Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC061691
Ruvolo, P. J.
A police officer pursued appellant in a car, and then, with the aid of a police dog, attempted to arrest him. The officer erroneously believed that appellant was a dangerous armed robber with an outstanding arrest warrant. Appellant drove through two stop signs to avoid the officer, and then engaged in a vigorous struggle against the officer and the dog. Appellant was convicted of assaulting and battering the officer, resisting arrest, and driving to evade police with willful and wanton disregard for safety.
Appellant contends that several trial court errors impaired his ability to persuade the jury that the officer used excessive force against him, and that he was acting in self-defense. He also argues that the standard jury instruction on the offense of driving to evade pursuit with willful and wanton disregard for safety incorporates an unconstitutional mandatory presumption. We reject all of these contentions, and affirm the judgment.
Facts and procedural background
In late May 2006, San Mateo County experienced a series of armed robberies. One of the suspects in the group of robberies was a man named Ezell Banks. On May 20, 2006, on University Avenue in East Palo Alto, Menlo Park police officer Kevin Paugh drove his police car up behind a car occupied by four people. The car stopped, and three of the occupants ran away as Paugh approached. Paugh arrested the driver of the car, but the three passengers were not apprehended. One of the passengers dropped a loaded gun as he ran, and Paugh later came to believe that this person was Banks. As a result of Paugh’s arrest of the driver, a warrant was issued for Banks’s arrest. The police considered him armed and dangerous.
On June 9, 2006, at approximately 8:40 p.m., Paugh, who was a member of an anti-gang task force formed by several law enforcement agencies in San Mateo County, was patrolling in East Palo Alto with his canine partner, Zin, and a San Mateo County deputy sheriff named Eamonn Allen. Both officers were in uniform. The area was near the place where Paugh had previously seen Banks, and was known to law enforcement as having a high level of narcotics and gang activity.
While driving eastbound on Tulane Street, Paugh saw a grayish Pontiac drive toward him, heading westbound on the same street. The Pontiac had a missing front license plate, which was a Vehicle Code violation. As the two cars passed one another slowly on the narrow street, Paugh saw the Pontiac driver’s face for “a couple of seconds,” and thought that he recognized him as Banks.
Paugh took a route that would enable him to catch up to the Pontiac, and spotted it again stopped at a stop sign about two blocks ahead of him. The Pontiac turned left onto University, and Paugh followed it, catching up to it when it stopped at a light at another intersection. When the light changed, the Pontiac began to turn left at that intersection. Paugh, who by then was about one car length behind the Pontiac, turned on the red and blue lights on his police car. The Pontiac slowed down, and Paugh thought it looked like it was going to pull over, but instead, it kept going. In his own testimony, appellant admitted that he saw Paugh’s police car and its red light at this point, and knew that Paugh was trying to stop him, but chose not to pull over.
Paugh then turned on the full rotator lights and siren on his car, and told the police dispatcher that he was in pursuit of someone he believed was Banks. Paugh continued to pursue the Pontiac as it went through two stop signs without stopping, and accelerated to about 35 to 40 miles per hour, which is in excess of the speed limit. Appellant admitted on cross-examination at trial that he drove through stop signs while Paugh was pursuing him, although he denied driving faster than he had been going before he saw Paugh.
Allen, the other officer in Paugh’s car, confirmed that appellant went through two stop signs without stopping, and drove faster than the speed limit, during Paugh’s pursuit.
Eventually, the Pontiac stopped at the intersection of Fordham and Rutgers. Both of the car’s front doors “flew open,” and the driver and passenger began to emerge. Paugh also stopped and got out of his car, told the Pontiac’s occupants to stop, and warned that he would send his dog after them if they did not. Appellant testified that he did not hear any such warning.
The driver of the Pontiac, whom Paugh later identified as appellant, ran toward a nearby house that had a three-foot-high chain link fence around its yard, with a sliding gate in it. Paugh, who still thought the driver was Banks, sent Zin after him and also gave chase himself, while Allen pursued the Pontiac’s passenger.
Allen was able to catch and handcuff the Pontiac’s passenger, but the person was not involved in appellant’s trial, either as a co-defendant or as a witness for either side. By the time appellant was subdued, the Pontiac was no longer parked where Paugh had pulled it over, and it was not located that evening.
Appellant testified that he ran from Paugh because he was afraid that as a black man, he was at risk for police retaliation for the recent killing of a police officer by a black man in East Palo Alto. Appellant explained that on a previous occasion when he ran away from an officer, the officer had punched him, slammed him to the ground, and stuck a gun in his mouth, and that he was afraid of what the police would do to him. Appellant testified that once he became aware that Zin was after him, he ran into the fenced yard in the hope that he could avoid the dog by closing its gate. Appellant and Paugh both explained that appellant tried to slam the gate shut after running into the fenced yard, but Zin was still able to get through it.
Paugh testified that Zin, who was trained to hold onto suspects with his mouth after biting them, took appellant’s leg into his mouth and then tried to hold him. Appellant did not controvert Paugh’s testimony about the ensuing events. Rather, he testified that he blacked out as soon as Zin bit him, and could not remember anything after that until he was in the ambulance under the care of the paramedics.
Paugh stated that after Zin bit appellant, appellant continued to move forward despite Zin’s painful grip on his leg, and dragged Zin behind him until he reached an area in the side yard near a fence at the edge of the property. When appellant reached the fence, he stopped, and Paugh saw appellant’s hands moving toward his waistband. Concerned that appellant was reaching for a weapon, Paugh pointed his gun at appellant and shouted, “Don’t do it.” Appellant then drew a gun out of his waistband, and turned toward Paugh, raising the gun to waist level and pointing it at the officer. Rather than shooting Paugh, however, appellant tossed his gun into the air, and it flew over the fence into the next yard. Paugh returned his own gun to its holster at that point.
With Zin’s jaws still clamped onto one of his legs, appellant limped toward the back fence of the yard he was in, and started to climb over it. Paugh caught up with appellant just as appellant’s belt line reached the top of the fence, and grabbed appellant’s other leg. Paugh kicked some boards out of the fence so that he could keep sight of appellant’s hands, and again ordered him to stop. Appellant continued to try to pull away, however. By this time, appellant’s pants had partially come off, so Paugh reached through the hole he had made in the fence and grabbed appellant’s genitals and squeezed them briefly, attempting to cause enough pain to get him to stop resisting. This was not effective, however, so Paugh released his hold and grabbed appellant around his legs with both arms.
At that point, appellant reached back through the hole in the fence, grabbed Paugh’s heavy flashlight, and began hitting Paugh’s head and left hand with it. Paugh was concerned that the blows to his head could incapacitate him, so he ordered appellant to stop hitting him or he would shoot. Appellant, who had not previously reacted to anything Paugh said to him, responded, “Go ahead, fuckin’ shoot me.”
Paugh testified that the blows were painful, and that his left hand hurt badly and became swollen due to appellant’s assault with the flashlight. Paugh had difficulty bending his left index finger for several months afterwards.
Shortly after that, Paugh and Zin both lost their grip on appellant, who went over the fence. At around the same time, Paugh saw that the backup officers for whom he had radioed had arrived, and called out his location to them. They reached him almost at the same time that appellant cleared the fence. One of the assisting officers went over the fence after appellant, and Paugh, Zin, and the other officers followed him through the hole in the fence.
Even after the other officers began to assist Paugh in trying to subdue appellant, he continued to resist by kicking, trying to rise from the ground, reaching for the flashlight, and fighting off the officers’ attempts to get hold of his arms so as to handcuff him. During the struggle, Zin renewed his hold on appellant; one of the officers punched appellant in the head; and he was tased twice. Finally, the officers were able to get appellant handcuffed, and the paramedics took him to the hospital so that he could be treated for his dog bite wounds.
During appellant’s struggle with Paugh and the other officers, his pants had come off entirely. The officers recovered and searched the pants, and found a plastic bag containing 3.64 grams of cocaine base, $175 in twenties, tens, and fives, and a cell phone, all in the same pants pocket. A police expert witness testified that possession of 3.64 grams of cocaine base, together with the cash and weapon that appellant had, along with the other circumstances of the case and appellant’s prior conviction, was indicative of possession for sale. The officers also recovered the gun that appellant had thrown away while Paugh was pursuing him, which proved to be a semiautomatic with a loaded high capacity magazine and a round in the chamber. In his defense testimony, appellant admitted that the pants were his, but contended that he did not remember having the cocaine base or the gun.
Appellant was charged with the following seven counts: (1) possession of cocaine base for sale (Health & Saf. Code, § 11351.5) while personally armed with a firearm (Pen. Code, § 12022, subd. (c) ); (2) assault on a peace officer with a deadly weapon other than a firearm (§ 245, subd. (c)); (3) possession of a firearm by a felon (§ 12021, subd. (a)(1)); (4) evading a police officer by driving with wanton disregard for the safety of others (Veh. Code, § 2800.2); (5) brandishing a firearm against a peace officer engaged in his duties (§ 417, subd. (c)); (6) battery on a peace officer resulting in injury (§ 243, subd. (c)(2)); and (7) resisting a peace officer (§ 148, subd. (a)(1)). Appellant was also alleged to have two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)), and to have served a previous prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise noted.
On December 21, 2006, appellant’s trial counsel filed a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess motion), seeking disclosure of personnel records regarding Paugh and Zin as they related to claims of either (1) lack of truthfulness, filing false police reports, or fabricating evidence, or (2) use of excessive force. In support of the motion, appellant’s trial counsel submitted a declaration averring that Paugh and Zin had used unnecessary and unreasonable force in connection with appellant’s arrest; that they had used such force against other unknown persons in the past; and that the records regarding Paugh and Zin’s use of excessive force were necessary to support appellant’s claim that his own use of force was justified as self-defense. The declaration also averred in conclusory terms that that Paugh had fabricated information and testimony and manufactured evidence in the past, but it did not specify any factual basis for this contention, nor did it explain specifically how the requested records would relate to appellant’s defense case.
On January 19, 2007, the trial court heard appellant’s Pitchess motion. During the part of the hearing conducted in open court, the judge ruled that as to complaints of untruthfulness or manufacturing evidence, appellant had “failed to establish a plausible scenario that places Officer Paugh’s truthfulness or his manufacturing of evidence at issue.” As to complaints of excessive force, however, the judge stated that he had “reache[d] a different conclusion,” and would review Paugh’s personnel file with regard to his use of excessive force, either alone or in conjunction with Zin.
The court then conducted an in camera hearing with counsel and the custodian of records for the Menlo Park Police Department, during which the judge went over the portions of Paugh’s personnel file relating to the five years preceding June 9, 2006, as well as records regarding Zin’s performance, and relevant records of complaints against Paugh and Zin.
When the proceedings reconvened in open court, the judge disclosed that there had been one complaint relating to Paugh’s use of excessive force involving Zin. He told appellant and his counsel the date of the incident; the full name and birthdate of the complaining party; the contact information for that person contained in the file; and the fact that the person’s last known address was at San Quentin State Prison. He also noted that an internal affairs investigation had exonerated Paugh and Zin of using excessive force in that incident.
Appellant’s trial counsel later located the complainant at the state prison in Corcoran, interviewed him, and obtained a court order for him to be produced as a witness at trial. Just prior to trial, however, counsel informed the court that he did not wish to call the complainant as a witness after all.
On February 1, 2007, appellant filed a motion to suppress the gun and drugs seized at the time of his arrest, on the ground that the arrest was illegal. In opposition to the motion, the prosecution argued, among other grounds, that Paugh’s initial attempt to stop the Pontiac was justified by its lack of a front license plate and its subsequent moving violations, and that Paugh’s subsequent warrantless arrest of appellant was justified by appellant’s flight from Paugh, as well as his conduct in the course of attempting to resist his arrest. After a hearing on March 2, 2007, the trial court denied appellant’s motion to suppress.
Appellant does not challenge this ruling on appeal.
On May 29, 2007, just prior to the start of jury selection for appellant’s trial, appellant’s trial counsel asked the trial judge to rule in advance that whenever he made an objection, he would be deemed to have preserved all relevant federal constitutional issues. The trial judge agreed that appellant’s trial counsel had “made [his] record as to those grounds for objections,” and confirmed that the court’s rulings on applicable objections would be deemed to have included all applicable federal constitutional grounds.
On June 4, 2007, the jury convicted appellant on all counts except count five (brandishing a firearm). As to count five, the jury deadlocked, and the court declared a mistrial. The jury also found true the allegation in count one that appellant was armed with a firearm. Appellant successfully moved for a bifurcated trial with respect to those of his prior convictions that were not admissible at trial, and waived his right to jury trial on them. On June 5, 2007, the trial court found the bifurcated prior conviction allegations to be true. On July 17, 2007, appellant was sentenced to an aggregate prison term of 17 years. This timely appeal ensued.
DISCUSSION
As his principal defense to the charges of assault on a peace officer with a deadly weapon other than a firearm (count two); brandishing a firearm against a peace officer engaged in his duties (count five); battery on a peace officer resulting in injury (count six); and resisting a peace officer (count seven), appellant contended that Paugh used excessive force in effecting his arrest, thus negating one element of those offenses, i.e., that at the time they are committed, the peace officer must be engaged in his duties. (See People v. Curtis (1969) 70 Cal.2d 347, 354-356, abrogated on another point by People v. Gonzales (1990) 51 Cal.3d 1179, 1222.) This contention was based in part on a challenge to the credibility of Paugh’s testimony that during his encounter with appellant, he believed at all times that appellant was Banks, an armed and dangerous suspect with an outstanding felony warrant, rather than someone whom Paugh had no reason to suspect of any crimes other than driving without a front license plate, running stop signs, and speeding. Appellant’s first four issues on appeal assert that various trial court errors impaired appellant’s ability to present that defense to the jury.
Partial Denial of Pitchess Motion
Appellant contends that the trial court should have granted his Pitchess motion in its entirety, and required disclosure of information relating to complaints of untruthfulness or fabricated evidence. We apply the abuse of discretion standard to a trial court’s ruling on a Pitchess motion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
In order to show good cause for the production of police records, a Pitchess motion must do more than assert in conclusory terms that the officer involved has a history of a certain type of misconduct. “To show good cause..., defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) “Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.)
For example, “[i]n People v. Hustead [(1999)] 74 Cal.App.4th 410, a defendant facing a charge of felony evasion of arrest brought after a high-speed automobile chase sought Pitchess discovery of whether the pursuing officer had ‘a history of misstating or fabricating facts’ in police reports. [Citation.] In support of the motion, the defense declaration denied that the defendant had driven in the way or along the route described by the officer. [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1025.) This was held to meet the defendant’s burden of making “an initial showing that the information he is seeking is material to the case at hand. [Citation.]” (People v. Hustead, supra, 74 Cal.App.4that p. 416.) “In other words, defense counsel’s declaration in Hustead made allegations sufficient to ‘establish a plausible factual foundation’ for a defense that the defendant did not drive in the fashion described in the police report and that the officer’s report was untrue. [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1025.)
Here, by contrast, appellant’s trial counsel presented no facts in support of his Pitchess motion with respect to untruthfulness and fabrication of evidence, beyond his conclusory allegation, on information and belief, that Paugh had committed such misconduct in the past. If this showing were sufficient, criminal defendants’ Pitchess motions with regard to an arresting officer’s truthfulness would have to be granted in almost every case in which the circumstances surrounding the defendant’s arrest were not observed by anyone other than the defendant and the arresting officer. This simply is not the law, and we see no abuse of discretion in the trial court’s ruling here.
As an alternative argument, appellant contends that his trial counsel rendered ineffective assistance by failing to make the requisite factual showing. That argument, however, assumes that such a showing could have been made if counsel had been more diligent. Appellant has not pointed to any evidence in the trial court record supporting that assumption. Accordingly, appellant’s ineffective assistance of counsel argument cannot be decided on direct appeal. (See People v. Ledesma (2006) 39 Cal.4th 641, 746 [“If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’...”].)
Appellant’s appointed counsel in this court also filed a petition for habeas corpus on his behalf, raising the same issue regarding ineffective assistance of counsel, as well as other issues. (In re Feaster (A122545), petn. pending.) On September 3, 2008, we issued an order stating that we would decide whether to issue an order to show cause concurrently with our review of the direct appeal. Having now reviewed the petition, we will dispose of it by separate order.
Limitation on Cross-Examination of Paugh
Procedural History
As already noted, during Paugh’s direct examination, he testified that when appellant first drove past him, he thought he recognized appellant as Banks. Later on in the course of Paugh’s testimony about his pursuit of appellant, the trial judge asked Paugh when he first discovered that appellant in fact was not Banks. Paugh replied that he did not learn this until several hours later, at the hospital, and confirmed that during his entire interaction with appellant prior to appellant’s arrest, he thought he was in pursuit of Banks.
On cross-examination, just prior to the lunch recess taken during Paugh’s testimony, appellant’s counsel started to question Paugh about the difference in height between Banks and appellant. The court suggested that “we get into that after the noon break,” and excused the jury. When court reconvened, appellant’s counsel asked Paugh to look at the prosecution’s exhibit four, which appellant’s counsel had stipulated was admissible. Exhibit four included photographs of Banks, as well as a police flyer that set forth a description and photograph of Banks, noted that there was a warrant for his arrest, and stated that he was to be considered armed and dangerous. At that point, an unreported discussion was held at the bench, after which the court excused the jury.
After the jury left the courtroom, the court asked appellant’s trial counsel for an offer of proof regarding the relevance of his cross-examining Paugh about Banks’s appearance, given the denial of appellant’s motion to suppress, which put to rest any contention that his arrest was illegal. Appellant’s counsel responded that he was attempting to cross-examine Paugh regarding his response to the court’s question about when it was that Paugh learned that appellant was not Banks. The court responded that appellant’s counsel would not “be allowed to go into all of the Banks testimony because [he] didn’t object when [the prosecutor] presented it,” but that counsel would “be able to examine [Paugh] on whether or not [he] used additional force when using the dog, those kinds of issues, because he thought it was an armed robbery suspect.”
Appellant’s trial counsel did not object further. When his cross-examination resumed, he asked Paugh about the lighting at the scene; about his degree of apprehension in light of his belief that appellant was Banks; and about how long it was between when appellant got out of the Pontiac and when Paugh loosed Zin on him. He then went on to cross-examine Paugh on other topics.
Appellant’s Argument
Appellant contends that the line of cross-examination which his trial counsel sought to pursue should have been allowed, because it directly addressed the credibility of Paugh’s testimony that he believed appellant was Banks, which in turn bore on the question whether Paugh was justified in using the degree of force that he did. Appellant contends that the trial judge refused to allow this line of questioning because he believed, erroneously, that it was foreclosed by the denial of appellant’s motion to suppress and/or by appellant’s counsel’s failure to object to the admission of exhibit four.
This argument is belied by the record. The judge expressly ruled that appellant’s counsel could cross-examine Paugh regarding his motivation for using the degree of force that he did, and trial counsel took some advantage of this opportunity.
Even if the trial judge erred in foreclosing further inquiry into the reasonableness of Paugh’s mistaken belief about appellant’s identity, any error was harmless beyond a reasonable doubt. Trial counsel was permitted to cross-examine Paugh about the core issue, i.e., the basis for Paugh’s use of force. The differences between Banks’s appearance and appellant’s were before the jury, as were the circumstances of Paugh’s observation of appellant prior to his arrest.
In addition, the charges in counts two and six were both entirely based on appellant’s conduct after Zin initially bit him. Paugh’s testimony about appellant’s actions during this time period was uncontroverted. Based on Paugh’s account of appellant’s continued resistance, Paugh’s use of force at this time unquestionably would have been justified by appellant’s own conduct, even if Paugh had not mistakenly believed that appellant was Banks.
Count seven, the offense of driving with willful or wanton disregard for safety in order to evade an officer, was committed before the initial dog bite. As to that count, however, appellant admitted that he drove through two stop signs while fully aware that a police officer was trying to stop him, and Allen confirmed Paugh’s testimony that appellant was speeding. Thus, the credibility of Paugh’s belief that appellant was Banks was not material with respect to this count. Accordingly, any error was harmless as to count seven as well.
For all of the foregoing reasons, and based on the record as a whole, we are convinced beyond a reasonable doubt that permitting further cross-examination of Paugh about Banks’s physical description would not have resulted in a verdict more favorable to appellant.
Respondent argues that appellant waived this issue because his trial counsel failed to preserve it adequately. Appellant argues, in this connection, that if appellant’s trial counsel is deemed to have waived any basis for seeking to pursue this line of examination, then we must reverse on the ground of ineffective assistance of counsel. Because we reject appellant’s argument on its merits, we do not reach respondent’s contentions as to waiver. Moreover, with regard to waiver of federal constitutional claims, we note that the trial court accepted trial counsel’s request at the start of trial that no federal constitutional objections be deemed waived. We therefore reject both respondent’s waiver argument and appellant’s claim of ineffective assistance of counsel as to this issue.
Failure to Instruct Jury on Proper Use of Force by Peace Officers
The trial court instructed the jury, using language from CALCRIM No. 2670, that the prosecution had the burden to prove beyond a reasonable doubt that Paugh was lawfully performing his duties as a peace officer, and that if this burden was not met, the jury should acquit appellant on counts two, five, and six. The court also gave the portion of CALCRIM No. 2670 instructing that “[a] peace officer is not lawfully performing his duties if he is using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest.” In addition, the court instructed the jury with the portions of CALCRIM No. 2670 relating to the right to use self-defense against a peace officer in response to the officer’s use of unreasonable or excessive force.
As delivered by the trial court in this case, those instructions were as follows: “A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. [¶] If a person knows, or reasonably should know, that a peace officer is arresting or detaining him, the person must not use force or any weapon to resist an officer’s use of reasonable force. [¶] If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest a person, that person may lawfully use reasonable force to defend himself. [¶] A person being arrested uses reasonable force when he: (1) uses that degree of force that he actually believes is reasonably necessary to protect himself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his protection.”
The trial court declined, however, to instruct the jury with the portions of CALCRIM No. 2670 that define lawful detention and lawful arrest. Appellant contends that this was error. As the bench notes to CALCRIM No. 2670 point out, these portions of the instruction apply only if there is an issue as to whether the officer had a legal basis to detain or arrest someone. In the present case, it is undisputed that appellant failed to stop at two stop signs before Paugh succeeded in pulling him over, and that Paugh saw him do so. Thus, it is beyond dispute that by the time Paugh got out of his police car, he had probable cause to arrest appellant. Appellant does not argue otherwise.
The portions of CALCRIM No. 2670 that the trial court refused to include in the instructions read as follows: “[A peace officer may legally detain someone if...: [¶] 1. Specific facts known or apparent to the officer lead him [or her] to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion. [¶] Any other detention is unlawful. [¶] In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person.]....
Indeed, the issue in the case was not whether or not Paugh had probable cause to arrest appellant, but whether Paugh was justified in using the degree of force that he did during the course of the arrest. Accordingly, only the portion of CALCRIM No. 2670 dealing with excessive force was relevant to the issues in the case. The trial court instructed the jury fully on that subject. The portions of that instruction which appellant contends should have been given were irrelevant to the issues the jury was called upon to decide, and the trial court was therefore not required to give them. (People v. Armstead (2002) 102 Cal.App.4th 784, 792 [general rule is that in criminal case, trial court must instruct on principles of law relevant to issues raised by evidence, and has correlative duty to refrain from instructing on principles of law that are irrelevant to issues raised by evidence and may confuse jury]; People v. Saddler (1979) 24 Cal.3d 671, 681 [same].) For that reason, we find no error in the instructions in this regard.
Refusal to Instruct on Self-Defense
Appellant requested that the trial court instruct the jury on self-defense as a defense to counts two (assault on Paugh) and six (battery of Paugh). The trial court declined to give the instruction because defendant did not assert, in his own trial testimony, that he believed his actions, as charged in those counts, constituted legitimate self-defense. Appellant now contends that this was error.
As already noted, by instructing the jury to determine whether Paugh’s use of force was reasonable, the trial judge permitted appellant to argue that the “peace officer engaged in his duties” elements of the offenses charged in counts two and six had not been proven. These instructions were supported by the evidence, particularly the fact that Paugh’s belief that appellant was Banks was mistaken. The factual requisites for a self-defense claim, however, are different. Self-defense requires that the defendant actually—as well as reasonably—believe that his or her actions are necessary to defend against an unlawful assault. (People v. Stitely (2005) 35 Cal.4th 514, 551.) Where there is no evidence that the defendant harbored such a belief, either from the defendant’s own testimony or otherwise, self-defense instructions need not be given. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.)
Here, appellant testified that he blacked out after Zin bit him, and had no recollection of the ensuing events until he regained consciousness in the ambulance. Thus, appellant did not and could not testify that when he attacked Paugh with the flashlight, he did so in the actual subjective belief that this action was necessary to defend himself against an unlawful assault. Nor was there any other evidence indicating that appellant harbored such a state of mind at the time. Accordingly, the trial court did not err in refusing to give appellant’s requested self-defense instruction.
Definition of Driving with Willful or Wanton Disregard for Safety
Appellant was charged in count four with evading a police officer with wanton disregard for the safety of others, a violation of Vehicle Code section 2800.2. (See generally People v. Howard (2005) 34 Cal.4th 1129, 1136-1139 [holding that Veh. Code, § 2800.2 does not define an inherently dangerous felony for purposes of the second degree felony-murder rule].) The trial court therefore instructed the jury with CALCRIM No. 2181, which defines that offense by tracking the statutory language.
Vehicle Code section 2800.2 reads as follows: “(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.”
As given to the jury in this case, CALCRIM No. 2181 reads as follows: “The defendant is charged in count four with evading a peace officer with wanton disregard for safety. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One. A peace officer driving a motor vehicle was pursuing the defendant; [¶] Two. The defendant, who was also driving a motor vehicle, willfully fled from or tried to elude the officer intending to evade the officer; [¶] Three. During the pursuit, the defendant drove with... willful and wanton disregard for the safety of persons or property; [¶] and [¶] Four. All of the following were true: [¶] A. There was at least one lighted red lamp visible from the front of the peace officer’s vehicle; [¶] B. The defendant either saw or reasonably should have seen the lamp; [¶] C. The peace officer’s vehicle was sounding a siren as reasonably necessary; [¶] D. The peace officer’s vehicle was distinctively marked; and [¶] E. The peace officer was wearing a distinctive uniform.
Appellant now contends that CALCRIM No. 2181 incorporates an unconstitutional mandatory presumption, because it defines “willful or wanton disregard for the safety of persons or property” as including any instance of driving while fleeing a peace officer that involves either three or more specified traffic violations, or damage to property.
With respect to the underlying statute, Vehicle Code section 2800.2, this same argument has been rejected in numerous published opinions, on the ground that the statute states a substantive rule of law rather than a mandatory presumption. (People v. Mutuma (2006) 144 Cal.App.4th 635; People v. Laughlin (2006) 137 Cal.App.4th 1020; People v. Williams (2005) 130 Cal.App.4th 1440; People v. Pinkston (2003) 112 Cal.App.4th 387) We agree with these cases, and their reasoning applies with equal force to the parallel jury instruction. (Cf. People v. Williams (2003) 31 Cal.4th 757, 759-760, 777 [where language of sexually violent predator statute included all constitutionally required elements for valid civil commitment, jury instruction in language of statute was sufficient, and no additional instructions were required].) Accordingly, we reject appellant’s contention.
Appellant also argues that his conviction should be reversed due to cumulative error. Having rejected each of appellant’s individual claims of error, we reject his cumulative error argument as well.
DISPOSITION
Appellant’s pending petition for habeas corpus will be addressed in a separate order.
We concur: Sepulveda, J., Rivera, J.
“[A peace officer may legally arrest someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to make the arrest). [¶] Any other arrest is unlawful. [¶] Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime. [¶] In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she arrested the person.]”
“A person employed as a police officer by Menlo Park Police Department is a peace officer. [¶] Someone commits an act willfully when he [or she] does it willingly or on purpose. It is not required that he [or she] intend to break the law, hurt someone else[,] or gain any advantage. [¶] A person acts with wanton disregard for safety when[:] [¶] One. He is aware that his actions present a substantial and unjustifiable risk of harm; and [¶] Two. He intentionally ignores that risk. [¶] The person does not, however, have to intend to cause damage. Driving with 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. Failure to stop at a stop sign and speeding are each assigned a traffic violation point. [¶] A vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers, including a red lamp, siren, and at least one other feature that makes it look different from vehicles that are not used... for law enforcement purposes. [¶] A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or have any particular level of formality[;] however, a badge, without more, is not enough.” (Capitals in original omitted; capitals added.)