Opinion
C079596
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN LESLIE FORSYTH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F08095)
A jury found defendant John Leslie Forsyth guilty of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer. (Veh. Code, § 2800.2, subd. (a).) The trial court sentenced defendant to three years in state prison. On appeal, defendant contends the trial court prejudicially erred in failing to instruct the jury with the definitions of the predicate Vehicle Code violations upon which the prosecutor relied to establish the willful or wanton disregard element. We disagree and shall affirm the judgment.
Undesignated statutory references are to the Vehicle Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On December 7, 2014, Sacramento Police Officer Cynthea Bohrer was sitting in her marked patrol car in full uniform. Around 9:55 a.m., she observed a yellow motorcycle traveling approximately 70 miles per hour in a 40-mile-per-hour zone. After the motorcycle passed Bohrer, the rider slowed, made a U-turn, and rode back in her direction. Bohrer instructed the rider to pull over on her patrol car's loud speaker. The rider disobeyed her command and continued to ride in her direction, running a stop sign at about five to 10 miles per hour. As the motorcycle passed in front of Bohrer, she directed the rider to pull over with her hand. The rider ignored Bohrer's directive and accelerated away at a high rate of speed. Bohrer turned on her patrol car's overhead lights and siren and chased after the motorcycle.
Officer Bohrer drove at speeds reaching 85 to 87 miles per hour, but was unable to gain ground on the motorcycle. During the pursuit, the motorcycle rode through a residential area and ran six stop signs. At one point, defendant was observed driving 35 to 40 miles per hour in a 25-mile-per-hour zone. Eventually, the rider stopped and fled on foot. When Bohrer reached the motorcycle, a pedestrian directed her to a shed in the backyard of a nearby residence. Defendant was subsequently found inside the shed and taken into custody.
The pursuit was captured on the in-car cameras of two patrol cars. Portions of the videos were played for the jury.
Following a jury trial, defendant was found guilty of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer. (§ 2800.2, subd. (a).) The trial court sentenced defendant to three years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
To establish a violation of section 2800.2, subdivision (a), the prosecution was required to prove that defendant drove a vehicle in willful or wanton disregard for the safety of persons or property while fleeing or attempting to elude a pursuing peace officer. (§ 2800.2, subd. (a); People v. Sewell (2000) 80 Cal.App.4th 690, 695; CALCRIM No. 2181.) Section 2800.2, subdivision (b) provides that "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 to the point count theory for establishing the willful or wanton disregard element, "[s]ection 12810 provides that several specifically enumerated violations . . . are assigned one or two points. [Citations.] It also contains the catchall clause providing that, with certain exceptions, 'any other traffic conviction involving the safe operation of a motor vehicle upon the highway shall be given a value of one point.' " (People v. Mutuma (2006) 144 Cal.App.4th 635, 641 (Mutuma).)
Here, the prosecutor relied on the point count theory to establish the willful or wanton disregard element. During closing arguments, the prosecutor argued that defendant committed more than three Vehicle Code violations during the pursuit. Specifically, the prosecutor argued that defendant exceeded the speed limit, drove recklessly, and ran five to seven stop signs. The trial court instructed the jury with CALCRIM No. 2181, stating, as relevant here, "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." (Italics added.) The pattern instruction includes a bracketed sentence that follows this definition, which reads as follows: "[___<insert traffic violations alleged> are each assigned a traffic violation point.]" (CALCRIM No. 2181.) The trial court did not instruct the jury on any predicate traffic violations, which would have resulted in one or two point violations within the meaning of sections 12810 and 2800.2, subdivision (b).
Defendant contends the trial court prejudicially erred in failing to instruct the jury with the definitions of the predicate Vehicle Code violations upon which the prosecutor relied to establish the willful or wanton disregard element. We disagree.
Whether traffic offenses can satisfy the willful or wanton disregard element of section 2800.2 is a question of law, and therefore must be determined by the trial court. (Mutuma, supra, 144 Cal.App.4th at pp. 641-642.) Here, the trial court should have determined whether the evidence supported liability under a point count theory, identified the relevant traffic violations supported by the evidence, and instructed the jury on those violations. (Id. at p. 638.) However, we conclude the trial court's error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonably probable a more favorable result would have occurred].)
The record discloses overwhelming proof of defendant's guilt under the point count theory for establishing the willful or wanton disregard element. The prosecution presented evidence showing that defendant committed numerous one-point violations during the pursuit. Officer Bohrer testified that she pursued defendant at speeds reaching 85 to 87 miles per hour. Another police officer testified that he observed defendant traveling 35 to 40 miles per hour in a 25-mile-per-hour zone. There was also testimony that defendant failed to stop at six stop signs. These traffic violations—running a stop sign, exceeding the speed limit, and exceeding the statutory maximum speed limit—are one-point violations under section 12810. (§§ 12810, subd. (f), 22349, 22350 & 22450.)
Defendant presented no evidence with respect to how he rode his motorcycle during the pursuit. In closing argument, he conceded that the evading offense had been established. Rather than contest whether the evading offense had been established, defendant's sole defense was identity. He argued that there was reasonable doubt as to whether he was the person riding the motorcycle. Accordingly, because the numerous Vehicle Code violations were uncontroverted and supported by overwhelming evidence, and because defendant conceded that the evading offense had been established, the jury verdict would have been the same absent the error. As such, the trial court's instructional error was harmless. (Neder v. United States (1999) 527 U.S. 1, 18-19 [144 L.Ed.2d 35, 52]; see People v. Flood (1998) 18 Cal.4th 470, 504-505 ["One situation in which instructional error removing an element of the crime from the jury's consideration has been deemed harmless is where the defendant concedes or admits that element."].)
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. MAURO, J.