Opinion
F073429
10-09-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RICHARD RUTHERFORD, Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF48097)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After speeding through four stop signs on his motorcycle with a Tuolumne County Sheriff's Deputy in pursuit, defendant Michael Richard Rutherford was arrested and charged with one felony count of evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) (count 1), one misdemeanor count of driving on a suspended license (§ 14601.1, subd. (a)) (count 2), and one misdemeanor count of possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)) (count 3). Defendant pled guilty to the two misdemeanor charges and was convicted by jury of the felony evading charge. In a bifurcated proceeding, defendant admitted he suffered a prior felony conviction for battery, inflicting serious bodily injury, in violation of Penal Code section 243, subdivision (d), but disputed that the conviction qualified as a serious felony within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Vehicle Code unless otherwise stated.
The trial court sentenced defendant to the middle term of two years on count 1, doubled to four years based on his prior strike conviction; six months on count 2; and six months on count 3, with the sentences on counts 2 and 3 to run concurrently with the sentence on count 1. For violating his probation in a separate case, the court also sentenced defendant to eight months, for a total determinate prison term of four years eight months.
Tuolumne Superior Court Case No. CRF33303.
On appeal, defendant claims his conviction for evading a peace officer is unsupported by substantial evidence. He also claims that although he admitted his prior felony conviction for battery, he did not admit the conviction was a serious felony within the meaning of the Three Strikes law and the trial court's determination that the conviction qualified as a strike offense was unsupported by substantial evidence.
The People dispute defendant's entitlement to relief on either claim.
We conclude there was a failure of proof on one element of the felony evading offense, which compels reversal of defendant's conviction on count 1 for lack of sufficient evidence. Although the record shows defendant was aware of and fleeing the deputy, that is not enough to convict under the longstanding interpretation of the statute and we are constrained by this precedent to reverse the conviction. This conclusion renders defendant's challenge to the doubling of his sentence under the Three Strikes law moot and we do not reach that issue. We otherwise affirm the judgment.
The illogic of such an outcome in the face of overwhelming facts of defendant's awareness of the police pursuit and his purposeful evasion is manifest. Yet, we must yield to precedent. It is an issue which the Legislature, in the interest of justice, may choose to address.
FACTUAL SUMMARY
On August 24, 2015, at approximately 12:30 p.m., defendant approached an intersection going approximately 50 miles per hour on his motorcycle. Seeing no traffic, he drove through the intersection without stopping at the stop sign. Deputy Cuellar, who was in full uniform and driving a marked patrol car, saw defendant blow through the stop sign and followed him. Cuellar did not activate his lights at that time. Due to curves in the road and defendant's speed, Cuellar caught up with defendant in the city of Tuolumne, about four miles away.
Defendant pulled into a residential driveway and Cuellar pulled in behind him, parking approximately 15 feet away. Cuellar activated the patrol car's lights, which included a red forward-facing light, and began to get out of the car. Defendant looked over his shoulder in Cuellar's direction, accelerated out of the driveway, drove in a circle in the roadway and took off.
Cuellar notified dispatch that defendant was fleeing and followed him. The patrol car's lights were still activated and he tried to activate the siren, but kept hitting the air horn instead, as he was not familiar with the patrol car's configuration. Cuellar testified it was reasonably necessary to activate the siren, but he instead hit the air horn by mistake three or four times.
Cuellar explained he had previously worked 15 years for the City of Santa Cruz and the City of Modesto and that was why he was, at that time, unfamiliar with his patrol car's configuration.
Defendant was going approximately 45 to 55 miles per hour in a 25 mile per hour residential zone. He drove through four stop signs without stopping, lost control, and started driving through front yards. Defendant stopped four to eight blocks from the house at which he had first stopped and pulled behind a vehicle in front of a residence. Cuellar stopped his patrol car halfway in the driveway and halfway in the roadway approximately 15 to 20 feet from defendant's motorcycle, which was facing the patrol car. After Cuellar parked and started getting out of the car, the motorcycle accelerated. Defendant appeared to lose control and he hit the front of the patrol car. Defendant landed on the hood and rolled off on the driver's side of the car.
Cuellar asked defendant if he was okay, handcuffed him and called for paramedics. Defendant told Cuellar his accelerator stuck and he did not mean to hit the officer's car, immediately after which he said, "[Y]ou hit me." Cuellar determined defendant's driver's license was suspended and he had warrants out for his arrest. Defendant told Cuellar he knew about the outstanding warrants.
After being transported to the hospital for pain, defendant told Cuellar he did not see anyone at the first stop sign so he went through it. He also told Cuellar he was going to his friend Nicole's house, which was the house Cuellar tried to stop him in front of. Defendant was subsequently released from the hospital and booked into jail.
Defendant testified and admitted running five stop signs, but denied he saw Cuellar pursuing him until Cuellar pulled behind him at the second house just prior to his collision with the patrol car. Defendant said he ran the first stop sign because there was no traffic and, when he pulled up at the house of his friend in Tuolumne, he saw a vehicle belonging to someone he did not want to associate with.
Angry at seeing that vehicle, defendant hit the throttle as hard as he could and left. He denied turning around in the street as Cuellar testified. He said the throttle on his motorcycle stuck after he hit it as hard as he could, the bike did not have a kill switch and he could not reach the key to turn it off. Defendant said he then lost control, ran the four stop signs and rode through people's front yards. He testified Cuellar came up behind him and they collided while both were still moving.
Defendant stated the collision knocked him out and it was later at the hospital he made the comment about Cuellar hitting him. He said the statement was taken out of context and rather than changing his story, he was conveying that they collided and hit one another. Defendant also admitted knowing he had warrants out for his arrest and, after denying he knew his license was suspended, he said he did not recall, but he had a license in his pocket.
DISCUSSION
I. Background
Defendant was convicted of evading a peace officer under section 2800.2, subdivision (a), which provides in relevant part:
"(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year."
Section 2800.1, subdivision (a), in turn provides:
"(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist:
"(1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.
"(2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary.
"(3) The peace officer's motor vehicle is distinctively marked.
"(4) The peace officer's motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform."
At issue in this case is whether substantial evidence supports the following element of the offense: "The peace officer's motor vehicle is sounding a siren as may be reasonably necessary." (§ 2800.1, subd. (a)(2).) Defendant argues all four factors are required to sustain a conviction and the uncontroverted evidence demonstrates it was reasonably necessary to activate the siren. He also argues that the purpose served by sounding the siren is not limited to placing the fleeing defendant on notice; it also serves to warn other users of the road. Finally, relying on People v. Hudson (2006) 38 Cal.4th 1002 (Hudson) and People v. Byrd (2016) 1 Cal.App.5th 1219 (Byrd), he points out that satisfaction of one factor may not be substituted for satisfaction of another, and the jury should have determined whether sufficient evidence supported the requirement that a siren be sounded as reasonably necessary without reference to whether he had actual notice of the pursuit.
The People counter that the purpose of the light and sound requirements is to notify the person being pursued of the pursuit, and the siren requirement is qualified by the language "as may be reasonably necessary." (§ 2800.1, subd. (a)(2).) They contend activation of the siren was not necessary here because "[t]he facts clearly establish that [defendant] was adequately informed" of the pursuit and, therefore, it was reasonable for the jury to find use of the siren was not "reasonably necessary."
II. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
III. Analysis
The principles of statutory interpretation are well established. "[T]he language used in a statute or constitutional provision should be given its ordinary meaning, and '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).' [Citation.] To that end, we generally must 'accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and have warned that '[a] construction making some words surplusage is to be avoided.'" (People v. Valencia (2017) 3 Cal.5th 347, 357; accord, Hudson, supra, 38 Cal.4th at p. 1009; People v. Estrella (1995) 31 Cal.App.4th 716, 722-723.)
The parties do not identify any cases addressing "as may be reasonably necessary" within the meaning of section 2800.1, subdivision (a)(2), nor have we found any. However, resolution of the claim in this case does not require us to define the phrase "as may be reasonably necessary" within the meaning of the statute or address the parties' conflicting views over the scope of statutory intent. Whatever the bounds of "as may be reasonably necessary" may be and whatever the full scope of legislative intent (see People v. Copass (2009) 180 Cal.App.4th 37, 41 [statutory purpose is to provide notice of pursuit by an officer]; People v. Estrella, supra, 31 Cal.App.4th at p. 723 & fn. 4 [purpose of statutory elements is to provide notice to person being pursued of pursuit and requirement of a distinctively marked car also serves to protect public at large from being stopped by anyone with a red light and siren]), there is no dispute that the siren requirement is conditioned by "as may be reasonably necessary," and it remains that Deputy Cuellar, the sole witness to testify on the issue, stated that in his opinion, the use of his siren was reasonably necessary.
At trial, the prosecutor focused his argument on defendant's notice of the pursuit, as do the People on appeal. However, in Hudson, the California Supreme Court made clear that "the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform." (Hudson, supra, 38 Cal.4th at p. 1008; accord, Byrd, supra, 1 Cal.App.5th at p. 1223.) We are bound by this determination. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198, quoting Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, each element must be proved beyond a reasonable doubt. (Byrd, supra, at p. 1223; People v. Acevedo (2003) 105 Cal.App.4th 195, 197-198.) As the Court of Appeal more recently recognized in Byrd, "The statute does not require that either [the] defendant actually knew of the police officers' presence in pursuit or that the pursuit met the requirements listed in section 2800.1." (Byrd, supra, at p. 1225.)
In Hudson, the California Supreme Court addressed what constituted a "distinctively marked" patrol car. It recognized that one Court of Appeal had opined "the 'appropriate test is whether there is substantial evidence in the record from which a reasonable trier of fact could conclude the red light and siren were sufficient "distinctive markings to inform any reasonable person he was being pursued by a law enforcement vehicle."' [Citation.] Whether the pursuing police car is distinctively marked, the court said, depends on the totality of the circumstances." (Hudson, supra, 38 Cal.4th at p. 1009, quoting People v. Chicanti (1999) 71 Cal.App.4th 956, 962.) The high court disagreed with this articulation of the test and reiterated that all of the statutory conditions must be met. (Hudson, supra, at pp. 1009-1011.) The court concluded it was therefore error for the appellate court to rely on the red light and the siren—themselves separate elements—to satisfy the additional element of a distinctively marked patrol car. (Id. at pp. 1010-1011 & fn. 3.)
Use of the siren is conditional, as the parties agree, and it differs in that respect from the other statutory elements of a red light, distinctively marked vehicle and peace officer in a distinct uniform, which are required without similar qualification. Here, Cuellar testified the purpose of the requirement is to alert oncoming traffic and citizens, and traffic was light and there were no people around. However, it is undisputed that defendant was driving 20 to 30 miles per hour over the speed limit in a residential area, during which time he ran four stop signs and drove through front yards after losing control of his motorcycle. Cuellar, a law enforcement veteran of more than a decade, testified unequivocally that it was both reasonably necessary and important to activate the siren in this instance and he tried to do so several times but was not successful.
It was undisputed that Cuellar tried to sound his siren, but was unsuccessful and the parties stipulated that a horn is not a siren. The unique facts of this case, which necessarily compel the disposition reached, suggest it is unlikely that such a situation will repeat itself with any frequency, if at all.
The People do not contend otherwise with respect to the specifics of Cuellar's testimony but, as previously mentioned, the prosecutor focused during trial on whether defendant had notice he was being pursued by Cuellar and the People maintain that focus on appeal. Given the hurdle presented by the evidence, the prosecutor was left with little else to argue, but this focus nevertheless impermissibly permitted the jury to convict defendant of the offense without the prosecutor having met his burden of proof on the siren element. (See Hudson, supra, 38 Cal.4th at pp. 1009-1010; Byrd, supra, 1 Cal.App.5th at p. 1223.)
We have no difficulty envisioning a case in which the facts permit the jury to conclude that use of a siren was not reasonably necessary under the circumstances, including cases in which there is competing evidence regarding necessity. Here, however, the deputy engaged in the pursuit—and the only percipient witness to testify other than defendant—testified that, in his professional judgment, use of the siren was reasonably necessary and his failure to activate it was purely the result of his confusion of the patrol car's configuration. Nothing in the record undermines his testimony on this issue. A jury's factual findings may not be based on speculation or conjecture and under the circumstances here, there is not sufficient evidence from which a reasonable trier of fact could have concluded that it was not reasonably necessary to use a siren. Accordingly, defendant's conviction must be reversed as unsupported by substantial evidence.
We note that on redirect examination, the prosecutor asked Cuellar if his previous testimony that use of the siren was reasonably necessary was a legal conclusion. After the trial court overruled defendant's objection, Cuellar answered it was not and he believed it was important to activate the siren.
As we noted, the facts of this case are somewhat unusual, but we observe that we are not the first court to grapple with reversal of a conviction under this statute for failure of proof nor are we the first court compelled to do so despite the existence of ample evidence that defendant knew he was being pursued by an officer. (Byrd, supra, 1 Cal.App.5th at p. 1225 [reversing conviction under § 2800.2, subd. (a), for failure of proof on distinctive uniform element]; People v. Acevedo, supra, 105 Cal.App.4th at p. 200 [reversing conviction under § 2800.2, subd. (a), for failure of proof on red light element].) We therefore echo those courts in pointing out that any remedy necessarily lies with the Legislature. (Byrd, supra, at p. 1225; People v. Acevedo, supra, at p. 200.)
In Byrd, the Court of Appeal observed, "We thus are compelled to conclude that despite [the] defendant's admission under oath of actual knowledge as to the identity of his pursuers as law enforcement officers, because the prosecutor neglected to ask a single, simple question to elicit evidence of the officers' attire and there is no evidence otherwise in the record that the officers were wearing distinctive uniforms, [the] defendant's conviction cannot stand. Although our conclusion may seem bewildering to some, any remedy lies '"on the other side of Tenth Street, in the halls of the Legislature."'" (Byrd, supra, 1 Cal.App.5th at p. 1225, quoting Siskiyou County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 420-421.) --------
DISPOSITION
Defendant's conviction on count 1 for evading an officer with willful or wanton disregard for safety, in violation of Vehicle Code section 2800.2, subdivision (a), is reversed and count 1 is ordered dismissed. The judgment is otherwise affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.