Filed 2/8/18 P. v. Baskerville CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN LINWOOD BASKERVILLE,
Defendant and Appellant.

A146317

(Sonoma County
Super. Ct. No. SCR643863)


Appellant John Linwood Baskerville appeals a judgment resulting from a jury verdict convicting him of all but one count of an eight-count information charging him with driving in willful or wanton disregard for the safety of persons or property while fleeing a pursuing police officer (Veh. Code, § 2800.2), driving under the influence of alcohol (§ 23152, subd. (a)), and six other counts alleging other violations of the Vehicle Code.
Appellant claims the trial court committed instructional error in two respects with regard to the charge of willful or wanton disregard for safety while fleeing a pursuing peace officer: (1) failing to instruct the jury on the elements of the predicate traffic violations (ignoring red lights and speeding) necessary to sustain the charge, and (2) failing to give the jury a unanimity instruction regarding appellant’s attempts to elude the police during two pursuits.
Indulging the dubious assumptions there was such error and appellant did not forfeit his claims by failing to object to the instructions he now challenges, or request that they be modified, we shall conclude that the alleged errors are harmless.
Appellant also claims section 2800.2, subdivision (b) is deficient in two respects: (1) it creates an unconstitutional mandatory presumption of willful or wanton disregard for the safety of others, and (2) it “runs afoul” of Apprendi v. New Jersey (2000) 530 U.S. 466, which requires that any fact other than a prior conviction that increases a penalty for an offense beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, because the statute allows the trial court, not the jury, to determine whether Vehicle Code violations qualify as the predicate violations needed to elevate the evasion of the police charge to a felony. We shall find these claims meritless.
STATEMENT OF THE CASE
On February 1, 2015, the Sonoma County District Attorney filed an information charging appellant with willful or wanton disregard for the safety of others while fleeing from a pursuing police officer (§ 2800.2, count 1); driving under the influence of alcohol (§ 23152, subd. (a), count 2), with an allegation pursuant to § 23538, subd. (b)(2) that appellant’s blood alcohol content was 0.20 or more; driving while having a 0.08 or higher blood alcohol content (§ 23152, subd. (b), count 3), with the same allegation; driving while not holding a valid driver’s license (§ 12500, subd. (a), count 4); possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a), count 5); possession of an open container while driving, count 6); hit and run driving resulting in property damage (§ 20002, subd. (a), count 7); and driving without evidence of financial responsibility (§ 16028, subd. (a), count 8).
The jury found appellant guilty of all charges except that it found him not guilty of count 6, possession of an open container while driving.
On August 13, 2015, the court imposed and then suspended imposition of a three-year state prison sentence and placed appellant on probation for three years on the condition that he serve six months in the county jail.
Timely notice of this appeal was filed on September 22, 2015.
FACTS
On November 17, 2013, Amos Garcia parked his truck at a gas station in Santa Rosa. After he alighted from the vehicle he saw appellant back his Mustang into it, causing damage. Appellant appeared drunk. As Garcia walked toward the Mustang appellant drove away. Officer Deadman, who was dispatched to the scene, was told by Garcia what had happened, viewed the gas station surveillance video, and asked a police dispatcher to broadcast the license plate number of the Mustang.
About an hour later, Officer Travers saw the Mustang and he and Officer Wolf, who was also in the area, followed appellant in their separate patrol cars and caught up with it when appellant stopped at a red light. As Officer Travers approached the Mustang, appellant slowly moved the vehicle past the crosswalk and, when the light turned green, abruptly turned left, then veered toward a concrete divider, and then away from the divider to avoid hitting it. After following appellant a short distance on Brookwood Street, Officer Travers activated his emergency lights and “chirped” his siren several times, signaling appellant to pull over to the side of the road. Appellant then turned right on Sonoma Street and pulled to the curb in front of the Santa Rosa Police Station. Officers Deadman and Wolf then parked their patrol cars and approached appellant in his Mustang. When Deadman was two or three feet from appellant’s door, appellant suddenly accelerated and sped away.
Officers Travers and Wolf then ran back to their patrol cars in hot pursuit of the Mustang. While doing so, Travers informed dispatch that the Mustang was fleeing, activated his siren, and followed appellant on Sonoma Avenue at about 40 to 45 miles per hour, which was 5 to 10 miles per hour above the posted speed limit. Ignoring the red light, appellant slowed a bit and turned right off Sonoma Avenue onto E Street. During the chase, appellant made three more right turns and a left turn without stopping at several other red lights. At time, appellant exceeded the speed limit and at one point was travelling at 70 miles per hour. He was also having difficulty staying within his lane.
After travelling about 2.4 miles, appellant stopped at the intersection of Santa Rosa and Baker Avenues, where there was a red light. Appellant had nowhere else to go and by that time several other police cars had joined into the chase. With the help of another officer, Officer Travers pulled appellant out of his seat in the car and handcuffed him.
Officer Travers noticed a strong smell of alcohol coming from appellant, that his eyes were red and watery, and his speech was slurred. When he walked appellant to a nearby parking lot, he could see appellant was unsteady on his feet. When appellant complained of chest pains, officers called paramedics. Because of his apparent medical condition, they were unable to conduct a field sobriety test. Appellant was unable to tell the officers where he began drinking and when he stopped. When Travers asked him where he was driving, appellant responded “no.”
Officer McElhaney found a methamphetamine pipe in appellant’s Mustang and Officer Deadman noticed red paint on the bumper that matched the color of Garcia’s truck. When Deadman ran appellant’s driver’s license he learned it had expired. Appellant also had no proof the Mustang was insured. After Garcia arrived at the scene he identified appellant’s truck as the one that damaged his car and he identified appellant as the driver.
Criminalist Valero, who tested a blood sample from appellant indicating he had a blood alcohol content of 0.33, opined that a person with that blood alcohol content would have an impaired ability to safely drive a vehicle.
Testifying in his own behalf, appellant stated that on the day in question he was depressed, suicidal, and had been drinking continuously for weeks. He stopped in the gas station at which Garcia’s truck was parked in order to use the bathroom to clean himself up, because he had urinated in his pants. He denied the methamphetamine pipe was his, claiming he smoked methamphetamine with a person who left it in his car. Appellant had no memory of hitting Garcia’s truck.
Appellant testified that he maneuvered his car, and slowed down for turns in an effort to be safe, as he knew he was in a drunken state. Although he could not remember his exact speeds, he did not believe he was speeding and was not attempting to elude the police, although he knew they were pursuing them. Because he wanted to die, he initially considered using the car to do something that would induce the police to shoot him, but he ultimately decided not to and stopped the car. Afterward he experienced pains in his chest and was taken to a hospital.
DISCUSSION
1. The Court’s Failure to Instruct on the Elements of the Predicate Vehicle Code
Violations Used to Prove that in Evading the Police Appellant Drove with Willful
or Wanton Disregard for the Safety of Persons or Property is Not Reversible Error
At the request of the prosecution and without objection from the defense, the court instructed the jury pursuant to CALCRIM No. 2181, as follows: “To prove the defendant is guilty of [evading a peace officer with wanton disregard for safety], the People must prove that: [¶] 1. A peace officer driving a motor vehicle was pursuing the defendant; [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer; [¶] 3. During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property; [¶] [and] 4. [The People have to prove that all] of the following were true: [¶] . . . [¶] a. There was at least one lighted red lamp visible from the front of the peace officer’s vehicle; [¶] b. The defendant either saw or reasonably should have seen the lamp; [¶] c. The peace officer’s vehicle was sounding a siren as reasonably necessary; [¶] d. The peace officer’s vehicle was distinctively marked; [¶] [and] e. The peace officer was wearing a distinctive uniform.”
The instruction goes on to state, among other things, that “[d]riving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point. [Sections] 21453(a) and . . . 22350 . . . that’s basic speeding and violating a traffic controlled light are each assigned one point.”
Appellant’s claim is that the court erred in failing to instruct the jury on the elements of the offenses described in sections 21453, subdivision (a) and 22350.
With reason, the Attorney General argues that appellant has waived this claim because “[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purpose of appeal. [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 638.) Appellant, who attaches no significance to the fact that he was not charged with the offenses whose elements he says should have been the subject of instructions, posits several reasons he should not be deemed to have forfeited the claim. In the interest of expediency, we decline to address the issue because even if appellant is right, and the applicable standard of error is that specified in Chapman v. California (1967) 386 U.S. 18, not that in People v. Watson (1956) 46 Cal.2d 818, the error is manifestly harmless.
As the Attorney General points out, the People produced overwhelming evidence not only that appellant was aware his actions presented a substantial and unjustifiable risk of harm but also that he went through numerous red lights and was driving at speeds exceeding the posted speed limit. As the Attorney General emphasizes, Officer Travers testified that when appellant was being pursued he drove through five red lights and often exceeded the speed limit by travelling up to 70 miles per hour. (Compare, People v. Minor (1994) 28 Cal.App.4th 431, 438 and People v. Gary (1987) 189 Cal.App.3d 1212, 1216-1217, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481, cases relied upon by appellant, where the instructions never identified the predicate offenses in any way.) As noted, the court told the jury that the predicate offenses were “basic speeding and violating a traffic controlled light, and that each offense was assigned one point” by the Vehicle Code. Appellant provides no authority that the elements of these predicate offenses, with which appellant was not charged, require judicial explanation in a case such as this. Finally, it is inconceivable appellant would have enjoyed a better result if the court had given instructions as to the elements of the offenses of driving in excess of the posted speed limit, and failing to stop at a red light.
2. The Failure to Give a Unanimity Instruction was Not Error
Appellant’s claim that a unanimity instruction was required is based on the assumption that he allegedly committed more than one offense of evading a peace officer with wanton disregard of safety in violation of section 2800.2. That was not the case. Officer Travers testified that he first indicated—by activating his emergency light and “chirping” his siren—that he wanted appellant to pull over when appellant’s vehicle was on Brookwood Street approaching its intersection with Sonoma Street. When Travers activated his lights appellant proceeded a bit further down Brookwood at a reasonable speed, turned right at Sonoma, and pulled over in front of the police station. This was a routine and unresisted traffic stop. The pursuit in which appellant wantonly disregarded the safety of persons and property did not commence until after Officers Travers and Wolf got out of their patrol cars and approached the Mustang at a “casual walk” and without yelling or drawing weapons. It was only when Travers was on foot about three feet away from appellant’s car window that appellant unexpectedly pulled away from the curb and drove quickly away, and the officers returned to their vehicles and began their pursuit, that appellant wantonly disregarded safety to persons and property while attempting to elude a pursuing peace officer.
We reject appellant’s assertion that “the evidence at trial showed two discrete evasions,” the first of which was “when appellant drove his Mustang from the accident at the Arco gas station to his pulling over and stopping in front of the police station.” Since only one act of unlawful evasion was charged and occurred no unanimity instruction was required.
3. Section 2800.2 Does Not Create an Unconstitutional Mandatory Presumption
Appellant’s constitutional contention focuses on the provision of subdivision (b) of section 2800.2, which provides that “a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing . . . 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.” Inexplicably relying on the statement in People v. Mutuma (2006) 144 Cal.App.4th 635 (Mutuma), that “[t]hree point [traffic] violations are willful and wanton disregard by definition, so there is nothing other than their existence for the jury to find” (id. at p. 641), appellant contends that the statutory definition of “willful and wanton disregard” as including three or more traffic violations or the occurrence of property damage “constitutes an unconstitutional mandatory presumption, because a defendant so charged does not have ‘the opportunity to rebut the presumed connection between the basic and ultimate facts.’ ” Appellant’s point is that section 2800.2, subdivision (b) “prevented [him] from arguing that his driving while fleeing or attempting to elude a pursuing peace officer during which time . . . three or more one point violations occurred, did not constitute ‘willful or wanton disregard for the safety of persons or property.’ ”
Appellant’s claim that section 2800.2, subdivision (b) constitutes an “unconstitutional mandatory presumption” is contradicted by the very case appellant relies upon, Mutuma, supra, 144 Cal.App.4th 635. As stated in Mutuma, the “[t]he rule set forth in section 2800.2, subdivision (b)—that three or more point violations constitute willful and wanton disregard—‘is not a mandatory rebuttable presumption but is instead a rule of substantive law.’ (People v. Laughlin [(2006)] 137 Cal.App.4th [1020,] 1025.) Three point violations are willful and wanton disregard by definition, so there is nothing other than their existence for the jury to find.” (Mutuma, at p. 641, italics added.) For that reason, the Mutuma court found that the trial court was correct not to give a separate instruction directing the jury to decide whether or not the three alleged violations constituted willful and wanton disregard for the safety of persons or property, as these were questions of law properly resolved by the trial judge. (Id. at p. 643.)
In sum, subdivision (b) of section 2800.2 neither a mandatory presumption—which incidentally is rebuttable (People v. McCall, supra 32 Cal.4th at p. 183)—nor in any way unconstitutional.
4. Section 2800.2 Does Not Violate the Rule in Apprendi
Appellant’s claim that section 2800.2 “runs afoul” of the holding in Apprendi v. New Jersey, supra, 530 U.S. 466 by removing the finding of a factual element of the offense from the jury’s purview was, as appellant acknowledges, also rejected by Mutuma, supra, 144 Cal.App.4th 635. The Mutuma court stated that the defendant’s claim that the court’s instructions regarding section 2800.2, subdivision (b) contravened the ruling in Apprendi by removing the finding of a factual element of the offense from the jury’s purview was “not so for the same reasons the instructions were not erroneous. The question of whether the three predicate offenses existed was submitted to the jury. The questions of whether these were point violations and whether three point violations add up to willful and wanton disregard were questions of law properly resolved by the trial judge. The instructions withdrew no factual finding from the jury.” (Mutuma, at p. 644.)
DISPOSITION
For the foregoing reasons, the judgment is affirmed



_________________________
Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.

























People v. Baskerville (A146317)