Opinion
D070586
09-19-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL GARCIA, Defendant and Appellant.
Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN352500) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Juan Manuel Garcia guilty of one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), and one count of child abuse (Pen. Code, § 273a, subd. (b)). Garcia admitted a prior strike (id., §§ 667, subds. (b)-(i), 668, 1170.12), and the trial court sentenced Garcia to four years in prison.
Unless otherwise indicated, all further statutory references are to the Vehicle Code.
Garcia contends (1) the trial court prejudicially erred in not amplifying the jury instruction on evading an officer with reckless driving to define some of the underlying traffic violations that Garcia was alleged to have committed while he was being pursued by law enforcement; (2) he received ineffective assistance of counsel because defense counsel did not object to an incorrect statement of law made by the prosecutor during closing argument; and (3) the trial court prejudicially erred in not instructing the jury regarding the lesser included offense of misdemeanor evading an officer (§ 2800.1). We conclude that Garcia's arguments lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2015, at approximately 10:00 p.m., Garcia was driving his black truck southbound on Interstate 5 in Irvine, with his 13-year-old son in the passenger seat. While traveling in the left lane at approximately 70 to 75 miles per hour, Garcia approached an Acura sedan from behind and hit the rear of the car. Garcia then drove next to the Acura, trying to make the Acura swerve off the road. At one point, Garcia's son rolled down the passenger-side window and held up a note on a piece of paper, but the driver of the Acura could not read what it said. Garcia and his son were also throwing hard objects at the side of the Acura. The Acura's driver noted Garcia's license plate number and reported it on his cell phone to a California Highway Patrol (CHP) dispatcher. The driver of the Acura did not know Garcia and had no prior interaction with Garcia prior to being rear-ended.
After driving next to the Acura for approximately one and half to two miles, Garcia again hit the Acura with his truck. The impact to the back and side of the Acura caused it to start to spin. At the suggestion of the CHP dispatcher, the driver of the Acura exited the freeway at the first opportunity. Garcia continued to drive southbound on Interstate 5.
CHP officers first intercepted Garcia as he drove down the freeway past the Oso Parkway on-ramp in Mission Viejo. CHP Officer Robert Hunter activated the siren and lights on his patrol car and began to pursue Garcia on Interstate 5. CHP Officer Kenneth Wayne Rethwisch joined the pursuit shortly thereafter at the Camino Capistrano on-ramp in San Juan Capistrano. Officer Rethwisch activated his siren and lights and gave verbal commands over the loudspeaker for Garcia to pull over in both English and Spanish, but Garcia did not comply.
As Garcia and the CHP officers approached a construction zone at Camino de Estrella in San Clemente, two of the right lanes were closed and traffic had come to a complete stop in all lanes. At a speed of 40 to 50 miles per hour Garcia drove into the center median to pass the stopped traffic. Officer Rethwisch followed Garcia into the center median but was nervous about doing so because the width of the center median was only approximately eight feet, compared to a normal 12-foot-wide freeway lane, and there was debris in the center median. Officer Rethwisch considered it dangerous for Garcia to have driven in the center median because Garcia was driving close to the stopped or slowed cars on the freeway and there were construction workers in the area, approximately two lanes away.
After making it through the construction zone, Garcia continued driving on Interstate 5 into San Diego County, followed by CHP officers as well as a sheriff's helicopter, which was videotaping the pursuit. At Camp Pendleton, the pursuit was joined by CHP Officer Jason Hughes, who activated his patrol car's siren and lights. Officer Hughes observed Garcia to be driving at 65 to 70 miles per hour the entire time, and Garcia was straddling the line between two lanes for most of the pursuit. On more than one occasion, when Garcia would approach a slower vehicle from behind, instead of passing the vehicle, he would flash his high beam headlights and move up to within a car length of the slower car until the car moved out of the lane to let Garcia proceed.
Near the Lomas Santa Fe off-ramp in Solana Beach, officers placed a spike strip on the freeway. Garcia drove over the spike strip, puncturing his tires. Garcia continued to drive at approximately 65 miles per hour, and shortly thereafter Officer Hughes noticed that Garcia's tires had started to deflate. As Garcia approached Sorrento Valley Road in San Diego on Interstate 5, his tires started to disintegrate, and Garcia stopped the truck diagonally across the number one and two lanes. Garcia had driven approximately five miles from the point at which he ran over the spike strip.
At the time he stopped the truck, Garcia was being pursued by four CHP vehicles and had driven 55 miles from the point at which the first CHP officer started to pursue him in Mission Viejo.
After stopping his truck, Garcia cooperated with officers' instructions and was taken into custody. Shortly after being taken into custody, Garcia made statements to Officer Hughes while being transported in the back of a CHP vehicle. Garcia stated, "I'm going to go away and you are never going to see me again" and indicated he was going to jail. Upon noticing Officer Hughes using a cell phone, Garcia stated, "They can track you on that. They can track you on that. And that's why I got rid of mine. That's why I threw mine out on the freeway."
At trial, Garcia presented the testimony of an employee at a gas station in Buena Park. The employee testified that on November 12, 2015, a boy who was approximately 10-years-old ran up and handed her a paper that said "call," and then ran back to a dark-colored truck.
Garcia was charged with evading an officer with reckless driving (§ 2800.2, subd. (a)) (count 1), and felony child abuse under circumstances likely to produce great bodily harm and death (Pen. Code, § 273a, subd. (a)) (count 2).
During closing argument, defense counsel's primary argument as to count 1 was that Garcia was not guilty of evading an officer because Garcia was fleeing someone he believed was chasing and tracking him, as evidenced by Garcia's comment to Officer Hughes about being tracked on his cell phone and the notes shown to the cashier and the Acura driver.
A jury found Garcia guilty of evading an officer with reckless driving (§ 2800.2, subd. (a)) as charged in count 1, but as to count 2 it found him guilty of the lesser included offense of misdemeanor child abuse (Pen. Code, § 273a, subd. (b)). Garcia admitted a prior strike (id., §§ 667, subds. (b)-(i), 668, 1170.12), and the trial court sentenced Garcia to a prison term of four years.
II.
DISCUSSION
A. Garcia's Claim of Instructional Error
1. The Jury Instructions at Issue
In count 1, Garcia was charged with the crime of evading an officer with reckless driving, which is committed when "a person flees or attempts to elude a pursuing peace officer . . . and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." (§ 2800.2, subd. (a).) The statute further states that "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." (§ 2800.2, subd. (b).)
Section 12810 describes the point values given to various offenses and lists those offenses that do not incur points. Subdivision (f) of that section is a catch-all provision that assigns a point to "any other traffic conviction involving the safe operation of a motor vehicle upon the highway . . . ."
In accordance with these statutory provisions, as part of the instruction on the crime of evading an officer with reckless driving, the trial court instructed the jury as follows:
"Driving with willful or wanton disregard for the safety of persons 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.In addition, the trial court instructed the jury that "[a] person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, (2) and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage." (Italics omitted.)
"Hit and run driving, in violation of Vehicle Code section 20002(a); Following too closely, in violation of Vehicle Code section 21703; Use of multiple beams, in violation of Vehicle Code section 24409(b); Failure to Drive on the Right Side of Roadway, violation of Vehicle Code section 21650(a), and Driving at unsafe speed, in violation of Vehicle Code section 22350 are each assigned a traffic violation point." (Italics omitted.)
The language used in the instruction was based on a portion of CALCRIM No. 2181, which states: "[Driving with willful or wanton disregard for the safety of persons 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.] [¶] [<insert traffic violations alleged> are each assigned a traffic violation point.]" (CALCRIM No. 2181.)
Garcia argues that although defense counsel did not request such an instruction, the trial court erred by failing to amplify the instruction on evading an officer with reckless driving by providing further description of the particular Vehicle Code violations that the People alleged Garcia committed while attempting to evade the CHP officers.
2. A Trial Court's Sua Sponte Duty to Instruct on Technical Terms That the Jury May Not Understand
"The rules governing a trial court's obligation to give jury instructions without request by either party are well established. 'Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case.' . . . That obligation comes into play when a statutory term 'does not have a plain, unambiguous meaning,' has a 'particular and restricted meaning' . . . , or has a technical meaning peculiar to the law or an area of law . . . ." (People v. Roberge (2003) 29 Cal.4th 979, 988, citations omitted.) Conversely, "where the terms 'have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required.' " (People v. Howard (1988) 44 Cal.3d 375, 408.)
The opinion in People v. Ellis (1999) 69 Cal.App.4th 1334 illustrates this principle in a context that is relevant here. Ellis concluded that in a prosecution for felony driving under the influence, the trial court erred because it instructed the jury that to convict the defendant it must find that he "concurrently did some act which violated the law, namely, speeding," but it failed to amplify that instruction by providing a legal definition of the crime of speeding so that jurors could determine whether defendant committed that violation. (Id. at p. 1337.) In Ellis, it was clear from the evidence presented at trial that the People were proceeding under the theory that the defendant violated the basic speed law, which prohibits driving "at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway" or "at a speed which endangers the safety of persons or property." (§ 22350.) Referring to the basic speed law, Ellis explained that "[a]bsent being instructed in these standards for deliberation, jurors may view speeding as occurring any time one vehicle collides with the rear end of another, regardless of examining questions of circumstance, reasonableness and danger; or they may believe that speeding occurs only when the posted speed limit is exceeded." (Ellis, at p. 1339.) Ellis observed that "the term 'speeding,' in the context of a violation of law, in common parlance" is not "regularly associated with driving at a speed greater than is reasonable or prudent, or at a speed which endangers the safety of persons or property." Accordingly, "the term speeding, in the context of the basic speed law, is not clear and definite," meaning that "the trial court had a sua sponte duty to give an amplifying or clarifying instruction defining the term." (Id. at p. 1339.)
3. The Trial Court Erred by Not Providing a Sua Sponte Amplification on the Meaning of Some of the Vehicle Code Violations That Garcia Was Alleged To Have Committed
Garcia contends that the trial court had a sua sponte duty to further describe to the jury the Vehicle Code violations that he was alleged to have committed because the elements of those violations are not clear and definite merely from the name and Vehicle Code provision given to the jury. To evaluate this argument, we must first determine which Vehicle Code violations Garcia was alleged to have violated during the pursuit by the CHP officers.
Some of the alleged Vehicle Code violations were identified in the jury instructions, which stated that the following violations are assigned a traffic violation point: (1) "Following too closely, in violation of Vehicle Code section 21703;" (2) "Use of multiple beams, in violation of Vehicle Code section 24409(b);" (3) "Failure to Drive on the Right Side of Roadway, violation of Vehicle Code section 21650(a);" and (4) "Driving at unsafe speed, in violation of Vehicle Code section 22350." In addition, Officer Hunter testified that Garcia committed two additional Vehicle Code violations during the pursuit, which he stated were "considered point violations:" (1) "speeding in excess of 65 miles per hour on the freeway" in violation of section 22349, subdivision (a); and (2) "[u]nsafe lane changes on the freeway" in violation of section 21658, subdivision (a).
The jury instructions also identify "hit and run driving, in violation of Vehicle Code section 20002, subdivision (a)" as a violation that is assigned a traffic violation point. However, a finding that Garcia committed hit and run driving when ramming the Acura and then failing to stop would not qualify as a predicate Vehicle Code violation under section 2800.2, subdivision (b) because that provision requires that the Vehicle Code violation occur "during" the defendant's attempt to flee from or evade a peace officer. (§ 2800.2, subd. (b).) Here, the ramming of the Acura occurred before the CHP officers began their pursuit of Garcia.
As also reflected in the jury instructions, Officer Hunter further identified "following too close to vehicles on the freeway" in violation of section 21703 as a further violation committed by Garcia during the pursuit.
We agree with Garcia that the elements of at least some of these Vehicle Code violations are not evident from the description provided to the jury.
First, the violation described in the jury instruction as "use of multiple beams," as set forth in section 24409, subdivision (b) provides:
"Whenever a motor vehicle is being operated during darkness, the driver shall use a distribution of light, or composite beam, directed high enough
and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle, subject to the following requirements and limitations: [¶] . . . [¶]The precise rule set forth in this provision, which requires a driver to cease using high beam headlights when within 300 feet to the rear of another vehicle, would not be evident to a juror merely from the description of the provision as "use of multiple beams." Accordingly, the trial court erred in not providing a further description of that Vehicle Code violation.
"(b) Whenever the driver of a vehicle follows another vehicle within 300 feet to the rear, he shall use the lowermost distribution of light specified in this article." (§ 24409.)
Second, the violation described in the jury instructions as "Failure to Drive on the Right Side of Roadway," as set forth in section 21650 provides in relevant part:
"Upon all highways, a vehicle shall be driven upon the right half of the roadway, except as follows:The details of this provision, including its numerous exceptions, are not evident merely from the description "Failure to Drive on the Right Side of Roadway," and accordingly the trial court erred in not providing an amplified description of the offense.
"(a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing that movement.
"(b) When placing a vehicle in a lawful position for, and when the vehicle is lawfully making, a left turn.
"(c) When the right half of a roadway is closed to traffic under construction or repair.
"(d) Upon a roadway restricted to one-way traffic.
"(e) When the roadway is not of sufficient width.
"(f) When the vehicle is necessarily traveling so slowly as to impede the normal movement of traffic, that portion of the highway adjacent to the right edge of the roadway may be utilized temporarily when in a condition permitting safe operation." (§ 21650.)
Garcia contends that he could not have violated this provision because of the exception stating that it does not apply "upon a roadway restricted to one-way traffic" and the southbound lanes of Interstate 5 are such a roadway, but that without amplification, the jury would not have understood this limitation on the provision.
Third, the violation described in Officer Hunter's testimony as "[u]nsafe lane changes on the freeway" as set forth in section 21658, subdivision (a) provides:
"Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply:The content of this provision is not evident from the description "unsafe lane changes," especially the portion of the statute requiring a vehicle to be driven "as nearly as practical within a single lane" (§ 21658, subd. (a)). Accordingly, to the extent the trial court understood from Officer Hunter's testimony that the People were relying on the theory that Garcia violated section 21658, subdivision (a) during the pursuit to establish Garcia's guilt in count 1, the trial court should have given a sua sponte instruction setting forth the definition of that Vehicle Code violation.
"(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety. (§ 21658.)
Apart from the three Vehicle Code violations we have identified above, the remaining Vehicle Code provisions that Garcia was alleged to have violated during the pursuit were sufficiently described to the jury, making it unnecessary for the trial court to provide further amplification to insure that jurors were not misled as to the definition of those violations.
First, the violation described in the jury instructions as "Driving at unsafe speed" as set forth in section 22350 provides: "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." (§ 22350.) This is a common sense definition of what it means to drive at an unsafe speed, which a reasonable juror would understand from the description "Driving at unsafe speed."
Second, the violation described in Officer Hunter's testimony as "speeding in excess of 65 miles per hour on the freeway" as set forth in section 22349 provides: "(a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour." (§ 22349, subd. (a).) The meaning of this provision is clear from the description "speeding in excess of 65 miles per hour on the freeway," and a reasonable juror would require no further explanation to understand it.
Section 22356 provides that the Department of Transportation, with the approval of the Department of the California Highway Patrol, may declare a higher maximum speed of 70 miles per hour for vehicles on a portion of any state highway. (§ 22356, subd. (a).)
Third, the violation described in the jury instructions as "following too close" as set forth in section 21703 provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway." (§ 21703.) This is a straightforward and common sense definition of what it means to follow too close to another car that a reasonable juror would understand from the description.
In sum, we conclude that as to three of the six Vehicle Code violations at issue in this case, because the description provided to the jury was not sufficiently clear and informative, the trial court erred in not providing a sua sponte amplification to the jury as to the precise elements of those violations, but amplification was not required for the remaining violations.
4. The Error Was Not Prejudicial
Having concluded that the trial court erred in not providing a sua sponte amplification as to the meaning of three of the Vehicle Code violations that Garcia was alleged to have violated to establish the presumption that he acted with willful or wanton disregard pursuant to section 2800.2, subdivision (b), we must next determine whether the error was prejudicial.
As Garcia points out, the jury was also properly and fully instructed with alternate approaches for finding that he drove with willful or wanton disregard for safety, namely (1) a finding that Garcia caused damage to property while fleeing from the CHP officers; or (2) a finding that Garcia was aware that his actions presented a substantial and unjustifiable risk of harm, and intentionally ignored that risk. We agree with Garcia that because we cannot ascertain from the record whether the jury relied on those properly instructed theories to find that Garcia drove with willful or wanton disregard for safety and thus did not rely on the theory that Garcia committed three or more point-incurring traffic violations during the pursuit, we may not rely on the possibility that the jury relied on the correctly-instructed theory to find that the instructional error was not prejudicial. (See People v. Guiton (1993) 4 Cal.4th 1116, 1122 [" 'When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand[,]" and "this rule 'is perhaps most commonly invoked when the alternate theory is legally erroneous,' that is, when one of the theories is infected by prejudicial error such as . . . incorrect instructions."]
The parties agree that in assessing whether the error was prejudicial, we should apply the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24. As the People acknowledge, this standard of review applies because "instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall within the broad category of trial errors subject to Chapman review on direct appeal." (People v. Flood (1998) 18 Cal.4th 470, 499.) Under this standard, "[a]n instruction that omits a required definition of or misdescribes an element of an offense is harmless only if 'it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " (People v. Mayfield (1997) 14 Cal.4th 668, 774 (Mayfield).)
In their respondent's brief, the People state that "it will be . . . assumed that" the instructional error "amounted to misinstruction on an element of the offense of felony evasion, and thus constituted federal constitutional error." We note that although the underlying Vehicle Code violations that Garcia is alleged to have committed while fleeing from law enforcement officers are not technically elements of the offense of evading an officer with reckless driving (§ 2800.2), they are relevant to establishing the applicability of the presumption that the defendant acted with willful or wanton disregard as set forth in the statute (§ 2800.2, subd. (b)). As one of the required elements of evading an officer with reckless disregard is that the defendant acted with willful or wanton disregard, a misdescription of the underlying Vehicle Code violations are in effect a misdescription of the element of willful or wanton disregard. Accordingly, we agree with the People that we should apply the standard of review applicable to "[a]n instruction that omits a required definition of or misdescribes an element of an offense." (Mayfield, supra, 14 Cal.4th at p. 774.)
The People point us to case law stating that an instructional error that omits an element of the offense may be found to be harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." (Neder v. U.S. (1999) 527 U.S. 1, 17 (Neder).) Under this approach, "we may affirm despite the error if the jury that rendered the verdict at issue could not rationally have found the omitted element unproven; the error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not." (People v. Sakarias (2000) 22 Cal.4th 596, 625.)
Neder, supra, 527 U.S. 1, was decided by the United States Supreme Court prior to its decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." However, as our Supreme Court recently emphasized, Apprendi does not call into question the validity of the type of harmless error analysis described in Neder, as the issue in such an analysis "is not whether the error violated a jury trial right—it did—'but whether the error is subject to harmless-error analysis.' " (People v. Merritt (2017) 2 Cal.5th 819, 829.) In conducting a harmless error review under Neder, "[w]e are . . . not engaging in appellate factfinding . . . . Instead, we are assessing what effect the error had on the verdict . . ." (Merritt, at p. 830), and we ask " 'in typical appellate-court fashion, . . . whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " (Merritt, at p. 832, quoting Neder, at p. 19.) --------
Although the error at issue here was not the complete omission of an instruction on an element of the offense, it does concern the omission of a necessary part of the instruction under which the jury may find one of the elements of the crime of evading an officer with reckless driving to have been established. Specifically, the trial court omitted to include in the jury instructions a definition of some of the "three or more violations that are assigned a traffic violation point" that Garcia was alleged to have committed (§ 2800.2, subd. (b)), which would establish the required element that Garcia acted with "a willful or wanton disregard for the safety of persons or property" (§ 2800.2, subd. (a)). Therefore, in assessing whether it was prejudicial error for the trial court to have omitted portions of the instruction that would enable the jury to decide whether Garcia committed "three or more violations that are assigned a traffic violation point" (§ 280202, subd. (b)), we find the general approach set forth in Neder, supra, 527 U.S. 1 to be helpful. Following Neder's approach, we proceed by inquiring whether the record shows that it was both uncontested and supported by overwhelming evidence that Garcia committed three or more violations assigned a traffic violation point, such that the jury verdict would have been the same absent the misinstruction. If so, then, regardless of the trial court's incomplete instructions as to the definition of the underlying Vehicle Code violations, we may conclude that trial court's instructional error was harmless beyond a reasonable doubt.
Turning to the first issue identified in Neder, namely whether "the omitted element was uncontested" (Neder, supra, 527 U.S. at p. 17), although no explicit admission was made at trial, defense counsel did not attempt to contest that, during the pursuit by CHP officers, Garcia committed at least three violations that are assigned a traffic violation point. Instead, during closing argument defense counsel focused on the theory that Garcia was not guilty of evading an officer with reckless driving because he had no intent to evade the officers. As defense counsel explained, the evidence showed that Garcia was paranoid and believed he was fleeing from some unidentified person who was trying to track him. Defense counsel briefly argued that Garcia was not driving in a dangerous manner, but defense counsel never attempted to dispute the People's contention that Garcia committed numerous Vehicle Code violations.
Next, as to the issue of whether "the omitted element was . . . supported by overwhelming evidence" (Neder, supra, 527 U.S. at p. 17), we conclude that there was overwhelming evidence that Garcia committed at least three of the Vehicle Code violations identified to the jury as incurring a traffic violation point.
As we have explained, the offense of "multiple beams" in section 24409, subdivision (b) provides that during darkness "[w]henever the driver of a vehicle follows another vehicle within 300 feet to the rear, he shall use the lowermost distribution of light specified in this article." (§ 24409, subd. (b).) The incidents at issue here indisputably occurred during darkness, as they took place after 10:00 p.m. in mid-November. Officer Hughes described that generally when Garcia approached another car from behind, he drove as close as a car length behind it and flashed his high beam lights until the car changed lanes. Although Officer Hughes described this behavior as occurring throughout the pursuit, he specifically identified two locations where it occurred: (1) approaching Carlsbad Village Drive, and (2) approaching La Costa Avenue. The undisputed testimony regarding the two specific instances in which Garcia flashed his high beam lights while immediately behind other vehicles provides overwhelming evidence that Garcia committed at least two violations of section 24409, subdivision (b).
Second, as set forth above, the offense of "[u]nsafe lane changes on the freeway" provides that "[a] vehicle shall be driven as nearly as practical entirely within a single lane . . . ." (§ 21658, subd. (a).) Here, Officer Hughes testified that "throughout most of the pursuit," Garcia was "straddling the lane lines, so basically occupying two lanes at once." Officer Hunter also testified that Garcia violated this Vehicle Code provision. Based on this undisputed testimony, had the jury been instructed on the definition of the Vehicle Code violation described as "[u]nsafe lane changes on the freeway," it would have found overwhelming evidence that Garcia committed that violation throughout most of the pursuit by driving in two freeway lanes at the same time.
Third, the offense of "speeding in excess of 65 miles an hour on the freeway" as set forth in section 22349 is committed when a person "drive[s] a vehicle upon a highway at a speed greater than 65 miles per hour." (§ 22349, subd. (a).) Officer Hughes testified that Garcia was travelling at a speed between 65 and 70 miles per hour during the pursuit. Further, Officer Hunter testified that Garcia violated this Vehicle Code provision. Therefore, uncontested evidence at trial supported a finding that when travelling in excess of 65 miles per hour during the pursuit, Garcia violated section 22349.
In sum, based on the above discussion, overwhelming and undisputed evidence supports a finding that Garcia committed at least four Vehicle Code violations that incur a traffic violation point when he (1) at least twice flashed his high beam headlights when directly behind another car, (2) drove in two freeway lanes at the same time throughout most of the pursuit, and (3) drove in excess of 65 miles per hour. Further, defense counsel did not attempt to contest that, during the pursuit, Garcia committed at least three violations that incurred a traffic violation point. Accordingly, we conclude beyond a reasonable doubt that even though the trial court erred by not providing a definition of three of the six underlying Vehicle Code provisions that Garcia was alleged to have violated while fleeing from the CHP officers, the jury verdict would have been the same absent the error. B. Garcia Has Not Established Ineffective Assistance of Counsel
We next consider Garcia's contention that he received ineffective assistance of counsel when defense counsel failed to object to the prosecutor's erroneous statement of law during closing argument.
The jury was properly instructed that the third required element of the crime of evading an officer with reckless driving (§ 2800.2) is that "[d]uring the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property." The jury was also instructed that "[d]riving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving . . . ." (Italics omitted.)
During closing argument, the prosecutor referred to these instructions and attempted to apply them to the evidence presented at trial. She stated, "The next definition that goes to element 3 is that he was driving with a willful or wanton disregard for the safety of persons or properties. . . . It includes . . . causing damage to property while driving which he did — you heard from the collision victim . . . ," referring to the driver of the Acura.
Garcia contends that defense counsel provided ineffective assistance of counsel by failing to interpose an objection to the prosecutor's statement because it misstated the law. Specifically, Garcia points out that the prosecutor was wrong in stating that the collision with the Acura could have constituted "causing property damage while driving" to establish that Garcia drove with willful or wanton disregard for safety within the meaning of section 2800.2, because — as the jury was instructed — the unsafe driving must occur "[d]uring the pursuit." As Garcia correctly observes, because the collision with the Acura occurred in Irvine, before the pursuit by CHP officers began in Mission Viejo, Garcia's collision with the Acura could not be used by the jury to find that Garcia drove with willful or wanton disregard for safety during the pursuit as required by section 2800.2.
1. Applicable Legal Standards
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
To show prejudice, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Further, as is important here, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (Lucas, supra, 12 Cal.4th at p. 442; see People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.)
As we will explain, Garcia's ineffective assistance claim fails for two reasons: (1) there could have been sound tactical reasons for defense counsel to decide against interposing an objection; and (2) Garcia has not established prejudice.
2. Defense Counsel May Have Made a Reasonable Tactical Decision to Forego an Objection
As noted, "[w]hen a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (Anderson, supra, 25 Cal.4th at p. 569.) Here, defense counsel could have had a sound tactical basis for failing to interpose an objection when the prosecutor erroneously implied that property damage caused prior to the beginning of the law enforcement pursuit could be used to establish that Garcia evaded an officer with willful or wanton disregard for the safety of persons or property.
As we have explained, based on defense counsel's closing argument, it appears that his strategy at trial was not focused on arguing that the evidence failed to establish that Garcia drove with willful or wanton disregard for the safety of persons or property, and that, instead, he focused on establishing that Garcia was paranoid and was fleeing from an unidentified person. Indeed, based on evidence showing that Garcia committed at least three traffic violations during the pursuit, it would have been reasonable for defense counsel to conclude that the best defense was to effectively concede that Garcia drove with willful or wanton disregard for safety and focus instead on other issues, such as the elements required for the child abuse count and the question of whether Garcia intended to flee from law enforcement officers. Because defense counsel reasonably could have made a tactical decision that he would not attempt to contest that Garcia drove with willful or wanton disregard for safety, it is also possible that he made a reasonable tactical decision to forego an objection when the prosecutor incorrectly implied that the damage to the Acura could be used to establish that Garcia drove with willful or wanton disregard. Accordingly, Garcia has not established that there could be no rational tactical purpose for defense counsel's failure to object.
3. Garcia Has Not Established Prejudice
To establish ineffective assistance of counsel, Garcia would also have to show that "there is a reasonable probability" that had defense counsel objected to the prosecutor's erroneous statement, Garcia would have received a more favorable outcome at trial. (Strickland, supra, 466 U.S. at p. 694.)
The prosecutor's statement concerned the evidence supporting only one approach for establishing that Garcia drove with a willful or wanton disregard for safety, namely by proving that Garcia caused damage to property. However, the jury was also instructed — and the prosecutor argued — that Garcia could also be found to have driven with a willful or wanton disregard for safety if he committed three or more Vehicle Code offenses that were assigned a traffic violation point, regardless of whether he caused any property damage. As we have explained above, overwhelming evidence supports a finding that Garcia committed at least three such Vehicle Code offenses during the pursuit. Accordingly, even had defense counsel objected to the prosecutor's erroneous statement that the jury could rely on property damage to the Acura to find that Garcia drove with willful and wanton disregard for safety, because of the overwhelming evidence that Garcia committed at least three Vehicle Code violations during the pursuit, there is not a reasonable probability that the jury would have reached a different finding on the issue of willful and wanton disregard for safety had defense counsel interposed an objection. C. The Trial Court Did Not Err by Failing to Instruct on the Lesser Included Misdemeanor Offense of Evading an Officer
As a lesser included offense to evading an officer with reckless driving in violation of section 2800.2, a defendant may be found guilty of the misdemeanor offense of evading an officer in violation of section 2800.1 (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680 [§ 2800.1 is a lesser included offense of § 2800.2].) The difference between the two offenses, is that the lesser included offense does not include the element of driving "in a willful or wanton disregard for the safety of persons or property." (Compare § 2800.1 with § 2800.2.) Garcia contends that the trial court erred in not sua sponte giving the jury an option to find Garcia guilty of the lesser included offense of misdemeanor evading an officer.
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) The existence of " 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is '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." (Ibid.)
As we have explained, one way in which a defendant may be found to have driven in a willful or wanton disregard for the safety of persons or property within the meaning of section 2800.2 is when, during the pursuit, the defendant commits "three or more violations that are assigned a traffic violation point count under [Vehicle Code[] Section 12810." (§ 2800.2, subd. (b).) As we have also explained, the overwhelming and uncontradicted evidence supports a finding that Garcia committed at least three such qualifying traffic violations during the pursuit. Thus, here, if the jury concluded that Garcia fled from the CHP officers, the only reasonable conclusion supported by the overwhelming evidence at trial was that Garcia committed several qualifying traffic violations while doing so and accordingly also drove in willful or wanton disregard for safety.
Because this is not a case in which the jury could reasonably find that Garcia fled from the CHP officer but did not do so while committing at least three Vehicle Code violations that are assigned a traffic violation point, the trial court had no duty to instruct with the lesser included offense of misdemeanor evading an officer.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: MCCONNELL, P. J. O'ROURKE, J.