Opinion
E031871.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. LEONARD GERARD DAVIS, Defendant and Appellant.
Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.
1. Introduction
A jury convicted defendant of a felony for violating Vehicle Code section 2800.2. The jury also found true the allegations that defendant had suffered two prior convictions within the meaning of the Three Strikes Law. The court sentenced defendant to 25 years to life in state prison.
Penal Code sections 667, subdivisions (b) through (i), and 1170.12.
Defendant argues the trial court erred by giving CALJIC Nos. 2.52, 2.92, and 12.85. He challenges the Three Strikes sentence as cruel and unusual punishment and asserts the trial court abused its discretion by refusing to strike one of defendants prior convictions.
We discern no error and affirm the judgment.
2. Facts
a. Prosecution Evidence
At 2:30 a.m. on March 15, 2000, a sheriffs officer was on patrol in a marked vehicle and observed a white Chevrolet van parked behind a business. When the van started to drive away, the officer made a traffic stop. The officer could see the drivers face reflected in the left rearview mirror. But, as the officer approached the vehicle on foot, the van drove off. The officer returned to his car and chased the van on surface streets for about seven miles through four stop signs and three red lights, traveling at speeds over 80 miles per hour. Finally, when the van stopped, the driver emerged and ran off. The driver was an African-American man weighing about 250 pounds and about six feet in height. Inside the van, the police found mail addressed to defendant and his wife and to other people. At trial, the officer identified defendant, who is 6 feet 3 inches tall and weighs 285 pounds, as the driver.
b. Defense Evidence
Defendant had rented the van from the Enterprise car rental company in Big Bear. He claimed he had loaned the van to a man named James Johnson on March 14. Defendant described Johnson as being an African-American man slightly shorter and smaller than himself. Defendant never saw Johnson again after he borrowed the van. Defendant had sprained his ankle in February. On March 15, his ankle was still in a splint and he could not run. Johnsons wife had not seen him and did not know where he was living between February 28 and March 15. Defendant denied being the driver who ran from the police.
3. CALJIC No. 12.85
A violation of Vehicle Code section 2800.2 occurs when "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 meaning of "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." It was stipulated that defendant committed six qualifying traffic violations — not stopping at four stop signs, running a red light, and speeding — during his flight from the police.
Vehicle Code section 2800.2, subdivision (b).
Vehicle Code section 22450, subdivision (a).
Vehicle Code section 21453, subdivision (a).
Vehicle Code section 22349, subdivision (a).
The jury was instructed, without objection, according to CALJIC No. 12.85, which is based on Vehicle Code section 2800.2. Defendant contends the instruction is wrong because it permits a defendant to be convicted in a situation where he has committed three qualifying violations but has not driven with a willful or wanton disregard for the safety of persons or property.
Whatever the merits of defendants argument in the abstract, it simply does not apply here. The definition of "willful or wanton disregard for safety" includes committing three moving violations, although such disregard may be demonstrated in other ways. Furthermore, even if it is possible to drive safely while still committing three moving violations, driving 80 miles an hour and ignoring red lights and stop signs, could never be characterized as safe driving. The present case bears no resemblance at all to the slow-motion police chase during the pursuit of O.J. Simpsons white Ford Bronco.
People v. Sewell (2000) 80 Cal.App.4th 690, 694-695, 696-697.
People v. Sanchez (2001) 86 Cal.App.4th 970, 978.
We hold the court properly gave CALJIC No. 12.85.
4. CALJIC No. 2.52
Defendant contends the court should not have given an instruction, over his objection, based on CALJIC No. 2.52, concerning flight after a crime, because the "identity of the person fleeing [was] in dispute" and there was not ". . . substantial evidence of flight by defendant apart from his identification as the perpetrator, from which the jury could reasonably infer a consciousness of guilt." The former proposition has been disapproved as overbroad in People v. Mason. As to the latter proposition, we agree with the People there was substantial evidence.
People v. Kelley (1990) 220 Cal. App. 3d 1358, 1376, 269 Cal. Rptr. 900.
People v. Boyd (1990) 222 Cal. App. 3d 541, 575, 271 Cal. Rptr. 738, citing People v. Rhodes (1989) 209 Cal. App. 3d 1471, 1476, 258 Cal. Rptr. 71; People v. Pensinger (1991) 52 Cal.3d 1210, 1245, 278 Cal. Rptr. 640, 805 P.2d 899.
People v. Mason (1991) 52 Cal.3d 909, 942-943, 277 Cal. Rptr. 166, 802 P.2d 950.
The pursuing officer saw defendants face when the officer first stopped the van and again when defendant exited the van. Defendant was the lessee of the van and documents bearing his name were found in the van. The officer recognized defendant in a DMV photograph before identifying him in court. Although defendant attempts to minimize the strength of the identification evidence, when considered in total, there was substantial evidence of defendants guilt and his flight, apart from the in-court identification of him as the perpetrator, to warrant giving CALJIC No. 2.52. Therefore, we do not need to discuss defendants harmless-error argument.
5. CALJIC No. 2.92
The pursuing officer testified he was "100 percent" certain of his identification of defendant. Although defendant did not object at trial, he now argues the jury should not have been given CALJIC No. 2.92, concerning a witnesss certainty or uncertainty about eyewitness identification, without also being informed there exists "scientific disagreement about the significance of witness certainty." Defendant relies heavily on a number of professional articles that are not part of the record and were not presented to the trial court.
Assuming any error was not waived or invited by defendant, we follow California precedent approving the use of the certainty factor as expressed in CALJIC No. 2.92. Defendant has offered no adequate justification for this court to depart from established law.
People v. Martinez (1987) 191 Cal. App. 3d 1372, 1383-1384, 237 Cal. Rptr. 219;People v. Wright (1988) 45 Cal.3d 1126, 1141-1143, 248 Cal. Rptr. 600, 755 P.2d 1049; People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232, 842 P.2d 1.
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.
6. Dismissal of Prior Strikes
Defendant was born in April 1960, making him 39-years old in March 2000, the date of the current offense. Defendants two prior strike convictions were for first degree burglaries, one in 1991 and one in 1992. According to the probation report, he was also convicted of grand theft from a person in 1986, several drug offenses in 1990, and a third first degree burglary in August 2000, for a crime committed five months after the present one. Defendant has a criminal history extending for about 15 years. He persistently denies his culpability for the present offense. Although apparently not violent, he matches the profile of the recidivist criminal.
Penal Code section 487.2.
Based on defendants history, the probation department recommended a Three Strikes sentence. At the sentencing hearing, the court observed that residential burglary and the felony of evading a peace officer are potentially dangerous crimes depending on the actual circumstances of their commission. The court also reviewed defendants ongoing criminal history, beginning in 1985, and concluded it would be an abuse of discretion to strike one of defendants prior convictions.
Given defendants long involvement in dangerous crime, we cannot hold the trial court acted outside the bounds of reason when it refused to exercise its discretion in favor of defendant. The ruling denying the motion to dismiss was not an abuse of discretion.
People v. Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429.
7. Cruel and Unusual Punishment
After defendant filed his appellants opening brief, the United States Supreme Court, in companion cases, held Californias Three Strikes law does not violate the Eighth Amendments prohibition on cruel and unusual punishments. Therefore, we will confine our discussion to defendants state constitutional arguments.
Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, U.S. , 123 S. Ct. 1166, 1172-1175; Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. , 123 S. Ct. 1179, 1184-1190.
Using the three-pronged Dillon-Lynch analysis, we do not find defendants sentence of 25 years to life to be cruel or unusual punishment. The first prong involves the nature of the offense and the offender. Defendants offense was a grave one because of its potential dangerousness. Defendant is a recidivist offender.
People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal. Rptr. 390, 668 P.2d 697; In re Lynch (1972) 8 Cal.3d 410, 423-424, 105 Cal. Rptr. 217, 503 P.2d 921.
In re Lynch, supra, 8 Cal.3d at page 425.
The second prong compares defendants punishment with punishment for other serious crimes in California. We disagree the other crimes cited by defendant — voluntary manslaughter, mayhem, selling drugs to a minor, and carjacking — are necessarily more serious than defendants inherently dangerous crime of felony evasion. Defendants punishment is particularly appropriate in light of his recidivism.
People v. Johnson (1993) 15 Cal.App.4th 169, 173.
People v. Romero (2002) 99 Cal.App.4th 1418, 1433.
Finally, the harshness of punishment imposed under Californias Three Strikes law, as compared to other states recidivist statutes, does not automatically render it cruel or unusual. Ultimately, we cannot say defendants punishment is so disproportionate ". . . that it shocks the conscience and offends fundamental notions of human dignity." Especially, we cannot reach this conclusion after the United States Supreme Courts pronouncements in Ewing and Andrade.
People v. Romero, supra, 99 Cal.App.4th at page 1433.
In re Lynch, supra, 8 Cal.3d at page 424.
8. Disposition
We affirm the judgment.
We concur: McKinster Acting P. J., and King J.