Opinion
E032240.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. LESTER RAY ISIAH, Defendant and Appellant.
Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J. T. Carlton, Supervising Deputy Attorney General, and Jonathan J. Lynn, Deputy Attorney General, for Plaintiff and Respondent.
As a result of the armed robbery of a Del Taco, defendant Lester Ray Isiah was convicted on seven counts of second degree robbery (Pen. Code, § 211), two counts of carjacking (Pen. Code, § 215, subd. (a)), and one count of reckless evading (Veh. Code, § 2800.2). Multiple personal firearm use enhancements (Pen. Code, § 12022.53, subd. (b)) were found true. Defendant was sentenced to a total of 24 years in prison.
Defendant contends:
1. CALJIC No. 12.85, defining reckless evading, erroneously allowed the jury to convict him even if it did not find that he acted with "willful or wanton disregard."
2. CALJIC No. 2.92, regarding the evaluation of eyewitness identifications, erroneously required the jury to consider an eyewitnesss certainty or uncertainty.
3. The trial court erroneously imposed a parole revocation fine that was higher than the restitution fine.
We find no instructional error. The People, however, concede that the trial court erred in setting the parole revocation fine; we agree. Accordingly, we will remand for reconsideration of the amounts of the restitution fine and parole revocation fine. In all other respects, we will affirm.
I
THE JURY INSTRUCTION DEFINING RECKLESS EVADING (CALJIC NO. 12.85)
Defendant contends the instruction defining reckless evading erroneously allowed the jury to convict him even if it did not find that he acted with "willful or wanton disregard for the safety of persons or property."
A. Additional Factual and Procedural Background.
The trial court instructed the jury with CALJIC No. 12.85 (1999 rev.) (6th ed. 1996), which, as relevant here, provided:
"Every person who flees or attempts to elude a pursuing peace officer in violation of . . . Vehicle Code section 2800.1, subdivision (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 Vehicle Code section 2800.2, subdivision (a), a felony.
"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 violates three or more vehicle code sections such as: [P] Vehicle Code section 21453. Thats a red light. . . . [P] Vehicle Code section 22450, stop sign. . . . [P] . . . [P] Speeding, 22350 or 22352 of the Vehicle Code. . . . [P] Double lines. Vehicle Code section 21460. . . . [P] Right side of the roadway, Vehicle Code section 21650. . . ."
The trial court also instructed the jury in more detail on the elements of a violation of each of the Vehicle Code sections that it cited in the instruction.
B. Analysis.
Defendant argues that, under Vehicle Code section 2800.2, even if a jury finds that the defendant committed three or more specified Vehicle Code violations, it must also find that the defendant drove with willful and wanton disregard. He then argues that CALJIC No. 12.85 allows the jury to treat the commission of three or more specified Vehicle Code violations as the equivalent of willful and wanton disregard. He concludes that it does not require the jury to find, in every case, that the defendant actually drove with willful and wanton disregard.
We agree with defendants interpretation of CALJIC No. 12.85. As will be seen, however, we disagree with his interpretation of Vehicle Code section 2800.2. As written, and as construed by the courts, Vehicle Code section 2800.2 allows a jury to use the commission of three or more specified Vehicle Code violations as a proxy for willful and wanton disregard. The jury must find one or the other; it does not have to find both. Accordingly, CALJIC No. 12.85 correctly states the law.
Vehicle Code section 2800.2, as originally enacted in 1988, provided that reckless evading was committed "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 . . . ." (Former Veh. Code, § 2800.2, Stats. 1988, ch. 504, § 3, p. 1919.)
Under this version of the statute, People v. Johnson (1993) 15 Cal.App.4th 169 held that reckless evading is an inherently dangerous felony for purposes of the second degree felony-murder rule. It explained: "The offense is committed by one who flees or attempts to elude a peace officer while driving his pursued vehicle in a willful or wanton disregard for the safety of persons or property [citation]. It would seem clear as a matter of logic that any felony whose key element is wanton disregard for human life necessarily falls within the scope of inherently dangerous felonies." (Id . at p. 173.)
In 1996, however, Vehicle Code section 2800.2 was amended so as to add the following: "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." (Veh. Code, § 2800.2, subd. (b), Stats. 1996, ch. 420, § 1.)
In People v. Sewell (2000) 80 Cal.App.4th 690, the defendant argued that, as a result of this 1996 amendment, reckless evading was no longer an inherently dangerous felony. (Id . at p. 694.) The appellate court disagreed: "The 1996 amendment did not change the elements of the section 2800.2 offense, in the abstract, or its inherently dangerous nature. The amendment merely described a couple of nonexclusive acts that constitute driving with willful or wanton disregard for the safety of persons or property. The key elements of the crime remain: the offense is committed by one who, while fleeing or attempting to elude a pursuing peace officer, drives his pursued vehicle in a willful or wanton disregard for the safety of persons or property. [Citations.]" (Id. at pp. 694-695.)
The defendant in Sewell argued, however — as defendant argues here — that it is possible to drive safely while committing three specified point count violations. (People v. Sewell, supra, 80 Cal.App.4th at p. 695.) The Sewell court responded: "A similar argument was rejected in People v. Morse (1992) 2 Cal.App.4th 620 . . . (Morse). There, the question was whether reckless or malicious possession of an explosive device [citation] is an inherently dangerous felony. In answering this question yes, Morse stated: Appellant argues that because there are "conceivable[] ways of violating the statute that do not necessarily pose a threat to human life" the crime is not inherently dangerous. . . . [P] We must view the elements of the offense, not the particular facts of the instant offense. In viewing the elements our task is not to determine if it is possible (i.e., "conceivable") to violate the statute without great danger. By such a test no statute would be inherently dangerous. Rather the question is: does a violation of the statute involve a high probability of death? [Citation.] If it does, the offense is inherently dangerous. [Citations.]" (Id. at pp. 695-696.)
Thus, Sewell does not say what defendant would have it say. Under Sewell, a defendant may be driving perfectly safely, yet still be guilty of reckless evading, based on the commission of three point-count violations. The Sewell court simply reasoned that this scenario will be very much the exception, rather than the rule. It is important to remember that, first, the defendant must be fleeing from a pursuing police officer; and second, the defendant must commit, not one, not two, but three point-count violations. Moreover, each such violation is highly likely (even if not absolutely guaranteed) to threaten people and/or property. It is overwhelmingly probable that such a defendant is also driving with willful and wanton disregard. But Sewell does not require the jury to so find. To the contrary, it recognizes the possibility, however small, that a defendant who acted without any willful and wanton disregard at all could be convicted.
We conclude that the trial court did not err by instructing the jury with CALJIC No. 12.85.
II
THE JURY INSTRUCTION REGARDING EYEWITNESS IDENTIFICATIONS (CALJIC NO. 2.92)
Defendant contends the trial court erred by instructing the jury, in evaluating an identification by an eyewitness, to consider the eyewitnesss certainty or uncertainty.
A. Additional Factual and Procedural Background.
The trial court instructed the jury with CALJIC No. 2.92 (6th ed. 1996), which, as relevant here, provided:
"Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given to eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witnesss identification of the defendant, including but not limited to any of the following: [P] . . . [P]
"The extent to which the witness is either certain or uncertain of the identification . . . ." (Italics added.)
B. Analysis.
Defendant, citing various journal articles and treatises, argues that "there is no reliable correlation between [a] witness[s] subjective certainty and the accuracy of his [or her] identification . . . ."
Preliminarily, we note that defense counsel requested CALJIC No. 2.92 and thereby invited the asserted error. (People v. Catlin (2001) 26 Cal.4th 81, 150.) In the alternative, however, we conclude that there was no error at all.
People v. Gaglione (1994) 26 Cal.App.4th 1291, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, 903 P.2d 1037, rejected an identical argument. Gaglione relied on People v. Wright (1988) 45 Cal.3d 1126, 248 Cal. Rptr. 600, 755 P.2d 1049: "The Wright court held that a proper instruction on eyewitness identification factors should focus the jurys attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [P] The instruction should not take a position as to the impact of each of the psychological factors listed. [Citation.] The court expressly approved CALJIC No. 2.92, commenting that CALJIC No. 2.92, with appropriate modifications to take into account the evidence presented at trial, will usually provide sufficient guidance on eyewitness identification factors. [Citation.]
"The dissent in Wright raised concerns identical to those raised by defendant here. The majority, however, rejected the dissents contention that CALJIC No. 2.92 is defective. . . . We disagree with the dissents suggestion that CALJIC No. 2.92 is "deficient" for failing to explain the effects of the enumerated factors. [Citation.] An instruction that "explained" the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge. [Citations.]" (People v. Gaglione, supra, 26 Cal.App.4th at pp. 1302-1303.)
We also note that in People v. Johnson (1992) 3 Cal.4th 1183, 842 P.2d 1, the defendant argued that CALJIC No. 2.92 was not supported by the evidence, because there an expert witness had "testified without contradiction that a witnesss confidence in an identification does not positively correlate with its accuracy." (Johnson at p. 1231.) The Supreme Court disagreed: "First, as defendant concedes, the jury remained free to reject Dr. Loftuss testimony although it was uncontradicted. [Citation.] The trial court was not required — indeed, was not permitted — to instruct the jury to view the evidence through the lens of her theory. Second, the jury was instructed that it should consider testimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses of an eyewitness. Thus, if the jury was persuaded by Dr. Loftuss testimony, the instructions allowed it to infer that Angelas positive identification was not necessarily an accurate one. [P] . . . [P] The trial court did not err, therefore, in instructing the jury on the certainty factor." (Id. at pp. 1231-1232.)
Under Johnson, the trial court here was neither required nor permitted to embrace defendants scientific theory. Although CALJIC No. 2.92 does require the jury to consider an eyewitnesss certainty or uncertainty, it does not require the jury to find that an eyewitness who is certain is, in fact, correct, nor that an eyewitness who is uncertain is, in fact, incorrect; it does not tell the jury how much weight to assign to this factor, or indeed, that it must assign any at all. The jurors remain free to use their common sense and their life experience in evaluating the credibility of a witness.
If defendant wanted to challenge the reliability of the eyewitness testimony, he should have called an expert witness, like the one in Johnson. Had he done so, CALJIC No. 2.92 would not have prevented the jury from accepting the experts testimony. Thus, despite the instruction, they could have found that an eyewitness who is certain is nevertheless unreliable.
We conclude that the trial court did not err by instructing the jury with CALJIC No. 2.92.
III
THE PAROLE RESTITUTION FINE
The trial court imposed a restitution fine in the amount of $ 500. (Pen. Code, § 1202.4, subd. (b).) It also imposed, and then suspended, a parole revocation fine in the amount of $ 2,500. (Pen. Code, § 1202.45.)
Defendant contends the trial court erred by setting the parole revocation fine higher than the restitution fine. The People concede that this was error. We agree. (Pen. Code, § 1202.45; People v. Smith (2001) 24 Cal.4th 849, 853.)
The only question, then, is whether both fines should be set at $ 500 or $ 2,500. On this record, we cannot say which amount the trial court would have chosen in the absence of the error. The probation report had recommended that both fines be set at $ 2,500. Thus, it seems at least possible that the trial court meant to set both fines at $ 2,500, and, in pronouncing the restitution fine, it simply misspoke. Certainly it is not a case in which "no issue as to the amount of the fine exists" (People v. Terrell (1999) 69 Cal.App.4th 1246, 1256, fn. 2), and hence a remand would be an "idle gesture." (Id . at p. 1255.) Accordingly, we will remand for partial resentencing.
IV
DISPOSITION
The sentence is reversed, but solely as to the amount of the restitution fine and the amount of the parole revocation fine. The case is remanded for resentencing solely in respect of these amounts. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., WARD, J.