P. v. Polk

Filed 2/24/06 P. v. Polk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 convicted defendant Eli Aaron Polk of reckless evasion of a police officer. Defendant urges three grounds for reversing his conviction: (1) the jury instruction defining reckless evasion violated defendant's due process rights by requiring jurors to make a constitutionally impermissible presumption as to his mental state; (2) the trial court misinformed the jury during deliberations that speeding on three different roadways during the pursuit would constitute three separate speeding violations; and (3) the trial court abused its discretion in denying defendant's pretrial motion to recuse the Contra Costa County District Attorney's office. Finding no prejudicial error, we affirm the judgment.

I. BACKGROUND

Defendant was charged by information with reckless evasion of a peace officer. (Veh. Code,[1] § 2800.2, subd. (a).) On February 9, 2005, a jury found defendant guilty as charged and also found him guilty of the lesser offense of misdemeanor evading a peace officer. (§ 2800.1, subd. (a).) The court struck the misdemeanor conviction, and placed defendant on 3 years' probation, conditioned on 90 days in county jail or electronic home detention. This appeal followed.

A. Prosecution Case

At around midnight on October 14, 2003, Contra Costa Sheriff's Deputy Mark Johnson was driving on Alcosta Boulevard in a marked police vehicle with the emblem of the City of San Ramon Police Department. Johnson was wearing a uniform from the San Ramon Police Department. He noticed a bronze Camaro passing by with expired registration tags.

After calling dispatch, Johnson turned on his red and blue overhead lights to pull the vehicle over. The Camaro immediately accelerated to a speed of about 40 to 50 miles per hour in a 35-mile-per-hour zone. At trial, Johnson identified this as a violation of section 22350.[2] The officer activated his siren and chased the Camaro. As the Camaro approached Interstate 680 (I-680), it fishtailed to the left and the right. Johnson continued to follow the vehicle onto the freeway but it was accelerating away from him, even though he had his gas pedal pressed down to the floor.

Johnson's car reached a speed of 130 miles per hour. He saw the Camaro weaving around traffic, using all four lanes without signaling. The Camaro changed lanes at least five times without signaling. Johnson testified that each of these lane changes violated sections 22107 and 22108.[3] According to Johnson, the Camaro's speed of over 100 miles per hour, on a freeway with a posted speed limit of 65 miles per hour, violated sections 22348, subdivision (b) and 22349, subdivision (a).[4]

Once Johnson realized that his speedometer had reached 130 miles per hour, he decided to terminate the pursuit because he deemed it unsafe for himself, the driver of the Camaro, and other drivers on the road. He turned off his overhead lights and siren. Johnson radioed the dispatcher that he was terminating his pursuit. The Camaro was approximately 250 yards ahead of him at that time. Johnson saw the Camaro cut to the right across two or three lanes of traffic without signaling, and take the Bollinger Canyon Road exit from the freeway.

Deputy Sheriff Jeffrey Schraeder heard radio traffic concerning the pursuit and drove toward I-680 in San Ramon. He saw the Camaro coming from the I-680 off-ramp onto Bollinger Canyon Road at a speed of approximately 40 to 50 miles per hour. The car was skidding sideways, and Schraeder could hear the tires screeching. The car skidded over three lanes on Bollinger Canyon Road before straightening out in the middle lane. According to Schraeder, the Camaro's movement across the marked lanes violated section 21658.[5] Schraeder estimated that the Camaro was traveling at 65 miles per hour on this segment of Bollinger Canyon Road where the posted speed limit was 40 miles per hour.

The Camaro turned right off of Bollinger Canyon Road into an empty parking lot, and came to a stop. Schraeder pulled up and stopped behind the Camaro. Johnson arrived there a few seconds later. He noticed that the Camaro's engine was smoking and the right front tire was flat. Johnson testified that driving on a flat tire is a violation of section 24002.[6] Defendant, the driver and sole occupant of the car, was arrested at the scene. Johnson estimated that the distance between the location where he initiated pursuit and the location where the pursuit ended was 3.6 miles.

B. Defense Case

Defendant testified on his own behalf. While driving toward I-680, defendant saw the police officer in his rearview mirror, panicked, and â€