Opinion
A148087
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDGAR WILLIAMS, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR222748)
Defendant James Williams, Jr. was tried before a jury on charges of attempted first degree burglary and felony evading a peace officer. The jury acquitted him of the former, but convicted him of the latter. On appeal, defendant contends the trial court erred in failing to instruct the jury on misdemeanor evading a peace officer as a lesser included offense of felony evasion. His contention lacks merit, and we affirm.
EVIDENCE AT TRIAL
In December 2014, Lynn Nguyen lived on Penny Lane in Vallejo with her mother and brother. Around 6:00 or 7:00 p.m. on the evening of December 12, there was a knock at the front door. Nguyen looked out the peephole and saw a "darker-skinned" man in a hood. She did not answer the door.
Hours later, there was another knock at the door. Nguyen again looked outside and saw what appeared to be the same man. She also saw a red truck and a silver car parked in front of the house. Again, she did not answer the door, but this time she called 911 to report suspicious activity.
A little while later, Nguyen heard a scratching noise at the door. Through the peephole she saw three men in hooded sweatshirts ("hoodies") attempting to pry open the front door with a crowbar. Nguyen made some noise, and the intruders said they were the police. Nyugen yelled that the police were on their way, and the intruders ran to the cars she had seen parked outside and drove off.
Nguyen called 911 and reported the attempted break in. She said the suspects were wearing black hoodies and fled south in a red truck and a silver or white car.
Dispatch records confirmed that Nguyen called at 12:31 a.m. on December 13 to report that someone knocked on her door and their vehicles—a red truck and a silver or white car—were parked in front of her house. She then called back at 12:39 a.m. to report that three men were using a crowbar to pry open her front door.
Vallejo Police Officers David McLaughlin and Joel Caitham were dispatched to Nguyen's house in response to a call of a burglary in progress. The officers were in uniform in a marked police car, and were following two other marked police cars. All three cars were driving "code three," meaning with lights and sirens.
Dispatch had advised that the suspects were possibly in two vehicles: a silver or white sedan and a red pickup truck. While en route to Nguyen's house, McLaughlin and Caitham spotted a silver car and a red pickup truck stopped at an intersection not far from the house. McLaughlin, who was driving, stopped at the intersection, while the other two units continued on ahead. He used a spotlight to light up the two vehicles and their occupants. In the truck, there were two men wearing hoodies. Both men had a funny or scared look on their face, and neither would look at the officers.
According to McLaughlin, he drove forward to make a three-point turn in order to pull up behind the vehicles. As soon as he started to move forward, both vehicles took off through a red light, the silver car heading south and the red truck heading west towards Interstate 80. McLaughlin "floored it" to catch up to the truck, pursuing it with lights and sirens on. They were in a residential neighborhood with a posted speed limit of 35 miles per hour, but they were, in his estimation, traveling 65 to 70 miles per hour. According to the officer, as they pursued the truck, it was driving in a "[v]ery, very erratic" fashion: "It was accelerating at a high speed. It's a windy road with blind curves, which is very dangerous to residents. But it was weaving from lane to lane. It still accelerated at a high rate of speed." The truck continued on towards Interstate 80 at a high rate of speed, running two more red lights, cutting across multiple lanes to enter the freeway, and forcing oncoming traffic to "slam their brakes on so that they weren't involved in a collision."
McLaughlin followed the truck onto Interstate 80. Due to the erratic manner in which the truck was being driven, he obtained authorization to perform a "PIT maneuver," in which the patrol car nudges the rear end of a suspect vehicle to cause it to spin out, disabling the vehicle. It can only be performed when the vehicle is traveling at 35 miles per hour or less.
The truck exited Interstate 80 at the next exit, slowing down around a bend in the off-ramp. As it slowed below 35 miles per hour, McLaughlin executed a PIT maneuver. The truck spun to the left and hit "a pole or something on the ground," causing a rear tire to come off and the truck to come to a stop. McLaughlin confirmed that he executed the maneuver because he did not want the truck "to collide with innocent people and cause injury or, more than likely at those speeds, fatalities."
Making contact with the occupants of the truck, the officers found defendant in the driver's seat and his brother in the passenger seat. There was a crowbar on the passenger-side floor. Defendant's brother admitted to Officer Caitham he had been at Nguyen's house to break in because he had fallen on hard times, although the admission was not recorded. Defendant denied having been on Penny Lane.
Officer Caitham's description of the incident was consistent with that of his partner. He added that the pursuit did not last "very long" and covered a little more than two miles. According to Caitham, when McLaughlin performed the PIT maneuver, the truck had slowed "[a]s if to maybe clear traffic, make sure he wasn't going to hit a car," but it was not coming to a stop.
Vallejo Police Officers Irvin and Schillinger had also been dispatched to Nguyen's house. As they were en route, they spotted McLaughlin and Caitham pursuing the truck. Schillinger, who was driving, made a U-turn, activated the overhead lights and sirens, and joined the pursuit.
According to Irvin, the truck was traveling at a high rate of speed through a residential area, although he could not estimate what that speed was and he did not recall if it was changing lanes. They followed the truck until McLaughlin performed the PIT maneuver, and then continued on to Nguyen's house.
PROCEDURAL BACKGROUND
Defendant was charged by information with attempted first degree burglary (Pen. Code, § 664/459) and felony evading a peace officer with willful and wanton disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)).
Defendant's brother was also charged with attempted first degree burglary. The jury was unable to reach a verdict on that charge. --------
Defendant was tried before a jury. At a conference on jury instructions following the close of evidence, counsel for defendant requested that the court instruct on misdemeanor evading a peace officer as a lesser included offense of felony evasion. The request was based on counsel's belief that given the abbreviated nature of the pursuit, "the jury potentially could decide this is misdemeanor conduct and not felonious conduct."
The court responded, "I always think of these misdemeanor ones as minor: Failing to pull over briefly. The evidence as I understand it is a running of the red light; speeding 65, 70 miles an hour through a residential community onto the freeway, over the overpass, cutting off traffic onto the freeway, then having to come to a stop due to a PIT maneuver before entering another residential community lasting over approximately two miles."
Counsel for defendant countered: "We're talking almost 1:00 o'clock in the morning. And I believe . . . the testimony by one of the officers was there were no other cars on the street. And then there was contradictory testimony that there was a car that had to brake as [defendant] was getting on the freeway. [¶] So the jury could certainly find that they don't necessarily believe the officer. One officer testified that [defendant] was driving so erratic that he was going in and out of lanes while he was driving down I think it's Redwood. And then another officer testified that he didn't see anything."
The court denied defense counsel's request, finding there was no substantial evidence to warrant instruction on the misdemeanor charge.
Following deliberations, the jury returned a verdict of not guilty of attempted residential burglary and guilty of felony evading a peace officer. Defendant was sentenced to three years' probation with 120 days in county jail.
This timely appeal followed.
DISCUSSION
Defendant's sole contention on appeal is that the trial court erred in failing to instruct on misdemeanor evading a peace officer as a lesser included offense of its felonious counterpart. A trial court has a duty to instruct on lesser included offenses "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162; accord, People v. Memro (1995) 11 Cal.4th 786, 871 [court has duty to instruct on lesser included offense where there is substantial evidence " 'which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser"]; People v. Campbell (2015) 233 Cal.App.4th 148, 157 [trial court must instruct on any lesser offense necessarily included in the charged offense if there is substantial evidence that only the lesser crime was committed].) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Salas (2006) 37 Cal.4th 967, 982 [substantial evidence is "evidence sufficient for a reasonable jury to find in favor of the defendant"].)
Under Vehicle Code section 2800.1, it is a misdemeanor to flee willfully in a motor vehicle from a uniformed peace officer in a marked patrol car with lights flashing and siren sounding. Vehicle Code section 2800.2, subdivision (a), elevates the offense to a felony where "the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." Willful or wanton disregard 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 [Vehicle Code] Section 12810 occur, or damage to property occurs." (Id., § 2800.2, subd. (b).) The misdemeanor offense is a lesser included offense of the felony. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.)
Officer McLaughlin, who was driving the police car immediately behind defendant, testified that defendant accelerated through a residential neighborhood, reaching speeds of 65 or 70 miles per hour in a 35-mile-per-hour zone and running three red lights over the course of the pursuit. The officer also described defendant's driving as "[v]ery, very erratic," testifying he was "weaving from lane to lane." He detailed how defendant cut across multiple lanes of traffic in order to enter Interstate 80, causing other vehicles to slam on their brakes to avoid a collision. Officer Caitham's description of the pursuit was consistent with that of Officer McLaughlin, and Officer Irvin likewise testified that the truck was traveling at a high rate of speed through a residential area. In light of this testimony, which was uncontradicted and unquestionably supported a finding of felony evasion, defendant cannot satisfy his burden on appeal, that is, identifying substantial evidence that would support a finding that he did not commit the felony offense. (See, e.g., People v. Campbell, supra, 233 Cal.App.4th at p. 163 [first considering "whether the evidence raises a question as to whether" the elements of the greater offense were present].)
Moreover, as noted, Vehicle Code section 2800.2, subdivision (b), defines willful and wanton disregard as including "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 [Vehicle Code] Section 12810 occur, or damage to property occurs." Three violation points constitute willful and wanton disregard as a matter of law. (People v. Mutuma (2006) 144 Cal.App.4th 635, 641.) Officer McLaughlin's testimony established that defendant committed at least four Vehicle Code violations that would have incurred a traffic violation point: he ran three red lights and drove 65 to 70 miles per hour in a 35 mile-per-hour zone. (Veh. Code, § 12810, subd. (f).) In light of this, defendant cannot prevail on his claim.
Defendant's argument to the contrary is premised on his claim that Officer McLaughlin was not credible and was "greatly exaggerating the danger posed" by defendant. This, defendant suggests, was evidenced by the fact that the testimony of the other officers "was not consistent and was somewhat equivocal." The testimony he cites was not in fact inconsistent with that of Officer McLaughlin.
Specifically, defendant states that although Officer Irvin "had a 'clear view' of the truck[, he] did not see it swerving or changing lanes." This misstates the testimony of Officer Irvin, who testified only that he did not recall if it changed lanes.
As further claimed inconsistencies, defendant notes that while Officer Irvin "testified that the truck was 'traveling at a high rate of speed' [he gave] no actual speed estimate"; that Officer Caitham did not mention the truck swerving; and that Officer Caitham "only recounted the running of a single red light," while Officer Irvin did not testify about defendant running any red lights. None of this testimony was inconsistent with Officer McLaughlin's testimony.
In short, there was no inconsistent testimony supporting defendant's theory that Officer McLaughlin exaggerated the danger defendant's driving presented. And there was no substantial evidence from which the jury could have found that defendant committed misdemeanor, but not felony, evading a peace officer.
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Richman, Acting P.J.
We concur:
/s/_________
Stewart, J.
/s/_________
Miller, J.