Summary
In People v. Scarborough, No. A147529, 2018 WL 3046120 (Cal. Ct. App. June 20, 2018) (unpublished), the defendant drove the wrong way, in reverse, at a high rate of speed in a residential neighborhood and, later, jumped out of the car while it was moving, causing the unoccupied car to veer off the road into bushes near an elementary school, shortly after school let out.
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A147529
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMY DALE SCARBOROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR938443)
A jury convicted defendant Jimmy Dale Scarborough of driving with a "willful or wanton disregard for the safety of persons or property" while evading a pursuing police officer (Veh. Code, § 2800.2, subd. (a); count one), and driving in a direction opposite to that in which the traffic lawfully moves while evading a pursuing police officer (§ 2800.4; count two). Section 2800.2, subdivision (b), provides that "[f]or 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."
Unless otherwise stated, all further statutory citations are to the Vehicle Code.
On appeal, Scarborough contends the trial court committed instructional error as to count one (§ 2800.2) by failing to define, sua sponte, the elements of the predicate Vehicle Code violations used to establish his willful or wanton disregard for safety. Scarborough further contends the trial court erred by including reckless driving (§ 23103) as one of the predicate offenses because reckless driving is a necessarily included element in every section 2800.2 charge. Thus, Scarborough argues, the trial court's erroneous instruction improperly reduced the prosecution's burden to prove three predicate offenses. As to count two, Scarborough argues the evidence was insufficient to support his conviction because section 2800.4 only prohibits driving against the direction of traffic on one-way highways and therefore did not apply to his conduct on a two-way street. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Car Chase
On the afternoon of January 20, 2015, Clearlake Police Sergeant Travis Lenz was patrolling westbound on Arrowhead Road in Clearlake. As Lenz passed the intersection of Arrowhead Road and Oleander Street, he saw a white Acura Legend with no front windshield traveling southbound on Oleander Street. Since driving without a windshield is a Vehicle Code violation, Officer Lenz made a U-turn on Arrowhead and proceeded eastbound back to the intersection of Oleander and Arrowhead. Lenz saw the Acura backing up at "a high rate of speed" "[i]n the middle right down the center" of Oleander Street. Lenz turned on his overhead emergency lights, which include a forward-facing red light, then turned left onto Oleander Street, and was "sort of face to face" with the Acura as it went in reverse. Lenz testified the Acura's driver was traveling on the "wrong side of the roadway" at "speeds that are unsafe due to the fact that he's driving in reverse down the city street."
Lenz pursued the Acura for 212 feet up Oleander Street until it backed into a driveway. He parked in front of the Acura at a 45-degree angle, with approximately 10 to 15 feet between him and the driver of the Acura. Lenz stepped out of his car and recognized the driver of the Acura to be Scarborough, whom he had seen before in a prior law enforcement contact. He also knew that Scarborough lived approximately a mile away from where this incident took place. Lenz pointed his gun at Scarborough, ordered him to stay in his car, and repeatedly yelled, "Put your hands in the air," but Scarborough only put one of his hands in the air and then put it back down by his waistline. Another man Lenz recognized from numerous police contacts, George Newberry, was standing in the driveway about 10 feet away from the Acura.
Lenz, a police canine handler, let his dog out of the police car and threatened to send it into Scarborough's car. After several canine announcements, Scarborough put his car into drive, drove around Lenz's patrol vehicle, and drove northbound on Oleander Street. Lenz pursued Scarborough. By this time, Scarborough already "had a pretty good jump on" Lenz and was approximately 100 yards ahead.
That portion of Oleander Street where Lenz drove in pursuit of Scarborough's car is an unpaved, unmaintained two-way dirt road with no dividing line and some potholes and ruts. The neighborhood is residential, and Pomo Elementary School, located three blocks east of the scene of the vehicle chase, had released students approximately 20 minutes before Lenz began to pursue Scarborough's car.
While in pursuit of Scarborough, Lenz reached speeds of up to 60 miles per hour and estimated Scarborough's speed at over 60 miles per hour "because [he] couldn't catch [Scarborough]." Due to the dust generated by Scarborough's vehicle, the Acura was obscured by "a giant dust cloud," and Lenz followed the taillights through the dust. As the Acura drove through the next intersection at Oregon Avenue and Oleander Street, it began to slow down. When Lenz caught up with Scarborough, both vehicles were going 20 to 30 miles per hour. Lenz could not see anyone in the driver's seat and thought Scarborough jumped out of the car while it was moving, but he did not see Scarborough do so. The Acura continued on Oleander Street for about 50 yards north of Oregon Avenue and then went off the side of the road into some bushes. Lenz stopped his car and approached the Acura, but no one was in it. The entire incident lasted about two minutes. Afterwards, Lenz called for assistance and used his police dog to follow footprints west toward Second Street. A resident told Lenz she saw a white male run along the south side of her fence line to Second Street and get into a silver vehicle.
II. Charges
On April 30, 2015, the Lake County District Attorney filed a two-count information charging Scarborough with evading a pursuing police officer while driving with a willful or wanton disregard for safety (§ 2800.2) and driving on a highway in a direction opposite lawful traffic while fleeing a peace officer (§ 2800.4). The information also alleged that Scarborough had been convicted of two strike offenses (Pen. Code, §§ 667, subds. (b)-(j) & 1170.12) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b).) Scarborough pleaded not guilty to both counts and denied the prior convictions and enhancements.
III. Trial
Trial in this matter commenced with counsel for each party giving an opening statement. Defense counsel argued that Lenz's eyewitness identification of Scarborough was unreliable. She pointed out that the chase was "less than three quarters of a mile on a horrible, horribly potholed dirt road, and the amount of time that the officer actually had eyes on the person in the car was very brief." Thus, she argued, "you will be convinced that the eyewitness testimony is unreliable and find the defendant not guilty."
The prosecution's evidence was limited to the testimony of Officer Lentz, who described the incident and identified Scarborough as the driver of the Acura. The defense offered the testimony of one witness, an investigator named Michael Hermann. Hermann testified that Oleander Street was "[m]ainly dirt, poorly maintained, rough, rugged in different areas." It was "not routinely graded" and was "just rugged, lots of potholes." The road is "straightish for the most part until you get to Sonoma. . . . It's not the straightest between Sonoma and Oregon now, lots of little turns." He further testified that between Sonoma Avenue and Oregon Street, there is "about a six-foot elevation in the road" and "major ruts in it."
The prosecution also called Newberry, but he asserted his Fifth Amendment privilege against self-incrimination.
At the conclusion of the evidence, the trial court instructed the jury on count one (§ 2800.2) using CALCRIM No. 2181, which substantially tracks the language of sections 2800.1 and 2800.2. The instruction stated, in pertinent part: "Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, committing three or more violations that are each assigned a traffic violation point. Speeding, driving on the wrong side of the road, unsafe reversal and reckless driving are all each assigned a traffic violation point." Scarborough did not object to the instruction.
"Any person, who, while driving a car, intentionally flees from or tries to elude a pursuing police car, is guilty of a misdemeanor. (§ 2800.1, subd. (a).) The offense becomes a felony when the defendant drives in a willful or wanton manner with disregard for the safety of persons or property. (§ 2800.2, subd. (a).)" (People v. Acevedo (2003) 105 Cal.App.4th 195, 197.)
This was consistent with the bench notes to CALCRIM No. 2181, which state in pertinent part: "Give the bracketed definition of 'driving with willful or wanton disregard' if there is evidence that the defendant committed three or more traffic violations. The court may also, at its discretion, give the bracketed sentence that follows this definition, inserting the names of the traffic violations alleged." (Bench Notes to CALCRIM No. 2181 (2018) p. 192.) The bracketed sentence following the definition reads: "[__________ <insert traffic violations alleged> are each assigned a traffic violation point.]"
In its closing summation, the district attorney argued that Scarborough's decision to jump out of a moving vehicle was, by itself, evidence of willful or wanton disregard for safety. The district attorney further contended the jury could also consider evidence of the Vehicle Code violations committed by Scarborough that were assigned a traffic violation point, "[b]ut like I said, when you bail out of a moving car and just let it crash, come on."
Defense counsel argued there was reasonable doubt as to Lenz's identification of Scarborough due to the brief amount of time in which the incident took place, "most of which was, apparently, in a dust cloud," and the lack of physical evidence connecting Scarborough to the pursued vehicle. Defense counsel further pointed to the lack of evidence of injuries to Scarborough despite Lenz's claim that Scarborough jumped out of the Acura while it was still moving 25 to 30 miles per hour. She concluded, "There is a reasonable doubt that [Scarborough] wasn't apprehended because he wasn't there."
The jury found Scarborough guilty on both counts. Scarborough timely appealed.
DISCUSSION
I. Any error by the trial court in failing to amplify the jury instructions on the elements of the predicate Vehicle Code offenses was harmless beyond a reasonable doubt.
Scarborough contends the trial court committed instructional error as to count one (§ 2800.2) by failing to define, sua sponte, the elements of the predicate Vehicle Code violations used to establish his willful or wanton disregard for safety. The district attorney counters that the trial court did not have a sua sponte duty to instruct the jury on the elements of these traffic infractions because they are not elements of section 2800.2, but simply alternate ways to prove the necessary element of willful or wanton disregard.
In the interest of expediency, we decline to address this issue, because even if Scarborough is correct that the trial court erred in failing to give amplifying instructions, the error was harmless.
The parties agree that the harmless error rule of Chapman v. California (1967) 386 U.S. 18 applies. Under the Chapman standard, " '[i]n deciding whether a trial court's misinstruction on an element of an offense is prejudicial to the defendant, we ask whether it appears " ' "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " ' " (People v. Wilkins (2013) 56 Cal.4th 333, 350.) Scarborough contends the error was not harmless beyond a reasonable doubt because the evidence could support a finding that he did not drive with a willful or wanton disregard for safety, as no one was hurt, no property was damaged, and no pedestrians or cars were threatened.
The district attorney argues that any instructional error on the point-count theory was harmless beyond a reasonable doubt because the primary theory of the prosecution was that Scarborough's act of jumping out of a moving vehicle was, by itself, sufficient to establish willful or wanton disregard for safety. We agree with the district attorney's contention that a conviction under section 2800.2 need not rest upon a showing of three point-bearing Vehicle Code violations since the definition of willful or wanton disregard for safety "includes, but is not limited to," commission of three points violations. (§ 2800.2, subd. (b), italics added.) Nevertheless, " '[w]hen a legally erroneous theory of conviction is presented to the jury, reversal is required unless, on the record made at trial, the reviewing court can determine that the conviction actually, if not solely, rests on a legally proper theory.' " (People v. Diaz (2005) 125 Cal.App.4th 1484, 1491-1492 (Diaz).) Because we are assuming, for the sake of argument and expediency, that there was instructional error on the point-count theory, and the record before us fails to disclose which of the two theories the jury's conviction actually rested upon, we cannot presume the jury relied solely on the correctly instructed theory in determining whether the instructional error was not prejudicial.
Nevertheless, we have no trouble concluding that any instructional error on the point-count theory was harmless beyond a reasonable doubt because the omitted elements of the Vehicle Code violations were not contested and there was overwhelming evidence in support of Scarborough's guilt. (See Neder v. United States (1999) 527 U.S. 1, 18-19; People v. Flood (1998) 18 Cal.4th 470, 504-505 [instructional error removing element of crime from jury's consideration is harmless where defendant concedes or admits element].) As the district attorney persuasively argues, Scarborough's sole defense at trial was that Lenz's identification of him was unreliable. This defense was necessarily rejected by the jury when it returned a guilty verdict. Scarborough made no attempt to contest the prosecution's evidence that the driver of the Acura committed the four predicate offenses at issue. (See People v. Gary (1987) 189 Cal.App.3d 1212, 1217 [failure to instruct jury on charged "acts forbidden by law" in DUI case was harmless beyond reasonable doubt where sole defense of identity was rejected and there was no evidence from which jury could have found in favor of defendant on omitted element].)
Scarborough, now seeking to advance a defense he did not put forth at trial, claims the evidence of speed was disputed because one of the "apparent" purposes of Hermann's testimony was to establish that Oleander Street was so rough that no one could reach speeds Lenz claimed Scarborough reached. We disagree. We find nothing in Hermann's testimony attempting to dispute Lenz's estimate of Scarborough's speed. While investigator Hermann did testify regarding the elevation in the road after one of the intersections along the chase path, as well as the need for cars to maneuver around holes and ruts, he offered no testimony regarding the speed of cars on Oleander Street or their inability to reach speeds exceeding 60 miles per hour. In addition, defense counsel argued that Hermann's testimony regarding the poor condition of the road and the dust generated during the pursuit was evidence that rendered Lenz's identification of the driver of the Acura unreliable. Defense counsel did not dispute Scarborough's estimated speed during her opening and closing arguments.
On the first day of trial, outside the presence of the jury, the court heard a defense motion for a jury view of the road during which Scarborough's counsel alluded to "the collateral issue of whether or not [Scarborough] was speeding" and the question of "if you can get a car up to 60 miles an hour on that read [sic]." However, we have not found or been directed to any portion of the record in which defense counsel argued or questioned a witness in front of the jury to cast doubt about Scarborough's alleged speed during the chase.
In addition to being undisputed, the evidence overwhelmingly supported the elements for violating the prima facie and basic speed laws. The chase occurred in a residential neighborhood where driving in excess of 25 miles per hour is prima facie unlawful unless the defendant establishes by competent evidence that the speed in excess of said limit did not constitute a violation of the basic speed law at the time, place and under the conditions then existing. (§§ 22351, subd. (b), 22352, subd. (b)(1).) The basic speed law 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.) Lenz testified that he could not catch up to Scarborough's car as it drove northbound on Oleander Street even though he (Lenz) was driving 60 miles per hour. Scarborough did not dispute that he lived nearby or that the chase occurred three blocks from an elementary school shortly after school was let out. On this record, we do not believe an amplifying instruction detailing the elements of the basic speed law would have changed a single juror's mind. To the contrary, the relevant factors such as poor visibility, uneven surface of the road, and the potential danger to pedestrians (including young schoolchildren) would have called for adherence, not exception, to the prima facie speed limit.
Under the Vehicle Code, " '[h]ighway' is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." (§ 360.)
The evidence also overwhelmingly supported the elements for reckless driving, which is statutorily defined as driving "a vehicle upon a highway in willful or wanton disregard for the safety of persons or property . . . ." (§ 23103.) The term "willful" refers to the "intentional disregard for safety." (People v. Dewey (1996) 42 Cal.App.4th 216, 221.) Because it was undisputed that the chase took place near a school and Scarborough's own residence, the evidence strongly supported his intentional disregard for the safety of persons he knew were likely to be walking through the area at the time of the chase. Additionally, the evidence that Scarborough jumped out of a moving vehicle at 20 to 30 miles per hour strongly supported a finding of his intentional disregard for the safety of persons or property that could have been hit after he relinquished control of the vehicle. Scarborough suggests there was a dispute about how fast the car was moving when it was abandoned because a juror asked whether Scarborough had " 'any marks or scratches that might have come or was possibly due to jumping out of a moving vehicle[.]' " We disagree. Because the sole defense was identity, and the defense never contended that the Acura was abandoned at a speed that posed no danger to persons or property, the jurors' question necessarily went to the defense's contention (ultimately unsuccessful) that it was someone else who drove and jumped out of the Acura during the chase.
The evidence also overwhelmingly supported the charge of driving on the wrong side of the road. Section 21650 provides, in relevant part: "Upon all highways, a vehicle shall be driven on the right side of the roadway, except as follows: [¶] (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." Scarborough argues there was no evidence about the width of Oleander Street or whether two vehicles could pass each other on that street. To the contrary, the jury was shown photographs of Oleander Street facing north from Arrowhead Road and of Newberry's driveway from Oleander Street (depicting a vehicle parked in the driveway), which provided the jury with the means to visualize the street's width relative to a vehicle. Furthermore, Lenz testified that Oleander Street was a two-way road and that Scarborough quickly reversed down the middle of Oleander Street for more than 200 feet. Thus, the evidence strongly supported the charge that Scarborough failed to drive on the correct side of a two-way road.
Finally, the evidence overwhelmingly supported the charge of unsafe reversal. Section 22106 states: "No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety." Scarborough argues a jury could easily doubt that an "old and battered" car could back up such a potholed street in such a brief stretch at a high rate of speed. There was no evidence, however, regarding the driving condition of the Acura, only its lack of a front windshield. Lenz's testimony that the Acura reversed 200 feet (more than half the length of a football field) at a high rate of speed on a residential dirt road shortly after elementary school let out strongly supported the charge that Scarborough backed a vehicle on a highway without exercising reasonable safety.
We quickly dispose of Scarborough's contention that sections 22106 and 23103 are unconstitutionally vague, as we find no clear and unmistakable infirmity that would overcome the strong presumption of constitutionality for these legislative enactments. (See Findley v. Justice Court (1976) 62 Cal.App.3d 566, 570.) The words "reasonable safety" in section 22106 and "willful or wanton disregard" in section 23103 are sufficiently certain to inform persons of ordinary intelligence of the nature of the offenses which are prohibited, based on common experiences with motor vehicles. (See People v. Morgan (2007) 42 Cal.4th 593, 606 [standards of reasonableness are not impermissibly vague provided their meaning can be objectively ascertained by reference to common experiences of humankind]; People v. Richie (1994) 28 Cal.App.4th 1347, 1361 ["willful" and "wanton" as used in § 23103 are commonly understood]; People v. Smith (1939) 36 Cal.App.2d Supp. 748, 750-754 [reckless driving statute not unconstitutionally vague].)
For these reasons, we conclude that even if the trial court erred in failing to instruct the jury on the elements of the predicate Vehicle Code violations for purposes of section 2800.2, subdivision (b), the error was harmless beyond a reasonable doubt.
II. The inclusion of reckless driving as a predicate offense did not reduce the prosecution's burden of proof because reckless driving is not a lesser included offense to section 2800 .2.
Scarborough contends it was error to include reckless driving (§ 23103) as a predicate offense under section 2800.2, subdivision (b). He argues that because both offenses share the same statutory element of "willful or wanton disregard for safety of persons or property," one cannot violate section 2800.2 without also violating section 23103, and thus, the use of reckless driving as a predicate offense improperly reduced the prosecution's burden of proof from three predicate offenses to two.
The district attorney argues that reckless driving is not a lesser included offense to section 2800.2 because it is possible to violate section 2800.2 without violating section 23103.
"To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must be met. The elements test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]' [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
The parties do not address the accusatory pleading test. We find it is not satisfied because the accusatory pleadings in this case simply alleged that Scarborough "drove with a willful wanton disregard for the safety of persons and property." The pleadings did not describe Scarborough's section 2800.2 violation in a way that necessarily included the offense of reckless driving under section 23103.
In Diaz, the court held that a violation of section 21806 (failure to yield right of way for emergency vehicle) could not be used as one of the three predicate offenses to establish willful or wanton disregard under section 2800.2, subdivision (b), because the violation "is necessarily included in the offense of evading pursuit" and therefore "would mean there is automatically one qualifying violation for the purpose of section 2800.2(b) whenever the People have proven the offense of evading pursuit. In other words, the People are given a 'freebie,' and their burden is reduced from three violations to two violations." (Diaz, supra, at p. 1491.)
Although sections 2800.2 and 23103 each require proof of "willful or wanton disregard for the safety of persons or property," that these statutes have a common element does not establish that section 2800.2 necessarily includes a violation of section 23103. This is so because "the Legislature is empowered to select the elements of crimes [citation] and modify the mental elements included in the statutory definition of a crime [citations]. . . . Accordingly, the same phrase may appear in two statutes establishing offenses, yet convey different meanings." (People v. Taylor (2018) 19 Cal.App.5th 1195, 1202 (Taylor).) Of significance here, section 2800.2, subdivision (b), defines the willful or wanton disregard element "[f]or purposes of this section" (italics added) to include evading a peace officer while committing three point-bearing Vehicle Code violations, and a person can engage in this type of conduct without intentionally disregarding the safety of persons or property. (See, e.g., People v. Howard (2005) 34 Cal.4th 1129, 1132, 1136-1139 [discussing point-bearing violations under section 12810 that can be committed without endangering human life].) Thus, while the element of willful and wanton disregard is common to both statutes, section 2800.2 permits proof of this element by conduct not necessarily included in section 23103. (See Taylor, supra, at p. 1202 [holding that driver may violate section 2800.2 without manifesting mental state necessary for offense of reckless driving].)
Scarborough argues this conclusion conflicts with People v. Laughlin (2006) 137 Cal.App.4th 1020 (Laughlin) and People v. Pinkston (2003) 112 Cal.App.4th 387 (Pinkston), which held that section 2800.2, subdivision (b), does not create an unconstitutional mandatory presumption that three point-bearing Vehicle Code violations always amount to willful and wanton disregard. We disagree. Laughlin and Pinkston, as well as several other cases addressing this issue, held there is no impermissible mandatory presumption when a statute such as section 2800.2 creates a rule of substantive law by defining the conduct that establishes an element of the offense as a matter of law. (See Laughlin, at pp. 1025-1028; Pinkston, at pp. 392-394; Diaz, supra, 125 Cal.App.4th at p. 1487; Taylor, supra, at pp. 1201-1205; People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1446.) Our holding that reckless driving under section 23103 is not a lesser included offense to section 2800.2 does not conflict with these cases, but is based on the same premise—that section 2800.2's substantive definition of "willful or wanton disregard" for purposes of "this section" (italics added) does not require the same mental state for reckless driving under section 23103.
Because reckless driving under section 23103 is not a lesser included offense to section 2800.2, the use of reckless driving as one of the three point-bearing Vehicle Code violations which the prosecution had to prove did not improperly reduce its burden of proof.
III. The evidence was not insufficient on count two because section 2800 .4 is not limited to one-way highways.
Scarborough argues that section 2800.4 only prohibits driving against the direction of traffic on one-way highways and cannot be interpreted to apply to two-way highways. According to Scarborough, when section 2800.4 was added to the Vehicle Code in 2006, the subject of fleeing a pursuing police officer while driving the wrong way on two-way streets was already established in sections 2800.1 through 2800.3 and 21650, and thus, the likely purpose of section 2800.4 was to address fleeing police while driving the wrong way on one-way streets. Any other interpretation, Scarborough contends, would make section 2800.4 duplicative of section 21650 (when paired with sections 2800.1 through 2800.3) and render the earlier enacted statutes unnecessary. Construing section 2800.4 in this way, Scarborough argues there was insufficient evidence to uphold his conviction because no evidence suggested that Oleander Street was a one-way street, and Lenz testified it was a two-way street.
Section 2800.3 elevates the offense of violating section 2800.1 to a felony whenever the attempt to elude a peace officer "proximately causes" serious bodily injury or death to any person. (§ 2800.3, subds. (a)-(b).)
The district attorney argues that the plain meaning and legislative history of section 2800.4 support the conclusion that the statute applies to driving against traffic on two-way streets.
This issue presents a threshold question of statutory interpretation, which we determine anew on appeal. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) "First, we 'examine the statutory language, giving it a plain and commonsense meaning.' " (People v. Canela (2014) 224 Cal.App.4th 703, 709.)
Section 2800.4 provides: "Whenever a person willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway, the person upon conviction is punishable by imprisonment for not less than six months nor more than one year in a county jail or by imprisonment in the state prison, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment."
We discern nothing in the statutory language that suggests section 2800.4 was intended to apply only to one-way highways. It is telling that section 2800.4 does not contain the term "one-way," since the Legislature has shown that when it wants to apply a Vehicle Code section or subdivision to "one-way" highways or traffic, it expressly does so. (See, e.g., §§ 21453, subd. (b), 21650, subd. (d), 21970, subd. (b), 22502, subd. (e)(1).)
Scarborough argues that because the phrase "on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway" refers to the prohibited direction in the singular, it cannot be read to apply to a street where traffic lawfully moves in two directions. Nonsense. We have no difficulty in reading the statutory language to apply to a two-way street. As mentioned, unless a statutory exception applies, vehicles move lawfully on a two-way street when they remain on the right-hand side in each direction. (§ 21650.) Thus, the language found in section 2800.4 expressly prohibits driving on the left- and right-hand sides of a two-way highway against the direction of lawful traffic on each side while fleeing from police.
Even if there was an ambiguity in the statute, the legislative history for Senate Bill 1735, which codified section 2800.4, demonstrates that the intent of the bill was to punish individuals who "drive down the wrong side of the road while fleeing a peace officer." (Sen. Rules Com., Bill Analysis on Sen. Bill No. 1735 (2005-2006 Reg. Sess.) May 2, 2006, italics added.) The italicized portion only makes sense if the authors were contemplating two-way roads.
Our interpretation of section 2800.4 does not nullify or render unnecessary sections 2800.1 through 2800.3 and 21650, as these statutes address a broader array of driving conduct than that which is prohibited by section 2800.4. Where statutes overlap, we read them together so as to give effect, to the extent possible, to all of their provisions (Los Angeles Unified School Dist. v. County of Los Angeles (2010) 181 Cal.App.4th 414, 426), and we apply specific statutes over general ones (Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 121). Here, section 2800.4 is simply the more specific statute criminalizing a particularly dangerous act of driving while fleeing from police.
Scarborough's insufficiency-of-the-evidence argument is premised on his statutory interpretation argument and fails along with it. Because we conclude section 2800.4 is not limited to one-way highways, the prosecution was not required to prove that Oleander Street was a one-way street.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------