Opinion
F061498
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER PAUL WILLIAMS, Defendant and Appellant.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kern Super. Ct. No. BF130611A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On February 5, 2010, the Kern County District Attorney filed an information in superior court charging appellant Christopher Paul Williams as follows: count 1 - felony evasion of a peace officer (Veh. Code, § 2800.2); count 2 - misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)) with a prior conviction (Veh. Code, § 14601.1, subd. (b)(2)).
On February 8, 2010, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.
On June 29, 2010, jury trial commenced.
On July 2, 2010, the jury returned verdicts finding appellant guilty of the substantive counts and the court dismissed the special allegation related to count 2 on motion of the district attorney.
On December 3, 2010, the court denied appellant probation and sentenced him to the middle term of two years in state prison on count 1. The court imposed a concurrent 180-day term on count 2. The court awarded 24 days of custody credits, imposed a $40 court security fee as to count 1 (Pen. Code, § 1465.8, subd. (a)(1)), imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45).
On December 9, 2010, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 12:30 a.m. on January 11, 2010, Bakersfield Police Officer Jason Williamson was on patrol duty in a marked police vehicle. The vehicle was equipped with a siren and overhead lights. Officer Williamson stopped at an intersection for a red light. A Chevrolet pickup truck pulled into the left turn lane and also stopped for the red light. Williamson said the truck drove away at a "good rate of speed" while the traffic light was still red. Williamson activated the overhead lights and siren on his patrol car and began pursuit.
As Williamson engaged in pursuit, the pickup truck made an illegal U-turn, accelerated, and then made a quick left turn. The pickup drove into the center median, which was landscaped with boulders and trees. The truck ran over several boulders and sustained two blown tires. The truck continued over the center median, completed the U-turn, and continued traveling. As Williamson continued his pursuit, he noticed that the pickup truck traveled in an opposing traffic lane. The truck ultimately swerved out of control and struck a tree.
Williamson pulled his patrol vehicle within 20 feet of the pickup truck. He saw the driver hit the side window with his elbow, attempting to break the glass. The passenger door opened and one Trisha Carlsen alighted from the cab. The pickup wheels then spun in reverse and the truck broke loose and sped away.
Officer Joseph Galland continued the pursuit of the pickup in an unmarked police vehicle. The unmarked vehicle had the lights and siren activated. Officer Galland said the pickup accelerated, traveled at a high rate of speed, and ran two stop signs and two red lights. Galland eventually lost sight of the pickup truck. Officers ultimately found the pickup truck abandoned on a street. Officers found appellant about four blocks away from the abandoned truck and detained him. Officer Williamson went to the 200 block of Cherry Street to physically identify the abandoned vehicle. Sergeant Argast, who was present at the scene, realized that Williamson had not broadcast a description of the suspect. Williamson told Sergeant Argast: "[H]e was a white male, tall and thin, ahd a very long face, goatee, really intense eyes, that he was wearing a black jacket which kind of had like the sheen and texture of a wind breaker, like a nylon wind breaker, but heavier. It appeared heavier and had a white lining."
Officer Williamson went to the site of the detention and Trisha Carlsen was seated in the "cage" of his patrol car. When Williamson approached the appellant, Carlsen started screaming, " 'That's not him. That's not him.' " Williamson said he recognized appellant "100 percent" and told Carlsen she was "full of s---." According to Williamson, Carlsen bowed her head and became quiet. Williamson eventually asked Carlsen why she was trying to say that appellant was not the driver of the pickup truck. Williamson testified, "She told me that she's in love with him. She cares about him and didn't want to get him in trouble."
In court, Williamson again identified appellant as the driver of the pickup truck. The parties stipulated that appellant had a suspended California driver's license.
Defense Evidence
David Apple testified he was the registered owner of the pickup truck and that he and appellant are friends. Apple said he invited appellant to come to his Eye Street home on the afternoon of January 10, 2010, to work on the pickup truck. Apple said appellant took the bus to Apple's home and brought a small duffel bag of tools that Apple did not have. Apple said they worked on the fuel pump for about two and one-half hours and finished at about 6:30 p.m. Apple's girlfriend, Trisha Carlsen, and his stepson were present at the house. Appellant said he put gas in the tank and Carlsen took the truck to a friend's house during the 7:00 p.m. hour. Apple thought Carlsen would return within the hour and then he would drive appellant home. Apple testified that police brought Carlsen to his home at about 1:00 a.m. Appellant ran out of the back door of Apple's home because he had pending warrants for driving without a license. Appellant left his duffel bag and cell phone behind. One of the police officers answered the cell phone and Apple said the phone belonged to appellant. Apple said the officers asked about the whereabouts of his pickup truck. Apple said Carlsen took it to the home of her friend. The officers then told Apple "it was in a chasing wreck." Apple told officers that Carlsen was probably with her former boyfriend, Robert Brimmage. Apple said Brimmage was also known as "Greg Williams" and "Robert Williams." Apple said Brimmage used to beat up Carlsen when they were in a relationship.
Thyrone Carbin testified that he had been Apple's neighbor for four years. On the evening of January 10, 2010, Carbin, appellant, and Apple's stepson watched a movie at Carbin's home. Appellant and the stepson departed a little after 9:30 p.m. Carbin heard a commotion in the neighborhood sometime after midnight on January 11, 2010. Carbin looked out a window in the back of his home and saw appellant walking out of the gate at Apple's home and going toward the alley. Carbin went to the front of his home and saw "a whole bunch of police" in front of Apple's home. Carbin said appellant went out the back gate, walked around the corner, and then walked straight through a group of police officers.
Trisha Carlsen testified she had driven the pickup truck to the home of her friend, Sandy, on the evening of January 10, 2010. Her sometime boyfriend, Robert Brimmage, showed up at the friend's residence and wanted to take the truck. Carlsen said Brimmage intimidated her and he grabbed the truck keys as Carlsen was sitting at Sandy's kitchen table. Carlsen said she accompanied Brimmage because she "wasn't going to let him leave" with Apple's pickup truck. Carlsen said she and Brimmage briefly visited the home of one of Brimmage's friends and then departed. She said Brimmage "instead of making a turn, decided to go straight which caught the police officer's attention which started [a] pursuit ...." Carlsen said Brimmage "decided he wasn't going to pull over and so he sped the truck up and turned." Brimmage stopped at an alley and Carlsen got out of the pickup truck. An officer stopped and attempted to detain the pickup truck. Carlsen said Brimmage threw the pickup into reverse, then back into drive, and drove off. Carlsen said appellant was never the driver of the pickup truck that evening.
Jennifer Williams, appellant's wife, testified that appellant went to Apple's home between 2:30 and 3:30 p.m. on January 10, 2010. She said appellant took the bus to Apple's home because he had a suspended driver's license. Appellant took his tools and a backpack. Jennifer said she spoke with appellant by phone almost every hour on the evening of January 10. Appellant called her 8 or 10 times that evening and she called him four or five times. During a 9:30 p.m. call, appellant said he was going to start walking home. They spoke again at 10:30 p.m. and appellant said he was still at Apple's home. She fell asleep, awakened at 12:15 a.m., and called appellant's cell phone. Someone else answered his phone. Jennifer said she had given her husband about $12 that day, enough for a pack of cigarettes and the bus ride home.
DISCUSSION
I. THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THE
PURSUING OFFICER ACTIVATED A SIREN, AN ELEMENT OF FELONY EVASION.
Appellant contends his conviction on count 1 was not supported by substantial evidence because the record fails to demonstrate that the pursuing officer activated a siren, an essential element of felony evasion (Veh. Code, §§ 2800.1, 2800.2).
The California Supreme Court has held: "[Vehicle Code [s]ection 2800.2 makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer's vehicle in 'violation of [Vehicle Code] [s]ection 2800.1' and 'in a willful or wanton disregard for the safety of persons or property.' Under [Vehicle Code] section 2800.1, a person who operates a motor vehicle 'with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor ... 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 ... wearing a distinctive uniform.' (Italics added.) Thus, 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." (People v. Hudson (2006) 38 Cal.4th 1002, 1007-1008, citing Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993.)
The prosecution must prove each statutory element - the corpus delicti - beyond a reasonable doubt. On appeal, our task is to review the entire record in search of substantial evidence. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197-198.) The Supreme Court has stated the applicable standard for assessing the sufficiency of evidence:
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, 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. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The following exchange occurred during the direct examination of Officer Jason Williamson:
"Q. [by Deputy District Attorney Webster] What did you do at that point?
"A. I was looking at the vehicle when it took off. I couldn't see how many passengers were in the vehicle or who was driving it at that point. The driver[']s window had like a limo tint on it. [¶] [W]hen the vehicle took off from the turn storage lane, and it was the only other vehicle out there, I immediately flipped the switch from my rotators which turns my lights into the code three position.
"Q. Let me have you stop there. What is code three?
"A. The code three position is all lights activated on my light bar the rotation function ambers to the rear[,] solid red and blue to the front. And also during code three operation, a siren will be activated by choice. You can set the dial on your center control panel so that when you turn to the three position the siren is automatically activated or you can keep it on stand by or so you can activate as necessary as the law states. I keep mine in standby position so that I can turn my rotators on without my siren being automatically activated.... [¶] ... [¶]
"Q. And so did you follow the vehicle at that point?
"A. I did. I turned my rotators on, accelerated, made a left turn. So that I was attempting to catch the vehicle from directly behind it.
"Q. And then did you guys, did both of you go off the map at this point?
"A. Yes, off of that, yes.
"Q. Now, when you turned on your light and sirens?
"A. Siren."
The following exchange occurred on cross-examination of Trisha Carlsen during the defense case:
"Q. [By Deputy District Attorney Webster] You saw the lights?
"A. Yes.
"Q. And you heard the sirens? Did you hear the sirens?
"A. Yes."
"Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.) From the brief testimony of Officer Williamson and Trisha Carlsen, the jury could reasonably conclude that Officer Williamson activated the siren on his patrol car, as required by Vehicle Code sections 2800.1 and 2800.2. " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' (People v. Jones (1990) 51 Cal.3d 294, 314.)" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The credibility of Officer Williamson and Trisha Carlsen was a matter for the jury as the trier of fact. From the testimony of these two witnesses, the jury could reasonably infer that Williamson activated the siren of his patrol car, as required by Vehicle Code sections 2800.1 and 2800.2. Reversal for insufficiency of the evidence is not required.
Respondent asserts: "Even if the trial court was to find Officer Williamson's correction of the trial prosecutor was ambiguous and insufficient, the court would likely have allowed the prosecution to reopen its case-in-chief." Respondent observes: " 'The court always has discretion to allow the prosecution to reopen after a section 1118 motion so long as the court is convinced that the failure to present evidence on the issue was the result of "inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant]." [Citation.]' [Citation.]" (People v. Riley (2010) 185 Cal.App.4th 754, 764-7654, quoting People v. Goss (1992) 7 Cal.App.4th 702, 708, fn. omitted.) On December 8, 2011, appellant filed a supplemental letter citing recent contrary case authority. In People v. Velazquez (2011) 201 Cal.App.4th 219, defendant was charged with three counts of criminal threats (Pen. Code, § 422) and three counts of dissuading a witness for the benefit of a criminal street gang (Pen. Code, §§ 136.1, subd. (b)(2), 186.22, subds. (b)(1)(B), (b)(4)). Defendant unsuccessfully moved for acquittal on four counts. Division Four of the Second Appellate District determined that the evidence before the trial court at the time the motion was made, i.e., at the end of the prosecution's case-in-chief, was insufficient to support a conviction on those counts. The appellate court acknowledged the prosecution's rebuttal evidence at trial provided the missing evidence and thus would have supported the convictions, but, under the authority of People v. Belton (1979) 23 Cal.3d 516, 519, 543, held reversal of the judgment is required when the prosecution fails to present a prima facie case during the case-in-chief. However, as we have noted, here the prosecution presented a prima facie case during its case-in-chief and, thus, Velazquez does not compel a different result.
II. DEFENSE COUNSEL WAS NOT INEFFECTIVE BY FAILING TO MOVE FOR ACQUITTAL OF THE FELONY EVASION COUNT AT THE END OF THE PROSECUTION CASE.
Appellant contends his trial counsel was ineffective for failing to move for acquittal on count 1 at the conclusion of the prosecution's case-in-chief. He maintains such a motion would have been successful "since there was no testimony or other evidence in the prosecution's case that Officer Williamson activated his siren, a necessary element of the offense."
Penal Code section 1118.1 provides, "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
A defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, a defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; see also People v. Mendoza (2000) 24 Cal.4th 130, 166.)
As noted above, the prosecutor asked Officer Williamson on direct examination, "Now, when you turned on your light and sirens?" Williamson respondent, "Siren." Appellant contends "there was no testimony or other evidence in the prosecution's case that Officer Williamson activated his siren, a necessary element of the offense." Therefore, appellant concludes his trial counsel was ineffective by failing to make a " 'nonspecific [Penal Code] section 1118.1 motion directed at all counts and enhancements.' " The purpose of a Penal Code section 1118.1 motion is to weed out those instances in which the prosecution fails to make even a prima facie case. (People v. Lopez (2010) 185 Cal.App.4th 1220, 1228.) The trial court must determine whether, from the evidence and all reasonable inferences to be drawn from the evidence, there is any substantial evidence of the existence of each element of the offense charged. (People v. Magallanes (2009) 173 Cal.App.4th 529, 533.)
"[F]or a defendant to prevail on a claim that he was incompetently represented, he bears the burden of demonstrating that, for unacceptable reasons apparent on the record, trial counsel's failure to act as a reasonably competent attorney deprived him of a more favorable result at trial." (People v. Harpool (1984) 155 Cal.App.3d 877, 886.) The record in this case does not reflect trial counsel's reasons for declining to move to acquit on count 1. Appellant's trial counsel could have reasonably concluded - based upon Officer Williamson's inflection and demeanor - that the one-word response, "[s]iren," signified that he satisfied this element of Penal Code section 2800.2. " 'Counsel is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel.' " (People v. Harpool, supra, 155 Cal.App.3d at p. 886.)
Reversal for alleged ineffective assistance of counsel is not required.
III. THE TRIAL COURT ERRONEOUSLY INSTRUCTED JURORS THAT FELONY EVASION IS A GENERAL INTENT CRIME, BUT THE ERROR IS HARMLESS.
Appellant contends the trial court committed reversible error by instructing the jury that felony evasion, as charged in count 1, is a general intent crime.
The court instructed the jury in CALCRIM No. 2181 [evading peace officer: reckless driving (Veh. Code, §§ 2800.2)] as follows:
"The defendant is charged in Count 1 with evading a police officer with wanton disregard for safety in violation of Vehicle Code Section 2800.2....
"To prove that the defendant is guilty of this crime, the People must prove that, one, a peace officer driving a motor vehicle was pursuing the defendant; two, the defendant who was also driving a motor vehicle willfully fled from or tried to elude the officer intending to evade the officer; three, during the pursuit, the defendant drove with willful or
wanton disregard for the safety of persons or property; and, four, all of the following were true[:] that there were at least one lighted red lamp visible from the front of the peace officer's vehicle. The defendant either saw or reasonably should have seen the lamp, police officer's vehicle was sounding a siren as reasonably necessary, the peace officer's vehicle was distinctively marked, and the peace officer was wearing a distinctive uniform. A person employed by the Bakersfield Police Department is a peace officer.
"Now, someone commits an act willfully when he or she does it willfully or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain an advantage. A person acts with wanton disregard for safety when he or she is aware that his or her actions present a substantial and unjustifiable risk of harm; two, he or she intentionally ignores that risk. The person does not have to however intend to cause damage.
"Now, driving in willful and wanton disregard for a person's person or property includes but is not limited to causing damage to property while driving or committed three or more violations that are each assigned a traffic violation point.
"The vehicle code violation[s] the People alleged the defendant violated are set forth in a separate instruction.
"Now a vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers including a red lamp, siren and at least one other feature that makes it look different from vehicles that are not used for law enforcement purposes. A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or have any particular level or formality. However, a badge without more is not enough."
CALCRIM No. 250 [union of act and intent: general intent], as read to the jury states:
"Now, the crimes charged in this case requires [sic] proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crimes in this case, that person must not only commit the prohibited act or fail to do the required act but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
Appellant contends Vehicle Code section 2800.2 is a specific intent offense because it incorporates the elements of Vehicle Code section 2800.1, which includes the specific intent to evade a police vehicle. Appellant further contends that because a specific intent is required for the crime of felony evading under section 2800.2, the general intent instruction of CALCRIM No. 250 was in direct conflict with CALCRIM No. 2181, governing the substantive offense of evading. He concludes that reversible error occurred because the superior court gave conflicting instructions with respect to a crime requiring proof of a specific intent.
Respondent concedes the trial court erroneously gave CALCRIM No. 250 rather than CALCRIM No. 251 ["union of fact and intent: specific intent or mental state"] or CALCRIM No. 252 ["union of act and intent: general and specific intent together"]. !(RB 7-8)! In 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." ' [Citations.]" (People v. Hagen (1998) 19 Cal.4th 652, 671 .) " 'To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (People v. Harris (1994) 9 Cal.4th 407, 426, italics omitted; People v. Hudson (2006) 38 Cal4th 1002, 1013.)
Despite this concession, respondent contends any error in giving CALCRIM No. 252 was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 24. Had the trial court given CALCRIM No. 251, it would have advised the jury in pertinent part: "For you to find a person guilty of the crime of felony evasion of a peace officer, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime."
In this case, the court instructed the jury in CALCRIM No. 2181, stating in pertinent part: "To prove that the defendant is guilty of this crime, the People must prove that, one, a peace officer driving a motor vehicle was pursuing the defendant; two, the defendant who was also driving a motor vehicle willfully fled from or tried to elude the officer intending to evade the officer; three, during the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property ...." (Italics added.) In giving CALCRIM No. 2181, the court specifically defined the term "willfully" and the phrase "wanton disregard for safety." The court further instructed the jury, pursuant to CALCRIM No. 220, that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. [¶] Now, whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
Although the court did not utilize the specific intent language from CALCRIM No. 251, the court did fully instruct on the mental state elements of section 2800.2 as set forth in CALCRIM No. 2181, and further instructed that the prosecution was required to prove these elements beyond a reasonable doubt. Under these circumstances, the use of CALCRIM No. 250 did not contribute to the verdict of guilt on count 1 and reversal for instructional error is not required.
IV. THE COURT SECURITY FEE SHOULD BE REDUCED TO $30 PER CONVICTION FOR A TOTAL OF $60.
Appellant contends the court security fee (§ 1465.8) should be reduced from $40 to $30. Respondent agrees with the $30 figure but maintains a $30 security fee should be imposed as to each conviction, for a total of $60.
Respondent correctly explains:
"On July 2, 2010, the date of appellant's convictions, the court security fee prescribed by Penal Code section 1465.8 was $30 per conviction. Senate Bill No. 857, which went into effect on October 19, 2010, raised the court security fee to $40 per conviction. (See ... Stats. 2010, ch. 720, § 33.)
"However, instead of a reduction, the court security fee assessed should be increased to $60. The trial court should have imposed one $30 court security fee 'on every conviction.' Here, appellant had two convictions. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328; People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)"
The superior court is directed to amend the abstract of judgment to reflect a total $60 court security fee (Pen. Code, § 1465.8) and transmit certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect a $60 court security fee (Pen. Code, § 1465.8) and transmit certified copies of the amended abstract to all appropriate parties and entities.
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Poochigian, J.
WE CONCUR:
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Dawson, Acting P.J.
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Detjen, J.