Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF152403. Darryl B. Ferguson, Judge.
Michael E. Mitchell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Leonel Ontiveros Ayon stands convicted, following a jury trial, of evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a); count 2), misdemeanor battery (Pen. Code, § 242; count 5), and misdemeanor battery on the parent of his child (id., § 243, subd. (e)(1); count 6). He was sentenced to an aggregate term of two years in prison and ordered to pay various fees and fines, and now appeals. For the reasons that follow, we will affirm the judgment, but order correction of the abstract of judgment.
All statutory references are to the Vehicle Code unless otherwise stated.
The jury acquitted appellant of making criminal threats (Pen. Code, § 422; counts 3 & 4), and deadlocked on a charge of assault on a peace officer with a deadly weapon or by means of force likely to produce great bodily injury (id., § 245, subd. (c); count 1). A mistrial was declared as to that count, and it ultimately was dismissed over the district attorney’s objection.
DISCUSSION
I
Prosecution Evidence
At approximately 1:30 a.m. on August 28, 2005, Neyda Garcia was getting ready to return home from the residence of her sister, Nayony Garcia. Neyda’s two children were in Neyda’s car, and Nayony was outside with them, when appellant arrived. Appellant was the father of Neyda’s children.
For the sake of clarity, we refer to the Garcia sisters by their first names. No disrespect is intended.
Appellant got out of his truck and pulled Neyda by the hand. He did not say he wanted to see the children; instead, he wanted to take her with him. She refused and told him to leave. He insisted that she go, but she again refused. Nayony intervened and said for him to respect her home and to go away. Appellant told her no, that he did not respect anyone.
When appellant again insisted that Neyda go with him, Nayony said she was going to call the police if he did not leave. Appellant then struck Nayony on the head and arm with a closed fist. Neyda got between the two, but then appellant struck her on the arm and behind her left ear. The blows left bruises on the two women. Appellant said he was going to kill them or shoot them, although neither woman saw a gun. Appellant walked toward his truck, and the two women ran into Nayony’s house. They saw that appellant was leaving, and Nayony called the police.
Porterville Police Lieutenant Haynes, who met with the Garcia sisters later that morning, saw no visible injuries on either woman.
Porterville Police Officer Standridge, who was in uniform and driving a fully marked patrol vehicle, was dispatched to handle the disturbance call. On his way to the reported location, he saw a white Ford pickup truck, similar to that described as the suspect vehicle, heading northbound on F Street, approaching Orange Avenue. Standridge made a U-turn, whereupon the pickup truck “broke traction” and continued eastbound on Orange at a high rate of speed. Standridge followed and attempted to overtake the vehicle to initiate a traffic stop, but the truck continued to accelerate, hitting speeds of approximately 50 to 60 miles per hour and running a red light at Orange and Main Street in Porterville. At that point, Standridge activated the overhead emergency lights on his vehicle. When the truck failed to pull over or acknowledge him, he also activated his siren.
Standridge followed the truck as it traveled 50 to 60 miles per hour on eastbound Orange. The truck was in and out of its lane, as it was travelling on small city streets. It ran a red light at Orange and Plano and nearly collided with a vehicle that was proceeding through the intersection on a green light. Standridge notified other units, and followed the truck southbound on Plano. The posted speed limit was 35; the truck was travelling at approximately 70 miles per hour. It accelerated to around 90 miles per hour and continued through the intersection of Plano and Highway 190, at which point Officer Martinez joined the pursuit.
The vehicles continued southbound into the county area, with the truck continuing to travel at a high rate of speed and failing to pull over. As it approached the intersection of Avenue 128 and Plano, it slowed a bit to make the turn, ran the stop sign at the intersection, and continued westbound at about 60 miles an hour. It attempted to turn southbound on another road, but was going too fast to navigate the turn and went into an orange grove.
Standridge followed in his unit, stopping when he saw the truck was stopped. He saw the driver’s side door of the truck open, so he exited his vehicle and took cover behind his car’s open door with his firearm drawn. His take-down lights and spotlight were on the truck, and he was going to attempt to give verbal commands to get the driver out of the vehicle. He saw the reverse lights come on, however, and the truck started moving in reverse toward Standridge’s patrol car. Standridge could see that the driver was looking back over his shoulder while the vehicle was in reverse. Fearing for his life because he could have been pinned between his door and an orange tree, Standridge started firing at the truck. Martinez also fired. The truck kept coming back toward Standridge, and he had to jump out of the way. The truck collided with the driver’s side front of the patrol car. The officers subsequently searched the truck, but were unable to locate the driver. No gun was found. Standridge was unable to say whether the driver left the truck before it made contact with the patrol vehicle. The truck was registered to appellant.
II
Defense Evidence
Appellant, who had suffered a felony conviction in 1998, testified and admitted being at the Garcia residence on the date in question. He was passing by and saw Neyda’s car there, so he stopped to see how the children were. However, Neyda told him to leave because her sister did not want him to be there. He was just starting to go when Nayony came out. She was very angry and threatened to call the police. Appellant told her that he was not doing anything wrong and just wanted to say hello to his children. He was not even on Nayony’s property, but instead was in the street. Appellant denied pulling or hitting Neyda.
Appellant was walking to his truck when Nayony came at him aggressively and started to push him. Appellant pushed her to try to get her away from him. Neyda got between them, and appellant went to his truck to leave. As he left, he heard Neyda yell that they should run and get inside because he might shoot at them. However, appellant never threatened to shoot either of them, and did not have a gun with him. Appellant denied hitting Nayony. He only pushed her so that she would not come at him.
After appellant left, he saw a car that seemed to be following him. He did not know what the car was. He traveled down Orange, toward Plano. He drove normally, not speeding or running any stoplights. There were no stop signs through there. When he got to Plano, he turned right, toward 190. He passed the light at 190; it was green. When he arrived at the stop, he turned right and then noticed lights, as if someone was following him. When he turned on Avenue 248, he saw that the light was traveling very quickly and was very close, and he thought then that it was the police. He had not seen the police car’s red and blue lights before this time, nor had he heard the siren. When he saw the lights, he tried to pull over. He started hearing bullets from the back. He lost control and his truck went into an orchard. When he continued hearing gunshots, appellant thought he was going to be killed, so he opened the door and ran. He denied trying to back his vehicle into the police officer’s car. When he heard the gunshots, he just put his truck into “park” and ran.
DISCUSSION
I
Failure to Instruct on Lesser Included Offense
Appellant was charged in count 2 with violating section 2800.2, subdivision (a), which 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.…” Subdivision (a) of section 2800.1 provides that “[a]ny 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.…”
Section 2800.1 is a lesser included offense of section 2800.2. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.) Appellant says the trial court committed reversible error by only instructing his jury on the greater offense.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
On appeal, we employ a de novo standard of review and independently determine whether instructions on the lesser included offense contained in section 2800.1 were required. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) In order to justify such instructions, evidence appellant was guilty only of the lesser offense must have been “‘substantial enough to merit consideration’ by the jury. [Citations.] ‘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. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) In deciding whether such evidence existed, we do not evaluate the credibility of witnesses, as that is a task for the jury (Breverman, supra, at p. 162), and we resolve doubts as to the sufficiency of the evidence in favor of appellant (Flannel, supra, at p. 685, fn. 12). Although the testimony of a single witness – including the defendant – can constitute substantial evidence requiring a sua sponte instruction (People v. Lewis (2001) 25 Cal.4th 610, 646), “[s]peculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 941.)
“[I]t has long been settled that the trial court need not … instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense. [Citations.]” (People v. Kelly (1990) 51 Cal.3d 931, 959.) Thus, “[w]here a defendant ‘denies any complicity in the crime charged, and thus lays no foundation for any verdict intermediate between “not guilty” and “guilty as charged,”’” it is error to instruct on the lesser offense. (People v. Trimble (1993) 16 Cal.App.4th 1255, 1260.)
Here, under the prosecution’s evidence, appellant intentionally attempted to evade or elude pursuing police and, in so doing, drove with willful or wanton disregard for the safety of persons and property, thereby violating section 2800.2. Under appellant’s version of events, he committed no crime at all because he neither intended to evade, as he did not know the police were following him, nor did he drive with willful or wanton disregard for safety. Thus, there was no evidence to support the theory that the underlying offense, if committed by appellant, was other than a violation of section 2800.2. (See People v. Wilson, supra, 3 Cal.4th at p. 942.)
Appellant points to the fact that jurors are not required to believe or disbelieve the entirety of any witness’s testimony, and says jurors here could have concluded he only violated section 2800.1 because they could have believed part of his testimony, while also believing part of Officer Standridge’s testimony. We agree that jurors “are not required to make a binary choice between the prosecution evidence and the defense evidence; if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario. [Citation.]” (People v. Hernandez (2003) 111 Cal.App.4th 582, 589-590.) On the evidence presented, however, it would be speculative to assign such reasoning to jurors, since such a course of thought is unsupported by any direct or circumstantial evidence. (See People v. Sakarias (2000) 22 Cal.4th 596, 620.) This was not a situation in which, for example, appellant admitted harboring the requisite intent to evade, with the dispute arising over how he drove (see People v. Springfield, supra, 13 Cal.App.4th at pp. 1680-1681 & fn. 3), nor is it one in which circumstantial evidence tended to contradict appellant’s position and provide the foundation for an intermediate verdict (see People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016-1017). There simply was no evidentiary basis upon which jurors could have credited appellant’s testimony that he drove properly, yet rejected his testimony that he did not know the police were behind him and so had no intent to evade. Accordingly, as “[t]here is no rational way to reshuffle the evidence so as to support a finding that defendant [committed only a violation of section 2800.1]” (People v. Hernandez, supra, 111 Cal.App.4th at p. 590), the trial court did not err by failing to instruct on a violation of that statute as a lesser included offense of count 2.
Appellant suggests the fact jurors deadlocked on count 1 shows they did not believe all of Standridge’s testimony. As defense counsel pointed out in his summation, however, there were a number of reasons for which jurors could have found the charge of assault on a peace officer with a deadly weapon or by means of force likely to produce great bodily injury not proven beyond a reasonable doubt.
II
Incomplete Instruction
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.” In the present case, the prosecutor argued to the jury that appellant’s speeding, running red lights and stop signs despite nearly hitting another vehicle, and “ram[ming]” Standridge’s patrol car established willful or wanton disregard for safety.
Section 12810 presently provides: “In determining the violation point count, the following shall apply: [¶] (a) A conviction of failure to stop in the event of an accident in violation of Section 20001 or 20002 shall be given a value of two points. [¶] (b) A conviction of a violation of Section 23152 or 23153 shall be given a value of two points. [¶] (c) A conviction of reckless driving shall be given a value of two points. [¶] (d)(1) A conviction of a violation of subdivision (b) of Section 191.5 or subdivision (c) of Section 192 or the Penal Code, or of Section 2800.2 or 2800.3, subdivision (b) of Section 21651, subdivision (b) of Section 22348, subdivision (a) or (c) of Section 23109, Section 23109.1, or Section 31602 of this code, shall be given a value of two points. [¶] (2) A conviction of a violation of subdivision (a) or (b) of Section 23140 shall be given a value of two points. [¶] (e) A conviction of a violation of Section 14601, 14601.1, 14601.2, 14601.3, or 14601.5 shall be given a value of two points. [¶] (f) Except as provided in subdivision (i), any other traffic conviction involving the safe operation of a motor vehicle upon the highway shall be given a value of one point. [¶] (g) A traffic accident in which the operator is deemed by the department to be responsible shall be given a value of one point. [¶] (h) A conviction of a violation of Section 27360 or 27360.5 shall be given a value of one point. [¶] (i)(1) A violation of paragraph (1), (2), (3), or (5) of subdivision (b) of Section 40001 shall not result in a violation point count being given to the driver if the driver is not the owner of the vehicle. [¶] (2) A conviction of a violation of paragraph (1) or (2) of subdivision (b) of Section 12814.6, subdivision (a) of Section 21116, Section 21207.5, 21708, 21710, 21716, 23120, 24800, or 26707 shall not be given a violation point count. [¶] (3) A violation of subdivision (d) of Section 21712 shall not result in a violation point count. [¶] (4) A violation of Section 23136 shall not result in a violation point count. [¶] (5) A violation of Section 38301.3 shall not result in a violation point count. [¶] (j) A conviction for only one violation arising from one occasion of arrest or citation shall be counted in determining the violation point count for the purposes of this section.”
The trial court instructed that in order to find appellant guilty of violating section 2800.2, jurors had to find, inter alia, that “during the pursuit the defendant drove with a willful or wanton disregard for the safety of persons or property.…” The trial court further instructed: “A person acts with wanton disregard for safety when one, when [sic] he or she was aware of [sic] his or her action present [sic] a substantial and unjustifiable risk of harm, [¶] Two, he or she intentionally ignores that risk. The person does not however have to to [sic] intend to cause damage. [¶] Driving with willful or wanton disregard for the safety of person [sic] or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point.” The court did not, however, inform the jury which traffic violations being relied on by the prosecutor or shown by the evidence were assigned a traffic violation point. Appellant now says this omission erroneously permitted the jury to convict him on the basis of an incomplete instruction, thus requiring reversal of the conviction on count 2 under the rule of People v. Guiton (1993) 4 Cal.4th 1116 (Guiton).
CALCRIM No. 2181 contains the following optional paragraph: “[_____ <insert traffic violations alleged> are each assigned a traffic violation point.]”
We assume appellant’s claim is reviewable on appeal. Since the instruction as given was not erroneous, only incomplete, it arguably was incumbent upon defense counsel to request a more complete instruction on the subject. (See People v. Lewis, supra, 25 Cal.4th at p. 666.) With or without a request, however, a trial court in a criminal case is required to give correct instructions on the general principles of law relevant to the issues raised by the evidence. (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) This obligation includes instructing on all elements of the charged offenses (People v. Rubalcava (2000) 23 Cal.4th 322, 334), and defining terms in the instructions that have a technical or specific meaning peculiar to the law (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319). Moreover, instructional errors are reviewable on appeal if they affected the defendant’s substantial rights. (Pen. Code, § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Mutuma, supra, 144 Cal.App.4th at p. 640.)
We further assume, for the sake of discussion, that the trial court erred by failing to tell jurors which three alleged traffic violations amounted to willful or wanton disregard. The error, if any, was not an omission of an element, however, but an omission in defining an element. On the record before us, it was harmless beyond a reasonable doubt. (See People v. Sakarias, supra, 22 Cal.4th at p. 625; People v. Flood (1998) 18 Cal.4th 470, 502-503; People v. Ryan, supra, 76 Cal.App.4th at p. 1320.)
To specify the possible predicate Vehicle Code violations is appropriate. (See, e.g., People v. Mutuma, supra, 144 Cal.App.4th at pp. 639-640; People v. Pinkston (2003) 112 Cal.App.4th 387, 391.)
This court has held that, for purposes of section 2800.2, any three point violations constitute willful and wanton disregard as a matter of law. (People v. Mutuma, supra, 144 Cal.App.4th at p. 641.) Moreover, where the claimed violations are not specifically enumerated in section 12810, the question whether they fall within the catchall provision of that statute because they “involv[e] the safe operation of a motor vehicle upon the highway” (id., subd. (f)), is one of law for the court’s, and not the jury’s, determination. (Mutuma, supra, at pp. 641-642.)
Under the instructions given, in order to find willful or wanton disregard, appellant’s jurors had to find either property damage or three or more violations assigned a traffic violation point count. Standridge’s testimony, upon which the prosecution relied to prove willful or wanton disregard for safety, showed appellant variously violated the maximum speed limit (§ 22349) and the basic speed law (§ 22350), did not remain in his own lane (§§ 21650, 21659), ran a stop sign (§ 22450), and ran two red lights (§§ 21453, 21462). As a matter of law, all of these Vehicle Code violations involved the safe operation of a motor vehicle, and so are assigned a traffic violation point count under section 12810, subdivision (f). Accordingly, all constituted predicate violations for purposes of section 2800.2. (§ 2800.2, subd. (b).)
Jurors could not rationally have distinguished among traffic violations: either they believed Standridge’s testimony, under which all occurred, or they believed appellant, under which none occurred. Assuming they relied on the traffic violations to convict appellant, then, they necessarily found at least three that are assigned the requisite traffic violation point count. Accordingly, the trial court’s failure to specify which alleged traffic violations amounted to willful or wanton disregard for safety was harmless because “it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [element of the crime] independently of the force of the … misinstruction.” (People v. Harris (1994) 9 Cal.4th 407, 429; compare People v. Minor (1994) 28 Cal.App.4th 431, 438-439 [reversal required where prosecution relied on specific Veh. Code violations for both manslaughter and felony drunk driving, but trial court’s failure to reference applicable code sections in instructions permitted jury erroneously to conclude it did not have to find any Veh. Code violation in order to convict].)
Relying on Guiton, supra, 4 Cal.4th 1116, appellant says the error nevertheless requires reversal because we cannot tell whether the jury convicted him “based on a violation of … section 2800.2, subdivision (a), theory of reckless disregard for the safety of others,” or whether the jury convicted him “based on a violation of … section 2800.2, subdivision (b) theory that recklessness was found based on a violation of three or more infractions which would have resulted in a point count.” Appellant misperceives the nature of both the statute and the problem addressed in Guiton.
Subdivision (a) of section 2800.2 sets out the elements of felony evading. Briefly stated, the person must flee or attempt to elude a pursuing peace officer in violation of section 2800.1 and must drive with a willful or wanton disregard for the safety of persons or property. Subdivision (b) of the statute “sets out the Legislature’s definition of what qualifies as willful and wanton conduct under subdivision (a).” (People v. Pinkston, supra, 112 Cal.App.4th at p. 392.) In other words, subdivision (a) of section 2800.2 uses the phrase “willful or wanton disregard for the safety of persons or property” to describe an element of the felony offense, while subdivision (b) “defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations.” (Pinkston, supra, at p. 392.) Thus, appellant is mistaken when he reads the subdivisions as setting out different theories of how the crime can be committed, one being reckless disregard for the safety of others, and the other being violation of three or more infractions that are assigned a traffic violation point count. Instead, willful or wanton disregard for the safety of persons or property is established, under section 2800.2, subdivision (b), by driving while fleeing or attempting to elude a peace officer during which time three or more such traffic violations occur or damage to property occurs.
Subdivision (b) of the statute does not preclude the establishment of willful or wanton disregard by other means, as well.
With the foregoing explanation in mind, we interpret appellant’s argument to be that reversal is required because we cannot tell whether the jury based its finding of willful or wanton disregard on a conclusion damage to property occurred, with respect to which theory the trial court’s instructions were correct, or on a conclusion three or more traffic violations occurred, on which theory the trial court’s instructions arguably were incomplete. Even when appellant’s argument is corrected in this manner, however, Guiton does not alter our conclusion that reversal is not required.
In Guiton, supra, 4 Cal.4th 1116, the California Supreme Court addressed rules applicable to cases of factual insufficiency versus cases of legal insufficiency. The court concluded that, generally speaking, “[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, … the … rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (Id. at p. 1129, fn. omitted.)
Factual insufficiency, within the meaning of Guiton, arises when the evidence does not support a theory on which the prosecution relies to obtain conviction. For example, in Guiton, the jury was permitted to convict the defendant of violating Health and Safety Code section 11352 on the basis either that he sold or that he transported cocaine. The evidence, however, was insufficient to support a finding that he sold the contraband. (Guiton, supra, 4 Cal.4th at p. 1120.)
Legal insufficiency arises, by contrast, when the evidence is sufficient to support a theory of culpability, but that theory legally does not establish the crime. Thus, a “legally incorrect theory” is one “which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense.” (People v. Harris, supra, 9 Cal.4th at p. 419, fn. omitted.) For example, in People v. Morgan (2007) 42 Cal.4th 593, 612-613, the evidence with respect to a kidnapping charge was sufficient to show that the victim had been asported 37 feet. Under the law as it existed at the time of the offense, however, that distance was legally insufficient to establish the asportation element of kidnapping. In People v. Calderon (2005) 129 Cal.App.4th 1301, 1306-1307 and footnote 5, the jury was instructed on two theories of second degree murder: implied malice and felony murder based on a violation of section 2800.2. Although the evidence was sufficient to establish felony evading, that theory of culpability was legally insufficient due to California Supreme Court precedent holding that a violation of section 2800.2 is not an inherently dangerous felony and so cannot serve as the predicate offense for a second degree felony-murder conviction. In People v. Diaz (2005) 125 Cal.App.4th 1484, 1490-1492, the jury was permitted to use the defendant’s failure to yield the right-of-way to an emergency vehicle, in violation of section 21806, as one of the three predicate violations for the willful-or-wanton-disregard element of a section 2800.2 charge. Although the evidence was sufficient to establish the failure to yield, the appellate court held that, because it was impossible to violate section 2800.2, subdivision (b) without also violating section 21806, a violation of the latter statute could not be utilized as one of the three traffic violations to establish the element of willful or wanton disregard under section 2800.2, subdivision (b); hence, because they were allowed to utilize the failure-to-yield violation, jurors were presented with a legally erroneous theory.
As these examples make clear, the trial court here did not instruct on a legally inadequate or erroneous theory. The theory – that appellant drove with willful or wanton disregard for safety based on his commission of three violations that were assigned a traffic volition point count – was legally sufficient because it could validly support a conviction of the charged offense. At most, the trial court inadequately instructed on one element of the valid theory. Guiton’s general rule of reversal does not apply.
The theory was also factually adequate, as the violations were shown by the evidence presented at trial.
III
Failure to Instruct on Defenses
Appellant contends the trial court erred by failing to instruct on self-defense with respect to the battery charges (counts 5 & 6), and on duress and necessity with respect to the charge of felony evading (count 2). “The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Breverman, supra, 19 Cal.4th at p. 157.) As is the case with lesser included offenses, substantial evidence is “evidence which is reasonable, credible, and of solid value,” and, in determining whether such evidence existed, the trial court does not determine the credibility of the defendant’s evidence. (People v. Cole (2007) 156 Cal.App.4th 452, 484; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) Doubts as to the sufficiency of the evidence to warrant instructions are resolved in favor of the accused (Cole, supra, at p. 484), and on review, we determine independently whether substantial evidence to support a defense or defenses existed (Shelmire, supra, at p. 1055).
A. Self-Defense as to Battery
A person “is privileged to resist [an assault or a battery] with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335; see Pen. Code, § 693.) In the present case, appellant testified that he did not pull or hit Neyda, and that he only pushed Nayony to get her away from him after she pushed him. Neyda then got between them. The trial court instructed on self-defense with respect to the charge of assault on a peace officer (count 1), but not with respect to the battery counts. In his summation, defense counsel asked jurors to consider self-defense in this case, and observed that the prosecution had to prove beyond a reasonable doubt that appellant was not acting in self-defense with the police officers or the Garcia sisters.
Assuming, based on appellant’s reliance on the defense and his testimony, the trial court should have instructed on self-defense with respect to the battery counts, the error was harmless even if it can be said to have violated appellant’s constitutional rights. (See People v. Demetrulias (2006) 39 Cal.4th 1, 23 [assuming standard of Chapman v. California (1967) 386 U.S. 18, 24 applies]; People v. Manriquez, supra, 37 Cal.4th at p. 588.) The jury was instructed that both counts required, inter alia, that appellant have touched the victim in a harmful or offensive manner. If jurors had believed appellant’s version of events – which constituted the only possible evidence supportive of self-defense – they would have acquitted him of battery of Neyda, since his conduct toward her did not involve a harmful or offensive touching. As no reason appears in the evidence for a trier of fact to believe appellant with respect to his conduct toward one woman, but not toward the other, the jury’s verdict finding appellant guilty of battery on Neyda constitutes an implicit rejection of his version of events, thus eliminating any doubt the jury would have returned the same verdicts had it been instructed on self-defense as to the battery counts. (See People v. Demetrulias, supra, 39 Cal.4th at p. 24; People v. Manriquez, supra, 37 Cal.4th at p. 588.)
We reject appellant’s assertion that the error was structural.
Without citation to the record, appellant states that he inadvertently pushed Neyda when she stepped between him and Nayony. We are unable to locate any such testimony and note that, in his statement of facts, appellant appears to have confused Nayony and Neyda.
B. Duress and Necessity as to Felony Evading
According to appellant, he was trying to pull over when the police started shooting at him, and his truck went out of control. He did not intentionally ram Standridge’s patrol car with his vehicle; he simply wanted to flee because of the gunshots, and so jumped out and ran.
The defense of duress negates the capacity or intent to commit the crime charged. (People v. Petznick (2003) 114 Cal.App.4th 663, 676; see Pen. Code, § 26, subd. Six.) “Duress is available as a defense to defendants who commit a crime ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ [Citations.] An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime.” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567, italics added; People v. Steele (1988) 206 Cal.App.3d 703, 706; see People v. Heath (1989) 207 Cal.App.3d 892, 899.)
In the present case, there was absolutely no evidence appellant was faced with a direct or implied demand or request that he commit felony evading. There being no substantial evidence to support this essential element of the duress defense, it follows that the trial court did not err by failing to instruct on duress. (See People v. Saavedra, supra, 156 Cal.App.4th at p. 567; People v. Steele, supra, 206 Cal.App.3d at p. 707.)
The defense of necessity, in contrast to duress, has traditionally covered situations where physical forces beyond the defendant’s control rendered illegal conduct the lesser of two evils. (People v. Heath, supra, 207 Cal.App.3d at p. 899.) The defense of necessity is not codified in California, but is recognized based on public policy considerations. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134-1135; Heath, supra, at pp. 900-901.) “To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. [Citations.]” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035, fn. omitted.)
We fail to see how necessity could have been a defense to the charge of felony evading under the circumstances shown by the evidence here. Leaving aside the question whether there was evidence appellant did not substantially contribute to the emergency, section 2800.1 and, hence, section 2800.2, requires that the actor flee or attempt to elude the police while operating a motor vehicle. According to appellant, he attempted to pull over as soon as he realized the police were behind him. When he heard gunshots, he lost control of his vehicle and then fled on foot. There was no substantial evidence of necessity while appellant was driving: Either he did not originally know it was the police and then merely hit the accelerator by mistake or went out of control, never fleeing or attempting to elude the police while operating his vehicle; or he knew it was the police all along and the offense was committed before any shots were fired and, accordingly, before any necessity arose. Either way, the trial court did not err by failing to instruct on the defense of necessity as to count 2, as appellant failed to show substantial evidence in support of each element thereof. (See People v. Miceli (2002) 104 Cal.App.4th 256, 267.)
IV
Cumulative Error
Appellant says the cumulative impact of the errors committed by the trial court must be reviewed under the standard of Chapman v. California, supra, 386 U.S. 18, 24. Taken together, he claims, the errors require reversal. We disagree. To the extent errors occurred, they did not prejudice appellant, either individually or collectively. (See People v. Osband (1996) 13 Cal.4th 622, 702; People v. Robertson (1989) 48 Cal.3d 18, 63.)
V
Incorrect Abstract of Judgment
At sentencing, the trial court ordered appellant to pay $3,300. Defense counsel waived a reading of the breakdown of the fine. According to the abstract of judgment, the amount included a $50 lab fee pursuant to Health and Safety Code section 11372.5, subdivision (a). As appellant contends and respondent concedes, no such fee was imposed, nor was imposition warranted under the language of the statute. Accordingly, the abstract of judgment must be corrected.
As respondent further observes, however, this does not mean appellant is relieved of any portion of the $3,300 the trial court ordered him to pay. As shown by the sentencing minutes, which contain a breakdown of the $3,300, that total is reached without reference to, or inclusion of, a $50 fee or assessment pursuant to Health and Safety Code section 11372.5. Thus, appellant remains obligated to pay the full $3,300.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment so that it no longer shows inclusion of a $50 lab fee pursuant to Health and Safety Code section 11372.5, subdivision (a) within the amount appellant is ordered to pay, and to forward certified copies of same to the appropriate authorities.
WE CONCUR: Wiseman, J., Gomes, J.
Although the statute has been amended since the date of appellant’s offenses, those portions pertinent to his case have remained unchanged.