P. v. Boustred

Filed 7/7/06 P. v. Boustred CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

A jury found defendant Clive Frank Boustred guilty of felony evading an officer, resisting arrest, and child endangerment. On appeal, defendant contends that the trial court erred by (1) excusing a juror for cause over his objection and failing to excuse a juror for cause after his challenge, and (2) denying his motion for acquittal of the felony-evading count so as to reduce the conviction to misdemeanor-evading. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises several other claims of error. We disagree with defendant and affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.

background

Defendant gave custody of his two sons to his ex-wife at a ski resort. He later saw the children with the ex-wife's fiancé. He punched the fiancé in the face, took the children, and left the ski resort. The next day, the ex-wife reported to Santa Cruz Deputy Sheriff Mary McConnell that she was concerned about the welfare of the children because she was to have custody of them by that morning but did not and the older son was not in school but should have been. She related the ski-resort incident and added that she had telephoned defendant but he had not returned the calls. Deputy McConnell telephoned defendant to get his side of the story and left messages for him. Sergeant Amy Christy went to defendant's home and saw snow clothing for an adult and two children through the window. An occupant responded to the doorbell and refused to speak with Sergeant Christy or allow entry. Deputy McConnell telephoned the occupant and asked him to speak with Sergeant Christy. The occupant hung up. Deputy Michael MacDonald arrived to assist Sergeant Christy but he failed to get a response from the occupant. Deputy McConnell telephoned the ex-wife and asked for defendant's description. The ex-wife said that she had just seen defendant driving his SUV out of the courthouse parking lot. Deputy McConnell then contacted Deputy Mark Pool who was on his way to assist the officers at defendant's home and told him to make a traffic stop if he saw defendant. Deputy Pool parked, saw defendant drive past him, and followed defendant. He activated his lights, but defendant did not slow down. He turned on his siren, but defendant did not slow down. He followed defendant 1.6 miles through a residential zone (29 driveways, 6 intersections, 3 blind corners) at approximately 40 miles per hour (15-mile-per-hour posted speed limit) on a mountainous, uphill, winding, and narrow (one lane in parts) road. He radioed Sergeant Christy to inform her that defendant had refused to stop. Sergeant Christy and Deputy MacDonald then took positions on the street near the home's driveway. When defendant approached, they drew their revolvers and ordered defendant to stop. Defendant ignored the officers and turned onto his driveway. The officers saw that defendant's sons were in the vehicle and reholstered their weapons. Deputy MacDonald pointed a rubber-bullet rifle at defendant and ordered him to stop. Defendant continued and his SUV ran into Deputy MacDonald's legs. While defendant waited for his driveway gate to open, Deputy Pool arrived and parked. The officers pursued defendant on foot. Deputy MacDonald placed himself in a left-front position relative to defendant's SUV, pointed the rifle at defendant, and demanded that defendant exit the vehicle. Defendant drove forward, scratching Deputy MacDonald. As he turned right so as to go through the gate before it completely opened, he pinned Sergeant Christy against a pillar and exclaimed that the officers had no right to be on private property. Defendant continued to his garage where he waited for the garage door to open. The officers caught up to him and ordered him to exit. Defendant refused. Deputy MacDonald fired his rifle hitting and denting the driver's side door. Defendant agreed to speak with Sergeant Christy on condition the officers permitted him to drive into the garage. He drove into the garage, exited, and began to talk with the officers. Sergeant Christy took the children from the garage and directed the other officers to arrest defendant. When the officers started to escort defendant out of the garage, defendant grabbed the wheelwell of his SUV and held on for a couple minutes. The officers finally talked him into letting go.

According to defendant, he received no telephone messages because his cell phone battery was dead, he did not see Deputy Pool's lights because the road was winding, he did not hear Deputy Pool's siren because the SUV's radio was playing loudly, and he carefully drove past the officers on his driveway because he was concerned about getting his children to safety in the home.

for cause challenges

On the prosecutor's challenge for cause over defendant's objection, the trial court dismissed juror Roark. It explained: â€