Filed 9/19/18 P. v. Contreras CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Garcia, Judge. Affirmed.

Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Eduardo Contreras guilty of evading a peace officer with reckless driving (Veh. Code,[1] § 2800.2, subd. (a)) and driving without a valid license (§ 12500, subd. (a)). The trial court sentenced him to three years eight months in prison. On appeal, Contreras contends the trial court prejudicially erred by allowing the officer who pursued him to testify about the meaning of certain Vehicle Code sections and whether Contreras violated them. Contreras further contends the trial court prejudicially erred in the manner in which it instructed the jury regarding the "willful or wanton disregard for safety" element of reckless evasion. For reasons we will explain, we reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 30, 2016, Detective Robert Forbes of the San Diego County Sheriff's Department and Special Agent Kayade Ereme of Homeland Security Investigations were patrolling Chula Vista for border-related crimes in a marked patrol car and in uniform. They observed the driver (later determined to be Contreras) of a vehicle with a cracked windshield fail to stop at a stop sign at the intersection of East Palomar Street and Nolan Avenue. The officers made a U-turn to follow the vehicle west on East Palomar Street, but they did not activate the patrol vehicle's overhead lights or siren.

The officers then observed Contreras accelerate as he approached the intersection of East Palomar Street and Melrose Avenue, where an adult and a child were crossing the street. Contreras again failed to stop at the stop sign and proceeded to turn right onto Melrose Avenue. The officers then activated the patrol vehicle's lights and siren to conduct a traffic stop. Contreras did not immediately stop.

The Pursuit

Melrose Avenue and East Orlando Street Intersection

With the officers now in pursuit, Contreras made a quick left turn from Melrose Avenue onto East Orlando Street, where he failed to stop at a stop sign, and drove "almost all the way into the lane for oncoming traffic" as he cut the corner. The officers lost sight of Contreras for "probably two seconds," but spotted him again on East Orlando Street, where he drove at approximately 50 miles per hour in a 25 mile-per-hour zone.

East Orlando Street and Monserate Avenue Intersection

At the intersection of East Orlando Street and Monserate Avenue, Contreras skidded past the stop sign before stopping in the middle of the intersection. The officers stopped behind Contreras, got out of their vehicle, and drew their service weapons. As Contreras remained in the driver's seat, a passenger exited the vehicle and eventually surrendered.

Contreras then resumed driving west on East Orlando Street. Special Agent Ereme remained with the passenger while Detective Forbes continued pursuing Contreras.

East Orlando Street and Judson Way Intersection

At the uncontrolled T-intersection of East Orlando Street and Judson Way, Contreras made a fast left turn onto Judson without slowing down or proceeding with caution, then exceeded the 25-mile-per-hour speed limit.

Judson Way and East Palomar Street Intersection

At the intersection of Judson Way and East Palomar Street, Contreras turned right onto East Palomar Street without stopping at a stop sign, then exceeded the speed limit by 20 miles per hour, before slowing behind traffic approaching Hilltop Drive.

East Palomar Street and Hilltop Drive Intersection

As Contreras approached a red signal light at the four-way intersection of East Palomar Street and Hilltop Drive, he veered left across the solid double yellow lines; drove into oncoming traffic to pass seven or eight vehicles stopped at the red light; and, after stopping in the left turn lane to wait for the red signal light to turn green, proceeded straight through the intersection from the left-turn lane, crossing in front of the vehicles waiting to go straight through the intersection.

Contreras's Arrest

After several more turns on various residential streets, Contreras stopped the vehicle in his driveway, exited, and was taken into custody at gunpoint by Detective Forbes. The detective found a folded pocket knife in Contreras's pocket, and a "Slim-Jim" (which the detective described as "a tool that can be used to break into . . . a vehicle") in the trunk of the vehicle.

The pursuit lasted a total of about three minutes, and covered about a mile and a half.

Jury Verdicts and Sentencing

Contreras was charged with (1) evading a peace officer with reckless driving (§ 2800.2, subd. (a)); (2) driving without a valid license (§ 12500, subd. (a)); and (3) possession of burglary tools (Pen. Code, § 466). After hearing two days' worth of evidence from the pursuing officers, the jury deliberated for about 45 minutes before finding Contreras guilty on the driving offenses, and not guilty on the remaining count.

Contreras admitted one strike prior (Pen. Code, § 667.5, subds. (b)-(i)) and two prison priors (Pen. Code, § 667, subd. (b)). After striking one prison prior (Pen. Code, § 1385, subd. (c)(1)), the trial court sentenced Contreras to three years eight months in prison.

DISCUSSION

The two issues Contreras raises in this appeal relate to the "reckless" element of his conviction for reckless evasion of a peace officer, in violation of section 2800.2. "The statute requires proof, among other things, that 'the pursued vehicle [was] driven in a willful or wanton disregard for the safety of persons or property . . . .' " (People v. Leonard (2017) 15 Cal.App.5th 275, 279; § 2800.2, subd. (a).)[2] The statute provides that "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).)

• I. Opinion Testimony

In his first challenge, Contreras contends the trial court erred prejudicially by allowing Detective Forbes to provide improper opinion testimony regarding the meaning of several Vehicle Code sections and his belief that Contreras violated them (for purposes of establishing three point-count violations). We conclude any error in admitting this testimony was harmless.

• • A. Background

Detective Forbes testified as a lay witness during the prosecution's case-in-chief. The prosecutor elicited the following testimony regarding Contreras running a stop sign and cutting the corner at the intersection of Melrose Avenue and East Orlando Street:

"Q. And is that a violation of a Vehicle Code section?

"A. It actually violates a couple of Vehicle Code sections.

"Q. What sections would those be?

"A. [Section] 22107 of the Vehicle Code covers unsafe turning movements. And it essentially says that before you make a turn, you have to make sure that—

"[Defense Counsel]: Objection. Calls for a legal conclusion.

"[The Court]: Overruled.

"[A.] So it says you have to make turns safely. And it also exactly deals a little bit with moving on the roadway and turn signals, but essentially it's for an unsafe turning movement.

"[Prosecutor]: And then you said there were multiple violations. Did you observe any other violations?

"A. [Section] 21650 of the Vehicle Code deals with driving on the right half of the roadway. And essentially it says that you have to drive on the right side of the roadway with a few exceptions, none of which really apply in this case—

"[Defense Counsel]: Objection. Calls for a legal conclusion.

"[The Court]: Overruled. [¶] . . . [¶]

"[Prosecutor]: Were there any other violations that you observed?

"[Detective Forbes]: I think [section] 22350 of the Vehicle Code deals with unsafe speed for conditions, or essentially speeding, and I would—I would estimate that when he made the turn, he was going probably—

"[Defense Counsel]: Objection. Lacks foundation.

"[The Court]: Sustained. [¶] . . . [¶]

"[Prosecutor]: But [driving in the opposing lane while cutting the corner] would still be a violation of the law?

"A. It is. I would say substantially—

"[Defense Counsel]: Objection. Calls for a legal conclusion when it comes to the infractions.

"[The Court]: Overruled."

The prosecutor elicited the following testimony regarding Contreras skidding past the stop sign at the intersection of East Orlando Street and Monserate Avenue:

"Q. Did it stop at the line of that stop sign?

"A. No.

"Q. And is that a Vehicle Code violation?

"A. It is. It's a violation of [section] 22450[, subdivision] (a) of the Vehicle Code."

The prosecutor elicited the following testimony regarding Contreras driving through the T-intersection at East Orlando Street and Judson Way, then speeding off:

"Q. When he was approaching this intersection . . . , did [Contreras's vehicle] slow down?

"A. It did slow down for the intersection because it was going pretty fast again on East Orlando, so . . . I think it did slow down for the turn.

"Q. Based on your observation of the turn that he made, was that a violation?

"A. Yes.

"Q. And what violation would that be?"

"A. The unsafe turning, again [section] 22107 of the Vehicle Code. And really probably unsafe speed, also, the [section] 22350, because you have to match your speed to what is safe for the conditions; so certainly violating [section] 22350 coming up to it. I mean, he was well over the safe speed on the residential street."

Finally, the prosecutor elicited the following testimony regarding the manner in which Contreras passed cars, then proceeded straight from the left-turn lane at the intersection of East Palomar Street and Hilltop Drive:

"Q. And so when [Contreras's vehicle] went across the double yellow, is that a Vehicle Code violation?

"A. It's actually several, yes.

"Q. What violation is that?

"A. So [section] 21460[, subdivision] (a) of the Vehicle Code deals with crossing over . . . the double yellow line. And essentially it says that only with a few exceptions, you can't drive across it. I think you can, like, cross it to turn left into a driveway, but you can't just drive across it and drive down the other side of the street.

"Q. And is there another violation also when the [vehicle] drove into the oncoming traffic's lane?

"A. Several. So there is [section] 21750[, subdivision] (a) of the Vehicle Code, which is passing traffic on the left when it's unsafe. And there is [section] 21752[, subdivision] (d) of the Vehicle Code, which is passing traffic on the left within a hundred feet of an intersection or in an intersection is prohibited. . . . [¶] . . . [¶]

"Q. Okay. What section or what was it that driving [straight through the intersection from the left-turn lane] constituted a violation?

"A. So [section] 22101[, subdivision] (d), I believe. I could double-check. It says that from the left-turn lane, you have to go left. It really talks more broadly about signs telling you which way to drive. But in this case, it would say from the left-turn lane, you have to turn left."

Detective Forbes explained he did not correlate Contreras's driving maneuvers to specific Vehicle Code violations in real-time during the pursuit. Rather, after the pursuit he consulted a "cheat sheet[]" of common Vehicle Code provisions to determine the section numbers of the relevant provisions.

After Detective Forbes testified, the trial court and counsel discussed how to instruct the jury regarding Vehicle Code violations for which no pattern jury instructions exist. Counsel agreed to collaborate on instructions that would "track the code," but "with some exceptions" that would "add some explanatory language" or "cull out" unnecessary cross-references to other code sections.

Ultimately, the trial court instructed the jury regarding underlying Vehicle Code sections as follows:

"Vehicle Code Section 22450(a)

"The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection.

"Vehicle Code Section 21460(a)

"(a) If double parallel solid yellow lines are in place, a person driving a vehicle shall not drive to the left of the lines.

"Vehicle Code Section 21750(a)

"The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle. [Bolding omitted.]

"Vehicle Code Section 21752(d)

"No vehicle shall be driven to the left side of the roadway when approaching within 100 feet of or when traversing any intersection.

"Vehicle Code Section 21650-

"Upon all highways, a vehicle shall be driven upon the right half of the roadway, except as follows: [¶] (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing that movement in Vehicle Code Section 21750(a). [¶] [or] (b) When placing a vehicle in a lawful position for, and when the vehicle is lawfully making, a left turn.

"Vehicle Code Section 21453(a)

"(a) A driver facing a steady circular red signal alone shall stop at a marked limit line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain stopped until an indication to proceed is shown.

"Vehicle Code Section 22107

"No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement."[3]

Contreras does not challenge these instructions on appeal.

The trial court also instructed the jury that Detective Forbes was not testifying as an expert and the jury was free to disregard his lay opinions. (See CALCRIM No. 333 ["A witness who was not testifying as an expert . . . gave his opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. . . ."].)

• • B. Relevant Legal Principles

Opinion testimony is generally inadmissible at trial. (Evid. Code, §§ 800, 801.) However, a lay witness's opinion is admissible if it is "[r]ationally based on the perception of the witness" and "[h]elpful to a clear understanding of his testimony." (Evid. Code, § 800, subds. (a), (b).) "Matters that go beyond common experience and require particular [specialized] knowledge may not properly be the subject of lay opinion testimony." (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) In general, witnesses may not testify about issues of law or draw legal conclusions. (People v. Torres (1995) 33 Cal.App.4th 37, 45.) "Such legal conclusions do not constitute substantial evidence." (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841.) The calling of witnesses to give opinions as to the application of the law "usurps the duty of the trial court to instruct the jury on the law as applicable to the facts . . . ." (Id. at p. 842.)

Likewise, the same reasoning that "prohibits the witness from expressing an opinion on the meaning of statutory terms . . . also prohibits the witness from expressing an opinion as to whether a crime has been committed." (People v. Torres, supra, 33 Cal.App.4th at p. 47.) "A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76.)

We review the trial court's admission or exclusion of evidence for an abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.) "Improper admission of lay opinion evidence is a state law error subject to the [People v. Watson (1956) 46 Cal.2d 818] test," which "asks whether it is reasonably probable the defendant would have obtained a more favorable verdict if the improper evidence had not been admitted." (People v. Shorts (2017) 9 Cal.App.5th 350, 362, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

• • C. Analysis

We conclude that although Detective Forbes's testimony about the meaning of Vehicle Code sections and whether Contreras violated them was improperly admitted, the error caused no prejudice.

Detective Forbes could (and did) testify as a percipient witness regarding his firsthand observations of Contreras's driving during the pursuit. In this capacity, he could (and did) describe in detail the facts underlying Contreras's Vehicle Code violations. But Forbes could not testify about the meaning of the pertinent Vehicle Code provisions—this is the trial court's role—or whether Contreras violated them—this is the jury's role.

Thus, for example, Detective Forbes could permissibly testify he observed that the intersection of Melrose Avenue and East Orlando Street is controlled by a stop sign and that he observed Contreras proceed through the intersection without stopping. But Forbes could not testify that, in his opinion, Contreras's failure to stop violated section 22450, subdivision (a), nor could Forbes opine on the meaning of this statute. The trial court erred by allowing Forbes to do both throughout his testimony.

This error, however, caused Contreras no prejudice. First, although Detective Forbes testified to his understanding of the various Vehicle Code sections, the court instructed the jury that Detective Forbes was not testifying as an expert and the jury was free to disregard his lay opinions. Indeed, the fact Forbes—a border-crimes detective—acknowledged consulting a "cheat sheet" of Vehicle Code provisions likely lessened any expertise jurors perceived in his testimony about Vehicle Code provisions.

Second, the trial court instructed the jury in full on each of the seven predicate Vehicle Code provisions. The court also instructed the jury that it must follow the law as instructed by the court (see CALCRIM No. 200), and we presume the jury followed this instruction (see People v. Osband (1996) 13 Cal.4th 622, 717). Moreover, although the prosecutor summarized the predicate Vehicle Code sections during his closing argument, he told the jurors they "will have to read the instruction" regarding the Vehicle Code provisions because "[i]t will have the exact verbiage that you need to follow for what constitutes a violation of that law."

Finally, the Vehicle Code sections Contreras was alleged to have violated—failing to stop at a stop sign, crossing a solid double-yellow line, passing on the left at an unsafe distance, passing within 100 feet of an intersection, failing to drive on the right half of the roadway, failing to stop at the marked line at a red signal, and making an unsafe turning movement—were common traffic violations easily understood by jurors in the context of this case. The simplified jury instructions regarding the relevant Vehicle Code sections further reduced the likelihood any jurors misplaced reliance on Detective Forbes's testimony.

We are not persuaded by Contreras's assertion that Detective Forbes's opinions regarding predicate Vehicle Code violations were tantamount to offering an opinion on the ultimate question of Contreras's guilt under section 2800.2. Whether Contreras drove with willful and wanton disregard for safety was merely one element of the offense, and whether he violated three predicate Vehicle Code sections was merely one means of establishing that element. Again, the issues before the jury were matters of common experience on which they were unlikely to have deferred to Detective Forbes.

• II. Instructional Error

In his remaining challenge, Contreras contends the trial court erred by failing to instruct the jury that, when determining whether he committed three one-point Vehicle Code violations during the pursuit, a single act cannot give rise to more than a single point violation. He claims such an instruction was necessary because the prosecutor suggested the contrary during his closing argument. We conclude Contreras forfeited this issue and, in any event, any alleged error was harmless in light of the numerous predicate Vehicle Code violations he committed during the pursuit.

• • A. Background

Before closing arguments, the trial court instructed the jury with CALCRIM No. 2181 regarding the following elements of a section 2800.2 violation: (1) "[a] peace officer driving a motor vehicle was pursuing the defendant"; (2) "[t]he defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer"; (3) "[d]uring the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property"; and (4) the pursuing officer was in uniform and in a marked vehicle with a lighted red light that the defendant saw (or should have seen) and sounding a siren (as reasonably necessary). (Italics added.)

Regarding the third element, the instruction includes the following definitions:

"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, (2) and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.

"Driving 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."

The instruction then listed and summarized the seven Vehicle Code sections quoted in part I.A., above.

During his closing argument, the prosecutor argued Contreras exhibited willful and wanton disregard for safety under both "the totality of all of [his] driving actions that day," and by "committing three or more violations that are each assigned a traffic violation point." In arguing the latter, the prosecutor paraphrased each predicate Vehicle Code section and provided "more than eight" instances of violations:

• Section 22450, subdivision (a) ("failure to stop at a stop sign"): The prosecutor argued "[t]his actually happened twice in this case," once "at Monserate" and East Orlando, and again at "Judson and Palomar."[4]

• Section 21460, subdivision (a) ("breaking . . . parallel solid yellow lines"): The prosecutor argued Contreras violated this statute "when he tried to pass those seven to eight cars when he came up to Hilltop."

• Section 21750, subdivision (a) ("passing a vehicle going the same direction as you, well, you've got to do it at a safe distance"): The prosecutor argued Contreras violated this statute when he passed the cars approaching Hilltop Drive because it "was not a very wide street" and "[h]e was pretty much right next to all of those cars."

• Section 21752, subdivision (d) ("passing a vehicle at an intersection"): The prosecutor argued Contreras violated this statute "at Hilltop again" when he went straight through the intersection from the left-turn lane, essentially passing the cars that were lined up to go straight.

• Section 21650 ("driving on the right side of the road"): The prosecutor argued Contreras violated this statute twice—once when he cut the corner at Melrose Avenue and East Orlando Street, and again when he passed the vehicles approaching Hilltop Drive.

• Section 21453, subdivision (a) ("when you reach a red light and there is a marked line on the ground, you've got to stop at the line"): The prosecutor argued Contreras violated this statute when he "rolled past the line" at Hilltop Drive (after he passed the stopped cars, but before he cut back in front of them in the intersection).

• Section 22107 ("unlawful turning movement"): The prosecutor argued Contreras violated this statute three times (but only gave two examples)—once when Contreras turned without slowing sufficiently at the T-intersection of East Orlando Street and Judson Way, and again at Hilltop Drive when he went straight through the intersection from the left-turn lane.

Contreras's trial counsel objected at times that these examples assumed "[f]acts not in evidence," but she never objected that the prosecutor mischaracterized the law or misapplied it to the facts in evidence.

• • B. Forfeiture

The statements set forth in CALCRIM No. 2181 defining willful and wanton disregard for safety conform to the statutory definition in section 2800.2. Thus, to the extent Contreras now contends the court should have enhanced these definitions and further instructed the jury that a single act cannot give rise to more than a single point violation, he was required to request a pinpoint instruction to that effect. (See People v. Lee (2011) 51 Cal.4th 620, 638 ["[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 purposes of appeal."].)

Similarly, to the extent Contreras now contends the prosecutor misled the jury by arguing that a single act can give rise to more than one point violation, Contreras forfeited the contention by failing to object on that basis at trial. (See People v. Brown (2003) 31 Cal.4th 518, 553 ["To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury."].)[5]

Accordingly, Contreras forfeited this issue on appeal.

• • C. No Prejudicial Error

Even if Contreras had not forfeited this issue, we would conclude on the record before us that any instructional error was not prejudicial under any standard. The prosecutor identified 10 instances of predicate Vehicle Code violations. Jurors were not required to agree on which three occurred; only that any three did, in fact, occur. (See People v. Datt (2010) 185 Cal.App.4th 942, 950 ["While there was evidence of various factual bases for a jury finding that defendant's flight from pursuit was done in 'willful or wanton disregard for the safety of persons or property,' jury unanimity is not required 'as to the exact way the defendant is guilty of a single discrete crime.' "].)

Admittedly, some of the prosecutor's examples were truly duplicative—for example, breaking the solid double-yellow line/not driving on the right side of the road when approaching Hilltop Drive; and passing in an intersection/unlawful turning movement by driving straight through the Hilltop Drive intersection from the left-turn lane. However, even assuming (without deciding) it would be improper to double-count duplicative point-violations, each pair of duplicative violations nonetheless constituted one point-violation. Thus, even these two examples of truly duplicative violations constitute two (of the minimum three) points.

To satisfy the third predicate violation, the prosecutor cited and the evidence supports numerous instances of nonduplicative violations—for example, failing to stop at two separate stop signs (and a third not cited by the prosecutor during closing), failing to stop at a red light, making an unlawful turning movement by cutting the corner of the T-intersection of East Orlando Street and Judson Way, and passing cars too closely when approaching Hilltop Drive.

Thus, even assuming the trial court erred by not instructing the jury that a single act can give rise to only a single point-violation for purposes of establishing the willful and wanton disregard element, the error was not prejudicial in light of Contreras's numerous Vehicle Code violations.

Additionally, point-violations are only one of the permissible ways to establish willful and wanton disregard for safety. (§ 2800.2, subd. (b).) The jury could also reasonably have concluded (in the prosecutor's words) the "totality of [Contreras's] driving actions"—which, in addition to the cited statutory violations, included speeding on residential streets—showed that Contreras was "aware that his . . . actions present[ed] a substantial and unjustifiable risk of harm, . . . and he . . . intentionally ignore[d] that risk." (See CALCRIM No. 2181.)

DISPOSITION

Affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

DATO, J.