Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF20086, Christopher W. Yeager, Judge.
IRION, J.
A jury convicted Armando Ruiz, Sr., of evading an officer while driving recklessly (Veh. Code, § 2800.2, subd. (a), hereafter § 2800.2(a).) Ruiz admitted a prior serious felony conviction, and the trial court sentenced Ruiz to 32 months in prison.
All further statutory references are to the Vehicle Code.
Ruiz raises three issues on appeal. First, he contends that because the crime of evading a officer with reckless driving is a specific intent crime, the trial court erred in giving an instruction on the union of act and intent that applies to general intent crimes. Second, he contends that the prosecutor engaged in misconduct during closing argument. Third, he contends that the trial court's minutes and the abstract of judgment improperly reflect a restitution fine and a parole revocation restitution fine, when the trial court did not impose those fines at sentencing.
As we will explain, we conclude that the first issue raised by Ruiz is dispositive. The trial court committed instructional error, which violated Ruiz's federal constitutional rights, and the Attorney General has not established, beyond a reasonable doubt, that the error did not contribute to the verdict. Accordingly, we reverse the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Officer Kevin King of the Holtville Police Department responded to an afternoon call regarding a family dispute at Ruiz's home. Upon arriving, Ruiz's son-in-law told Officer King that Ruiz had pointed a rifle at him and left the house. From previous interactions, Officer King was familiar with Ruiz and the vehicle that he drove.
After noticing Ruiz's vehicle approximately two blocks away, Officer King began to pursue Ruiz in his marked patrol car, with the lights and siren activated. Ruiz did not pull over, but instead drove out of the residential neighborhood and onto a two-lane road with a 55 mile per hour speed limit, increasing his speed to approximately 80 miles per hour. As the patrol car caught up to Ruiz's vehicle, Ruiz drove onto the dirt shoulder and "stirred up a huge cloud of dust," obscuring Officer King's vision and forcing him to slow down. Officer King lost sight of Ruiz until he spotted him in the distance going up the ramp onto the freeway. Officer King entered the freeway in pursuit, with his lights and siren still activated. Ruiz's vehicle was weaving in and out of the freeway lanes at approximately 110 miles per hour.
When Officer King eventually caught up to Ruiz and was driving directly behind him, Ruiz continued to drive for another 1.1 miles. Ruiz then pulled over, halfway in and halfway out of "lane 1." The total distance that Ruiz drove after Officer King began the pursuit was between seven and eight miles. No weapon was found in Ruiz's vehicle.
Ruiz was tried on a single count of evading an officer while driving recklessly. (§ 2800.2(a).) At trial, Ruiz testified that prior to driving off in his vehicle he had been in a confrontation with his son-in-law, and he left because the situation was getting out of hand. According to Ruiz, he did not hear the siren of Officer King's patrol car because he had the windows closed and the radio turned up, and he did not see the patrol car behind him until entering the freeway. He claimed that after he noticed the patrol car with its lights on and "imagined that [the officer] was... going after me," he pulled over to the side of the freeway. Ruiz denied that he was speeding and weaving in and out of lanes on the freeway, or that he had created a dust cloud.
The jury convicted Ruiz. After admitting a prior serious felony, Ruiz was sentenced to 32 months in prison.
II
DISCUSSION
Ruiz's first contention is that by giving CALCRIM No. 250 — "Union of Act and Intent: General Intent" — the trial court committed instructional error because the crime of evading an officer while driving recklessly (§ 2800.2(a)) is a specific intent crime. The Attorney General concedes that it was error for the trial court to give CALCRIM No. 250, but argues that the error was harmless. Because, as we will explain, we conclude that the Attorney General has not established beyond a reasonable doubt that the error did not contribute to the verdict, we reverse the judgment.
A. The Trial Court Committed Instructional Error
We begin our analysis by focusing on the elements of evading an officer while driving recklessly. Section 2800.2(a) provides in part: "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." Section 2800.1, the misdemeanor statute referenced in section 2800.2(a), provides in part: "Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's 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 officer's 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 officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer... and that peace officer is wearing a distinctive uniform." (§ 2800.1, subd. (a), italics added).
The parties do not dispute that because the offense of evading an officer while driving recklessly in violation of section 2800.2(a) requires "the intent to evade" (§ 2800.1, subd. (a)), it is a specific intent crime. We agree. The difference between general and specific intent crimes has been described as follows: " 'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' " (People v. Atkins (2001) 25 Cal.4th 76, 82, italics added.) Here, because a violation of section 2800.2(a) requires "the intent to evade" (§ 2800.1, subd. (a)) in addition to the act of fleeing from a peace officer, it refers to the " 'defendant's intent to do some further act or achieve some additional consequence' "(Atkins, at p. 82) and is a specific intent crime.
Consistent with the specific intent required for the crime of evading an officer while driving recklessly, the jury was instructed with CALCRIM No. 2181 as to the elements of that crime, including the following: "To prove that the defendant is guilty of this crime, the People must prove that: [¶]... [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer...."
However, the trial court also gave an instruction that was inconsistent with a specific intent offense. It instructed the jury with CALCRIM No. 250 — "Union of Act and Intent: General Intent." The instruction, as given, stated:
"The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.
"For you to find a person guilty of the crimes of evading a peace officer with willful and wanton disregard for the safety of others, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime." (Italics added.)
Ruiz contends that it was error for the court to give this instruction instead of an instruction on the concurrence of act and specific intent, which is set forth in CALCRIM No. 251. The Attorney General concedes that the trial court erred.
According to the Attorney General, "[b]ecause the crime requires the specific intent to evade, [Ruiz's] jury had to be instructed on the requirement of concurrence of act and specific intent, not general intent."
We agree that error occurred. "It has frequently been held to be error to instruct the jury on general intent in a case where the crime charged requires a specific intent." (People v. Hill (1967) 67 Cal.2d 105, 117.) Based on the instruction in CALCRIM No. 250 that "[a]person acts with wrongful intent when he or she intentionally does a prohibited act" (CALCRIM No. 250), the jury "might well have believed that they should automatically infer specific intent from the voluntary doing of the act." (People v. Hill, supra, at p. 118.) In this case, the prohibited act was the act of having "willfully fled" (CALCRIM No. 2181) when pursued by a uniformed police officer in a marked patrol car with an activated siren and lights. Based on CALCRIM No. 250, the jury could have interpreted the instructions to mean that they should infer Ruiz's specific intent to evade Officer King from the fact that Ruiz fled from him. Instructing with CALCRIM No. 250 was error because "[i]nstructions which mislead the jury into believing that specific intent is automatically to be inferred from the intentional doing of the proscribed acts are erroneous." (People v. Hill, supra, at p. 118.)
B. The Harmless Error Standard for Federal Constitutional Error Set Forth in Chapman Applies Here
Chapman v. California (1967) 386 U.S. 18 (Chapman).
Although conceding the error, the Attorney General contends that the error was harmless. To address the harmless error issue we first must decide which harmless error standard applies, i.e., the standard set forth in People v. Watson (1956) 46 Cal.2d 818 for errors implicating state law, or the standard set forth in Chapman, supra, 386 U.S. 18, for federal constitutional errors.
A third possibility, advanced by Ruiz, is that the error is structural and, therefore, a harmless error analysis is not necessary. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 280 [defective reasonable doubt instruction constituted structural error and was thus reversible per se].) "[H]armless-error analysis applies to instructional errors so long as the error at issue does not categorically ' "vitiat[e] all the jury's findings." ' " (Hedgpeth v. Pulido (2008) 555 U.S. ___ [129 S.Ct. 530, 532, 172 L.Ed.2d 388, 391].) When instructional error erects an erroneous mandatory presumption, the error is not structural, but instead is subject to harmless error review. (Carella v. California (1989) 491 U.S. 263, 266-267.) Here, the instruction with CALCRIM No. 250 in effect erected a mandatory presumption that Ruiz's act of fleeing from a peace officer established the specific intent to evade that officer. Based on this authority, we conclude that the error in this case is not structural, and is subject to harmless error review.
To assess whether the Chapman standard applies, we consider whether the trial court committed federal constitutional error. (Chapman, supra, 386 U.S. at pp. 23-24.) Ruiz contends that he was deprived of (1) his Sixth Amendment right to a jury determination of guilt; (2) his Fifth Amendment right to have guilt proved beyond a reasonable doubt; and (3) his Fourteenth Amendment right to a fair trial. He argues that "by instructing the jury that the requisite intent flowed from the commission of the act... the trial court told the jury that this element was proven by the mere doing of the prohibited act on purpose. It effectively amounted to a 'directed verdict' on the element of specific intent."
We agree that the trial court committed federal constitutional error because, based on CALCRIM No. 250, the jury may have believed that it did not need to decide whether Ruiz acted with the specific intent to evade Officer King, even though specific intent to evade is a necessary element of a violation of section 2800.2(a). "The federal Constitution's Fifth Amendment right to due process and Sixth Amendment right to jury trial, made applicable to the states through the Fourteenth Amendment, require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, italics omitted.) Thus, "[u]nder established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480, italics added.) Indeed, our Supreme Court has explained that where the jury may have understood conflicting instructions on intent to remove the element of specific intent from their consideration, constitutional error arises. (People v. Lee (1987) 43 Cal.3d 666, 673 (Lee) [citing, among others, Sandstrom v. Montana (1979) 442 U.S. 510, 520; Francis v. Franklin (1985) 471 U.S. 307, 322]; see also People v. Maurer (1995) 32 Cal.App.4th 1121, 1128 [when "conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury's consideration, the instructions constitute a denial of federal due process"].) In this case, by instructing the jury with CALCRIM No. 250 that "[a]person acts with wrongful intent when he or she intentionally does a prohibited act," the trial court effectively removed the specific intent element from the jury's consideration and thus violated Ruiz's rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
In Lee, federal constitutional error arose when "[o]ne instruction... properly explained that 'attempted murder requires the specific intent to unlawfully kill,' while another instruction... gave the opposite impression and incorrectly stated that if the attempted killing resulted from an intentional act done with implied malice, 'it is not necessary to establish that the defendant intended that his act would result in... death....' " (Lee, supra, 43 Cal.3d at p. 671.)
C. The Attorney General Has Not Met Its Burden to Establish Harmless Error
"If a trial court's instructional error violates the United States Constitution, the standard stated in Chapman[, supra,]386 U.S. 18, 24, requires the [Attorney General], in order to avoid reversal of the judgment, to 'prove beyond a reasonable doubt that the error... did not contribute to the verdict obtained.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) The Attorney General's harmless error argument has three parts, which we consider in turn.
First, the Attorney General argues that the error was harmless because the jury was also instructed with CALCRIM No. 2181, which stated the elements of the charged offense as including that Ruiz "willfully fled from, or tried to elude, the officer, intending to evade the officer." (Italics added.) According to the Attorney General, this "instructional language clearly advised the jury about the mental element required to convict [Ruiz], including the specific intent to evade the pursuing officer, and impliedly required the concurrence of the mental state with the act of driving." Therefore, argues the Attorney General, "the concurrence of act and mental state was substantially covered by the jury instructions," and "[i]t cannot be said that CALCRIM No. 250 would lead the jury to ignore any mental state other than 'willful,' or conclude no other mental state had to accompany the act."
We disagree. As the Attorney General points out, the jury was properly instructed with CALCRIM No. 2181 that the elements of the offense included the intent to evade the officer. However, the confusion arose when the jury was also instructed, as set forth in CALCRIM No. 250, that "[a]person acts with wrongful intent when he or she intentionally does a prohibited act." A reasonable juror who closely read CALCRIM No. 250 could have interpreted that instruction to state that the act of fleeing from an officer established the intent to evade required by CALCRIM No. 2181. Accordingly, we cannot conclude, beyond a reasonable doubt, that the error of instructing with CALCRIM No. 250 did not contribute to the verdict.
Second, the Attorney General contends that the error was harmless because counsels' closing arguments reinforced that the intent to evade must be separately proven. This argument lacks merit. We acknowledge that, as the Attorney General points out, during closing arguments both defense counsel and the prosecutor focused on whether the facts established that Ruiz was aware he was being pursued by Officer King. The jury thus understood that the main factual issue at trial was whether Ruiz intentionally failed to stop for Officer King. However, nothing in counsels' arguments expressly informed the jury that they could not, as CALCRIM No. 250 instructed, rely solely on the fact that Ruiz fled from Officer King to establish the intent to evade. Indeed, the trial court instructed the jury, pursuant to CALCRIM No. 200: "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." Accordingly, we cannot conclude beyond a reasonable doubt that merely because counsel focused during closing argument on evidence related to whether Ruiz had an intent to evade Officer King, the jury disregarded CALCRIM No. 250 in reaching its verdict that all of the elements of a violation of section 2800.2(a) had been established by the prosecutor.
Third, the Attorney General argues that the error was harmless because "evidence of [Ruiz's] intent to evade the officer was overwhelmingly shown by the manner in which he drove his truck during the seven-mile pursuit — at excessive speeds, driving off the road and creating a cloud of dust, weaving in and out of traffic and switching lanes as the officer got closer to him on the freeway." Indeed, we may consider whether the evidence presented at trial is " 'of such compelling force as to show beyond a reasonable doubt' that the erroneous instruction 'must have made no difference in reaching the verdict obtained.' " (People v. Harris (1994) 9 Cal.4th 407, 431.) Here, however, the evidence is not of such overwhelming force that it renders the error harmless. Ruiz testified on his own behalf at trial, and it is possible that the jury could have credited his version of events. According to Ruiz, he left his house after a confrontation with his son-in-law, with his windows rolled up and the radio playing loudly. He did not notice Officer King until he was entering the freeway, and he pulled over shortly after realizing that Officer King was pursuing him. If the jury credited this testimony, they could have concluded that Ruiz did not act with the specific intent to evade Officer King, although he did commit the act of fleeing from Officer King because he failed to stop with the officer in pursuit.
Although instructional error regarding specific intent may be harmless when, due to the undisputed facts of the case, the jury's verdict necessarily implies a finding of specific intent (People v. Hill, supra, 67 Cal.2d at p. 119 ["nor is the error prejudicial where the nature of the acts done by the accused preclude belief that they were done without specific intent"]; People v. Booth (1952) 111 Cal.App.2d 106, 109 ["The nature of the acts was such as to preclude the belief they were committed without criminal intent."]), this is not such a case. Here, if the finder of fact chose to credit Ruiz's testimony about what happened during the pursuit, the act of driving away from a police officer would not necessarily imply an intent to evade.
In sum, we conclude that the Attorney General has failed to prove beyond a reasonable doubt that the trial court's instructional error did not contribute to the verdict, and accordingly the judgment must be reversed.
In light of our conclusion that the judgment must be reversed, we need not reach Ruiz's other argument for reversal, namely that the prosecutor committed misconduct during closing argument with comments that Ruiz posed a danger to the public. We note that had we not reversed the judgment on other grounds, we would also decline to reach the merits of the prosecutorial misconduct argument because, due to defense counsel's failure to object at trial and because an objection would not have been futile, the issue has not been preserved for appeal. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Further, with respect to the third issue that Ruiz raises on appeal, i.e., that the abstract of judgment and the trial court minutes should be amended to show that no restitution fine or parole revocation fine was imposed, that issue is moot because we have reversed the judgment.
DISPOSITION
The judgment is reversed.
WE CONCUR HALLER, Acting P. J., O'ROURKE, J.