P. v. Rhinehardt
Filed 5/26/06 P. v. Rhinehardt CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. DARREN G. RHINEHARDT, Defendant and Appellant. | B165657 (Los Angeles County Super. Ct. No. BA232621) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Ruffo Espinosa, Jr., Judge. Reversed in part, affirmed in part, and remanded for further proceedings.
Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Defendant and appellant Darren G. Rhinehardt, driving a stolen vehicle, led police officers on a chase through downtown Los Angeles. When he ran a red light, he hit a van in an intersection, causing the van to spin out of control and hit a traffic pole. The traffic pole fell on a four-year-old girl who was standing on the street with her mother, killing the child instantly. The jury was instructed on two alternative theories of murder: implied malice and second degree felony murder, i.e., that the killing occurred while Rhinehardt was engaged in commission of an inherently dangerous felony, evading an officer with willful disregard for the safety of persons (Veh. Code, § 2800.2.)[1] We rejected Rhinehardt's claim that violation of section 2800.2 was not an inherently dangerous felony for purposes of the second degree felony-murder rule. (People v. Rhinehardt (Aug. 19, 2004, B165657.)
After our opinion was filed, the California Supreme Court ruled, in People v. Howard (2005) 34 Cal.4th 1129, that section 2800.2 was not an inherently dangerous felony and could not support a second degree felony murder conviction under the judicially created doctrine of second degree felony murder. (Id. at p. 1132.) Accordingly, we recalled the remittitur in the matter and vacated our earlier opinion. (People v. Mutch (1971) 4 Cal.3d 389, 396.) In light of People v. Howard, we conclude the second degree murder conviction must be reversed. As Howard has no bearing on Rhinehardt's convictions for evading a peace officer with willful disregard, causing death while evading a peace officer, possession of a controlled substance, and possession of a smoking device, we affirm the convictions on these counts.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On June 1, 2002, at approximately 11:30 a.m., Los Angeles Police Officers Thomas Lo and Jaime Gonzales were in a marked patrol car driving westbound on Fifth Street in Los Angeles. They heard screeching tires and saw a BMW pull sharply out of a parking space into a traffic lane in front of them. The officers slowed to avoid hitting the BMW. Appellant, the driver, looked in the officers' direction and smiled.
Officer Lo decided to make a traffic stop. Officer Gonzales ascertained that the BMW had been stolen. The officers followed appellant as he drove west on Fifth Street, turned right on Wall, and then turned onto Winston, headed southbound. At the intersection of Winston and San Pedro, appellant rolled through a stop sign and then made a left turn towards Fourth Street. Because he was blocked by traffic, appellant drove onto the sidewalk for about 40 or 50 feet. The officers activated their sirens and red lights, which remained on until the end of the pursuit. Appellant continued to drive on the sidewalk, around the corner, and then eastbound on Fourth Street. Appellant drove off the sidewalk, continuing on Fourth Street. He turned north on Crocker, west on Third Street, and south on Los Angeles Street. At Winston, appellant turned right, stopped for a moment, opened and shut the driver's door, and then drove off. He made a left turn on Main Street. Main Street is a one-way street, going northbound. Appellant drove southbound on Main. The officers continued to follow appellant as he then turned right on Fifth Street, left on Hill Street, and left on Sixth Street.
At the intersection of Sixth and Spring, appellant was driving at approximately 35 to 40 miles per hour. The posted speed limit was 25 miles per hour. Appellant ran a red light and collided with a van that had entered the intersection. The collision sent the van spinning into a traffic pole, which fell. Evelyn Vargas, a four-year old girl, was standing at the corner, directly under the pole. When the pole collapsed, it hit Evelyn, killing her instantly. Evelyn had been standing with her family waiting for a bus. Evelyn's mother, the van's driver, and the van's passenger were also injured.
Appellant hit the BMW's windshield and lost consciousness. He was taken into custody. A broken cocaine pipe and .86 grams of cocaine base were found in the BMW. Blood tests indicated that appellant had ingested cocaine within 12-24 hours before these events.
The total pursuit lasted approximately two minutes and covered approximately 15-20 blocks. During the pursuit, appellant committed the following violations within the ambit of section 12810: (1) failing to stop at a stop sign (§ 22450); (2) driving on a sidewalk (§ 21663); (3) driving the wrong way on a one-way street (§ 21650); (4) failing to stop at a red light (§ 21453, subd. (a)); and (5) exceeding the posted speed limit of 25 miles per hour (§ 22350).
Appellant's defense was that his chronic cocaine use had permanently damaged his brain.
2. Procedure.
a. Appellant's conviction and sentence.
Trial was by jury. Appellant was convicted of second-degree murder (Pen. Code, § 187, subd. (a), count 1); evading a peace officer with willful disregard (§ 2800.2, count 2); causing a death while evading a peace officer (§ 2800.3, count 3); possession of a controlled substance, cocaine base (Health & Saf. Code, § 11350, count 5); and possession of a smoking device, a cocaine pipe (Health & Saf. Code, § 11364, count 6). In a bifurcated proceeding, the trial court found true that appellant had suffered: (1) a prior conviction of a serious or violent felony or juvenile adjudication (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); (2) a prior serious felony (Pen. Code, § 667, subd. (a)(1)); and (3) five previous prison terms (Pen. Code, § 667.5). Appellant was sentenced to a total term of 46 years, 6 months in state prison.
b. Rhinehardt's appeal.
Appellant appealed from the judgment. In an unpublished opinion filed August 19, 2004, this court affirmed his convictions and ordered a one-year serious felony enhancement stricken. (People v. Rhinehardt, supra, B165657.) In that appeal, we considered and rejected Rhinehardt's contention that the jury was improperly instructed on the alternative theory that the killing was murder if committed while Rhinehardt willfully evaded a peace officer in violation of section 2800.2, an inherently dangerous felony.
After the California Supreme Court's decision in People v. Howard, supra, 34 Cal.4th 1129, we recalled the remittitur and vacated our earlier opinion.
DISCUSSION
1. Section 2800.2 is not an inherently dangerous felony for purposes of the second-degree felony murder rule, and the trial court's instructions to the contrary were prejudicial error.
As noted, the prosecutor tried the case on two alternate theories: (1) that the circumstances of the killing established implied malice; and (2) that the killing was second degree murder if it occurred during commission of an inherently dangerous felony, evading an officer with willful disregard. To that end, the jury was instructed: â€
