Opinion
B160997.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. JODY GUTIERREZ, Defendant and Appellant.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant, Jody Gutierrez, appeals from the judgment entered following his conviction, by jury trial, for taking a vehicle without the owners permission, and evading a peace officer with willful and wanton disregard for the safety of persons or property, with prior prison term and prior serious felony conviction findings (Veh. Code, §§ 10851, 2800.2; Pen. Code, § 667.5, 667, subds. (b)-(i)).[] Sentenced to a state prison term of seven years and four months, Gutierrez contends there was trial and sentencing error.
All further statutory references are to the Vehicle Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On February 15, 2002, at about 9:00 p.m., Los Angeles Police Officers Jeffrey Hazer and Richard Acevedo were on patrol duty. They were part of a task force focusing on violent offenders and street criminals. The officers were in uniform and riding in a black and white police car. Acevedo was driving. Their attention was drawn to a white Nissan Sentra. Both the driver and his passenger were wearing knit caps, similar to ski hats, and sunglasses. When the Nissan failed to obey a stop sign, Hazer called in a warrant check. There were no warrants for the vehicle and it had not been reported stolen. Because traffic enforcement was not their assignment, the officers made no attempt to stop the Nissan for running the stop sign and soon lost sight of it.
About 15 minutes later, the officers saw the Nissan again and it sped up when the officers got behind it. Hazer saw the driver "fidgeting inside the vehicle, constantly looking in the rear view mirrors." The driver took his hat and sunglasses off, and later seemed to be trying to put the hat back on. As the Nissan turned onto Beverly, Acevedo activated the forward-facing red light and the siren on the patrol car in order to make a traffic stop. But instead of pulling over, the Nissan again sped up, going 35 to 45 m.p.h. in 25-m.p.h. speed zones. Hazer saw other drivers brake to avoid colliding with the Nissan as it moved in and out of traffic and made numerous lane changes without signaling.
The Nissan failed to stop at a series of stop signs. When the Nissan turned left from New Hampshire onto Fifth, it cut the corner so sharply it ended up veering onto the wrong side of the road. Hazer saw sparks fly as the Nissans left front tire clipped the curb. The tire went flat and the Nissan spun around, stopping in a driveway. Acevedo pulled up behind the Nissan. Hazer ordered the occupants to leave the car. The passenger complied, but the driver started running. Acevedo and Hazer chased the driver on foot and apprehended him. The driver turned out to be defendant Gutierrez. Hazer later examined the Nissan. He found a screwdriver on the passenger-side floor and a shaved key in the ignition. A shaved key is made from a blank key, which is available at car dealerships and hardware stores, The "ridges and teeth" of the blank key are "rounded off and shaved down a little bit," and "some vehicles can be started with just a general shaved key. It doesnt have to be the key that was . . . assigned to that vehicle." A 1987 Nissan Sentra can be started with a shaved key.
Nelson Quintanilla testified he was the owner of the 1987 Nissan Sentra which Gutierrez had been driving during the police chase. Quintanilla had last seen the car when he parked it on the street the morning of February 14, 2002. Quintanilla did not know Gutierrez and never gave him permission to drive the car.
CONTENTIONS
1. The felony evading conviction must be reversed because the jury was instructed on an impermissible mandatory presumption.
2. Imposition of a consecutive term for felony evading amounted to improper multiple punishment.
3. Gutierrez requests review of the trial courts ruling on his Pitchess[] motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
DISCUSSION
1. Felony evading statute is not unconstitutional.
Gutierrez contends his conviction for violating section 2800.2 (felony evading) must be reversed because the jury was instructed on an unconstitutional mandatory presumption. This claim is meritless.
Subdivision (a) of section 2800.2,[] makes it an offense to flee from a pursuing police officer by driving "in a willful or wanton disregard for the safety of persons or property . . . ." Subdivision (b) of the statute provides: "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." (§ 2800.2, subd. (b).)
Section 2800.2 provides: "(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."
In accordance with subdivision (b) of section 2800.2, the trial court instructed the jury:
"Every person who flees or attempts to elude a pursuing peace officer in violation of section 2800.1(a), and drives the pursued vehicle in a willful and wanton disregard for the safety of persons or property, is guilty of a violation of section 2800.2(a), a crime.
"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 the person driving commits three or more violations of Vehicle Code sections 22450, 22107, 22350, 21751, and 21650,[] or damage to property occurs.
Gutierrez argues this portion of the instruction was erroneous, regardless of the mandatory presumption issue, because none of these Vehicle Code sections are assigned a traffic violation point count under Vehicle Code section 12810. He is wrong. Subdivision (e) of section 12810 generally assigns one point to all traffic offenses not otherwise enumerated.
"This can include three or more violations of the same Vehicle Code section.
"Willful or wanton means an act or acts intentionally performed with a conscious disregard for the safety of persons or property. [& para;] It does not necessarily include an intent to injure."
The trial court also instructed on the specific elements of each of the underlying traffic offenses referred to in the definition of willful or wanton disregard for safety. For example, the trial court instructed: "Vehicle Code section 22107: No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement."
Gutierrez argues the trial courts instructions constituted a mandatory presumption which improperly reduced the prosecutions burden of proof. Mandatory presumptions in criminal statutes are unconstitutional because they relieve the prosecution from having to prove each element of the offense beyond a reasonable doubt. (People v. Roder (1983) 33 Cal.3d 491, 496-498.) A presumption in this context is mandatory or conclusive when it requires the trier of fact to find an offense element based on the finding of some underlying or predicate fact. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 .) Such a presumption is unconstitutional unless it is superfluous because the predicate facts necessarily prove the offense element. (See In re Christopher K. (2001) 91 Cal.App.4th 853, 857 ["unless the underlying fact . . . alone satisfies the reasonable doubt standard with regard to the charged offense . . . , the presumption is constitutionally invalid"].)
However, we have just rejected this precise claim in People v. Pinkston (Sept. 30, 2003, B159294) ___ Cal.App.4th ___ [2003 Cal.App. Lexis 1494; 2003 D.A.R. 11085] (majority opinion), holding: "Subdivision (b) of Vehicle Code section 2800.2 does not state a mandatory presumption. Rather, it sets out the Legislatures definition of what qualifies as willful and wanton conduct under subdivision (a). Although Vehicle Code section 2800.2 uses the phrase `willful or wanton disregard for the safety of persons or property to describe an element of reckless evading, the statute defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations. Thus, section 2800.2, subdivision (b) establishes a rule of substantive law rather than a presumption apportioning the burden of persuasion concerning certain propositions or varying the duty of coming forward with evidence. [Citation.] In other words, evasive driving during which the defendant commits three or more specified traffic violations is a violation of section 2800.2 `because of the substantive statutory definition of the crime rather than because of any presumption. [Citation.] Since there is no presumption, due process is not violated."
Moreover, even had we found the instruction unconstitutional, we would still have affirmed Gutierrezs conviction because he suffered no resulting prejudice. (See People v. Flood (1998) 18 Cal.4th 470, 499 ["instructional errors — whether misdescriptions, omissions, or presumptions — as a general matter fall within the broad category of trial errors subject to Chapman[] review on direct appeal"].) In Yates v. Evatt (1991) 500 U.S. 391 , disapproved on other grounds by Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4 , the Supreme Court elaborated on the nature of the harmless error analysis in unconstitutional presumption cases. "To satisfy Chapmans reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapmans words, that the presumption did not contribute to the verdict rendered." (Yates v. Evatt, supra, at pp. 404-405, italics added.)
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705.]
Gutierrez argues there was prejudice because "[n]o persons or property were injured during the pursuit" and "[i]t appears very likely that everyone along the route appellant traveled was well aware of the Nissan in light of the fact that he was pursued by a police car with its red light and siren activated." Of course, actual injury to persons or property is not required. It is mere speculation all the bystanders must have been aware of the pursuit, and it is an unwarranted assumption that, if they were aware, they must not have been in any danger from Gutierrezs driving. Moreover, Hazer and Acevedo did not merely testify about moving violations in the abstract. They described a course of reckless driving during which Gutierrez wove in and out of traffic at unsafe speeds, ran stop signs, changed lanes without signaling, and forced other cars to brake in order to avoid getting hit.
Gutierrez complains, "While the officers enumerated multiple traffic violations committed by appellant, they provided no testimony that any of the violations specifically endangered the life of another." Not so. Hazer testified Gutierrez was driving 35 to 40 m.p.h. in a 25 m.p.h. zone, and that he was driving unsafely by swerving through traffic and driving on the wrong side of the street. "He was . . . driving around cars [that] were double parked or dropping off pedestrians, . . . going to the other side of the street to . . . go around those vehicles. [¶] [H]e was not slowing at intersections, not yielding to other vehicles or . . . pedestrians that might have been coming off the sidewalks." Acevedo, who could not recall exactly how fast Gutierrez had been going, testified Gutierrez was driving at an "unsafe speed with regards to the pedestrians, the traffic." "What I mean by unsafe speed, . . . its just unsafe speed for the particular areas, . . . for the traffic, for the pedestrians." "At one point he was going fast . . . but Im not going to guess [how fast]. I dont know. But he was speeding [i.e., driving at an unsafe speed] through, in and out through traffic, trying to . . . evade us." Gutierrez "was driving erratically" and "he failed to stop at some stop signs." "[H]e went in and out of traffic, through cars." Asked if anyone had been injured, Acevedo replied, "Thank God, no." Later, Acevedo explained he had been concerned for the safety of other people: "It was just the traffic, . . . the time, . . . the pedestrians. And if . . . anyone knows that particular area of our division, its . . . just heavy traffic and . . . its dense population."
Gutierrez argues, "While Hazer stated that other vehicles hit their brakes to avoid colliding with appellant as he was changing lanes without using his turn signal, he did not testify that appellant came particularly close to actually striking any other vehicles." Coming "particularly close" to a collision is not an element of the offense. In any event, Hazers testimony in effect provided just this evidence:
"Q. Now, when your partner turns on the forward-facing red lamp, what happens? Does the car pull over and stop?
"A. No, he speeds up, umm, begins making numerous lane changes again in and out of traffic. . . .
"Q. Let me be clear, Beverly, is that a fairly busy street?
"A. Yes
"Q. How fast is the driver going at that point?
"A. I would estimate we got up to 35 to 45 miles per hour again. Traffic was somewhat heavy for that time of night. So it was difficult for [Gutierrez] to go real fast, but he had to make a lot of lane changes in and out of traffic.
"Q. Does [sic] the lane changes appear to be safe?
"A. No.
"Q. Why not?
"A. He didnt use his signal for any of them. Other vehicles had to hit their brakes, umm, as they were startled[,] to avoid collision [sic]." (Italics added.)
Hence, the evidence clearly showed Gutierrezs traffic violations were committed in circumstances demonstrating he had been driving recklessly and dangerously. Thus, even if subdivision (b) of section 2800.2 did constitute an unconstitutional mandatory presumption, "the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." (Yates v. Evatt, supra, 500 U.S. at pp. 404-405.)
2. Consecutive terms.
Gutierrez contends the trial court erred by imposing any sentence at all on the felony evading conviction. He argues Penal Code section 654 barred punishment for both vehicle taking and felony evading because both offenses "were incidental to one goal, to get away with the stolen car." This claim is meritless.
"`Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "`The question of whether the acts of which [a] defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; see also People v. McCoy (1992) 9 Cal.App.4th 1578, 1585 [trial courts Pen. Code, § 654 finding, whether explicit or implicit, may not be reversed if there is substantial supporting evidence].)
Gutierrez argues "[n]othing in the record indicates that [he] had the car for any appreciable time before the police pursuit." Not so. The evidence showed the officers saw Gutierrez driving the stolen Nissan before they tried to make the traffic stop and, therefore, before he began to commit the offense of felony evading. Indeed, after initially seeing Gutierrez in the Nissan, the officers lost sight of him and it was 15 minutes before they saw him again and decided to make the traffic stop. Inferentially, Gutierrez had been driving the stolen car well before the events that formed the basis of the felony evading violation. Moreover, the two crimes were committed for different reasons and had different victims. The victim of the vehicle taking was its owner, Nelson Quintanilla. The victims of the felony evading were the drivers, passengers and pedestrians Gutierrez endangered by his reckless driving. Gutierrez took the car to use it, or perhaps strip it for parts. He fled from the officers to avoid being arrested.
Gutierrez also contends the trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466 , by deciding the scope of his intent and objective for purposes of Penal Code section 654. We disagree. Apprendis basic holding was: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. . . . `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." (Apprendi v. New Jersey, supra, at p. 490.) This case does not involve imposition of a sentence more severe than the statutory maximum for the offense established by the jurys verdict. Rather, it involves a trial courts decision not to apply the ban against multiple punishment with regard to two separate crimes. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [Apprendi does not require jury finding on Penal Code section 654 question]; People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271 [same].) In addition, any error would have been harmless because it was undisputed the car chase occurred after Gutierrez was seen driving the stolen Nissan.
3. Review of in camera Pitchess hearing.
Gutierrez requests review of the trial courts ruling on his Pitchess motion. Our review of the in camera hearing reveals no abuse of the trial courts discretion. (See People v. Mooc (2001) 26 Cal.4th 1216.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. and ALDRICH, J.