P. v. Barrett

Filed 7/25/06 P. v. Barrett CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury found defendant Gregory A. Barrett guilty of two counts of second degree burglary of an automobile (Pen. Code, § 460, subd. (b)), driving in a willful or wanton disregard for safety of persons or property while fleeing a police officer (Veh. Code, § 2800.2) and driving with a suspended license (Veh. Code, § 14601.5, subd. (a).) The court found true an allegation that defendant had suffered a prior strike conviction (Pen. Code, § 1170.12), and upon the jury's verdict and that finding, sentenced him to a term of four years in state prison. Defendant appeals, attacking only his conviction of driving in a willful or wanton disregard for safety of persons or property while fleeing a police vehicle. He contends that the court's instructions created an impermissible mandatory presumption that his conduct satisfied an element of the crime, violating the due process clause of the United States Constitution. We affirm. The instruction was based on Vehicle Code section 2800.2, subdivision (b), which does not create a mandatory presumption, but instead defines conduct that the Legislature has deemed to be an element of the crime: willful and wanton disregard for the safety of persons or property.

Facts

On July 23, 2004, at midday, several young people, after spending a couple of hours at Cal State Beach, returned to the parking lot to get their cars. There they saw a man breaking into a truck with a crowbar. They described the man as appearing to be Hispanic, having black hair with some gray in it, a long mustache and a beard, and wearing a bright blue tank top. The man, carrying the truck owner's CD collection and CD player, got into a white Chevy Blazer. One of the young people noted the Blazer's license plate number. Another discovered that his car, too, had been broken into, and some of his property had been taken. The young people called the police.

Deputy Anthony Mariucci testified that on the afternoon of July 23, 2004, he heard a call about an automobile burglary involving a full-size white Chevy Blazer, being driven by a white male wearing a blue tank top. Deputy Mariucci, who was in full uniform and driving a marked police vehicle, saw the Blazer, with a license plate matching the number provided to the police, on Highway 92. He pulled into traffic behind the Blazer, activating his red light and siren. The Blazer pulled into an exit lane on the extreme right, pulled back into another lane as it approached the exit and then abruptly changed lanes to take the off-ramp at De Anza Boulevard. With Deputy Mariucci following, the Blazer went around an island and up a ramp, made a U‑turn and went back down the ramp and back around the island. These actions violated vehicle code sections prohibiting going the wrong way against the flow of traffic, speeding, and making unsafe lane changes. The Blazer also ran a stop sign. The Blazer made a left turn onto De Anza Boulevard, traveling at 25 to 30 miles per hour in a 25-mile-per-hour speed zone. It picked up its speed to 50 miles per hour, still followed by Deputy Mariucci. The Blazer ran a stop sign. At the next intersection, the Blazer turned left, running another stop sign. It turned onto a residential street that ended in a cul-de-sac. Deputy Mariucci positioned his car to block egress from the cul-de-sac. The Blazer made a U-turn, and drove on the sidewalk around Deputy Mariucci's vehicle. Deputy Mariucci got a good look at the driver, whom he described as a light-skinned Hispanic or white male with a â€