vehicle Code] [s]ection 2800.1' and 'in a willful or wanton disregard for the safety of persons or property.' Under [Vehicle Code] section 2800.1, a person who operates a motor vehicle 'with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor ... 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 . wearing a distinctive uniform.' (Italics added.) Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform." (People v. Hudson (2006) 38 Cal.4th 1002, 1007-1008, citing Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993.)

The prosecution must prove each statutory element - the corpus delicti - beyond a reasonable doubt. On appeal, our task is to review the entire record in search of substantial evidence. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197-198.) The Supreme Court has stated the applicable standard for assessing the sufficiency of evidence:

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, 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. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly 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 reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Under Vehicle Code section 2800.1, it is a misdemeanor to flee willfully in a motor vehicle from a uniformed peace officer in a marked patrol car with lights flashing and siren sounding. Under Vehicle Code section 2800.2, the offense is a felony if the evader drives with a willful or wanton disregard for the safety of persons or property. (People v. Mutuma (2006) 144 Cal.App.4th 635, 641.) The court gave CALCRIM No. 2181 [evading a peace officer], which specifically advised the jury the People must prove, among other things, that "during the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property." The court further instructed that: "Someone commits an act willfully when he or she does it willful[ly], willingly, or on purpose. It's not required that he or she break the law, hurt someone else, or gain any advantage. [¶] A person acts with wanton disregard for safety when: [¶] One, he or she is aware that his or her actions present a substantial and unjustifiable risk of harm. [¶] Two, he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage."

Appellant contends the testimony of Officer Morales "only established that appellant attempted to evade the officer by failing to pull over, but his testimony failed to prove that appellant drove with the requisite willful or wanton disregard for safety." He further contends the testimony of Officer Brown did not establish evasion or willful or wanton disregard for safety because "[w]hen Officer Brown initiated his pursuit of appellant's vehicle on Bardell by turning on his overhead lights, appellant immediately turned into a cul-de-sac just off of Bardell and stopped his car within approximately 75 yards."

In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) The reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. An appellant who contends some particular finding is not supported is required to set forth in his or her brief a summary of all the material evidence upon that issue. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)

In this case, appellant cites evidence favorable to his position, ignoring or minimizing a great deal of evidence to the contrary. Officer Morales testified appellant ran the solid red stop light at F and Kern Streets at 1:30 a.m. on April 6, 2010. After appellant ran the red light, Morales activated the siren and red and blue overhead lights of his patrol vehicle. At F and Inyo Streets, an intersection controlled by a stop sign for east and west traffic, appellant entered the intersection and drove in "donuts or circles" in the intersection. On F Street near Ventura, Officer Morales turned off the overhead lights of his patrol vehicle. Morales explained "there's a lot of people up at that hour and traveling back and forth across the street" and did not want to follow appellant's vehicle with the lights on. He added, "Due to the speeds that the vehicle was traveling in front of me, it wasn't safe for the conditions on that portion of Ventura." Morales said appellant ran through the stop sign at Ventura and F Streets and through the red lights at Ventura and C and B Streets. Appellant turned southbound onto Elm Avenue, and Morales last saw appellant's taillights at Elm and Jensen Avenues.

Officer Brown testified that Officer Morales broadcast the pursuit on the police radio. Brown said he and his partner left the police station, headed down C Street, turned westbound onto Ventura, reached Martin Luther King, Jr. Boulevard, and then continued south on the boulevard. When Brown and his partner reached Church Avenue, they heard Officer Morales report that he last saw the suspect vehicle going westbound on Jensen Avenue from Elm Avenue. Brown testified, "As I see the vehicle, it turns onto Martin Luther King, heads southbound, I'm trying to catch up to it. The vehicle comes up to a red light at Jensen. I observed the vehicle appear to stop, and then it just drove right through the intersection .... As I get to Jensen, the light was still red, so I turn on my red and blue lights, went through the intersection after I made sure it was clear of any traffic. So I'm driving southbound, I observe the vehicle turn eastbound onto Vine and into a neighborhood."

The suspect car turned onto Vine Avenue and Brown came within four or five lengths of the vehicle. The suspect vehicle proceeded 75 yards to a cul-de-sac before coming to a stop. The parties stipulated that appellant had a blood-alcohol content of 0.07 when a blood test was taken at University Medical Center later that morning. Officer Wilkin testified a person with such a blood-alcohol level would not be falling down drunk but would experience a "buzz feeling."

From the foregoing evidence, a reasonable trier of fact could conclude that appellant engaged in wanton disregard for safety by creating a "substantial and unjustifiable risk of harm." According to Officer Morales, appellant failed to stop at numerous red lights and stop signs on an extended meandering journey that went from Kern and F Streets southward to south Bardell Avenue in Fresno. The trier of fact could further conclude from Officer Morales's testimony that appellant drove at a high rate of speed and that such a rate of speed was unsafe, particularly in the area of Ventura and F Streets. Morales said there was still pedestrian traffic on that stretch of Ventura during the 1:00 a.m. hour. He noted the area was populated by "[h]omeless, and other people as well, but unusually [sic] in that area there's a lot of drinking and drug use, so there's a lot of people up at that hour and traveling back and forth across the street."

While appellant characterizes his conduct as "negligent," the jury could have reasonably inferred that appellant engaged in willful conduct when he drove his vehicle southward through the city, that appellant was aware that his evasive actions presented a substantial and unjustifiable risk of harm, and that he intentionally ignored that risk.

The judgment of conviction on count 4 is supported by substantial evidence.

II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT ON MISDEMEANOR EVASION AS A LESSER-INCLUDED OFFENSE OF FELONY EVASION.

Appellant contends the trial court committed reversible error by failing to instruct sua sponte on misdemeanor evasion (Veh. Code, § 2800.1, subd. (a)) as a lesser included offense of felony evasion (Veh. Code, § 2800.2, subd. (a)).

A crime is a lesser included offense of a greater offense if the lesser offense is necessarily committed every time the greater offense is committed. Vehicle Code section 2800.1 is a lesser included offense of Vehicle Code section 2800.2. "The only distinction between the two crimes is that in committing the greater offense the defendant drives the pursued vehicle 'in a willful or wanton disregard for the safety of persons or property.' (Veh. Code, § 2800.2.)" (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.)

A trial court is under a sua sponte duty to instruct fully on all lesser necessarily included offenses that are supported by the evidence. A lesser offense is necessarily included in the greater offense if either the statutory elements of the greater offense or the facts actually alleged in the accusatory pleading, include all elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154, fn. 5.) The duty to instruct on a lesser included offense exists even when, as a matter of trial tactics, a defendant not only fails to request the instruction, but expressly objects to its being given. (Id. at pp. 154-155; People v. Beames (2007) 40 Cal.4th 907, 926.) This rule seeks the most accurate possible judgment by ensuring that the jury will consider the full range of possible verdicts, regardless of the parties' wishes or tactics. (People v. Breverman, supra, 19 Cal.4th at p. 155.) The trial court is not obliged to instruct on theories that lack substantial evidentiary support. Nevertheless, the trial court errs if it fails to instruct sua sponte on all theories of a lesser included offense which find substantial support in the evidence. The existence of any evidence will not justify instructions on a lesser included offense. The evidence must be such that it is substantial enough to merit consideration by the jury. It is evidence from which a jury composed of reasonable persons could conclude that the lesser offense but not the greater was committed. (Id. at p. 162.)

If a court errs in failing to instruct sua sponte on a lesser included offense in a noncapital case, the judgment is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165, citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based on such evidence. However, if the evidence is minimal and insubstantial, the court need not instruct on its effects. (People v. Springfield, supra, 13 Cal.App.4th at p. 1680.)

As noted above, Officer Morales testified that appellant spun "donuts" in an intersection and failed to stop at numerous red lights and stop signs on an extended meandering journey that went from Kern and F Streets southward to south Bardell Avenue in Fresno. Officer Morales testified that appellant drove very erratically and proceeded at "a high rate of speed because it [appellant's vehicle] was continuing to lose me." Morales said he could not specify appellant's speed because he was unable to pace appellant's vehicle. Officer Morales said that when appellant turned "donuts" in the middle of the intersection of Inyo and F Streets, his tires made a screeching sound. Officer Morales emphasized that appellant drove erratically at a high rate of speed on Ventura from F to B Streets and did not obey signal lights or stop signs. Morales testified, "From what I could tell, he did not appear to slow down at any time." When appellant turned southbound on Elm Avenue, he continued at a high rate of speed because he continued to lose Officer Morales, who was in pursuit. Officer Morales's eventual shift from active pursuit of appellant's vehicle on F Street to a more defensive operation of the patrol car strongly suggested that appellant drove at a high rate of speed and that such a rate of speed was unsafe, particularly in the area of Ventura and F Streets. Morales said there was still pedestrian traffic on that stretch of Ventura during the 1:00 a.m. hour, when appellant traveled through the area. Morales noted the area was populated by "[h]omeless and other people as well, but unusually [sic] in that area there's a lot of drinking and drug use, so there's a lot of people up at that hour and traveling back and forth across the street."

Appellant's argument on appeal focuses on the apparent absence of other cars or traffic on the streets during the pursuits by Officer Morales and Officer Brown. Appellant also points out that Officer Morales made no report of any accidents or "near misses" during his pursuit. Appellant has not cited, and we have been unable to find, any authority holding that the traffic level or the occurrence of vehicular accidents and "near misses" are determinative in cases such as this. As discussed ante, felony evasion entails "willful or wanton disregard for the safety of persons or property." "Willful" conduct is purposeful conduct. "Wanton disregard for safety" occurs when an individual is aware that his or her actions present a substantial and unjustifiable risk of harm and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.

Here, appellant engaged in a lengthy flight, failed to heed numerous red lights and stop signs, and traveled at high rates of speed, particularly through the area of Ventura and F Streets where frequent early-morning pedestrian traffic on the roadway was well-known to police. Appellant's conduct was something more than the willful flight or attempt to elude a pursuing police officer's motor vehicle required for misdemeanor evasion (Veh. Code, § 2800.1, subd. (a)). The trial court did not err in omitting to instruct on misdemeanor evasion of a peace officer (CALCRIM No. 2182).

DISPOSITION

The judgment is affirmed.

____________

Poochigian, J.
WE CONCUR: ____________
Dawson, Acting P.J.
____________
Detjen, J.


Summaries of

People v. Briggs

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 6, 2012
F061223 (Cal. Ct. App. Feb. 6, 2012)
Case details for

People v. Briggs

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE BRIGGS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 6, 2012

Citations

F061223 (Cal. Ct. App. Feb. 6, 2012)

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