Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086260, William Sterling, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Eric Donald White, appeals the judgment entered following his conviction for felony evasion of a peace officer, felon in possession of a firearm where prior offense was a violent felony, felon in possession of a firearm, and felon in possession of ammunition, with enhancement findings for arming and a prior serious felony conviction (Veh. Code, § 2800.2; Pen. Code, §§ 12021.1, 12021, 12316, 12022, 667, subd. (b)-(i)). He was sentenced to state prison for a term of seven years, four months.
All further statutory references are to the Vehicle Code unless otherwise specified.
The judgment is affirmed with directions.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
West Covina Police Officer Antonio Cortina testified that on March 19, 2009, at about 3:00 a.m., he noticed defendant White driving on South Garvey Avenue near Citrus with his lights off. There were three other people in the car with White. Cortina initiated a traffic stop and White pulled into the driveway of the Indigo Motel.
Cortina walked up to White’s car and told him the reason for the traffic stop. He asked for White’s driver’s license and vehicle registration. Cortina testified White gave him an expired Ohio driver’s license. Cortina took the license back to his patrol car to conduct a records search and call for a backup unit. Officer Schienle and his partner responded. After they arrived, Cortina yelled for White to get out of his car and walk toward the officers. Instead, White drove off, heading east on Garvey at high speed.
As indicated, post, the Ohio driver’s license had not expired. This aspect of Cortina’s testimony was apparently never resolved.
Cortina chased after White and he was eventually joined by five other patrol cars. Cortina testified White ran three red lights and drove 65 miles per hour through a 35-mile-per-hour zone before getting on the 10 Freeway, where he drove 85 miles per hour. Cortina saw small white items being thrown from the front passenger and driver’s windows. These items disintegrated as they hit the highway.
White turned onto the 605 freeway, going 80 miles per hour. At the end of the freeway, he ran another red light. He drove through a CVS Pharmacy parking lot, circling around at about 50 miles per hour and then drove back onto the street. White then got back on the 605 freeway and transitioned to the 210 Freeway, going through another red light as he did so. After exiting the 210, White went through another red light and then drove 65 to 70 miles per hour through a 25-mile-per-hour construction zone.
White made a left turn against a red light going onto Sierra Madre Boulevard. He drove on the wrong side of Highway 39 and then he drove up Azusa Canyon Road, crossing over the double-yellow lines about 10 times in order to negotiate the turns. When White finally slowed to 20 miles per hour, Cortina decided it was safe enough to execute a pursuit intervention technique by bumping the rear of White’s car, causing it to spin out and stop. White was arrested.
Cortina characterized White’s driving during the pursuit as reckless. White had been “driving through the solid red lights, high rates of speeds, [and] crossing over the double yellow lines on the one-way mountain road as well.” There had been other motorists on Garvey and Citrus, and on the freeways. There had been no other cars on the canyon road.
Two detectives interviewed White following his arrest. Asked if he owned a gun, White said he did and that he had acquired it in a trade for methamphetamine. White conceded he had the gun with him during the pursuit and that he had thrown it from the car into some ivy near a McDonald’s restaurant on East Garvey. The detectives went to the location and found the gun. It was loaded with five rounds.
2. Defense evidence.
Elaine Brewer, White’s mother, testified that after White was arrested she picked up his property from the jail. Included was White’s Ohio driver’s license, which had not expired. This driver’s license was introduced into evidence.
The Ohio driver’s license had an expiration date of October 27, 2009.
White testified. He denied Officer Cortina was the one who made the initial traffic stop. Rather, it was Officer Schienle who made the stop; Cortina had not played any part in the incident.
When Officer Schienle told White he had been driving with his lights off, White explained his headlights did not come on automatically and that he sometimes forgot to turn them on. He gave Schienle his driver’s license and a copy of his vehicle registration. Schienle told him to wait and returned to his patrol car. Ten or 15 minutes later another patrol car arrived. One of the newly arrived officers told White to get out of his car and walk back toward them. White testified he drove away because he was afraid the police were going to assault him. He had been beaten by the police in the past and he gave detailed descriptions of three such episodes. Based on those past experiences, and what he believed to be the lack of any legitimate basis for detaining him, White could tell he was in danger: “I knew... with my life, my contact with the police, I always had problems, and I knew... what was coming.”
White denied having driven dangerously while being pursued by the officers. Traffic was light and he kept his eyes on the road at all times. He did not believe any of his passengers had thrown anything out of the car, but he was not paying attention to them. In any event, there had not been any drugs in the car. White claimed several of the officers assaulted him, after the pursuit ended, as they were taking him into custody.
At the jail the detectives threatened to charge his girlfriend, who had been one of his passengers, if he did not admit to having a gun. In fact, he did not have a gun in the car. Although the police claimed to have found $1,420 cash in his car, White actually had $4,000 under the car seat. This was money he had received from a recent vehicle sale. He was unaware there were any plastic baggies or a digital scale in his car. He denied telling the detectives he had thrown a gun from the car, and he testified he had never before seen the gun the detectives claimed to have recovered.
3. Rebuttal evidence.
Officer Jason Schienle testified he arrived at the scene of the initial traffic stop in response to Officer Cortina’s backup call, and that he joined the pursuit when White drove off. Schienle did not speak to White until after the pursuit ended, when he and Officer Davis took White into custody.
Another officer who had been involved in the pursuit, Eric Melnyk, testified he searched White’s car. He found somewhere between $1,000 and $1,500 on the floor of the car, small ziplock plastic baggies in the trunk, and a digital scale which had been affixed to the inside of the glove compartment with Velcro.
Testifying as an expert on drug trafficking, Officer Kenneth Davis opined that someone possessing a gun and the other items found in White’s car, and seen discarding white objects during a police pursuit, had those items for the purpose of selling or distributing drugs. Davis testified he hit White with a baton after the pursuit had ended when White resisted Officer Schienle’s attempt to handcuff him.
CONTENTIONS
1. The trial court erred by failing to instruct sua sponte on misdemeanor evading as a lesser included offense of felony evading.
2. The trial court erred by refusing to instruct on the defense of necessity.
3. There was cumulative error.
4. Clerical errors in the abstract of judgment must be corrected.
DISCUSSION
1. Evidence did not warrant an instruction on misdemeanor evading.
White contends the trial court erred by failing to instruct the jury, sua sponte, on misdemeanor evading as a lesser included offense to the charge of felony evading. This claim is meritless.
a. Legal principles.
Subdivision (a) of Vehicle Code section 2800.1, provides: “(a) 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.”
Subdivision (a) of Vehicle Code section 2800.2 provides, in pertinent 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.” Subdivision (b) of section 2800.2 provides: “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.”
“When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.” (People v. Webster (1991) 54 Cal.3d 411, 443.) In this context, “substantial evidence” is evidence from which reasonable jurors could conclude the lesser offense, but not the greater, has been committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Misdemeanor evading under section 2800.1 is a lesser included offense of felony evading under section 2800.2. (See People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.)
“[O]n appeal we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense... should have been given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
b. Discussion.
White argues there was substantial evidence he only committed misdemeanor evading because “he denied that he was driving in a reckless manner. He testified that, notwithstanding the fact that he did run from the pursuing officers, he nevertheless drove his car in a safe manner. He testified that traffic was light and he did not drive away at an excessive rate of speed. He kept his eyes on the road at all times. He denied driving at 75 miles an hour through a construction zone. And, although he admitted that he did drive through a red light, he said that he did so in a safe manner: slowing down, almost to a stop, to make sure no other cars were coming before proceeding through the light. Based upon appellant’s testimony, the jury could reasonabl[y] have convicted him of misdemeanor evading. [¶] Conversely, other than [Officer] Cortina’s testimony, there was no evidence that appellant was driving in a willfully wanton disregard for the safety or property of other people.”
In this situation, White argues, the question of whether he drove recklessly “was essentially a credibility question between appellant and Cortina. In such a case, the court had a duty to instruct on the lesser included offense of misdemeanor evading, Vehicle Code section 2800.1. (See People v. Springfield, supra, 13 Cal.4th at p. 1681 [when the defendant’s testimony conflicted with the officer’s, the jury may have believed defendant and thus the court erred in not giving a lesser included instruction...].) [¶] Similarly to the situation in Springfield, appellant admitted to evading the officers but denied driving in a willfully wanton reckless manner. The facts and legal issues raised in appellant’s case are analytical[ly] indistinguishable from those addressed in Springfield.”
But White’s reliance on Springfield is misplaced for two reasons. First, Springfield predates the 1996 amendment to section 2800.2, which now allows a conviction if, during the pursuit, the defendant either drives recklessly or commits three qualifying traffic violations. Second, the defendant in Springfield denied all of the reckless driving allegations testified to by the pursuing officers. Here, on the other hand, White failed to deny having committed all the traffic violations cited in Cortina’s testimony.
Cortina testified White drove through seven solid red lights or red turn signals. When White testified, he did not deny having gone through these red lights without stopping; he merely claimed he had gone through them safely.
On direct-examination, White was asked:
“Q. You did go through a red light or did you?
“A. Umm, yeah.
“Q. Before you went through that red light, did you look to see if any other cars were coming?
“A. Yes, I did. I even slowed down to almost, like, even a stop.” (Italics added.)
On cross-examination, White was asked:
“Q. You said you were fleeing for your safety but you took the time to, at least, stop for one red light?
“A. Yes.
“Q. Why did you pick that red light to stop?
“A. It was actually a few of them where I went through an intersection. (Italics added.)
Although White initially concedes he did, by his testimony, admit he drove “through a red light, ” he then asserts he “did not admit to driving through multiple red lights. Rather, a fair reading of [his] answer is that [he] stopped for multiple red lights.” We cannot agree. Although the prosecutor’s question carried the implication White had stopped for the red light, when read in context it appears both the prosecutor and White were referring to his earlier testimony in which he admitted slowing down but not stopping for the red light. Hence, properly contextualized, the import of White’s testimony was an admission he had gone through a number of red lights, joined to a claim that he had done so safely.
As for speeding, White denied having driven through the construction zone at 70 miles per hour, but he did not deny Cortina’s other allegation that he had driven 65 miles per hour in a 35 miles-per-hour zone. White did not contradict Cortina’s testimony he had been speeding on all the freeways or that he had driven 50 miles per hour through the CVS parking lot.
As for having driven on the wrong side of the Highway 39, and having crossed the double yellow line numerous times on Azusa Canyon Road, White never disputed Cortina’s testimony that White committed these traffic violations.
White complains he “was not asked to specifically address each and every instance that Cortina testified [he] committed traffic violations. Certainly, as a witness, appellant’s opportunity to describe the facts of the event was circumscribed by the generalities of the questions he was asked. It seems somewhat disingenuous for Respondent to argue that appellant’s failure to specifically deny the accuracy or truth of Cortina’s testimony, when the People failed to ask appellant specific questions related to that testimony, should now be considered as undisputed evidence of those facts.”
This argument misses the point. The question is whether the record contains any substantial evidence contradicting Cortina’s testimony that White committed at least three qualifying traffic infractions. Even if White could have truthfully testified he did not commit all the traffic violations cited by Cortina, he failed to do so and, therefore, the record did not contain substantial evidence warranting a lesser included offense instruction.
Hence, the trial court did not err by failing to instruct the jury, sua sponte, on misdemeanor evading as a lesser included offense.
2. Trial court properly refused to instruct on the defense of necessity.
White contends the trial court erred by denying his request to have the jury instructed on the defense of necessity. This claim is meritless.
a. Legal principles.
“The trial court’s duty to instruct on general principles of law and defenses not inconsistent with the defendant’s theory of the case arises only when there is substantial evidence to support giving such an instruction. [Citation.] Substantial evidence is evidence of reasonable, credible value.” (People v. Crew (2003) 31 Cal.4th 822, 835.) “In other words, ‘[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.’ [Citation.]” (People v. Flannel (1979) 25 Cal.3d 668, 685.) “If the evidence should prove minimal and insubstantial, however, the court need not instruct on its effect.” (Id. at p. 684, fn. omitted.) Instructions only need be given where the “evidence [is] substantial enough to merit consideration.” (Id. at p. 684, fn. 12.)
“A ‘necessity’ defense is recognized in California case law; it has not been codified. The defense may be available where a defendant is charged with committing any criminal act except the taking of an innocent human life. [Citations.]” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1538.) “The standard for evaluating the sufficiency of the evidentiary foundation is whether a reasonable jury, accepting all the evidence as true, could find the defendant’s actions justified by necessity.” (Id. at p. 1539.)
“Except as to crimes that include lack of necessity (or good cause) as an element, necessity is an affirmative defense recognized based on public considerations. [Citations.] To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that she violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which she did not substantially contribute to the emergency. [Citations.]” (Peoplev.Kearns (1997) 55 Cal.App.4th 1128, 1134-1135.)
b. Discussion.
The trial court refused White’s request for a necessity instruction on the following grounds: he had a reasonable legal alternative and, even if White had a good faith belief his criminal acts were necessary to prevent a greater harm, that belief was not objectively reasonable.
The trial court reasoned White had “an adequate alternative to the high speed chase which was [to] drive to an area that was well lighted with a lot of people.” White argues “the fact that the chase happened at 3:00 a.m. in the morning, belies any reasonable assumption that appellant could have found a well lighted area that was well populated by potential witnesses.” But White testified he thought it was only 12:00 or 12:30 a.m. when he was initially stopped by the police, not 3:00 a.m. Despite this fact, White did not seek help at the motel office where he was parked. And then he purposely drove up into a remote canyon area, rather than stopping in a business district where he would have been much more likely to find help.
As for the objective reasonableness of his alleged belief he faced an imminent assault, White argues his testimony showed “he ran from the police because, based upon his past experience with law enforcement officers in which he had been beaten..., he became concerned when the routine traffic stop started to escalate with the arrival of a back up unit.” But White’s argument is predicated on a misreading of his own testimony, according to which he first realized an assault was imminent long before any of the backup units arrived.
Asked at what point he believed “something bad would happen to you, ” White testified:
“A. It was when I was very respectful and began to tell him what happened with the lights. It was at that point I could tell from his demeanor. I could feel it. That didn’t matter to him.
According to White, “him” was Officer Schienle. According to the prosecution, it was Officer Cortina.
“Q. Let me ask you about his demeanor. What was it specifically that tipped you off about this officer?
“A. The way he was just short. You could tell. You could tell when somebody was friendly and nice versus – I could just tell.
“Q. How?
“A. How?
“Q. What tipped you off? What made you think that this officer was going to do something to you?
“A. After I told him what happened [i.e., that White had forgotten to turn on his headlights], he just said, ‘Sit tight and turn around.’ And he walked back to his unit.
“Q. So what is it about turning around and walking away 30 feet that made you think you were in danger?
“The Court: Did you think you were in danger at that point when the officer took your license and went back to the vehicle?
“The witness: I started to feel, yes. I started to feel – at that point is when I started to feel it.
“The Court: Go on.
“By [the prosecutor]:
“Q. Why?
“A. Just in his demeanor.
“Q. What about his demeanor?
“A. I could just tell.
“Q. You said you could just tell. Tell us how you know [sic].
“A. Just – like when you get in a conversation with somebody, you can tell whether they are into the conversation with you or whether you’re talking to them and they are not hearing anything that you’re saying.
“Q. So it was not anything that the officer did or said. It was your projection onto him; is that right?
“A. No. Again, it is the projection that somebody gives. You can feel it.
“Q. Well, how did you feel? What was it about the situation that made you feel that?
“A. That he wasn’t willing to talk to me.
“Q. The fact that he told you to hang on while he checked your license... somehow made you think that you were in danger?
“A. Yes.
“Q. Someone asking you to just wait for a few minutes while they get more information?
“A. That’s when I
“Q. – made you afraid?
“A. Yes.”
And again:
“Q. What was it that you expected the officer to do in the 10 to 15 minutes that he waited for his backup that you felt would have put you at ease? What do you think the officer should have done?
“A. I think he should have came [sic] back and maybe talked to me a little bit, you know. Just... in conversation explain to me, you know. I don’t know.
“Q. Well, there were actually four of you and one of him?
“A. [Yes.]”
Thus, White testified he believed he was going to be assaulted because the officer who made the traffic stop was not sufficiently attentive to his explanation of why he was driving without lights. In essence, White claimed he knew he faced imminent physical danger because the officer was rude to him. Even assuming White actually held this belief, it did not constitute an objectively reasonable belief that his criminal acts were necessary to prevent a greater harm.
The trial court did not err by refusing to instruct on the defense of necessity.
3. There was no cumulative error.
White contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. Because we have found no errors, this claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
4. Abstract of judgment must be corrected.
White points out the abstract of judgment contains a clerical error because it fails to reflect the trial court’s order staying the sentences on counts 3 and 4 under Penal Code section 654. The People point out the abstract of judgment also fails to reflect a $30 facilities fee under Government Code section 70373, subdivision (a)(1), which was part of the sentence pronounced by the trial court. Accordingly, we will order the trial court to correct the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, correcting the clerical errors indicated ante, and forward it to the Department of Corrections and Rehabilitation.
We concur: CROSKEY, J., KITCHING, J.