Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR236884
Siggins, J.
Scott Ralph Strack appeals his jury convictions for assault on a police officer, evading police, driving under the influence causing injury, and being under the influence of a controlled substance. Strack contends his conviction for evading a police officer is not supported by substantial evidence. Alternatively, he argues his sentence for that offense should have been stayed under Penal Code section 654. We conclude substantial evidence supported both the jury’s finding that the officer’s marked patrol vehicle displayed a “lighted red lamp visible from the front” as required by Vehicle Code sections 2800.1 and 2800.2, and the trial court’s conclusion that Strack entertained multiple criminal objectives that justified multiple punishment. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 9:30 p.m., California Highway Patrol Officer Brian Wittmer was on duty in an unincorporated area, driving a marked department motorcycle equipped with a siren and a red light in the front. Strack was driving a pickup truck at a normal speed in a 55-mile-per-hour zone when he made a left turn in front of Wittmer. Wittmer turned and pulled in behind Strack. Strack immediately ran a stop sign and increased his speed to approximately 75 miles per hour.
Officer Wittmer activated his emergency lights to make a traffic enforcement stop. When Strack did not pull over, Wittmer followed him for approximately half a mile. When Wittmer closed in and turned on his high beam headlight in order to read Strack’s license plate, Strack looked at Wittmer in his rearview mirror and applied his brakes. The truck slowed to a speed of approximately 45 to 50 miles per hour, and Wittmer collided with its rear bumper. He sustained some injury, but managed to maintain control of his motorcycle. The motorcycle suffered damage to the front fender and axle. After the impact, Strack accelerated again to a speed of approximately 75 to 80 miles per hour.
Officer Wittmer called for backup and turned on his siren, but Strack would not stop. Wittmer pursued him for approximately six miles as Strack crossed double yellow lines to pass cars, and drove through another stop sign. Strack then turned onto another road and accelerated to speeds of 115 to 120 miles per hour. He turned off the lights on his truck, moved into the opposite lane, and continued to pass other cars. Wittmer’s motorcycle was unable to keep up or travel more than 105 miles per hour. After he lost sight of Strack for a few seconds, Wittmer heard a loud bang and saw a huge explosion. When he arrived at the scene, Wittmer saw a utility pole knocked down and lying across the road. Live wires were arcing and a fire was starting.
A few minutes later, police found Strack’s truck approximately 100 feet from the roadway. Strack was lying on his back some distance away, wearing only a t-shirt. He tried to crawl away and then began to masturbate. Strack’s pupils were dilated and he was grinding his teeth, sweating profusely, mumbling, moaning, and groaning. He had the general appearance of someone under the influence of a central nervous system stimulant. A forensic toxicologist testified Strack’s conduct was consistent with a person under the influence of methamphetamine, and a blood sample drawn at 11:30 p.m. tested positive for amphetamine and methamphetamine.
Strack was charged with assault on a peace officer, evading a peace officer, driving under the influence causing injury, and being under the influence of a controlled substance. At trial, an expert in accident reconstruction testified for the defense that Officer Wittmer’s motorcycle would have been “unrideable” if it collided with Strack’s truck at the relative speeds described by the officer, and Wittmer would have been badly injured. The defense expert believed the speed differential between the two vehicles was less than 10 miles an hour at the time of the collision, and the truck was traveling at a speed of 45 to 50 miles per hour when it left the roadway. The expert’s opinion and calculations were based on review of documents and computer calculations, not a visit to the scene of the accident; he did not see the truck or motorcycle after the collision, nor did he interview Strack or Wittmer about the incident.
Additional counts charging indecent exposure and lewd conduct were later dismissed on the district attorney’s motion.
The jury found Strack guilty as charged, and the court sentenced him to four years in state prison. The prison sentence consisted of the mid-term of four years for the assault on an officer, with concurrent two-year terms for evading an officer and driving under the influence causing injury. Strack timely appealed.
DISCUSSION
A. Sufficiency of the Evidence Claim
Strack contends his conviction for evading an officer must be reversed because there was no substantial evidence to support the jury’s statutorily-required finding that Officer Wittmer’s motorcycle displayed “a lighted red lamp visible from the front.” We disagree.
Vehicle Code section 2800.2 authorizes punishment for “a person [who] flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and... drive[s] in a willful or wanton disregard for the safety of persons or property....” Vehicle Code section 2800.1, subdivision (a), requires that among other things, “(1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front....” Officer Wittmer testified he was driving a California Highway Patrol department motorcycle that was equipped with a red light in the front, and that he “activated [his] lights to make an enforcement stop” after Strack ran the first stop sign. Officer Wittmer also testified that he “had to activate [his] lights to make sure that [he] was going through the stop sign within the parameters of the law having my lights activated.” Officer Wittmer’s testimony provided substantial evidence to support the jury’s conclusion that his motorcycle displayed a lighted red lamp visible from the front at the time Strack attempted to elude him. (See People v. Iniguez (1994) 7 Cal.4th 847, 854 [“we ‘ “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence” ’ ”]; People v. Stewart (2000) 77 Cal.App.4th 785, 790 [“The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusion”].)
This is an apparent reference to Vehicle Code section 21055, which exempts government emergency vehicles from complying with traffic regulations when responding to an emergency and displaying red lights.
We therefore need not determine whether defense counsel also conceded during argument to the jury that Officer Wittmer’s red lights were activated while he pursued Strack.
The cases Strack relies on are distinguishable. In People v. Acevedo (2003) 105 Cal.App.4th 195, there was no evidence of any kind regarding the color of the emergency lights displayed by the pursuing police officer’s vehicle. (Id. at pp. 197, 199 [“the prosecution simply failed to close a sizable evidentiary gap mandated by the terms of the statute”].) In People v. Brown (1989) 216 Cal.App.3d 596, the officer testified her police vehicle had several possible signal light options, and she did not remember whether the option she chose included display of a red light. (Id. at pp. 599-600.) In Brown, the Attorney General conceded the lack of evidence of an essential element of the offense, and this court concluded the prosecution failed to establish the pursuing police car displayed a red light as required by the statute. (Ibid.) In this case there is no dispute that Officer Wittmer’s motorcycle was equipped with a red light on the front, the evidence showed that he activated his signal lights, and there was no evidence that his vehicle could display signal options other than a red light.
In Brown, the officer testified her squad car was capable of displaying three possible light signals, depending on which switch was activated: a flashing amber light to the rear; blinking blue and white lights to the front and rear; or rotating red, blue and white lights. (People v. Brown, supra, 216 Cal.App.3d at p. 599.) The officer recalled that she activated her overhead signals, but could not recall which option she chose. (Ibid.)
In the absence of any such evidence in the record, we decline Strack’s invitation to infer that Officer Wittmer’s motorcycle was equipped with alternate signal light options. We are not persuaded by Strack’s suggestion that the Acevedo court’s passing observation regarding the different colored lights on a patrol car “applies equally to the color of the lights on [a police motorcycle].” (Cf. People v. Acevedo, supra, 105 Cal.App.4th at p. 199 [“while we agree it is common knowledge that police patrol cars carry red lights, it is equally well known that policecars display different colored lights”].) Moreover, in Strack’s case, unlike Acevedo’s, there was affirmative evidence that the police vehicle was equipped with a red light on the front, and it was unnecessary for the jury to resort to common knowledge regarding the colors of lights generally displayed by such vehicles. There was substantial evidence to support Strack’s conviction for evading an officer.
B. Multiple Punishment Claim
Strack argues the trial court violated section 654 when it failed to stay his sentence for evading an officer “because that offense was not shown to have a separate objective from the conduct underlying appellant’s conviction for assault on a police officer.” Strack contends his “use of his vehicle to assault Officer Wittmer was part of a single, indivisible course of criminal conduct undertaken with the overarching objective of thwarting the officer’s pursuit.” We disagree.
“Section 654 prohibits multiple punishment for a single criminal act and for two crimes arising from a single indivisible course of conduct in which the defendant had only one criminal intent or objective. [Citation.] Thus: ‘If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct.’ ” (People v. Conners (2008) 168 Cal.App.4th 443, 458, fn. omitted.) “The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) The trial court implicitly rejected Strack’s argument that section 654 barred multiple punishment in this case when it imposed a concurrent term for Strack’s conviction for evading an officer.
The record here supports the imposition of punishment on both counts. (See People v. Green (1988) 200 Cal.App.3d 538, 543-544 [trial court’s “implied finding of multiple criminal intent will be upheld if supported by substantial evidence”].) The trial court could reasonably determine that Strack had separate criminal objectives when he first fled from Officer Wittmer at a high rate of speed, and then looked at Wittmer in his rearview mirror and applied his brakes, thereby causing a collision that injured the officer. On the facts of this case, the trial court was not required to find that Strack’s intent to evade the officer and the intent to injure him were “merely incidental to, or were the means of accomplishing or facilitating one objective....” (People v. Perry, supra, 154 Cal.App.4th at p. 1525.) Substantial evidence supports the trial court’s conclusion that Strack acted with separate objectives and multiple punishment was not barred by section 654. (See People v. Brown (1991) 234 Cal.App.3d 918, 933 [“If there were multiple objectives not merely incidental to each other, the defendant may be punished for the independent violations even though they were parts of an otherwise indivisible course of conduct”].)
Strack’s reliance on the holding in People v. Perry, supra, 154 Cal.App.4th 1521 is misplaced. In that case, the court concluded the defendant did not act with independent objectives in committing a vehicular burglary and a second degree robbery. But the circumstances in Perry were significantly different from those presented here. When the victim in Perry returned to his parked car, the defendant jumped out holding the victim’s car stereo in one hand and a screwdriver in the other. As the victim confronted and then pursued him, the defendant stopped several times and assumed “a fighting stance.” (Id. at pp. 1523-1524.) The Perry court concluded multiple punishment was barred because the defendant’s objective in committing both the burglary and the robbery was the theft of the victim’s car stereo. (Id. at p. 1527.) The court also noted that “escaping was merely incidental to, or the means of completing the accomplishment of the objective of taking the stereo.” (Ibid.) But here substantial evidence supports the conclusion that Strack acted with independent objectives when he first fled from Officer Wittmer and then assaulted and injured him.
Moreover, the court in Perry also noted: “There... appears to be a general distinction between cases addressing convictions of burglary and robbery and cases addressing burglary and assault convictions,” with multiple punishment being found permissible in the latter cases, apparently because the intent to apply force to a person generally has a different objective than the intent to steal their property. (People v. Perry, supra, 154 Cal.App.4th at pp. 1526-1527.) The Perry court further observed: “At some point, the degree of force or violence used or threatened may evince ‘a different and a more sinister goal than mere successful commission of the original crime,’ i.e., an independent objective warranting multiple punishment.” (Id. at p. 1527.) The evidence here supported the trial court’s conclusion that Strack’s was such a case.
The additional cases cited by Strack are similarly distinguishable. (See People v. Britt (2004) 32 Cal.4th 944, 952-953 [defendant acted with single objective to avoid police surveillance when he failed to comply with sex offender notification requirements]; People v. Chacon (1995) 37 Cal.App.4th 52, 66 [inmate’s “kidnap for ransom, extortion, and escape were part of an indivisible transaction having a single objective: escape”]; In re McCoy (1968) 266 Cal.App.2d 739, 740 [separate punishment for escape and robbery barred when prisoner robbed victim of car keys to obtain “the means with which to escape”].) Strack has not shown that the court erred when it declined to stay punishment for his conviction for evading an officer pursuant to section 654.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.