Filed 10/4/18 P. v. Laporte CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In October of 2014, defendant Jon-Luc Laporte drove his vehicle into two women as they walked on a sidewalk, severely injuring them. When he shortly thereafter drove back to the scene, bystanders identified his truck to police officers, who then pursued him in their patrol vehicles. A jury found Laporte guilty of two counts of attempted voluntary manslaughter, two counts of assault with a deadly weapon, and one count of felony evasion of a peace officer. On appeal, Laporte contends that the trial court violated his due process right to an impartial judge by improperly prompting the prosecutor to elicit required testimony on the evasion count regarding the emergency lights on the officers’ vehicles. We affirm.

BACKGROUND

Laporte and Anna B. met at a Boy Scout event a year or two before October of 2014 and developed a friendship. At some point in 2014, Laporte expressed an interest in a romantic relationship with Anna, and she told him that she saw him only as a friend. Anna also discussed her relationship with Laporte with her next-door neighbor, Patricia Jo T. Anna and Patricia decided that it would be best if Anna ended her friendship with Laporte, and they arranged to meet with him at a Starbucks near Benicia Road in Vallejo on October 18, 2014.

At the meeting, Anna and Patricia told Laporte that it was best that he and Anna no longer be friends, and Laporte became emotional and started crying. Patricia told Anna that it was time to leave, and the women left the Starbucks and began walking down the sidewalk. A witness saw Laporte, driving a red pickup truck, drive into the two women from behind, knocking them to the ground and very seriously injuring them.

A bystander called 911, and Vallejo Police Officer Jason Martinez was the first officer to arrive at the scene. While Officer Martinez was assessing the situation, bystanders told him that the red truck that had hit the women was coming back to the scene. Just then, Officer Dynelle Jones had arrived and was getting out of her vehicle. Officer Jones, followed by Officer Martinez, turned on her lights and sirens and initiated a pursuit of the red truck. The truck drove from 40 to 50 miles per hour through residential neighborhoods, running several stop signs and stoplights. Eventually, a pursuing officer executed a maneuver that caused the truck to spin out and stop. Laporte was taken into custody.

By information filed January 6, 2015, the Solano County District Attorney charged Laporte with two counts of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) (counts 1 and 2); two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (counts 3 and 4); and one count of evading a peace officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) (count 5). The information further alleged that Laporte inflicted great bodily injury on his victims during the commission of the assaults (Pen. Code, § 12022.7, subd. (a)).

After trial, a jury found Laporte not guilty of the attempted murders but guilty of the lesser-included offenses of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664, subd. (a)). The jury found Laporte guilty as charged on the remaining counts, and true the allegation that he had inflicted great bodily injury on his victims during the commission of the assaults.

The trial court sentenced Laporte to nine years and eight months in prison, including eight months on the evasion count. This appeal followed.

DISCUSSION

Laporte’s only contention of error on appeal is that the trial court improperly prompted the prosecutor to elicit testimony proving two elements of the evasion count, namely that there was a red lamp visible from the front of the police officer’s vehicle and that the defendant saw or reasonably should have seen that lamp.

A. Additional Background

On count 5, the prosecution was required to establish, as relevant here, both that “[t]here was at least one lighted red lamp visible from the front of the peace officer’s vehicle” and that “[t]he defendant either saw or reasonably should have seen the lamp.” (CALCRIM No. 2181; see Veh. Code, § 2800.1, subd. (a)(1).)

During the prosecution’s case, Officer Martinez testified that his was a typical patrol car “with light bars on the top” visible from “the front and back.” The prosecutor and Officer Martinez then had this exchange:

“Q. Okay. And is that vehicle equipped with a siren?

“A. Yes, ma’am.

“Q. And were you using it at that point?

“A. After I started pursuing the vehicle is when I began using it, yes, ma’am.

“Q. Okay. How about—so as you saw the car, you decided—you drove off after it; am I right?

“A. Yes, ma’am.

“Q. Okay. And so that’s when you turned on the siren?

“A. Yes, ma’am.

“Q. How about a red lamp?

“A. Yes, I activated my lights and siren.”

At the conclusion of Officer Martinez’s testimony, the trial court asked the attorneys to approach and, outside the hearing of the jury, said to counsel: “It’s a minor issue. I can’t think of any other time where I’ve jumped in in any way, but you have not—this red light, you’ve never established this red light issue. So you asked him about his lights. He said, ‘I have a light bar,’ and then you said something about a red light. He said, ‘I activated my overhead lights,’ but—so you may want to—if you feel it’s appropriate, you can ask him on that.”

The prosecutor immediately followed up with Officer Martinez:

“Q. BY MS. WILSON: Sir, I’d just like to go back and clarify. When you started this pursuit, did you turn your red lights on?

“A. Yes, ma’am.

“Q. And they were activated throughout the entire pursuit?

“A. Yes, ma’am.

“Q. And the sirens were activated throughout the entire pursuit?

“A. Yes, ma’am.

“Q. And how about Officer Jones?

“A. Yes, ma’am.

“Q. Were her red lights operating?

“A. I could see her overhead lights working, yes, ma’am.”

Later on, Officer Jones testified that when she began her pursuit of Laporte she “got in my police vehicle, I turned on my overhead lights and sirens, and I went to get the truck which took off on me, and we had a pursuit.” Her vehicle had “police lights on the top, the red lights, and a siren.”

Later, during a recess and outside the presence of the jury, the trial court again asked counsel to approach: “So here is what I—one, I rarely will ever step in. I don’t think I ever do at preliminary hearings. I will often ask questions, but this is basically an undisputed fact and a question has been neglected to be asked that could very well lead to a mischarge, just as could not, that’s undisputed. [¶] You need to look at CALCRIM instructions on 2800.2 and ask all the questions and all the elements that you are missing. . . . [¶] You need to review that CALCRIM carefully and make sure—it requires a couple of elements on this red light. So she’s talked about red lights being red lights; there’s still elements missing to that that’s—

“MS. WILSON: Okay. I thought I had.”

Then, a little later, the prosecutor asked Officer Jones:

“Q. Just briefly, to go back again to the pursuit, I want to clarify, was there at least one lighted red lamp visible from the front of your vehicle during this pursuit?

“A. Yes, ma’am.

“Q. And where is that red light located?

“A. It’s on top of the car. It’s a forward-facing red light.

“Q. And how far away were you from the defendant’s car when you were pursuing him, once you actually caught up to him?

“A. Once I caught up to him, I was fairly close. I was able to, at one point, read the license plate and see that there was one person in the vehicle.

“Q. And at that point, he should have reasonably been able to see your lamp; is that correct?

“A. Yes ma’am.”

B. Analysis

Laporte “has a due process right to an impartial trial judge under the state and federal Constitutions.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) He argues that the trial court’s prompting violated that right and deprived him of the benefit of what would otherwise have been an acquittal on count 5.

The Attorney General does not argue that the trial court’s comments were proper, but asserts that Laporte has forfeited his claim of judicial misconduct by failing to object below. (See People v. Hines (1997) 15 Cal.4th 997, 1041.) On reply, Laporte responds that any objection would have been futile because once the trial court had directed the prosecutor to the alleged evidentiary gap in her case, there was no way to prevent her from questioning witnesses so as to fill that gap. In the alternative, he argues that his counsel was ineffective in failing to object to the trial court’s comments. We need not address these issues because we conclude that the error was harmless “beyond a reasonable doubt” under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, which Laporte argues is applicable.

Putting aside for a moment the requirement that the lights be red, there was ample evidence that Officers Jones and Martinez activated their emergency lights, and that Laporte saw those lights during the pursuit, even without the prosecution’s follow-up questioning of the officers occasioned by the trial court’s prompting. As noted, Officer Martinez testified before the trial court’s comments that he “activated [his] lights and siren.” In addition, video of Laporte’s interview with police on the date of the incident was introduced into evidence, and in it, Laporte told police that he “turn[ed] the truck around and left and then I saw the—the flashers and I freaked out. And I was like they—they saw my truck and I just drove off as fast as I could.” And later in that interview, the following exchange took place:

“Q1: Okay. Were you—you said you saw flashing lights is that when you saw flashing lights or?

“A: Yes, I saw a cop and I saw a police car come up through the highway and into the Starbucks right here.

“Q1: Mm-hm.

“A: Parking next to the scene and I feel like someone over there said, you know, they saw me down the road and they’re like that’s the red truck.

“Q1: Okay.

“A: And that’s when the police car turned around and I started just I turned around as fast as I could and gassed it[ ]. . .

“Q1: So you made a u-turn.

“A: Mm-hm.

“Q1: Okay.

“A: In the middle of the street.

“Q1: And you did—did that police car have [its] lights or siren on?

“A: Mm-hm, had his lights and sirens on.”

Laporte further testified at trial that he “saw a police officer vehicle turn around with its lights on.” And on cross-examination that:

“Q. So when you drove back to the scene you didn’t stop and talk to the police officers, did you?

“A. No. I got panicked and ran.

“Q. In fact, they had to chase after you?

“A. Yes.

“Q. They had to turn on their lights?

“A. Yes.

“Q. Their sirens?

“A. Yes.”

In short, there was ample and uncontroverted evidence at trial that the officers activated their lights during the pursuit and that Laporte saw those lights. The fact that those lights included a red lamp was also clearly established by the evidence, even apart from the follow-up questioning brought about by the court’s comments. As noted, the prosecutor asked Officer Martinez “How about a red lamp?” and Martinez responded “Yes, I activated my lights and siren.” And when asked to describe the markings on her vehicle, Officer Jones answered “It’s a black-and-white police car, with the ‘City of Vallejo’ emblem on the side. It has police lights on the top, the red lights, and a siren.”

People v. Acevedo (2003) 105 Cal.App.4th 195, on which Laporte relies, is distinguishable. In Acevedo, the only evidence supporting the red lamp element of the felony evasion charge was the officer’s testimony that he “ ‘activated [his] overhead emergency lights with the siren.’ ” (Id. at p. 197.) Acevedo reversed the judgment as to the felony evasion count, because the evidence was insufficient to establish that the lights were red. (Id. at pp. 199–200.) Here, by contrast, both officers testified that their vehicles were equipped with red lights, and when Officer Martinez was specifically asked whether he turned on a “red lamp,” he answered “Yes.” Laporte told the police and later testified that he saw the lights on the officers’ vehicles. We conclude that the trial court’s alleged error in prompting the prosecutor was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Stewart, J.

A152474; P. v. Laporte