Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F9742
BUTZ, J.A jury convicted defendant Travis Alexander Hill of felony evading a peace officer. (Veh. Code, § 2800.2.) After defendant admitted a prior strike conviction and four prior prison terms, the trial court sentenced him to eight years in state prison.
Undesignated statutory references are to the Vehicle Code.
On appeal, defendant contends insufficient evidence supports his felony evading conviction, the trial court erred in allowing a police officer to testify that defendant’s driving was willful and wanton, and the court abused its discretion by denying his motion to strike the strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We shall affirm.
FACTUAL BACKGROUND
On the morning of November 13, 2007, Redding Police Officer Robert Garnero was in his marked patrol car with Officer Duane Morrison. Both officers were wearing uniforms. A little after 8:00 a.m., Officer Garnero noticed a purple Ford Ranger driving too fast through the parking lot of the Hilltop Lodge in Redding. He followed the truck as it turned right on Hilltop Drive without stopping or yielding for traffic.
The truck had a cracked windshield, so Officer Garnero decided to make a traffic stop, accelerating to within 20 feet of the rear of the truck and activating the forward red lights of his patrol car. The truck, driven by defendant, did not stop as it ignored a red light, accelerated through the intersection, and turned right onto the number three lane of Cypress Avenue.
Officer Garnero followed defendant onto Cypress. The officers activated the siren and flashing blue and white lights as defendant immediately merged onto the on ramp for northbound Interstate 5 (I-5). Defendant then extended his middle finger in an obscene gesture.
Defendant accelerated to 75 miles per hour as he went on the freeway, which had a speed limit of 65. The morning commute traffic was moderate and moving at 65 miles per hour. Defendant, who was going faster than the flow of traffic, had to frequently shift between the freeway’s two northbound lanes. The shifting caused defendant’s truck to tilt on its axles at one point, creating a risk of a spinout. The other vehicles were very close as defendant made the lane changes.
Defendant approached a large truck and trailer going 55 miles per hour in the far right lane. He passed the truck on the right shoulder, an area not designated for driving. In order to maintain pursuit, Officer Garnero had to follow defendant on the right shoulder.
After defendant passed the intersection between Highway 299 and I 5, he made a U turn across the dirt and grass median onto southbound I 5. The median was 30 to 40 feet wide with a road for U turns reserved for official use. Defendant aimed for the road but overshot it and went through a drainage ditch. Defendant’s truck was going about 35 to 40 miles per hour when he made the turn, but the ditch slowed him considerably, causing him to merge onto the number one lane of southbound I-5 much slower than the flow of traffic.
Officer Garnero followed defendant on southbound I 5. Defendant quickly accelerated to 75 miles per hour and continued south in the number one lane until he approached the westbound exit for Highway 44. He then shot across the freeway to the Highway 44 off ramp, cutting in front of a truck pulling a large trailer. The driver of the truck had to downshift and slam on the brakes to avoid an accident, causing the front of the truck to pitch and the trailer to sway a little into the other lane.
Traffic on the highway was moderate until it entered downtown Redding, where the heavy traffic forced defendant to slow down. Officer Garnero followed defendant until he pulled over and stopped on Liberty Street, where defendant and his passenger, Glenda Propp, were arrested.
Defendant had an outstanding warrant for a parole violation and Propp had several arrest warrants. Following an advisement of his rights, defendant gave a Miranda waiver at jail and admitted knowing about the warrant. He was aware of the patrol vehicle’s lights by the on ramp, but did not stop out of instinct.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Officer Garnero testified over defendant’s objection that in his expert opinion defendant drove recklessly with a willful and wanton disregard for the safety of others and their property. Officer Morrison, testifying over defendant’s objection, said defendant drove in a reckless manner with a total disregard for the safety of others.
Propp testified as a defense witness, and said she was never afraid while defendant was driving, as he was being very careful, used his blinker, and honked his horn. Defendant merged safely onto I 5 south after he completed the U turn. Propp could not remember defendant cutting off a big rig when he took the Highway 44 exit. Defendant went onto Highway 44 at her suggestion after looking for a place to pull over and stop. She did not remember defendant ever passing a truck on the shoulder. Defendant called his wife on the phone during the chase in order to tell her goodbye before he went to jail. Propp was returned to prison for her recent convictions on two counts of petty theft with a prior and single counts of forgery and grand theft.
Propp did admit she was “a little scared” only because she imagined that she and defendant were going to go to jail.
Defendant testified that he first noticed the patrol car as he merged onto the I 5 on ramp. He kept driving on the chance that the police were not after him, although he knew about the outstanding warrant. Anticipating his arrest, defendant then called his wife and apologized to her. Defendant did not take the opportunity to stop sooner because he wanted to talk to his wife before being arrested and jailed.
Defendant thought the speed limit was 70 miles per hour and he never exceeded it. While some cars were driving more slowly, defendant honked his horn to get them out of the way. Defendant used the service lane to make his U turn, and did not merge back onto the freeway until he had reached a safe speed. Although he got in front of a big rig when exiting onto Highway 44, there were six to seven car lengths between them and defendant used his turn indicator. He denied going completely on the shoulder when passing the other truck while proceeding northbound on I 5.
Defendant had prior convictions for domestic violence, attempted vehicle theft, and battery on a peace officer.
DISCUSSION
I. Substantial Evidence
Section 2800.2, subdivision (a) provides evasion of a police officer may be punished as a felony if “the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.”
Here, defendant contends there was insufficient evidence that he drove with the intent required by the foregoing statute. Defendant argues he evaded the police, but his actions do not constitute reckless driving, let alone willful or wanton disregard for the safety of others. We disagree.
In considering a sufficiency of the evidence claim, we view the evidence in the light most favorable to the judgment, presume in support of the judgment every fact that may be reasonably deduced from the evidence, and “determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Davis (1995) 10 Cal.4th 463, 510; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 2800.2, subdivision (b) 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.”
Section 2800.2, subdivision (b) does not create an unconstitutional “mandatory rebuttable presumption but is instead a rule of substantive law.” (People v. Laughlin (2006) 137 Cal.App.4th 1020, 1025.) This provision “sets forth a definition of conduct that is deemed to be the legal equivalent of willful or wanton disregard for 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.” (Laughlin,at pp. 1027-1028.)
Officers Garnero and Morrison testified that defendant drove over the speed limit by 10 miles per hour, a one-point violation. (§§ 12810, 22348.) Defendant committed another one-point violation by driving on the right shoulder as he passed the truck, a failure to pass safely. (§§ 12810, 21755.) By making a U turn onto I 5 and merging at 20 miles per hour, defendant committed two more one-point violations by making an unsafe U turn (§§ 12810, 21651) and making an unsafe lane change (§§ 12810, 22107). He also failed to stop at a red light before making a right-hand turn, his fifth one-point violation. (§§ 12810, 21453.)
The jury was instructed with the language of section 2800.2, subdivision (b), and reasonably could find that defendant’s five one-point violations satisfied the mental element of felony evading.
The jury was instructed that violations of sections 21453, 21651, 22107, 22348, and 21755 were assigned one traffic violation point each. The court also instructed the jury on the definitions of those traffic offenses.
Substantial evidence also supports a finding of willful and wanton disregard for the safety of others under subdivision (a) of section 2800.2. Passing a large truck on the right shoulder, making a U turn on a freeway in the morning commute, merging onto a freeway from the median at 20 miles per hour, and cutting off a large truck with a trailer posed a substantial and unjustified risk to the safety of the other drivers. When combined with defendant’s speeding, numerous unsafe lane changes, and failure to stop earlier, the jury had more than enough evidence to conclude defendant drove with a willful and wanton disregard for the safety of others.
II. Expert Testimony
Over defendant’s objection, Officer Garnero testified that defendant engaged in “reckless driving and wanton disregard for the safety of other people and their property.” Defendant argues this was improper because it gave an opinion on the ultimate issue in the case, the mental element of the crime.
Evidence Code section 805 provides: “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” “It is neither unusual nor impermissible for an expert to testify to an ultimate issue, and such opinions are expressly contemplated by Evidence Code section 805.” (People v. Doss (1992) 4 Cal.App.4th 1585, 1596.)
An expert may not testify as to the truthfulness of a witness, the guilt or innocence of the defendant, or to the subjective knowledge or intent of the defendant. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew); People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) An expert opinion may be excluded if the question can be simplified for better understanding. (People v. Arguello (1966) 244 Cal.App.2d 413, 417-418 (Arguello).)
For example, “the rule that an expert can testify whether a structure is built in accordance with standard and accepted construction methods and architectural practice, but not whether it is safe [citation] exemplifies the many situations where opinion evidence is inadmissible, not because it goes to the ultimate issue, but because it goes beyond the point where the expert can assist the court as an expert. When he testifies to conclusions which even a lay jury can draw, the expert is no longer testifying ‘on a question of science, art or trade’ in which he is more skilled than the jury.” (Arguello, supra, 244 Cal.App.2d at p. 418.)
Citing Arguello, defendant argues the expert testimony on willful and wanton disregard was inadmissible because it was a conclusion the jury had to make. In effect, the officer was allowed to tell the jury defendant was guilty. Assuming the opinion testimony was error, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
If the opinion on willful and wanton was to be excluded, it “‘is simply that of the exclusion of supererogatory evidence. It is not that there is any fault to find with the witness himself or the sufficiency of his sources of knowledge or the positiveness of his impression; but simply that his testimony, otherwise unobjectionable, is not needed, is superfluous.’” (Arguello, supra, 244 Cal.App.4th at p. 418, fn. 4, quoting 7 Wigmore, Evidence (3d ed. 1940) § 1918; see also 7 Wigmore, Evidence (Chadbourn rev. ed. 1978) § 1918, p. 11.)
Defendant’s five one-point traffic violations established his guilt under subdivision (b) of section 2800.2. Officer Garnero also recited detailed reasons why defendant’s driving was dangerous, which defendant concedes was properly admitted. As we have already discussed, there is considerable evidence apart from the traffic violations that defendant’s driving posed a wanton and willful disregard for safety.
This distinguishes another case cited by defendant, Killebrew, supra, 103 Cal.App.4th 644, where the expert improperly testified to the subjective knowledge and intent of each occupant in three vehicles, rather than permissibly testifying about expectations of gang members in general, and the expert’s testimony was the only evidence offered by the People to establish the elements of the crime. (Id. at pp. 658-659.)
Given the other evidence of guilt, Officer Garnero’s testimony that the driving was reckless, willful, and wanton did not prejudice defendant.
III. The Romero Motion
Defendant contends that the trial court abused its discretion by denying his Romero motion. We disagree.
A trial court’s decision not to dismiss or strike a prior strike under Penal Code section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375 (Carmony).) In the context of sentencing decisions, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
The three strikes law “‘establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’” (Carmony, supra, 33 Cal.4th at p. 377.)
The trial court concluded defendant’s case was not the worst case of evasion the court had seen. However, it also found defendant’s criminal record was “abysmal,” as he was in custody almost continuously since 1990. Balancing defendant’s record against the nature of his current offense, the court found defendant did not fall outside the spirit of the three strikes law and denied the Romero motion.
Defendant asserts his case should be considered analogous to the situation in People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff). The contention fails.
In Cluff, a three strikes case in which a term of 25 years to life was imposed for a failure to comply with the sex offender registration requirements, the Court of Appeal found an abuse of discretion in the denial of the defendant’s Romero motion. (Cluff, supra, 87 Cal.App.4th at p. 994.) The Court of Appeal concluded substantial evidence did not support the “critical inference” upon which the trial court relied in denying the motion (id. at p. 997), i.e., that Cluff had failed to annually update his registration with the intent to “‘obfuscate’ his true residence” (id. at pp. 1002-1003). Characterizing the crime as “the most technical violation of the section 290 registration requirement we have seen” (id. at p. 994), the Court of Appeal noted defendant had been released from prison in 1990, he had properly registered a number of times over the next five years, and although he failed to update his registration after his birthday in 1996 and 1997 (a requirement that became effective on January 1, 1995), he continued to reside at his last registered address, where the police were able to contact him in October 1997 (id. at pp. 994-996).
Unlike Cluff, defendant’s case involves a one-strike sentence rather than a 25-year-to-life term. Cluff is further distinguished, as defendant’s conduct, while not the worst example of the crime, is not a mere technical violation of felony evading.
Defendant has felony convictions for domestic violence in 1990, attempted unlawful taking and driving of a motor vehicle in 1995, possession of a controlled substance in 1996, assault on a peace officer in 2000, misdemeanor convictions for evading an officer in 1998 and brandishing a weapon in 2006, and six parole violations. He is the type of career criminal for whom the three strikes law was intended. The court was neither arbitrary nor irrational in denying the Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., CANTIL-SAKAUYE, J.