Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC056032
Lambden, J.
Defendant Jason Joseph Gruber seeks reversal of his felony conviction for willful vehicle flight from a pursuing peace officer with the intent to evade and with wanton disregard for the safety of persons or property. He argues that the trial court committed prejudicial error by excluding certain evidence and that Vehicle Code section 2800.2’s treatment of different classes of offenders violates his federal and state equal protection rights. We affirm the judgment.
BACKGROUND
In May 2006, after certain pretrial motions were considered by the trial court, trial of defendant began on the San Mateo County District Attorney’s two charges, as stated in a second amended information, that defendant engaged in felony vehicular flight from a pursuing police officer (reckless flight) in violation of Vehicle Code section 2800.2, and misdemeanor use of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11550, subdivision (a). The district attorney further alleged that as to the Vehicle Code section 2800.2 violation, defendant had suffered a number of prior convictions within the meaning of certain Penal Code provisions. We summarize herein the proffered and admitted evidence considered in the proceedings below as necessary to evaluate the issues raised on appeal.
At trial, South San Francisco Police Corporal Michael Rudis testified that he was in his patrol car in a residential neighborhood about 4:46 a.m. on October 29, 2003, when defendant approached on a motorcycle and stopped four to five feet away. Defendant was wearing a type of “novelty helmet” that was a violation of the Vehicle Code. Defendant told Rudis that he was lost and looking for a friend’s house, and Rudis realized the address was two blocks away. Defendant “looked fidgety, he seemed to be looking around, couldn’t stand still on his motorcycle.” Rudis, his interest piqued by defendant’s non-regulation helmet and his nervousness, suggested defendant pull to the side of the road to talk. Instead of doing so, defendant “[t]hrottled his motorcycle and fled at a high rate of speed” and turned onto another street, reaching a speed of “25, 35 miles-an-hour” in a very short burst of time.
Rudis testified that he was concerned because defendant was speeding and driving in an unsafe manner, so he made a U-turn and followed. Defendant now was traveling about 50 miles per hour in a 25 miles-per-hour zone and, as he approached a stop sign, “just blew through the intersection, same speed, didn't slow down.” After defendant failed to slow for and stop at an intersection stop sign, Rudis activated his patrol car siren. Defendant, still traveling about 50 miles per hour, did not stop, went through another stop sign, turned and drove down the wrong lane of traffic, turned again and continued on the wrong side of the road about 50 miles per hour in a 25 miles-per-hour zone, went through two more stop signs, proceeded down the wrong side of Airport Boulevard at well above the speed limit, and drove through other red lights without stopping.
Rudis further testified that defendant, after proceeding through other red lights and a stop sign without stopping and at speeds well in excess of the speed limit, slowed somewhat and turned onto Ninth Lane, turning the wrong way onto a one-way street. Rudis came around the turn to find defendant's motorcycle leaning against a white fence about 40 or 50 feet from the intersection. Defendant was still on his motorcycle, which had its wheel turned towards the fence and its windshield buckled from resting on it. As Rudis approached, defendant ran, but Rudis chased and caught him. All told, defendant had run six stop signs and four red lights.
Rudis further testified that the vehicle chase covered 2.2 miles and lasted for about three minutes. Throughout, defendant was driving considerably above the speed limit and in a manner that was not safe for the road conditions, people, or property. When asked about his speed at certain points in his pursuit, Rudis testified that he maintained a distance of 75 to 100 feet between him and defendant, his patrol car did not come in contact with, and he did not try to “ram,” defendant's motorcycle, and he did not go over a curb during the chase. Rudis thought it was possible that his car came in contact with defendant's motorcycle as it was resting against the fence, but did not believe it damaged the motorcycle if it did, and testified that the push bar of his car did not come in contact with the air filter of the motorcycle.
Rudis took defendant to the police station and interviewed him with Officer Sam Langi after defendant waived his Miranda rights. Defendant admitted that he had heard Rudis ask him to pull over to the side of the road, but that “he got nervous, he reverted back to his old ways and that he should have stopped.” He acknowledged that he knew Rudis was a police officer driving a police car, and never said that he thought during the chase that Rudis was going to ram him.
During the interview, Rudis, evaluated defendant to determine if he was under the influence of a controlled substance, and concluded he was under the influence of methamphetamine. The officers also found a clear plastic baggie in the back of defendant's mouth, and in a presumptive test the presence of methamphetamine in the baggie was indicated.
South San Francisco Officer Ryan Hyink testified that he was parked in his patrol vehicle at a gas station on Airport Boulevard and Grand Avenue when he heard sirens and saw a motorcycle going south on Airport Boulevard and turn west on Grand Avenue, followed by Rudis and another car driven by Officer Plank. Hyink estimated that Rudis was about 100 feet behind the motorcycle when he made the turn onto Grand. He trailed behind them by a couple of hundred feet and arrived on Ninth Lane to find defendant in handcuffs.
Hyink referred to Officer Langi in a car trailing Rudis at one point in his testimony, but subsequently indicated he saw Plank trailing Rudis.
South San Francisco Police Corporal Adam Plank testified that he assisted Rudis in the chase after hearing about it from dispatch. He followed Rudis’s patrol car, and observed defendant drive over the speed limit and failed to stop at stop signs and red lights, causing Plank to be concerned for public safety. Plank’s car hit a curb, splitting a tire, and he did not personally observe the end of the vehicle chase.
After considering all of the evidence and testimony, the jury found defendant guilty of reckless flight in violation of Vehicle Code section 2800.2, and of being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a). Defendant waived jury trial on the prior conviction allegations. The court sentenced defendant to eight years in prison. Defendant filed a timely notice of appeal.
DISCUSSION
I. Animated Accident Reconstruction
Defendant argues that the trial court abused its discretion when it excluded from the evidence an animated accident reconstruction proffered by the defense because it was based on too many assumptions and speculation. This is incorrect.
A. The Proceedings Below
Defendant sought to introduce at trial expert accident reconstruction testimony to support his contention that Rudis intentionally rammed defendant’s motorcycle with his patrol car as defendant turned onto Ninth Lane, and lied about it. Defendant argues on appeal that the evidence was relevant because if the jury believed this was the case, it could infer that Rudis “drove aggressively and dangerously, at least at the end of the pursuit,” and could further infer that defendant’s flight was not in order to evade Rudis or in wanton disregard of persons or property, elements of a Vehicle Code section 2800.2 violation, but because he was “reduced to instinctive acts of self-preservation throughout the pursuit—out of sheer terror that he was about to be rammed,” and justified his flight on grounds of self-defense
Before trial, defendant filed a motion in limine to “permit expert accident reconstruction testimony and computer animations to illustrate testimony,” and the People filed a competing motion to exclude this evidence. At the Evidence Code section 402 hearing on these motions, Rudis testified about the incident, and his interview with defendant, consistent with his trial testimony. In addition, Langi testified that he participated in the interview with defendant, and that defendant stated about the crash that “he was going too fast. He was trying to make the turn and lost control and made the turn too wide.” He indicated that this action caused him to hit the fence, did not indicate that he was rammed by Rudis, and said he fled from Rudis “because he was scared.”
Robert Cargill, a consulting engineer who had prepared the animated accident reconstruction, testified that he looked at the accident scene and interviewed defendant in August 2005, nearly two years after the actual police chase. He did not interview other people in forming his opinions. He examined defendant's motorcycle in November 2005, transporting the motorcycle to a police facility in order to conduct what he called a “ ‘real-world fit check’ or comparison of the motorcycle damage artifacts to the front push bar in bumper assembly of the police car.” He saw some damage to the motorcycle, and paid particular attention to a “dented or deformed air cleaner cover that was on the right side of the motorcycle.” He placed the motorcycle at various angles against the police car until he “could match up the police car where the dents in the air cleaner and bent foot peg and all these other things would line up.”
Cargill also drove the motorcycle to determine how it operated. Working backwards from his conclusion that defendant did not lose control turning onto Ninth Lane, he estimated the defendant was traveling 15 miles per hour when he turned onto Ninth Lane, the “maximum safe speed” the motorcycle could have reached without defendant losing control at that point, and was “amazed” to discover in his interview with defendant that he estimated he was traveling at just that speed when he made the turn. Cargill estimated that the patrol car was traveling at 4.7 miles per hour when it hit the motorcycle.
Cargill further testified that he created an animated model of the accident by working “backwards, essentially backwards and forward from point of impact to explain the damage artifacts, approximate angle of contact between the police car and motorcycle, the post-impact trajectory of the motorcycle that had to have occurred in order to create the damaged artifacts on the wooden fence.” He found “one mathematical solution that accounts for all this stuff.”
Cargill concluded that Rudis’s car, represented in his model by “a commercially available three dimensional model of . . . police model of the Ford Crown Victoria . . . because a police car was not available at the time of [his] tests,” attempting to cut off defendant as he turned onto Ninth Lane, came over the seven-inch curb of the road and “contacted the motorcycle just after it entered Ninth Lane just after it turned the apex of that right turn into Ninth Lane.” Cargill said there was “a reasonable possibility that the motorcycle could have caused the damage to the fence had it taken the turn too wide or too fast,” but he did not believe that is what happened. He thought “the damage to the right side of the motorcycle ‘conclusively proved’ that the police car hit the motorcycle as he had concluded.”
On cross-examination, Cargill acknowledged that he made “minor repairs” to the motorcycle in order to make it rideable. He also acknowledged that his analysis relied on an “assumption” about the speed the patrol car traveled, that his animation showed the patrol car driving on the sidewalk although there was no indication that Rudis did so, and that he had no information about the pre-crash condition of defendant's motorcycle.
Cargill also stated that he did not rely on Langi’s report of the incident because he felt it was “clearly at odds with the physical evidence.” Therefore, he did not consider defendant's admission to Rudis and Langi that he lost control of his motorcycle, nor his failure to state that he had been rammed. Cargill also did not consider the descriptions of damage to defendant’s motorcycle, which did not refer to air filter damage, in Langi’s report or a CHP 180 form.
Cargill, in response to the trial court’s questioning, indicated that his scenario would not work unless the police car went up and over a seven-inch curb at the angle depicted in the animation. He also stated that there was a “reasonable likelihood of either a slightly bent rim or even a blown tire” on Rudis’s police car from such an event, and acknowledged that there was no evidence of such damage. He also acknowledged that he did not know how the motorcycle was transported from the accident scene or what kind of equipment was used to transport it.
The trial court denied defendant’s motion, citing Evidence Code section 352. It noted that the analysis occurred “some 710 days after the incident,” and stated: “[Cargill] makes a myriad of underlying assumptions as it relates to the facts underlying this case. All of the planets must align for his opinion to hold any weight or validity by way of his own testimony, which would include the assumptions of fact to which he had no basis for formulating those. [¶] . . . I find . . . the basis for many of the factors underlying his opinion to be highly speculative under the [Evidence Code section] 352 analysis. It is minimally, and I underline minimally, relevant based upon the evidence that is in the record at this time, and under the 352 analysis that evidence as it relates to any reconstruction and or computer animation is not going to be coming before this jury.”
Defendant filed a petition for a writ of mandate with this court challenging the excluding of the accident reconstruction, which was denied on April 28, 2006, in case No. A113667.
Defendant sought again to introduce the accident reconstruction evidence at the close of the prosecution’s case in chief, which was after Rudis and Plank had testified, but the court denied the request, finding again that defendant had not established sufficient foundation “as it relates to any of the issues on the air cleaner at this point, given the extensive testimony.”
Defendant presented several witnesses at trial who addressed the motorcycle’s condition, chain of custody, and movement since the incident. A tow truck operator testified that he was called to the scene of the crash, observed damage to the right side of the motorcycle, and had no doubt that he did not cause any further damage to it while towing it away. There was further testimony that the motorcycle was taken to a tow facility, where an employee confirmed that the damage to the motorcycle reported on the CHP 180 form prepared by the police was the same as what she observed. The motorcycle was kept in a secure location for 20 days, and then released to Jimmy Ford. Ford testified that he drove the motorcycle from the tow facility to defendant's grandmother's house. He heard a “knocking in the motor,” noticed damage to the “cleaner,” and that the “brake was bent.” He did not do any further damage to the motorcycle.
There was other trial testimony by Hyink that he prepared a CHP 180 form upon inspecting the motorcycle at the scene of the crash, and that he would have listed damage to the motorcycle’s air filter if he had seen it.
Defendant's mother testified that the motorcycle was put in the back of the grandmother’s garage, that the only people who had access to it in the locked garage were her, her husband, and defendant's grandmother, and that they did not damage it in any way. Defendant's father testified that he saw damage to the right and left sides of the motorcycle at his mother's house in November 2003, and that the motorcycle remained there for close to a year. He identified damage, including to the air filter, in photographs he had taken.
After this testimony, defendant again moved the court to admit the accident reconstruction evidence. The court denied this motion, citing, among other things, a continued lack of foundation.
The parties also agreed to two stipulations about the motorcycle’s postaccident circumstances. It was stipulated that defendant's grandmother, if called to testify, would say that the motorcycle was stored in her garage for approximately one year and that she did not move, alter, damage, or destroy the motorcycle in any respect, and that she had no personal knowledge of the condition or damage to the motorcycle during the time it was in her garage. It was further stipulated that a registered mechanical engineer and certified safety professional, if called to testify, would state that, from November 2004 to November 2005, he transported the motorcycle in a pickup truck a number of times to assist Cargill, and also removed the transmission shift pedal and air filter cover and delivered them to Cargill. He had no personal knowledge of the condition or damage to the motorcycle before he took custody of it in November 2004.
Cargill also testified to a limited extent at trial regarding certain photographs and measurements he had taken. He stated that he examined the motorcycle in August 2005, made “several minor repairs to render the motorcycle rideable,” “did multiple tests of the motorcycle by riding it,” and “performed several fit checks of the motorcycle” against Rudis’s police car. He removed the motorcycle’s air cleaner assembly and observed a “defemation,” a type of indentation. In November 2005, he placed the police car against the motorcycle at a number of different angles, and observed that “the motorcycle, when you lean it slightly to the right, it makes contact at the observed points of damage, including the rear brake lever and the air cleaner with the push bar assembly on that squad car.” On cross-examination, he acknowledged that he had no knowledge of what damage was present on the motorcycle on the day of the incident, and that the first time he saw the motorcycle was in August 2005.
B. Analysis
Generally, trial court rulings about the admissibility of evidence are reviewed on appeal under an abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) More specifically, under Evidence Code section 352, “the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] [E]xercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Furthermore, “[t]estimony relating the results of experiments concerning a disputed material fact should be admitted only if the conditions under which the experiments were made are substantially identical to those out of which the disputed fact arose [citation], should be of that character which will clarify rather than confuse the issue at hand [citation], and should not be admitted if it predominately involves a consideration of collateral issues [citations]. The determination of these factors is a matter largely within the discretion of the trial court, whose ruling will not be interfered with on appeal in the absence of a clear showing of abuse of that discretion.” (Holling v. Chandler (1966) 241 Cal.App.2d 19, 23-24.)
The trial court carefully considered whether or not defendant’s proposed accident reconstruction evidence had sufficient foundation before excluding it. The court acted within its discretion in doing so pursuant to Evidence Code section 352, given that it had sufficient reason to consider the evidence lacking in foundation sufficient to make it probative of issues that did not create a substantial danger of confusing the issues and misleading the jury. The court could reasonably conclude from Cargill’s testimony that the proffered evidence relied on numerous assumptions and circumstances that rendered it unduly unreliable and speculative. For example, Cargill’s theory required that Rudis’s police car had gone over a seven-inch high curb, but this was “backwards” speculation. It was contradicted by the evidence. Aside from Rudis’s own testimony, Cargill himself acknowledged at the Evidence Code section 402 hearing that if a police car had done so, there was a “reasonable likelihood of either a slightly bent rim or even a blown tire” resulting. However, there was no evidence that the police car actually suffered such damage. Cargill’s testimony also relied on air filter damage to the motorcycle that he noticed about two years after the accident, and he built his theory “backwards” based on this damage despite his lack of knowledge about the motorcycle’s pre-crash condition, or the way the motorcycle was transported from the scene and stored thereafter in defendant’s grandmother’s garage, which the court could reasonably conclude was not a reliably secure facility where the motorcycle could not have been disturbed. He made assumptions about certain traveling speeds for the motorcycle and Rudis’s police car that were based on nothing more than his conclusion that a crash had occurred. He did not take into account Langi’s police report prepared at the time of the incident, including statements by defendant and facts that directly contradicted his theory. Furthermore, the court could reasonably conclude that Cargill’s model utilized motorcycle and police car models that were not necessarily the same as those involved in the incident, given that Cargill acknowledged that he had made repairs of the motorcycle, and used a commercially available three-dimensional model of Rudis’s type of police car.
The trial court also acted within its discretion when it found the excluded accident reconstruction evidence was only minimally relevant. There was overwhelming evidence that defendant had fled from Rudis, and that he had done so with an intent to evade and with wanton disregard for the safety of persons or property before he turned onto Ninth Lane. While the defense argues on appeal that the accident reconstruction indicates Rudis was a liar, and therefore casts doubt on his testimony about the entire chase, Hyink’s and Plank’s testimony regarding the portions of the chase they witnessed, and defendant’s admissions about his flight in an interview with Rudis and Langi at the time undermine this theory.
We are referring to Hyink’s testimony at the pre-trial hearing held pursuant to Evidence Code section 402, and Plank’s testimony at trial prior to defendant’s motions for reconsideration, both of which we have summarized herein.
Defendant makes numerous arguments on appeal in his effort to persuade this court to reverse the trial court’s ruling. He argues that the court did not fairly weigh the probative value of Cargill’s testimony; that the court failed to explain its Evidence Code section 352 analysis; that with the exception of the amount of time that had passed between the incident and Cargill’s tests—which defendant considers “irrelevant”—“it is impossible to relate the conclusory terms in the court’s order to any particular part of the testimony at issue”; that the court’s analysis was “calculated to favor the prosecution”; that the exclusion of Cargill’s testimony was contrary to the “legislative intent” behind Evidence Code sections 210 (regarding relevant evidence) and 801 (regarding expert opinions); that the exclusion of the evidence was “contrary to prevailing case law”; that the court failed to take into account that any problematic aspects of Cargill’s opinion would be brought out in cross-examination, and that the court ignored various grounds defendant contends required the court to grant its motions for reconsideration of its exclusion of the evidence, including Rudis’s testimony at trial that while his patrol car might have “contacted” defendant’s motorcycle after it had stopped, his car’s push bar “absolutely did not contact” the motorcycle’s air filter.
Defendant’s arguments are unpersuasive because they fail to sufficiently address the lack of foundation for the excluded evidence, as we have discussed herein, and the court’s wide discretion in evaluating its probative value under Evidence Code section 352.
As the People point out, case law supports the trial court’s ruling. In Solis v. Southern California Rapid Transit Dist. (1980) 105 Cal.App.3d 382 (Solis), the trial court allowed an accident reconstruction expert to testify for the defendant regarding how a bus-pedestrian accident occurred in a case in which whether or not the plaintiff was in the crosswalk when hit by the bus was an issue in dispute. The appellate court held the trial court erred in admitting the evidence because there was a lack of foundation regarding the expert’s conclusions. (Id. at p. 384.) The expert had attempted to determine the approximate point of impact based on photographs, “certain assumptions,” and an experiment he conducted more than two years after the accident. (Id. at pp. 387-388.) The appellate court noted that “[m]any decisions have excluded such expert testimony attempting to work backward from the point of rest, where under the circumstances of the case too many variables were involved, so as to make the opinion based primarily upon conjecture and speculation.” (Id. at p. 389.)
Defendant’s efforts to distinguish the facts of Solis, supra, 105 Cal.App.3d 382, from those before the trial court below are unpersuasive. As Solis makes clear, a trial court may exercise its discretion to exclude accident reconstruction expert evidence if it reasonably finds that the evidence is based on assumptions and “backwards” analysis such that the evidence is based primarily on conjecture and speculation.
Defendant also discusses at some length Box v. California Date Growers Assoc. (1976) 57 Cal.App.3d 266, 275, in which the appellate court affirmed the trial court’s decision to admit plaintiff’s proffered accident reconstruction evidence. Box, however, does not excuse defendant from the need to establish proper foundation; indeed it states with regard to the issue involved in the case, the path of a motorcycle after impact in a collision, “that certain indefinite factors may enter into the determination . . . but these are relevant to the weight of an expert’s opinion rather than its admissibility if a proper foundation has been laid.” (Id. at p. 275, italics added.) The court found that the expert had sufficiently rested his opinions on certain factors, such as the distance travelled by the subject motorcycle after the collision and the point of rest of plaintiff’s body. (Ibid.) The discussion indicates these factors did not involve the kinds of assumptions and speculation offered by Cargill below.
We conclude the trial court did not abuse its discretion regarding defendant’s proffered evidence. Defendant’s argument is without merit.
II. Testimony About Defendant’s Mental Condition
A. The Proceedings Below
The People filed a motion in limine to exclude testimony by Dr. Fred Rosenthal, a psychiatrist, to the effect that defendant was suffering from an undiagnosed mental condition at the time of the vehicle chase. At the hearing on the motion, defendant argued that he wanted to present Rosenthal's testimony to explain why he had “done the things he has over the course of the years, why he had gotten involved with methamphetamine, what is he doing that creates the situation where you would run from a police officer and get himself arrested under circumstances like this, other than readiness to do evil, other than being someone who has a criminal mind.” The court was told that Rosenthal had examined the defendant and concluded that he suffered from a previously undiagnosed bipolar disorder. It concluded that evidence of a mental disease, defect, or disorder might be relevant as to whether defendant formed a required mental state as defined in Penal Code section 28 (regarding the defense of diminished capacity), and held a pre-trial hearing to consider Rosenthal's proposed testimony.
Rosenthal testified at this hearing that he was a physician who specialized in the practice of psychiatry, although he did not have a psychology or psychiatry license. Based on a single two-hour interview with defendant two years after the chase, Rosenthal found “an indication” that defendant had a “serious mental illness” that had not been recognized or treated, namely a bipolar disorder, a manic depressive illness, which was chronic. He subsequently reviewed a Minnesota multiphasic personality inventory test that had been administered to defendant, which he thought had been administered by defendant’s counsel. He said defendant showed “an elevation of the paranoia scale in some indications that he is someone who tends to have bizarre thinking, delusional thinking,” and that this would be consistent with bipolar disorder. Rosenthal opined that defendant would not be able to evaluate his actions rationally, and would have paranoid reactions and overreactions, in stressful situations. Rosenthal also opined that defendant’s admitted extensive drug use before his arrest would have produced even more disorganized thought and paranoia. He concluded that defendant “wasn’t thinking of leaving the police, he was worried that the police officer was trying to kill him and he was trying to get away from that threat.” When defense counsel asked if defendant had a willful or wanton disregard for other people when he fled, Rosenthal replied that “he couldn’t think about that, he felt he was on the verge of getting injured or killed. He wasn't thinking about the surroundings, he was thinking about getting away from the threat.”
Rosenthal also testified that, before interviewing defendant, he had not looked at any information about the case. He had not read the police reports or the transcript of preliminary hearing, had not observed the crime scene, did not interview anyone else involved in the case, and did not talk to defendant's physician. He acknowledged that people suffering from bipolar disorder have varying levels of mental impairment and are still capable of committing crimes. He was not aware that defendant had a prior 1989 conviction for willfully evading a police officer, but said it would not change his opinion.
The trial court conditionally excluded Rosenthal from testifying at trial. It noted the evidence could only conceivably relate to whether, pursuant to the narrow terms of Penal Code section 28, defendant had a basis for mental illness, mental disorder defect, or the ability to form the required intent as it related to the Vehicle Code section 2800.2 count. It also pointed out that Rosenthal did not enter the case until two years after the incident, based his opinion exclusively on defendant's statements and his performance on one test, did not review the police reports, did not attempt to find out information about defendant's prior medical history, and did not know if defendant had any prior psychiatric or psychological care. The court expressed its concern that “many aspects of the proposed testimony . . . would go to the ultimate question for the jury to decide. It’s not the expert’s right nor ability to testify as to the ultimate issues on any of these cases.” It concluded that Rosenthal’s testimony was based almost exclusively on defendant’s self-serving statements with little or no other investigation. It excluded the testimony pursuant to Evidence Code section 352, and stated that it would reconsider its ruling if defendant testified and, in doing so, raised issues about his ability to form a specific mental intent.
B. Analysis
As we have already discussed, the trial court has “broad discretion” to determine the admissibility of evidence pursuant to Evidence Code section 352, and its exercise of this discretion “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues, supra, 8 Cal.4th 1060, 1124-1125.)
The trial court acted within its discretion when it conditionally excluded Rosenthal's testimony. It could reasonably conclude that it was little more than a way for defendant to testify without actually taking the stand. Rosenthal based his conclusions largely upon his two-hour examination of the defendant more than two years after the incident. Rosenthal had no information on which to opine about defendant's mental state at the time of the chase and, moreover, he conceded that someone suffering from bipolar disorder could be capable of functioning quite normally and of committing crimes. He had not consulted with any medical professionals who might have examined the defendant in the past, and was not familiar with the police reports regarding the incident. Thus, the court could reasonably conclude that Rosenthal's opinion was unreliable, and an improper way to let the jury hear defendant's version of events without having to subject defendant to cross examination. Defendant’s argument lacks merit.
III. Police Pursuit Policies
Defendant next briefly argues that the trial court should not have granted the People’s in limine motion to exclude evidence of police pursuit policies and procedures as offered by the defense. This evidence was purportedly relevant to showing that Rudis did act unreasonably and in violation of this policy. Defendant cites to nothing of substance in the record, and refers to only one case in a cursory fashion, in making this argument.
We have the discretion to disregard issues not properly addressed in the briefs, and may treat them as having been abandoned or waived. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Furthermore, “Because ‘[t]here is no duty on this court to search the record for evidence’ [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citations].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Defendant insufficiently presents his argument, and we decline to address it further.
Defendant also argues that the court's exclusion of the evidence proffered by the defense was prejudicial error, and denied him a fair trial in violation of his federal and state constitutional rights, while the People contend that any error was harmless and that no constitutional rights were violated. In light of our rulings, we have no need to consider these arguments further.
IV. Vehicle Code section 2800.2
Defendant also argues that his Vehicle Code section 2800.2 (section 2800.2) conviction for reckless flight violates his state and federal constitutional rights to equal protection. This is incorrect as well.
Defendant argues that two classes of defendants may be charged with violating section 2800.2. One class consists of defendants, like him, who flee from the pursuing officer and cause damage to property, and the other consists of defendants who flee from a pursuing police officer and cause ordinary bodily injury. The latter class can only be convicted of violating section 2800.2, subdivision (a), and then “only upon proof of the complex mental state, ‘willful or wanton disregard for the safety of persons or property.’ ” However, the former class, in which he is included, can be convicted under either section 2800.2, subdivision (a) or (b), and without a showing of willful or wanton disregard. Therefore, he concludes, his equal protection rights were violated.
Section 2800.2 states in relevant part:
There are a number of problems with defendant's argument. As a preliminary matter, he did not raise it before the trial court and, therefore, has waived it on appeal. (People v. Garceau (1993) 6 Cal.4th 140, 173 [waiver of Sixth Amendment appellate claim for failure to first raise below].)
Furthermore, defendant's interpretation of section 2800.2 is strained and, ultimately, unpersuasive in light of the express terms of section 2800.2, subdivision (b). Although it is not the most artfully stated provision, subdivision (b) does not establish a distinct crime. It merely defines the term “willful or wanton disregard for the safety of persons or property” as it is used in subdivision (a). (See People v. Howard (2005) 34 Cal.4th 1129, 1137 [indicating that subdivision (b) defines this term as used in subdivision (a)].) Indeed, section 2800.2, subdivision (b) indicates that an event in which damage to property occurs can be a factor in evaluating whether a person has acted in willful or wanton disregard for the safety of either persons or property. Moreover, the definition of “willful or wanton disregard for the safety of persons or property” “includes, but is not limited to, ” such an event. In other words, a violation of section 2800.2, subdivision (a), may be found because a vehicle was driven in a willful or wanton disregard for the safety of persons or property, whether or not actual damage to property occurred. Therefore, defendant’s two purportedly separate classes of defendants do not actually exist under section 2800.2.
Defendant relies heavily on People v. Hofsheier (2006) 37 Cal.4th 1185, in which the defendant was convicted of oral copulation with a 16-year-old girl in violation of Penal Code section 288a, subdivision (b)(1), and required to register as a sex offender under Penal Code section 290. Our Supreme Court found an equal protection violation in the fact that a defendant convicted of a separate and distinct crime of unlawful sexual intercourse with a minor under Penal Code section 261.6 was not required to register as a sex offender. (Hofsheier, at pp. 1193, 1206-1207.) Here, we are not confronted with two classes of defendants. Even if we were, the two classes ultimately would be convicted of the same crime and subject to the same penalties, unlike in Hofsheier. Therefore, the case in inapposite.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.
“(a) If a person flees or tends to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. . . .
“(b) 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.”