P. v. Shipley

Filed 3/13/07 P. v. Shipley CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant appeals his convictions for evading the police by reckless driving and for driving with a suspended license. He argues the trial court incorrectly instructed the jury that the pursuing police vehicle must be distinctively marked and that the court violated Penal Code section 654 by sentencing him for both crimes. We affirm.

Background

At about 1:00 a.m. on December 10, 2004, Pinole Patrol Sergeant Russell Young observed a motorcyclist traveling about 50 miles per hour in a 35-mile-per-hour zone. Young activated his siren and red light. He was driving a marked black and white patrol car.

Young pursued the motorcyclist with other police officers for 11 minutes over a distance of 9.7 miles. During the pursuit, the motorcyclist accelerated to 95 miles per hour in a 35-mile-per-hour zone and 105 miles per hour on the highway. He ran several stop lights and stop signs without slowing or stopping. On two occasions during the pursuit, Young got a good look at the motorcyclists face.

The chase ended at a muddy field by a golf course where the motorcyclist abandoned his motorcycle and fled on foot. Police were unable to find him. The next day, Shipley was arrested at a clubhouse on the golf course. He was wet, muddy and had moss on his back and head. Young identified Shipley as the motorcyclist. The motorcycle was registered to Shipley, who was driving with a suspended license the night of the chase.

Shipley was charged with evading a police officer by reckless driving, a felony (Veh. Code,  2800.2, subd. (a); count one)[1] and driving with a suspended license, a misdemeanor ( 14601.1; count two). It was alleged that he had five prior felony convictions, which made him ineligible for probation. (Pen. Code,  1203, subd. (e)(4).) A jury convicted Shipley of both counts. Shipley waived jury trial on the prior conviction allegations and the court found the allegations true. Shipley was sentenced to the two-year mid-term for count one and a concurrent 90-day term for count two.

Discussion

I.                    Distinctively Marked Vehicle

Shipley argues the trial court did not properly instruct the jury that, to convict him under section 2800.2, subdivision (a), it had to find that the pursuing police vehicle was distinctively marked.

Section 2800.2, subdivision (a) is violated when a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property. Section 2800.1 provides that a person willfully flees or otherwise attempts to elude a pursuing peace officers motor vehicle . . . if all of the following conditions exist: (1) The peace officers motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. (2) The peace officers motor vehicle is sounding a siren as may be reasonably necessary. (3) The peace officers motor vehicle is distinctively marked. (4) The peace officers motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform. ( 2800.1, subd. (a), emphasis added.)

The Supreme Court recently construed the phrase distinctively marked as used in this statute: [A] peace officers vehicle is distinctively marked if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the person being pursued that the pursuit is by the police. (People v. Hudson (2006) 38 Cal.4th 1002, 1006.) In Hudson, the Supreme Court clearly held that the jury can only consider distinguishing features of the vehicle itself to determine whether it was distinctively marked, and cannot consider circumstances unrelated to the vehicles appearance, such as the fact that defendant committed crimes before the vehicle pursued him or her; the duration of the pursuit; or the defendants evasive driving and violations of traffic rules, showing his consciousness of guilt. (Id. at pp. 1009-1010.) The Supreme Court held that a trial court has a sua sponte duty to instruct the jury on the meaning of distinctively marked. (Id. at p. 1006.)

The trial court instructed Shipleys jury that a vehicle operated by a peace officer is distinctively marked when in addition to a lighted red lamp and activated siren, the vehicle is of such appearance that a reasonable person would be able to recognize it as a peace officers vehicle, and a person fleeing is on reasonable notice that pursuit is by a peace officer. (CALJIC No. 12.87.) Shipley argues this instruction was inadequate because the phrase of such appearance is not limited to the physical features of the vehicle, but invites consideration of the circumstances surrounding the vehicle, including its speed, the closeness with which it followed the defendant, and other circumstances suggesting it was pursuing defendant.

Preliminarily, we note that Shipley forfeited this challenge by failing to request a clarifying instruction below. The trial court fulfilled its sua sponte obligation under Hudson to instruct the jury on the meaning of distinctively marked in section 2800.1, subdivision (a). (People v. Hudson, supra, 38 Cal.4th at p. 1013.) The trial court instructed the jury that it had to decide whether the appearance of the vehicle, other than the presence of a red light and siren, would lead a reasonable person to recognize it as a police vehicle. Shipley objects that the instruction needed clarification to specify that appearance referred solely to the physical appearance of the vehicle itself and not the vehicles appearance in the context of surrounding circumstances. When a defendant does not request clarifying language, he may not complain on appeal that an instruction correct in law was too general or incomplete. (People v. Valdez (2004) 32 Cal.4th 73, 113.)

Notwithstanding the waiver, we conclude that the language of the instruction regarding the appearance of the vehicle was sufficient to convey to the jury that the vehicles physical features reasonably enabled Shipley to recognize it as a police car. To any reasonable juror, appearance means physical appearance. The court was not obligated to use the precise words physical features to explain what appearance as used in CALJIC No. 12.87 already conveyed to the jury.[2]

The instruction clearly directed the jury that it must find that, in addition to the presence of a red light and siren, the vehicles appearance would indicate to a reasonable person that it was a police vehicle. Officer Young testified his car was a marked patrol vehicle. He described it in detail: The vehicle is black and white. The fenders, hood, trunk and rear quarter panels are black. Both doors, both sides are white. [] There is police on both sides of the vehicle approximately, I would say, eight inches tall. . . . [] . . . I have a red and blue light in my windshield next to my rear view mirror. The red light is fixed, the blue light is flashing. [] I have a red and blue flashing light in my grill. [] I also have a red and blue light that flash on my outside mirrors. Shipley does not cite any controverting evidence. He did not argue to the jury that the pursuing vehicles were not distinctively marked within the meaning of section 2800.1, subdivision (a). Rather, his theory at trial was that the driver of the motorcycle could have been his son instead of him. There is no error.

II.                 Penal Code Section 654

Shipley argues that the court violated Penal Code section 654 by imposing sentences for evading a police officer by reckless driving and for driving with a suspended license. He argues the sentence for the second count should be stayed because both acts were committed with the single intent and objective of evading the police.

In his closing, the prosecutor argued that Shipleys commission of one crime gave him an incentive to commit the other crime. Shipley cannot seize upon that statement as support for his argument that the relationship between the crimes triggers section 654s bar on multiple punishment.

Penal Code section 654 prohibits multiple punishment for a course of conduct that comprises a single indivisible transaction. ( 654; People v. Latimer (1993) 5 Cal.4th 1203, 1208.)  Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal [v. State of California (1960)] 55 Cal.2d [11,] 19, italics added.) (People v. Latimer, at p. 1208.) The relevant objective is the defendants criminal objective. (In re Hayes (1969) 70 Cal.2d 604, 610.)

Shipley committed the two crimes, driving with a suspended license and evading the police, with distinct criminal objectives. His initial criminal objective was to drive the motorcycle without a license. He did not have an objective to evade the police until the police spotted him speeding and signaled for him to pull over. Shipley was driving with a suspended license before the police ever observed him. Because Shipley committed the crimes with two distinct criminal objectives, multiple punishment was permitted. (People v. Latimer, supra, 5 Cal.4th at p. 1212; In re Hayes, supra, 70 Cal.2d at p. 611.)

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] All statutory references are to the Vehicle Code unless otherwise indicated.

[2] The CALCRIM jury instruction, as revised in August 2006 after People v. Hudson, supra, 38 Cal.4th 1002, was decided, directs the jurys attention to the features of the vehicle: A vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers, including a red lamp, siren and at least one other feature that makes it look different from vehicles that are not used for law enforcement purposes. (CALCRIM No. 2181.)