Opinion
A155301
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DEXTER BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR333897)
A jury convicted Anthony Dexter Brown of evading a pursuing police officer while driving with a willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)). Brown argues the trial court erred in failing to instruct the jury on the elements of three predicate Vehicle Code violations (§§ 22107, 22349, 22350) used to establish his willful or wanton disregard for safety. Brown also contends various assessments and a fine should be vacated because due process entitled him to a hearing on his ability to pay. We affirm.
Undesignated statutory references are to the Vehicle Code.
BACKGROUND
A.
At around midnight on October 29, 2017, California Highway Patrol Sergeant Christopher Brewer saw a group of motorcycles driving at a high speed and began to follow them. One of the motorcycles, driven by Brown, then accelerated ahead of the others. Sergeant Brewer followed Brown for several miles. A video recorded the events and was played for the jury.
For approximately half of a mile, Sergeant Brewer followed closely behind Brown's motorcycle at speeds up to 90 miles per hour. Sergeant Brewer then activated his overhead emergency lights and chirped the siren several times to make an enforcement stop. Brown pulled toward the right shoulder. On a loud speaker, Sergeant Brewer directed Brown to exit the freeway. However, Brown accelerated, crossed the triangular-shaped zone of the exit ramp that divides the ramp from the highway, and rode back onto the highway. With his siren and emergency lights activated, Sergeant Brewer pursued Brown for about three more miles.
At one point, while driving about 80 mph, Brown "squeezed in between" two cars (a maneuver called lane-splitting, which motorcyclists typically do when traffic is slow or stopped). Sergeant Brewer testified "[a]t this speed, you should not be splitting traffic. The traffic is going the speed limit. You should not be splitting. It's too dangerous." Sergeant Brewer explained that, though lane-splitting is not illegal per se, Brown violated the Vehicle Code by following the other vehicles too closely at an unsafe speed (§ 22350). A difference of more than 10 mph between the speed of traffic and the speed of the motorcycle is considered unsafe.
Brown also changed lanes without using a turn signal. For example, the video shows that, immediately after Brown split lanes in between the two cars, Brown rode left to the number one lane, closely in front of one of the cars. At another point, without signaling, Brown switched to the lane directly in front of Sergeant Brewer's patrol car. Sergeant Brewer testified Brown violated the Vehicle Code when he performed lane changes without using a signal (§ 22107).
The chase ended when Brown drove at 60 mph down an off-ramp, jumped the curb, and crashed into a rock drainage ditch. Sergeant Brewer found Brown face down on the ground. Sergeant Brewer saw a black, semi-automatic handgun on the ground next to Brown's right hand. Brown was moving his right hand, feeling for the gun. He refused to comply with Officer Brewer's instructions to stop moving. Another officer retrieved the handgun. Brown was arrested.
B.
The jury convicted Brown of evading an officer with a willful and wanton disregard for safety of persons and property (§ 2800.2) and acquitted him of several other charges.
The court sentenced Brown to a low term of 16 months in prison. It imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $300 parole revocation restitution fine, which the court suspended unless parole was revoked (Pen. Code, § 1202.45, subd. (a)); a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); and a $30 criminal conviction assessment (Gov. Code, § 70373). Brown did not object to these fines and fees.
DISCUSSION
A.
Brown argues the trial court erred by failing to instruct, sua sponte, on the elements of the three Vehicle Code sections used to establish his willful or wanton disregard for safety under section 2800.2. We independently review claims of instructional error. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) Here, we find any error was harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 9-13, citing Chapman v. California (1967) 386 U.S. 18, 23-24.)
1.
Section 2800.2, subdivision (a) provides in relevant part: "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." (§ 2800.2, subd. (a).) "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." (§ 2800.2, subd. (b).)
Consistent with section 2800.2, subdivision (b), and over Brown's objections, the trial court instructed the jury that willful or wanton disregard for the safety of persons or property "includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point. Speed greater than 65 mph on a highway, in violation of Vehicle Code section 22349; unlawful turning movement without signal, in violation of Vehicle Code section 22107; unsafe speed for driving conditions, in violation of Vehicle Code section 22350, are each assigned a traffic violation point." (CALCRIM No. 2181.) The court further instructed the jury that "[a] person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, (2) and he or she intentionally ignores that risk." (CALCRIM No. 2181.) Brown did not request a clarifying or alternative instruction.
Section 22349, subdivision (a), provides that "no person may drive a vehicle upon a highway at a speed greater than 65 mph." Section 22107 states that "[n]o person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement." Section 22350 provides that "[n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." --------
2.
Brown argues that the court should have instructed the jury on the elements of the three traffic offenses that together may constitute a willful or wanton disregard for the safety of persons or property. We need not decide the issue. Any failure to instruct on the elements of the Vehicle Code violations was harmless beyond a reasonable doubt. (See Aledamat, supra, 8 Cal.5th at pp. 9-13.)
The evidence overwhelmingly established Brown's guilt under the alternative (properly instructed) definition of a willful and wanton disregard—that he was aware his "actions present[ed] a substantial and unjustifiable risk of harm" and that he "intentionally ignore[d] that risk." (CALCRIM No. 2181.) As depicted in the video of the incident, Brown led a highway patrol officer on a high-speed chase that culminated in Brown crashing his motorcycle into a drainage ditch and injuring himself. The lane-splitting incident alone was sufficient—while travelling 80 mph and being chased by a patrol car with flashing lights, Brown "squeezed in between" two cars travelling much more slowly on the freeway, at grave risk to the people in those cars and to himself. We do not see how the jury verdict would have been different if the court gave additional instructions on the elements of the traffic offenses.
B.
Brown contends the trial court violated his due process rights by imposing fines and assessments without first determining he had the ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Without questioning the holding of Dueñas as applied to the facts of that case, we decline to extend Dueñas to this case, and we find no due process violation.
Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" fines and assessments. (Dueñas, at p. 1164.) As recently observed in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres), "Dueñas announced a broad constitutional rule, one that has the potential to impose a new procedural requirement on our trial courts in every or nearly every criminal proceeding." (Caceres, at p. 926.) It did so based on unusually compelling facts. Velia Dueñas was an unemployed, homeless mother of two who subsisted on public aid while suffering from cerebral palsy. (Dueñas, at pp. 1160-1161.) Dueñas lost her driver's license because she was too poor to pay her juvenile citations, then continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. (Id. at p. 1161.) "Key to the [Dueñas] holding was its concern for 'the cascading consequences of imposing fines and assessments that a defendant cannot pay,' which '[t]he record in this case [Dueñas] illustrates.' " (Caceras, 39 Cal.App.5th at p. 924, quoting Dueñas, 30 Cal.App.5th at p. 1163.)
Caceras prudently "urge[d] caution in following [Dueñas]" and declined to extend its broad holding beyond the "extreme facts" presented in that case. (See Caceres, at pp. 923, 926-927 ["[I]n our view, the due process analysis does not justify extending its holding beyond those facts."]; see also People v. Kopp (2019) 38 Cal.App.5th 47, 94 ["[W]e urge caution in following that case and announcing a significant constitutional rule without regard to the extreme facts Dueñas presented."].) In Caceres, the defendant, who was convicted of criminal threats and subject to $370 in fines and assessments, claimed the trial court erred by imposing the fines without determining his ability to pay them, citing Dueñas. (Caceres, at pp. 920-921, 922-923.) The court distinguished Dueñas: "Caceres's offense, criminal threats, on its face is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' " (Id. at p. 928, citing Dueñas, at p. 1164 & fn. 1.) "A person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede Caceres's ability to avoid making criminal threats in the future." (Caceres, at pp. 928-929.)
The same reasoning applies here. Brown's offense—evasion of a police officer with a willful or wanton disregard—is not a crime driven by or likely to contribute to poverty. Also, there has been a 26-year gap between Brown's last two convictions, which hardly demonstrates "a cycle of repeated violations." (Dueñas, at p. 1164 & fn. 1.) Brown was gainfully employed at the time of the offense and, according to his counsel when arguing for probation, "could be gainfully employed" upon release. Brown also owned a Harley-Davidson motorcycle. While "[t]hese are hardly indications of wealth," the record indicates that the relatively modest amount of $370 imposed on Brown will "not saddle [Brown] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced." (People v. Johnson (2019) 35 Cal.App.5th 134, 139.) Further, the fact that Brown was appointed counsel in this case does not establish he was unable to pay the fines and fees imposed. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine."].) We find no due process violation.
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.