Opinion
A158423
05-06-2021
The PEOPLE, Plaintiff and Respondent, v. James WALKER, Defendant and Appellant.
Jonathan D. Roberts, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II and III.
Jonathan D. Roberts, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.
SIMONS, Acting P.J. James Walker (appellant) appeals following his convictions for felony evasion of a peace officer ( Veh. Code, § 2800.2 ) and other crimes. In the published portion of the opinion, we reject appellant's contention that reckless driving (§ 23103) is a lesser included offense of felony evasion. We reject appellant's remaining arguments in the unpublished portion of the opinion and affirm the judgment.
All undesignated section references are to the Vehicle Code.
BACKGROUND
In June 2019, appellant was charged with felony evasion of a peace officer ( § 2800.2 ); misdemeanor driving under the influence (§ 23152, subd. (f)); and misdemeanor possession of methamphetamine ( Health & Saf. Code, § 11377, subd. (a) ). The evidence at trial was as follows.
On the morning of May 24, 2019, California Highway Patrol (CHP) officer Larry DePee was in an unmarked vehicle when he received a call about a reckless driver. DePee saw a vehicle matching the description weaving onto the shoulder and over the double yellow lines into the opposing lane of traffic. He drew up behind the vehicle, and activated his lights and siren. The driver of the vehicle—later identified as appellant—stuck his hand out of the window, which DePee understood to be an acknowledgement that appellant saw him.
Another CHP officer, Bryan Cooke, soon joined the pursuit. Cooke was in a marked black and white CHP patrol car with overhead emergency lights. Cooke took DePee's place immediately behind the vehicle and observed it driving outside its lane on the shoulder. Cooke turned on his lights and, when the vehicle did not respond, his siren. At that point the vehicle accelerated and "began to speed away."
The officers followed the vehicle for 24 minutes, driving more than 18 miles. During the pursuit, appellant reached speeds of 85 miles per hour in a 55 mile per hour zone; crossed into oncoming lanes of traffic, including through blind curves bordered by concrete barriers; drove in the wrong direction on the highway; and narrowly missed oncoming vehicles.
A video from Cooke's dashboard camera documenting the chase was played for the jury.
CHP placed a spike strip which appellant drove over after slowing noticeably. Although all four of his tires began deflating, appellant continued to drive more than three miles before stopping. After appellant finally pulled over, he complied with some of Cooke's commands but appeared confused about or unable to respond to others. He eventually stumbled out of the vehicle, lay on the ground face-down, and was handcuffed. A bag containing more than 11 grams of methamphetamine was found next to the driver's seat. Cooke interviewed appellant at the jail. A video of the interview captured by Cooke's body camera was played for the jury, and a transcript was provided. Appellant told Cooke someone gave him mushrooms, which he had taken about four hours earlier. The mushrooms were "supposed to be the ones that get you high" but appellant now thought they were poisonous and he was dying. After taking the mushrooms appellant ingested "a lot" of methamphetamine in the car: an amount that would get others "high for the night and the next day" but was "enough ... to keep me awake, alive." Appellant had difficulty following Cooke's instructions for field sobriety tests; for example, shortly after being asked to estimate when 30 seconds had passed, appellant appeared to have forgotten what he was doing. Cooke testified that appellant was "extremely impaired" and Cooke had never seen anyone so high on methamphetamine.
A video from Cooke's body camera of appellant's exit from his vehicle and subsequent arrest was played for the jury.
There are three separate video clips of appellant at the jail, apparently because Cooke turned his body camera off and on. The first clip was 20 minutes long, the second was two and a half minutes, and the third was four minutes. Although the record is not entirely clear, it appears the first and second clips were played for the jury in their entirety but the third was not; however, all three clips were transcribed on the transcript provided to the jury. The portions of the jail interview at issue in this appeal (see part II, post ) appear in the first clip and it is undisputed they were played for the jury.
Criminalist Kathralynn Cook analyzed a sample of appellant's blood taken at the jail and found it contained more than 1,000 nanograms of methamphetamine per milliliter. This was the highest level that could be accurately reported but, based on her testing of diluted samples, Cook "guesstimate[d]" the actual concentration was around 3,000 nanograms per milliliter, one of the highest concentrations she had seen in a living person. Methamphetamine can cause poor judgment and risky behavior, and makes it difficult for a person to perform divided-attention tasks like driving. Cook testified that, in certain circumstances, it was possible for someone who was highly impaired on methamphetamine to be unaware of police following them. She also testified high doses of methamphetamine can cause "meth psychosis," a condition similar to schizophrenia.
The jury found appellant guilty of all three counts. In a bifurcated proceeding, appellant admitted a prior serious felony conviction. The trial court sentenced appellant to prison for an aggregate term of six years.
DISCUSSION
I. Lesser Included Offense
Appellant argues the trial court erred in failing to sua sponte instruct the jury on reckless driving (§ 23103) as a lesser included offense of felony evasion of a peace officer ( § 2800.2 ). We disagree. "A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.’ [Citation.] ... [¶] To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ " ( People v. Shockley (2013) 58 Cal.4th 400, 403–404, 165 Cal.Rptr.3d 497, 314 P.3d 798 ( Shockley ).)
Where, as here, "the information charging [appellant] ... simply tracked [the statute's] language without providing additional factual allegations, we focus on the elements test." (Shockley, supra, 58 Cal.4th at p. 404, 165 Cal.Rptr.3d 497, 314 P.3d 798.)
Felony evasion of a peace officer is committed when "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 ...." ( § 2800.2, subd. (a).) Reckless driving is committed when "[a] person ... drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property ...." (§ 23103.) At first glance, appellant's argument that reckless driving is a lesser included offense of felony evasion appears sound. However, the meaning of the phrase "willful or wanton disregard for the safety of persons or property" is materially different for the two statutes. (See People v. Taylor (2018) 19 Cal.App.5th 1195, 1202, 228 Cal.Rptr.3d 575 ( Taylor ) ["the same phrase may appear in two statutes establishing offenses, yet convey different meanings"].)
Section 2800.1 provides that a motorist fleeing a pursuing peace officer under certain conditions is guilty of a misdemeanor.
"As the reckless driving statute has never defined driving with ‘willful or wanton disregard for the safety of persons or property,’ courts have determined that it targets driving manifesting a particular state of mind [citation], namely, ‘consciousness of the results with intent to omit or do an act, realizing the probable injury to another; or acting in reckless disregard of the consequences; or conduct exhibiting reckless indifference as to the probable consequences with knowledge of likely resulting injury’ [citation]." ( Taylor, supra, 19 Cal.App.5th at p. 1202, 228 Cal.Rptr.3d 575 ; see also People v. Barber (2020) 55 Cal.App.5th 787, 802, 808, 269 Cal.Rptr.3d 712 [approving CALCRIM No. 2200 reckless driving instruction providing, " ‘A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk.’ "].)
The felony evasion statute, in contrast, sets forth a specific definition of the term: "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." ( § 2800.2, subd. (b).) "Violations that are assigned points under section 12810 ... include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e))." ( People v. Howard (2005) 34 Cal.4th 1129, 1137–1138, 23 Cal.Rptr.3d 306, 104 P.3d 107 ( Howard ).)
As demonstrated by the above list of violations, this definition, which was added to section 2800.2 in 1996, "greatly expanded the meaning of the quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous." ( Howard, supra, 34 Cal.4th at p. 1138, 23 Cal.Rptr.3d 306, 104 P.3d 107 [holding felony evasion is not an inherently dangerous felony for purposes of the second-degree felony-murder rule].) Indeed, it encompasses conduct unrelated to safety, for example, driving an unregistered vehicle owned by the driver: "There is no reason why an unregistered car cannot be driven safely. [Section 12810] thus contemplates that traffic violations involving the operation of a motor vehicle, including those not related to safety , are worth a point unless otherwise stated." ( People v. Mutuma (2006) 144 Cal.App.4th 635, 643, 50 Cal.Rptr.3d 547, italics added; see also People v. Pinkston (2003) 112 Cal.App.4th 387, 396, 5 Cal.Rptr.3d 274 (dis. opn. of Klein, J.) ["Obviously, a defendant may commit three Vehicle Code violations or cause property damage during a pursuit while exercising extreme vigilance for the safety of persons or property."].)
For this reason, we reject appellant's suggestion that fleeing from police while committing three point violations necessarily constitutes "willful or wanton disregard" under the traditional definition of the term.
Unsurprisingly, then, courts have concluded (albeit in a different context than the one presented here) that the definition of "willful or wanton disregard" in section 2800.2 is significantly broader than the traditional definition of the phrase as used in the reckless driving statute. Taylor, supra, 19 Cal.App.5th 1195, 228 Cal.Rptr.3d 575, considered an argument that the definition in section 2800.2, subdivision (b), creates an unconstitutional mandatory presumption reducing the prosecution's burden of proving the "willful or wanton disregard" element of felony evasion. The court noted that, "[a]s originally enacted in 1988, section 2800.2 contained only the provision now found in subdivision (a), which states that the offense is committed when a person violates section 2800.1 while driving in ‘a willful or wanton disregard for the safety of persons or property ....’ (Stats. 1988, ch. 504, § 3, p. 1919.) Because the statute then lacked any provision defining the requisite driving with ‘willful or wanton disregard,’ courts construed the offense to involve or require two distinct mental states, namely, (1) the ‘ "intent to evade" ’ required for the section 2800.1 offense [citation], and (2) the mental state required for the reckless driving offense specified in section 23103." ( Taylor, at p. 1203, 228 Cal.Rptr.3d 575.) The addition of section 2800.2, subdivision (b), "expanded the types of driving proscribed under the statute .... [S]ubdivision (b) of section 2800.2 permits the prosecution to show the requisite driving with ‘willful or wanton disregard’ by establishing three or more traffic violations, as an alternative to showing that the defendant drove in a manner manifesting the mental state required for the reckless driving offense. For that reason, the mental state relating to the reckless driving offense is no longer an essential element or component of the section 2800.2 offense." ( Taylor, at p. 1203, 228 Cal.Rptr.3d 575 ; see also People v. Laughlin (2006) 137 Cal.App.4th 1020, 1025, 40 Cal.Rptr.3d 737 ["three or more violations that are assigned a traffic point count may not necessarily compel the conclusion that the defendant acted with a willful or wanton disregard for the safety of persons or property, as that term has traditionally been defined"].)
"[A] mandatory presumption ‘ "tell[ing] the trier of fact that he or they must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts ...." ’ ... contravenes due process—and thus is improper—when it relieves the prosecution of its burden of proving the elements of a crime beyond a reasonable doubt." (Taylor, supra, 19 Cal.App.5th at p. 1200, 228 Cal.Rptr.3d 575, fn. omitted.)
Appellant argues this portion of Taylor's analysis was dicta. Even so assuming, we find it persuasive.
We agree with the above cases that "willful or wanton disregard" as defined in section 2800.2, subdivision(b), is significantly broader than the traditional definition of the phrase used in the reckless driving statute. Because the statutory elements of section 2800.2 thus do not include all of the statutory elements of reckless driving, reckless driving is not a lesser included offense.
See footnote *, ante .
The judgment is affirmed.
We concur.
NEEDHAM, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.