Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR142745
NEEDHAM, J.
Vernon Leroy Crabtree (Crabtree) appeals from a judgment of conviction and sentence. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
An information charged Crabtree with felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)) and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)).
A. Marsden Motion
Crabtree brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In response to the court’s inquiries, Crabtree stated that he was not dissatisfied with his attorney’s services, but merely wanted him to have a more aggressive attitude and express more confidence in the case. The court denied his motion.
B. Discovery
Defense counsel sought to compel discovery from the prosecution related to a California Highway Patrol (CHP) officer who may have seen Crabtree ride by on his motorcycle while the CHP officer was engaged in a traffic stop at the intersection of Highway 29 and Imola Avenue. Crabtree claimed the CHP officer’s observations would be relevant, because the Napa police officer who arrested Crabtree claimed that Crabtree had failed to stop at a stop sign at that intersection. The prosecutor represented that she had spoken to the Napa police officer who arrested Crabtree, and the only two officers present at the time Crabtree was arrested were the two Napa police officers mentioned in the police report, not a CHP officer. The court ordered the prosecution to provide the defense with the “name and telephone number of the CHP motorcycle officer who was on duty on September 10, 2008, and would have been at the area of Imola and First Street” at 7:00 p.m.
The prosecutor later told defense counsel that there were no CHP motorcycle officers on duty on September 10, 2008, at 7:00 p.m.
The defense, however, determined from its own investigation that CHP officer Kirk Paulson was in fact on duty at the time and location in question, and he saw the Napa police vehicle but not any motorcycle. The court granted the defense’s request that the prosecutor provide the CHP’s dispatch logs for September 10, 2008, from 6:30 to 8:30 p.m.
C. Trial
Shortly before trial, Crabtree pled no contest to the misdemeanor charge. Trial by jury proceeded as to the charge of felony evasion of a peace officer.
1. Napa Police Officer Potter’s Testimony
While on patrol around 2:30 p.m. on September 10, 2008, Officer Brent Potter of the Napa Police Department was dispatched to contact Jennifer Walter (Walter), who had reported that her boyfriend had taken her car without permission. Officer Potter knew that Walter had previously dated Crabtree, and he learned from dispatch that Walter’s boyfriend lived at a trailer park in Napa.
Officer Potter observed Crabtree riding a motorcycle in the trailer park. Potter tried to follow Crabtree, but another car got in the way and the officer discontinued the pursuit.
Around 7:00 p.m., Officer Potter was driving eastbound on Lincoln Avenue and saw Crabtree riding his motorcycle westbound on Lincoln Avenue. The officer made a U-turn, activated his overhead lights and siren, and saw Crabtree look back to where Potter had been. Crabtree turned left to enter a southbound on-ramp of Highway 29 and again looked back in Potter’s direction. On the onramp, Crabtree passed vehicles unsafely in the merging lanes and drove on the shoulder.
As Officer Potter entered the highway at approximately 90 miles per hour, Crabtree was in the far left lane pulling away from him. Crabtree took an off-ramp and turned right without stopping at a stop sign.
Officer Potter followed Crabtree for several streets and saw him turn on Foster Road, a residential area with numerous intersections and a fair amount of foot traffic. While the speed limit is 30 miles per hour on Foster Road, Potter was traveling at about 50 miles per hour and could not gain any ground on Crabtree.
Officer Potter followed Crabtree onto Old Sonoma Road, in another residential area that mostly had a speed limit of 35 miles per hour. Potter again reached speeds of 90 miles per hour, with his lights and siren still on, yet was unable to catch up to Crabtree. Potter lost sight of Crabtree and informed dispatch.
Officer Potter later received information from dispatch that someone had seen a motorcycle on Sunset Road, and Potter responded to the area. Potter saw Crabtree on a motorcycle cutting across a yard and going behind a residence. A short time later, Potter saw Crabtree walk from the residence. Potter drew his weapon and three times instructed him to get on the ground before Crabtree finally complied. Crabtree was handcuffed and arrested.
Napa police officer William Hernandez arrived at the scene and observed Crabtree handcuffed on the ground. At some point, Crabtree told Hernandez that he had a suspended license, he was trying to get home so his vehicle would not get towed, and it was his only way to get to and from work.
2. Evidence Regarding Officer Potter’s Knowledge of CHP Officer Paulson
The parties reached agreement on a stipulation to be read to the jury, to the following effect: the prosecutor advised Napa Officer Potter that the defense was looking for a CHP officer who was at the Imola Avenue exit off of Highway 29 and at the scene of Crabtree’s arrest; and Officer Potter told the prosecutor that he knew nothing about the CHP officer and only Potter and Officer Hernandez were at the scene of the arrest.
Before the stipulation was read to the jury, Officer Potter testified on cross-examination that he did not remember seeing CHP Officer Paulson at the stop sign at the intersection of Highway 29 and Imola Avenue. He acknowledged, however, that CHP Officer Paulson did show up at the scene of Crabtree’s arrest. Officer Potter did not recall any conversation with the prosecutor in which she asked him to identify the CHP officer at the scene of the arrest. He explained that, if the prosecutor had asked him that question, and if he had replied that CHP Officer Paulson was not there, he either misunderstood the question, did not recall Officer Paulson’s presence at the time, or did not mention Officer Paulson because he was not part of the “action.”
3. Motions To Dismiss
After the close of the prosecution case and outside the presence of the jury, defense counsel moved to dismiss the case on two grounds.
First, the defense argued there was a discrepancy between the prosecutor’s representation (that there was no CHP officer present when Crabtree was arrested and – as paraphrased by the defense – that Officer Potter knew nothing about the CHP Officer the defense was looking for) and Officer Potter’s testimony (that CHP Officer Paulson showed up at the scene of the arrest and Potter did not recall saying anything to the contrary to the prosecutor). Based on this discrepancy, the defense argued, either Officer Potter committed perjury or the prosecutor lied. The court denied the motion, finding that Officer Potter had not perjured himself and noting that the jury could evaluate any conflict between the stipulation and Officer Potter’s testimony regarding the presence of the CHP Officer.
Second, defense counsel moved to dismiss under Penal Code section 1118.1, claiming that Officer Potter never identified Crabtree by pointing to him in the courtroom. The court denied this motion as well, noting that the officer had referred to the defendant repeatedly as the motorcycle driver he had pursued.
4. Defense Case
Crabtree testified that he ran out of gas while riding his motorcycle to Walter’s house. He hitchhiked the rest of the way, took a can of gas used for a lawnmower, and drove Walter’s car to his motorcycle. He put the gas in the motorcycle and returned the car to Walters, who gave him a ride back to his motorcycle. As Crabtree drove the motorcycle to the trailer park where he was staying, he noticed the motorcycle was sputtering and took it for a ride to ascertain the problem.
While Crabtree was on Lincoln Avenue, he looked back at an angle to make sure his lane change was safe, without noticing a police car or flashing lights. As he entered the freeway, he opened up the throttle all the way to try to clear any bad gasoline that might have been in the tank from the lawnmower gas can.
Crabtree exited Highway 29 at the Imola off ramp, approached the stop sign very quickly, and stopped. He noticed a CHP officer writing a ticket for someone, but he did not hear any sirens. On Foster Road, he did not stop at the stop sign. He headed westbound on Old Sonoma Road, reaching about 90 miles per hour. As he approached Sunset Road, the motorcycle started stalling, and he stopped. Crabtree parked his motorcycle, intending to have it towed. About 15-20 minutes later, the police arrived. Officer Potter ran towards him, yelling with his pistol drawn. Crabtree claimed he had no idea he was being pursued by Officer Potter.
The defense also called CHP Officer Paulson as a witness. Paulson testified that around 7:00 p.m. he was parked at the southbound Highway 29 Imola off-ramp, having conducted an unrelated traffic stop. Paulson heard a siren and saw a Napa police vehicle exiting southbound Highway 29. He did not see a motorcycle and was unable to tell whether the Napa police car was chasing anyone or what the Napa officer was doing.
A Harley Davidson technician testified that Crabtree’s motorcycle was very loud. He also testified that he would not recommend trying to get bad gas out of a motorcycle by riding around on it as fast as possible.
Shortly before the close of the defense case, and at defense counsel’s request, the court read to the jury the parties’ stipulation concerning the prosecutor’s inquiry of Officer Potter regarding the CHP officer at the scene, and Officer Potter’s response.
D. Jury’s Verdict and Sentencing
The jury found Crabtree guilty of evasion of a peace officer (Veh. Code, § 2008.2, subd. (a)).
Defense counsel filed a motion to reduce the offense to a misdemeanor pursuant to Penal Code section 17(b). After considering counsel’s arguments and Crabtree’s statements, the court denied the motion with a thorough explanation, taking into consideration the circumstances of the case and Crabtree’s personal history.
The court suspended imposition of sentence and granted formal probation for three years under various terms and conditions, including that Crabtree serve 180 days in the county jail, with credit for 109 days credit for time already served. As a further condition of probation, the court imposed a $1,000 fine as to the felony conviction (Veh. Code, § 2800.2), along with fines, penalties and assessments totaling $1,990 as to the misdemeanor conviction (Veh. Code, § 14601.1).
This appeal followed.
II. DISCUSSION
Crabtree’s appellate counsel represented in the opening brief in this appeal that he wrote to Crabtree and advised him of the filing of a Wende brief and his opportunity to file his own supplemental brief within 30 days. We have not received any supplemental submission from Crabtree.
We find no arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.