Opinion
H028779
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND GALLEGOS, Defendant and Appellant.
Defendant, Raymond Gallegos, appeals from a judgment entered after a jury found him guilty of one count of reckless driving in the commission of Vehicle Code section 2800.1 (Veh. Code, § 2800.2, subd. (a)) and one count of petty theft with prior convictions (Pen. Code, § 666). After the defendant admitted one strike prior (Pen Code, §§ 667, subds. (b)-(i) & 1170.12), and two prior prison terms (Pen Code, § 667.5, subd. (b)), the trial court sentenced him to six years in prison. On appeal, defendant contends that section 2800.2, subdivision (b) is unconstitutional because it states a mandatory presumption that relieves the prosecution from its burden of proving all of the elements of the offense beyond a reasonable doubt. Finding this contention without merit, we will affirm the conviction.
All further statutory references are to the Vehicle Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
After stealing $10.00 worth of gasoline from a gas station, defendant led police on a high speed chase through city streets, running stop signs and exceeding the speed limit by at least 15 to 35 miles per hour, until police called off the pursuit for safety reasons. During the pursuit, the police videotaped the defendants vehicle with a dash-mounted camera. Based on the original description given by the gas station owner, the videotaped record and police observations made during the chase and a subsequent investigation, the police were able to locate and apprehend the defendant in the days that followed the chase.
Because this appeal challenges only the constitutionality of the reckless driving section under which defendant was convicted, the recitation of the facts includes only those facts relevant to the issues on appeal.
Defendant was arrested and charged with one count of reckless driving in the commission of section 2800.1 (§ 2800.2, subd. (a)) and one count of petty theft with prior convictions (Pen. Code, § 666). The complaint also alleged that defendant had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12), and two prior prison terms. (Pen. Code, § 667.5, subd. (b).)
A jury found defendant guilty of both counts and he admitted the strike and the prison priors. The trial court sentenced the defendant to four years for the reckless driving with a concurrent sentence of four years for the petty theft. Defendant also received two consecutive years for the prison priors. This timely appeal ensued.
DISCUSSION
On appeal, defendants sole contention is that section 2800.2, subdivision (b) is unconstitutional because it creates a mandatory presumption which allows a trier of fact to convict without proof beyond a reasonable doubt as to every element of the offense.
Section 2800.1, subdivision (a) makes it a misdemeanor to attempt to evade a peace officer wearing a distinctive uniform and driving a distinctively marked patrol vehicle with red light and siren activated. Section 2800.2 elevates to a felony a violation of section 2800.1 when a defendant flees or evades a peace officer "in a willful or wanton disregard for the safety of persons or property." (§ 2800.2, subd. (a); People v. Pinkston (2003) 112 Cal.App.4th 387, 390 - 391 (Pinkston).) Section 2800.2, subdivision (b), added in 1996, establishes that one way to demonstrate "willful or wanton disregard" is to show that the defendant committed three or more Vehicle Code violations during the attempt to flee or evade.
Section 2800.1, subdivision (a) provides, "Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officers motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist:
(1) The peace officers motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.
(2) The peace officers motor vehicle is sounding a siren as may be reasonably necessary.
(3) The peace officers motor vehicle is distinctively marked.
(4) The peace officers motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform."
Section 2800.2, subdivision (b) states in relevant part, "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."
Defendant argues that section 2800.2, subdivision (b) allows the trier of fact to presume that his conduct was "willful" or "wanton" if the prosecution proves that he violated three Vehicle Code sections, creating an impermissible mandatory presumption as to the intent element of the offense. A mandatory presumption is an evidentiary device that directs the trier of fact to assume the existence of an element of a crime based upon proof of some specific, designated facts. (People v. Roder (1983) 33 Cal.3d 491, 498 (Roder); Evid. Code, § 600.) Such a presumption is unconstitutional where it relieves the prosecution of its burden to prove each element of an offense beyond a reasonable doubt. (Roder, supra, at p. 497.) Defendant contends that section 2800.2, subdivision (b) is unconstitutional because it dilutes the prosecutions burden of proving the ultimate fact of willful or wanton disregard beyond a reasonable doubt.
The question before us, thus, is whether section 2800.2, subdivision (b) is, in fact, a mandatory presumption, or whether it is "definitional," meaning it "describes" several " `nonexclusive acts that constitute driving with willful or wanton disregard for the safety of persons or property. [Citation.]" (See Pinkston, supra, 112 Cal.App.4th at p. 394, quoting People v. Sewell (2000) 80 Cal.App.4th 690, 694-695, disapproved on other grounds in People v. Howard (2005) 34 Cal.4th 1129, 1139, fn. 5.) Defendant claims the section creates a presumption. We reject this contention.
A number of courts have held that section 2800.2, subdivision (b) is "definitional" rather than an impermissible mandatory presumption. (People v. Williams (2005) 130 Cal.App.4th 1440 (Williams); Pinkston, supra, 112 Cal.App.4th 387.) In Pinkston, the defendant was convicted of violating section 2800.2 after he led police on a chase through a residential area, running multiple stop signs and red lights. (Pinkston, supra, 112 Cal.App.4th at p. 389.) In holding that section 2800.2, subdivision (b) defines one way in which the People may prove the element of willful or wanton disregard, the court analogized to the California Supreme Courts analysis of section 23152 in Burg v. Municipal Court (1983) 35 Cal.3d 257, 264 (Burg). (Pinkston, supra, at p. 393.) Section 23152, subdivisions. (a) and (b) prohibit driving while intoxicated and driving with a blood alcohol level of .08 or higher, respectively. (Burg, supra, at pp. 264-265.) After section 23152, subdivision (b) was first enacted, there was a question as to whether showing a blood alcohol level of .08 was sufficient to establish "intoxication" which is prohibited by subdivision (a), such that there was a mandatory presumption of intoxication upon a showing of a blood alcohol level of .08. The Burg court concluded that the scheme was definitional and that there was no such mandatory presumption because each section defined a separate violation of the statute and one could exist without the other. (Pinkston, supra, 112 Cal.App.4th at p. 393 discussing Burg, supra, at pp. 264-265.) Based on this analogy, the Pinkston court concluded that section 2800.2, subdivision (b) is constitutional because it "sets out the Legislatures definition of what qualifies as willful and wanton conduct under subdivision (a)," and "defines, in precise terms, one way in which the People may prove the element of willful or wanton disregard for the safety of persons or property." (Pinkston, supra, 112 Cal.App.4th at pp 392, 394.)
At the time the court considered Burg, section 23152 prohibited a blood alcohol level of .10 and above.
In Williams, the defendant was convicted of a violation of section 2800.2 after eluding police while driving a car stolen in a carjacking. (Williams, supra, 130 Cal.App.4th at p. 1442.) Rejecting his challenge to the constitutionality of section 2800.2, subdivision (b), the Williams court analogized to the California Supreme Courts analysis of former Health and Safety Code section 11383 in People v. McCall (2004) 32 Cal.4th 175. Former Health and Safety Code section 11383, subdivision (f) "deemed" the possession of essential chemicals sufficient to manufacture hydriodic acid, with intent to manufacture methamphetamine, to be the equivalent of the possession of hydriodic acid, with intent to manufacture methamphetamine. In McCall, the Supreme Court considered whether this section created a mandatory presumption regarding the possession of hydriodic acid. The court held that this section proscribed two separate sets of conduct, i.e., possession of hydriodic acids essential chemicals and possession of hydriodic acid itself, and did not create a presumption at all. " `Instead, [the statute] was nothing more than a definitional section that specified the conduct "deemed" criminal . . . . Substantive due process allows lawmakers broad power to select the elements of crimes, and to define one thing in terms of another. [Citation.]" (Williams, supra., at p. 1446, discussing People v. McCall, supra, 32 Cal.4th at p. 189.) Similarly, the Williams court concluded that the reference to three vehicle code violations in section 2800.2, subdivision (b) simply defines the element of willful or wanton disregard, and therefore "establishes a rule of substantive law rather than a presumption that varies the burden of proof." (Williams, supra., at p. 1446.) "A rule of substantive law defines in precise terms conduct that establishes an element of an offense as a matter of law. [Citation.]" (People v. Laughlin (2006) 137 Cal.App.4th 1020, 1026, italics added, discussing Williams, supra, at p. 1445.) As in Pinkston, because the Williams court held that section 2800.2, subdivision (b) did not create a mandatory presumption, it found section 2800.2, subdivision (b) to be constitutional.
Most recently, the court in People v. Laughlin, supra, 137 Cal.App.4th 1020, relying on the analysis in McCall, reached the same conclusion as the Pinkston, and the Williams courts, citing both cases approvingly. The Laughlin court found that section 2800.2, subdivision (b) "contains the same type of language as that discussed in McCall . . . [and] does not contain a presumption. It sets forth a definition of conduct that is deemed to be the legal equivalent of willful or wanton disregard for the purposes of section 2800.2. Subdivision (b) does not follow the common lay meaning of the term but is a term of art for purposes of section 2800.2." (People v. Laughlin, supra, at pp. 1027-1028.)
The Laughlin court also concluded that the legislative history supported its determination that section 2800.2, subdivision (b) was a rule of substantive law, rather than a mandatory presumption. "The analysis by the Senate Rules Committee of Assembly Bill 1999 for the 1995-1996 term states that this bill `would define "a willful or wanton disregard for the safety of persons or property". . . . [Citations.]" (People v. Laughlin, supra, 137 Cal.App.4th at p. 1028.) "[T]he Legislative Counsels Digest states that the bill `would describe acts that constitute driving in a willful or wanton disregard for the safety of person or property. [Citations.]" (Id. at p. 1028.) The Legislature has "`broad power to select the elements of crimes, and to define one thing in terms of another " or to expand the scope of conduct made criminal by a statute. (Id. at p. 1027, citing McCall, supra, 32 Cal.4th at p. 189.) That is precisely what the Legislature did here by defining the willful and wanton element in terms of a specified number of vehicle code violations.
The California Supreme Court has not yet squarely addressed the constitutionality of section 2800.2, subdivision (b). Recently, however, the high court discussed this section while addressing the issue of whether section 2800.2 was an inherently dangerous felony sufficient to support a second degree felony murder conviction. (People v. Howard (2005) 34 Cal.4th 1129 (Howard).) The Howard court stated, in describing the subdivision (b) addition to section 2800.2, that "subdivision (b) greatly expanded the meaning of the quoted statutory phrase [`willful or wanton disregard for the safety of persons or property] to include conduct that ordinarily would not be considered particularly dangerous." (Howard, supra, at p. 1138, fn. omitted.) The court referred to the section as an expansion in meaning and not as the creation of a presumption. The clear implication from the courts discussion is that it also views section 2800.2, subdivision (b) as definitional in nature. The court of appeal in Laughlin agreed with this interpretation of Howard. "While the court in Howard was concerned with whether a violation of section 2800.2 is an inherently dangerous felony for purposes of the second degree felony-murder rule, it found subdivision (b) to be expansive . . . ." (People v. Laughlin, supra, 137 Cal.App.4th at p. 1025.)
We agree with the reasoning in Pinkston, Williams and Laughlin, and are bound by the pronouncements of the Supreme Court regarding section 2800.2, subdivision (b) in Howard. Therefore, we conclude as did those courts, that this section does not create a mandatory presumption and is constitutional.
DISPOSITION
The judgment is affirmed.
We Concur:
Premo, Acting, P.J.
Bamattre-Manoukian, J.