Opinion
E069349
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER AMOS SORNOSO, JR., Defendant and Appellant.
Conrad Petermann and Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. BAF1600851, BAF1601608 & SWF1400485) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Davis, Judge. Affirmed. Conrad Petermann and Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Christopher Amos Sornoso, Jr., of two counts of evading a peace officer with wanton disregard (Veh. Code, § 2800.2), and he admitted an "out-on-bail" allegation (Pen. Code, § 12022.1). The trial court sentenced him to four years in state prison. On appeal, defendant contends that the court erred in not amplifying or clarifying the term "evade" as it is used in CALCRIM No. 2181, and that his trial counsel was ineffective for failing to request such amplification or clarification. We conclude that the jury was correctly instructed to apply the ordinary, everyday meaning of the word. We therefore reject his claims and affirm the judgment.
I. PROCEDURAL BACKGROUND AND FACTS
A. July 7, 2016, Incident
On July 7, 2016, at approximately 3:20 p.m., defendant was driving a gold four-door 1990s Nissan Stanza with dark tinted windows, heading north on Fairview Avenue in Hemet. Riverside County Sheriff's Deputies Franks and Ruiz, both in uniform, were driving south on Fairview Avenue in a marked patrol vehicle. Because the sedan's tinted windows violated the Vehicle Code, the deputies decided to conduct a traffic stop. The officers made a U-turn and followed the sedan.
As the officers caught up to the sedan, it ran a stop sign. The officers activated their siren and lights and followed the sedan as it turned on various streets, running stop signs and red lights, and exceeding the posted speed limit. The pursuit took seven minutes, traveling two and a half miles. The deputies had "almost constant contact" with defendant's vehicle. The sedan eventually stopped on Wanda Lane, within a few homes of defendant's residence. Officers found that defendant, the only occupant of the car, was cooperative. Deputy Frank opined that defendant displayed objective signs of being under the influence of methamphetamine.
At trial, defendant testified that he did not see the deputies behind him because he was focused on "making sure the car was up to par to make it on the trip" that he was about to take with his girlfriend. He claimed that he was playing rap music loud enough to where he was able to "feel it." When he saw the deputies, he drove until it was safe to pull over. He wanted a place where there would be a witness "to see what happened when [he] got pulled over" because he and family members have had negative experiences with the police. Defendant denied driving over the speed limit or running stop signs. He admitted using methamphetamine the day before, but denied using it that day, claiming that he was fidgety because he was scared.
B. September 14, 2016, Incident
On September 14, 2016, at approximately 11:14 p.m., Hemet Police Officer Derrick Young was driving west on Florida Avenue in a marked patrol vehicle. He saw a white 1985 Toyota Corolla turning east on Florida Avenue without its headlights on. Defendant was driving it. Officer Young made a U-turn and activated his overhead lights and siren. Defendant sped away, turning onto various streets, running stop signs, and speeding over the limit. Eventually, he slowed to approximately 10 miles per hour, maintaining that pace until stopping at approximately 11:21 p.m. in front of his Wanda Lane residence, where he was apprehended by several officers. Defendant acted fidgety, his eyes were dilated and glassy, and his pulse was elevated. Officers noted that these symptoms were consistent with those of an individual under the influence of methamphetamine. The pursuit took six to seven minutes, over approximately 3.7 miles. Officer Young had the vehicle in sight throughout the pursuit.
At trial, defendant testified that when he first saw the officer behind him, he did not know that the officer was following him. When he realized the officer was following him, defendant did not stop because he did not "feel safe." He denied trying to get away from the officers, claiming that he was more scared than when he was pursued in July. Defendant denied using methamphetamine that day, but admitted using it the day before. Defendant acknowledged he had pled guilty to felonies in 2004, 2006, and 2010, and that during the arrests for those incidents he had positive experiences with the police. However, he testified that "it was multiple events that led [him] to feel like [he] was not safe anymore." According to defendant, the police had harassed him over and over by coming to his house, kicking the door down, pepper-spraying his dog, throwing him onto the hood of the car, and kicking his legs. He maintained that he was not trying to get away from the officers; instead, he feared for his life.
C. The Evading an Officer Jury Instruction
The jury was instructed with CALCRIM No. 2181, which defines evading an officer with reckless driving (Veh. Code, § 2800.2). As given by the court, this instruction states in pertinent part: "The defendant is charged in Counts 1 and 2 with evading a police officer with wanton disregard for safety in violation of Vehicle Code section 2800.2. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] . . . two, the defendant who was also driving a motor vehicle, willfully fled from or tried to elude the officer intending to evade the officer . . . ."
The jury began deliberating on August 29, 2017, at 3:03 p.m. and continued the next morning. That morning, the jury sent to the trial court a question stating: "We would like clarification of what the term evade legally means." The parties stipulated to the response the court provided: "We cannot give you a further definition of the term 'evade' [and] you cannot refer to a dictionary. [¶] Refer to Jury Instruction 200." (Some capitalization omitted.)
CALCRIM No. 200, in relevant part, provided: "Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
The jury returned with a verdict on August 30, 2017, at 11:04 a.m.
II. DISCUSSION
A. The Jury Was Correctly Instructed on Evading an Officer
Defendant contends that CALCRIM No. 2181 did not adequately explain the term "evade," which was critical to resolve his sole defense that he was not trying to evade the officers, but "merely . . . seek[ing] safe-haven for his ultimate stop where public scrutiny might protect him from law enforcement abuse." We conclude that the jury was correctly instructed and reject defendant's contention.
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22)
Defendant does not challenge CALCRIM No. 2181 as incorrectly stating the law or omitting the specific intent element for evading an officer. Rather, he argues that the term "evade" has a technical meaning that requires clarification or amplification. However, the California Supreme Court has explained that, "'[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Here, defendant did not request appropriate clarifying or amplifying language. He points out, however, that the jury did. But, in response to the jury's request, defense counsel stipulated to the response that the court provided. Defendant therefore has forfeited his claim of instructional error under the invited error doctrine. (People v. McKinnon (2011) 52 Cal.4th 610, 675 ["When a defense attorney makes a 'conscious, deliberate tactical choice' to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error."]
Even if the error were not forfeited, we conclude that "evade" is not a technical term that requires amplification or clarification. We agree with the People that this word has no special meaning in CALCRIM No. 2181 beyond the common meaning of the term itself. "The word 'evade' is a synonym for 'avoid,' 'elude,' or 'get out of.' [Citations.] There is no indication that the Legislature intended the word 'evade' to have any technical meaning peculiar to the law. [Citation.]" (Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1171.) "When a word or phrase '"is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request."' [Citations.]" (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).) "It is only when a word or phrase has a 'technical, legal meaning' that differs from its 'nonlegal meaning' that the trial court has a duty to clarify it for the jury. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 670; compare People v. Bland (2002) 28 Cal.4th 313, 335 ["proximate causation" has a meaning peculiar to the law that a jury would have difficulty understanding without guidance] with Estrada, supra, at p. 578 ["'reckless indifference to human life'" does not have a technical meaning peculiar to the law], People v. Raley (1992) 2 Cal.4th 870, 901 [there is no special legal definition of "sadistic purpose"] and People v. Richie (1994) 28 Cal.App.4th 1347, 1360-1362 ["'willful'" and "'wanton'" are not technical terms with a particular legal meaning].)
Defendant proffers no technical, legal definition for the word "evade," nor does he cite any authority for the proposition that this term carries a meaning that differs from its nonlegal meaning. Instead, he cites to cases that have held that other terms such as "accident," "'unlawful' killing," "'under the influence,'" and "proximate causation," require clarification and amplification. However, he offers no explanation how the meaning of the term "evade" as used in CALCRIM No. 2181 differs from the commonly understood meaning of the word. We are not persuaded that the trial court had a duty to give, after the jury requested clarification but neither party suggested giving it, an instructional definition for "evade."
Even if there is some case in which the word "evade" in CALCRIM No. 2181 is confusing and should be clarified, the trial court here acted "well within its discretion" (People v. Brooks (2017) 3 Cal.5th 1, 97) in deciding to refer the jurors to CALCRIM No. 200, which instructed the jury to use the "ordinary, everyday meaning" to undefined words, such as "evade." (People v. Beardslee (1991) 53 Cal.3d 68, 97 ["Where the original instructions are themselves full and complete, the court has discretion under [Penal Code,] section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."].
This case did not involve a dispute about whether a particular incident was an evasion, but about whether defendant's intent was (a) to elude the officers, or (b) to stop in a safe place. Counsel's closing arguments made clear the issue for the jury. (People v. Jaspar (2002) 98 Cal.App.4th 99, 111 ["It is proper to review the instruction in combination with other instructions and/or the argument of counsel in determining if the instruction challenged on appeal confused the jury."].) In closing argument, the prosecutor asserted that defendant's "driving pattern shows" his intent to evade the police because he wanted to "get away." She pointed out that he ran multiple stop signs and red lights, exceeded the speed limit, and refused to stop his car. Noting the fact that defendant drove past his own street several times before stopping there, the prosecutor argued that "[h]e wasn't trying to get home. He was trying to lose that officer." Referencing his "calculated movements in his vehicle" and his ability to answer the officers' questions and follow directions, she reasoned: "If we look at everything, the totality of the circumstances, we know he intended to evade. He intended to [e]lude those officers. He didn't want to get caught. And when he finally realized he wasn't going to get away . . . he returned to home base where his family and friends would be there."
In contrast to the prosecutor, defense counsel told the jury that if defendant intended to stop, "if he's not intending to evade, he is not guilty of these evading charges." Counsel argued that defendant saw the officers but continued to drive, obeying the traffic laws, until he reached a place where he felt safe; he did not run away from, or fight, the officer. Pointing out defendant's past bad experiences with the police, counsel claimed that defendant drove home because it was a safe place to stop and "to find someone that could see what was going on."
The record thus shows that each party provided a view of the application of the term "evade" to the facts, effectively providing information as to how the term could be applied. It is not clear that any additional definition could be helpful, beyond the trial court's direction to the words "ordinary, everyday" meaning. The jury was adequately instructed on the term "evade."
B. Defense Counsel Did Not Render Ineffective Assistance
Defendant contends he received ineffective assistance of counsel regarding the jury instructions. To establish ineffective assistance of counsel, a defendant must show (1) defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) defense counsel's performance prejudiced the defendant, i.e., there is a "reasonable probability" that, but for counsel's failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
Defendant faults his trial counsel for failing to request "instructions explaining the defense theory" and clarifying "the intent to evade." He has not proposed, however, any specific language for such an instruction. And it is not apparent why any such instruction might be necessary. As previously discussed, the ordinary meaning of the term "evade" is well understood and requires no further explanation or definition for the jury. Trial counsel cannot be faulted for failing to make a request that would properly have been denied.
Moreover, it seems defendant may be suggesting that a defendant may be excused of avoiding apprehension by the police for some period of time, in order to control the time and place of arrest, to satisfy the defendant's perceived sense of safety. He offers no legal authority in support of this proposition, nor are we aware of any authority. Furthermore, we are not persuaded that a defendant, who engages the police in a two-plus-mile chase and commits several traffic violations, may be excused from evading police even if his intent was to seek a "safe-haven for his ultimate stop." Since defendant can point to no authority for this proposition, and we are aware of none, we can hardly charge trial counsel with incompetence for failing to request clarifying instructions.
Because we conclude that the jury was adequately instructed on the term "evade," we reject defendant's claim of ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. MILLER
J.