Opinion
A155482
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. KEVIN EUGENE FORD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR949983)
After a jury trial, appellant Kevin Eugene Ford was found guilty of several charges, including felony driving "in a direction opposite to that in which the traffic lawfully moves" while evading a police officer. (Veh. Code, § 2800.4.) On appeal, Ford contends there was insufficient evidence to support his conviction for wrong-way driving. In supplemental briefing, Ford additionally argues—and the Attorney General concedes—that recent amendments to Penal Code section 667.5 should be applied retroactively, making Ford's two one-year sentence enhancements imposed pursuant to that statute improper. We strike Ford's two prison prior enhancements but otherwise affirm.
All statutory references are to the Vehicle Code unless otherwise specified. --------
I. BACKGROUND
On March 8, 2018, at approximately 8:30 p.m., Clearlake Police Officer Chris Kelleher was on street patrol when he noticed a red Nissan Pathfinder with missing rear license plates. Officer Kelleher—who was driving a marked patrol vehicle and wearing a full uniform—activated his sirens and emergency vehicle lights, attempting to make a traffic stop. Instead of stopping, the vehicle, driven by Ford, went north on Mint Street and accelerated to approximately 30 miles per hour, five miles per hour over the speed limit.
When Ford hit the intersection of Mint and Sonoma Avenue, he turned left onto Sonoma and accelerated, continuing to ignore Officer Kelleher's lights and sirens. Sonoma Avenue between Mint and Seventh Avenue is primarily a dirt road with many ruts and potholes. Ford traveled this portion of the road between 50 and 60 miles per hour. Officer Kelleher testified that it is more dangerous to drive at high rates of speed on a dirt road than on a paved one, as the potential to lose control of your vehicle increases. During his pursuit of the Nissan, Officer Kelleher saw Ford almost lose control a couple of times. Ford also "went . . . into the opposite lane" in this area. The officer was concerned for his safety, the driver's safety, and the safety of the public.
Once Ford got to the paved portion of Sonoma Avenue at Seventh, Officer Kelleher saw Ford driving the Nissan partially on the wrong side of the roadway—"in the area where oncoming traffic would have been"—while still accelerating at a high rate of speed. There was room on Sonoma Avenue for traffic to drive both ways, and, while pursuing Ford, Kelleher was able to observe the two different sides of the road. The vehicle next bypassed a stop sign at Sonoma Avenue and Ninth Street without stopping and turned northbound onto Ninth, a paved roadway. At that point, Ford was driving approximately 65 miles per hour in a residential area with a speed limit of 25 miles per hour. Although there were no painted markings dividing the road, Officer Kelleher testified that there was room for traffic to drive both ways simultaneously and that a person can determine while driving it where the middle of the road is. Ford ran through two more stop signs at high speed, accelerating "faster and faster" until he eventually drove off the road into a nearby field and either got stuck in the mud or had a mechanical issue that caused the car to stop. While pursuing Ford, Officer Kelleher observed Ford with a "portion or all of his vehicle" in the wrong lane in "scattered areas" for "[t]he whole way" on Ninth.
Officer Kelleher followed the Nissan on foot and took Ford into custody. Ford told the police that he had " 'a pipe and some dope.' " During a search of his person, the police found a bag of what was later determined to be methamphetamine in Ford's pocket. A methamphetamine pipe was discovered in the car.
As a result of this incident, the Lake County District Attorney filed a first amended information charging Ford with felony driving the wrong way while evading a police officer (§ 2800.4, count 1), felony recklessly evading a police officer (§ 2800.2, subd. (a), count 2), misdemeanor unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 3), misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, count 4), and two counts of misdemeanor driving with a suspended or revoked license (§ 14601.2, subds. (a), (d)(2), counts 5 & 6). Also alleged were two prior prison terms under Penal Code section 667.5, subdivision (b), and sentencing enhancements for the two suspended license charges.
On August 15, 2018, Ford pleaded no contest to count 5 and admitted having been previously convicted of that offense. On the People's motion, count 6 was dismissed. Trial commenced on the remaining charges and on August 17, 2018, a jury found Ford guilty on all counts. In a bifurcated proceeding, the trial court found true the allegations that Ford had served two prior prison terms.
Ford was sentenced to a total term of five years in state prison. Specifically, Ford received the upper term of three years on count 1 along with two consecutive one-year sentences as a result of his two prison priors. An additional three-year sentence as to count 2 was stayed pursuant to Penal Code section 654. All additional charges were sentenced concurrently. Ford appealed.
II. DISCUSSION
A. Substantial Evidence of Wrong Way Driving
Section 2800.4 makes it a crime to "willfully drive[] . . . [a] vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway" while "willfully flee[ing] or attempt[ing] to elude a pursuing peace officer in violation of Section 2800.1." (§ 2800.4.) A violation of section 2800.1, in turn, requires four elements: (1) the defendant saw, or reasonably should have seen, a red light visible from the front of the peace officer's vehicle; (2) the peace officer's vehicle was sounding an alarm as reasonably necessary; (3) the peace officer's vehicle was distinctively marked; and (4) the peace officer was wearing a distinctive uniform. (§ 2800.1, subd. (a).) Here, Ford challenges only a single element of his conviction for violating section 2800.4. He claims there was insufficient evidence to support the jury's necessary conclusion that he willfully drove the wrong way during the police pursuit.
When an appellant challenges the sufficiency of evidence supporting a jury's verdict, the reviewing court examines whether there was substantial evidence, considered as a whole, to permit a reasonable trier of fact to find the defendant guilty of the charged crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 (Jackson); see People v. Smith (2014) 60 Cal.4th 603, 617; People v. Lindberg (2008) 45 Cal.4th 1, 27.) The court's standard for determining what is "substantial evidence" is whether the evidence is "credible and of solid value." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) One witness's testimony can be sufficient evidence to sustain a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Moreover, the reviewing court presumes every fact the jury could have reasonably deduced from the evidence in support of the judgment. (People v. Rangel (2016) 62 Cal.4th 1192, 1213.) " '[T]he relevant question is 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.' " (People v. Staten (2000) 24 Cal.4th 434, 460.) Therefore, the reviewing court will not reverse a judgment for insufficient evidence unless " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Hughes (2002) 27 Cal.4th 287, 370.) This standard of review applies to claims involving both direct and circumstantial evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87 [" 'We "must accept logical inferences that the jury might have drawn from the circumstantial evidence.' ") It gives "full play" to the responsibility of the trier of fact "to draw reasonable inferences from basic facts to ultimate facts." (Jackson, supra, 443 U.S. at p. 319.)
There was sufficient evidence from which the jury could conclude that Ford violated section 2800.4 by willfully driving on the wrong side of the road. " '[T]he terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character.' [Citation.] 'Willfully implies no evil intent; " 'it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.' " ' " (People v. Atkins (2001) 25 Cal.4th 76, 85; see Pen. Code, §7, subd. (1).) Although there were no painted markings on the roads at issue, Officer Kelleher testified credibly that there was room on both Sonoma Avenue and Ninth Street for traffic to drive both ways; that he was able to see the two different sides of the road; that a person could determine while driving where the middle of the road was; and that, while pursuing Ford, he observed Ford with a "portion or all of his vehicle" in the wrong lane on numerous occasions. It was reasonable for the jury to infer from this testimony that Ford could also see the middle of the road, understood that he was repeatedly crossing over it, and intended to do so in order to evade capture by law enforcement. Thus, substantial evidence supports the jury's conclusion that Ford's wrong-way driving was willful.
In reaching this conclusion, we reject Ford's argument that the evidence failed to show that any encroachment of his vehicle in the opposite lane was more than de minimis. On the contrary, as described above, the testimony disclosed that Officer Kelleher observed Ford with a "portion or all of his vehicle" in the wrong lane in "scattered areas" for "[t]he whole way" on Ninth. The officer also noted additional wrong-way driving on both the paved and unpaved portions of Sonoma Avenue. Indeed, the violations were significant enough that Officer Kelleher, upon taking Ford into custody, was recorded on his body camera remarking to Ford that he had "crossed over the double yellows," a euphemism for the fact that "he was going on the wrong side of the roadway."
We are equally unpersuaded by Ford's assertion that Officer Kelleher's testimony about Ford's driving was conclusory lay opinion that should have been rejected by the trier of fact. " ' "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), 'i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.' [Citation.]" [Citation.] Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on "subtle or complex interactions" between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations.' " (In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 145-146.) Officer Kelleher's testimony in this case was not lay opinion, however. Based on his firsthand observations while in pursuit of Ford, Officer Kelleher was able to report to the jury that Ford repeatedly drove across the middle of the roadway into the area reserved for oncoming traffic. As discussed above, this testimony constituted substantial evidence supporting the jury verdict in this case. B. Amendments to Penal Code Section 667 .5 (Senate Bill No. 136)
At sentencing, the trial court added two consecutive one-year terms for prison priors to Ford's three-year term, to produce a total sentence of five years. In supplemental briefing, the parties agree that recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) amends Penal Code section 667.5 to eliminate enhancements for prison priors in cases other than those involving sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b). They also agree that the revisions to Penal Code section 667.5 should be applied retroactively to Ford's conviction, as it will not be final when the changes take effect on January 1, 2020. (In re Estrada (1965) 63 Cal.2d 740, 744-745 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."]; People v. Vieira (2005) 35 Cal.4th 264, 306 [finality includes the 90-day period in which a defendant could seek certiorari in the United States Supreme Court after the California Supreme Court denies review].)
We find the parties' analysis persuasive. Moreover, since there is no indication that Ford has been convicted of a sexually violent offense which would require imposition of a Penal Code section 667.5 enhancement, we also concur that Ford's two one-year enhancements should be stricken. The only point of dispute concerns the best way to effectuate this remedy. Ford suggests that we remand the matter to the trial court with instructions to strike the two prison priors. The Attorney General, in contrast, argues that we should strike the prison priors and then " 'remand for a full resentencing . . . so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Navarro (2007) 40 Cal.4th 668, 681; accord, People v. Buycks (2018) 5 Cal.5th 857, 893.) While remand for full resentencing may be the general rule, we see no need for remand in this case because the trial court already imposed the upper term of three years with respect to Ford's violation of section 2800.4. (See Buycks, at p. 896 & fn. 15.) We will therefore strike Ford's prison priors and direct the trial court to amend the abstract of judgment to reflect a maximum prison term of three rather than five years.
III. DISPOSITION
The two one-year terms for prison priors are stricken from Ford's sentence effective January 1, 2020, so that his total prison sentence is three rather than five years. The trial court is instructed to correct the abstract of judgment to reflect this change. The judgment is otherwise affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Banke, J.