Opinion
B164305.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN MILLER, Defendant and Appellant.
Leslie G. McMurray, 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, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Kevin Miller appeals from judgment entered following a jury trial in which he was convicted in count 1 of carjacking (Pen. Code, § 215, subd. (a)) with the finding that he personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(2); in count 3 of assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); and in count 4 of evading a police officer (Veh. Code, § 2800.2, subd. (a)). Sentenced to prison for a total of seven years and eight months, he contends there was insufficient evidence to convict him of evading the police and that the trial court should have permitted defense counsel to question the victim about his prior drug possession conviction. For reasons explained in the opinion, we reverse appellants conviction for evading a police officer, modify the judgment to strike the subordinate term of eight months for that count, and in all other respects affirm the judgment.
STATEMENT OF FACTS
AND PROCEDURAL HISTORY
On August 20, 2002, at approximately 12:35 a.m., Don Jackson was at a gas station in the City of Industry with his girlfriend Sylvia Salgado. Jackson was about to pump gas into the 2002 Ford Explorer vehicle Salgado had rented, when appellant approached and asked if he had a cigarette. When Jackson responded "No," appellant told Jackson to give him the car keys. Jackson refused and appellant pulled out a knife from his back pocket and said "give me your fucking car keys." Appellant demanded the keys approximately six times while he held the 12-inch long knife and then "started swinging" it at Jackson in a "horizontal motion." Jackson kept refusing to hand over the keys and took steps back. Appellant stabbed Jackson in the hand with the knife, and Jackson finally threw the keys and ran. Jackson, thereafter, saw appellant drive off in the car.[]
During this time, Salgado had fled.
The police responded to Jacksons 911 phone call. Several hours later, during a photographic lineup, Jackson identified appellant as the carjacker. Jackson learned the car had been recovered and that there was a large quantity of methamphetamine found in the car.
During the early morning hours of August 20, Huntington Park Police Officer David Welp was on patrol when he noticed a Ford Explorer vehicle run a red light. Officer Welp intended to pull the driver over and tell him he had made a mistake and should watch the lights a bit closer. As Officer Welp pulled behind the vehicle, the vehicle started to accelerate and the officer believed the driver was "going to run from [him]. And thats when [he] activated [his] overhead lights and siren." Welp testified it was a "black and white marked police car" with "lights on top," "the same set-up as the highway patrol where you have them on the V on the top of the car." The driver of the Ford Explorer drove against traffic to pass a vehicle, drove through red lights, and drove approximately 30 miles above the speed limit. During the pursuit, Welp was joined by another Huntington Park police officer. After the Ford Explorer hit a parked car, appellant jumped out of his car and took off running.
Officer Welp jumped out of his car and chased appellant. South Gate police officers had joined the pursuit and many South Gate officers ran past Officer Welp. Officer Welp saw appellant walk on a brick wall between houses. He followed appellant for approximately a half of a block before he lost sight of him but eventually encountered him again after South Gate police officers detained him. Officer Welp identified appellant as the same man he had chased and appellant was turned over for booking and arrest.
At the time of his arrest, appellant stated his name was "Will Melson." Officer Welp subsequently learned appellants name was Kevin Miller. Following advisement and waiver of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant stated he had been walking down the street when police officers in green uniforms started shooting at police officers in blue uniforms and that was why he ran up on a porch and hid. Officer Welp testified, however, there had been no shoot-out between the Huntington Park police and the South Gate police. Welp asked appellant why he fled while police were pursuing him and he stated, "[H]e just wanted to get back to see his baby." Appellant said he knew nothing about the methamphetamine found in the Ford Explorer.[]
Appellant was not charged with possession of the drugs.
South Gate Police Officer Edward Camacho was monitoring the Huntington Park Police Department radio broadcast, when he heard that the subject vehicle had collided with a parked vehicle. Officer Camacho went to the site and heard a description of the suspect. The police had received a phone call from a resident on Elizabeth Avenue reporting that a suspect was running through the yard. Officer Camacho eventually encountered appellant on the front porch of a house on Elizabeth Avenue in a "seated fetal position, covering his head." Officer Camacho had been the first South Gate officer to arrive at the location and he did not hear any shooting and had not heard broadcasts concerning shooting in the area.
In defense, appellant testified he had been in the area selling soap, which he falsely represented to be "dope." He had not gone to the gas station, driven a Ford Explorer or pulled a knife on anyone that night.
DISCUSSION
I.
Appellant contends and respondent agrees there was insufficient evidence to support a conviction for evading the police. One of the necessary elements of the evasion charge is that the pursuing police car "exhibit[] at least one lighted red lamp visible from the front" of the car. (Veh. Code, § 2800.1, subd. (a)(1).) Since there was no evidence adduced at trial that any of the pursuing officers vehicles lights were red, there, indeed, was insufficient evidence to convict appellant on this count and reversal is required. (People v. Acevedo (2003) 105 Cal.App.4th 195, 199-200.) Our finding precludes a retrial. (People v. Hatch (2000) 22 Cal.4th 260, 271-272.)
II.
Appellant contends the trial court should have permitted defense counsel to question victim Jackson about a prior drug conviction. Defense counsel argued that when the prosecution asked the victim if he was now "getting on with his life" following a prior conviction for possession of cell phone parts with intent to defraud, the implication was that Jackson had not been in trouble since that conviction and that this implication was false.
The trial court ruled, pursuant to Evidence Code section 352, evidence regarding Jacksons drug possession conviction could not be elicited. The court noted the questioning was "far enough . . . from the issues . . . which the jury will have to decide" and that Jackson had already been impeached with a "perfectly good moral turpitude prior."
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, original italics.) Applying this standard, we find no abuse of discretion.
As the trial court observed, the question for the jurys determination was whether appellant was the person who committed the charged crimes and not whether the victim had previously been convicted of possession of drugs. The victims credibility had already been impeached with a prior crime involving moral turpitude and the jury was instructed that such a fact could be considered for the purpose of determining the witnesss believability. Further, any error in not admitting this evidence was harmless, as it is not reasonably probable that a different result would have occurred had the evidence of Jacksons prior drug possession charge been admitted. (See People v. Watson (1956) 46 Cal.2d 818, 836-837.)
DISPOSITION
The conviction in count 4 for evading a police officer is reversed, the judgment is modified to strike the subordinate term of eight months for that count, and in all other respects, the judgment is affirmed. The trial court shall correct the abstract of judgment accordingly.
We concur: EPSTEIN, J. and CURRY, J.