P. v. Vasquez

Filed 8/23/07 P. v. Vasquez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Robert Martinez, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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Mark George Vasquez was convicted of unlawful driving of a vehicle, evading a police officer and nine counts of assault with a deadly weapon. Substantial evidence supports the jury finding that the injury to a police officer was the natural and probable consequence of Vasquezs efforts to flee from the police. Vasquez shows no prejudicial error in the admission of evidence of letters in which he described the urban assault vehicle he used to evade the police chase. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 29, 2005, while driving a stolen Ford truck with elevated tires, Vasquez led police officers on a chase that injured Officer Michael Skibar. Vasquez took off so that the officers would not red light him. Vasquez figured that if [he] took it into traffic, they [police] would call it off but they didnt so [he] just kept going. During the chase, Vasquez drove on the wrong side of the road, traveled at a high rate of speed, and hit two vehicles. Vasquez struck Barbara Myerss vehicle pushing it into the middle of the intersection, causing her injury; drove over Richard Swartzentrubers van, causing damage to his vehicle and his daughter, and drove over Cheong Ho Yangs car. Three passengers were in Swartzentrubers van and two passengers were in Yangs vehicle. Marie Moore saw Vasquez driving towards her and moved out of the way, but Vasquez left tire marks on her car.

Skibar was the first of five police officers to follow Vasquez and was the officer immediately behind Vasquez. During the chase, another vehicle swerved into Skibar and Skibar attempted to avoid a collision. As a result, Skibars vehicle rolled over at least two times. Skibar was injured, suffering a broken left clavicle and elbow, as well as damage to his triceps ligament.

Vasquez was interviewed after he was apprehended and said the he did not intend to injure anyone. No other evidence was presented in Vasquezs defense.

Vasquez was convicted of evading a police officer causing injury; nine counts of assault with a deadly weapon by means likely to cause great bodily injury, each involving a different victim; and unlawful driving of a vehicle. The trial court found true the allegations that Vasquez suffered one serious or violent felony, three prison term priors within the meaning of Penal Code section 667.5, subdivision (b), and prior convictions for violating Health and Safety Code section 11370.2 and Vehicle Code section 10851. Vasquez was sentenced to prison for twenty-three years and timely appealed.[1]

DISCUSSION

I. There Was Substantial Evidence Vasquez Violated Vehicle Code Section 2800.3

The jury was instructed that: An act causes serious bodily injury if the injury is the direct, natural, and probable consequences of the act and the injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.

Vasquez argues that the record lacks substantial evidence he proximately caused Skibars injuries and therefore his conviction for violation of Vehicle Code section 2800.3 must be reversed. According to Vasquez, Officer Skibars injury was not the direct, natural and probable consequence of appellants act of fleeing. (Quoting CALCRIM No. 2182.) Vasquez reasons that (1) as part of his official duties Skibar was required to face hazards, such as a fleeing vehicle, and (2) another vehicle forced Skibar off the freeway to avoid a collision. Therefore, Vasquez concludes that he did not contribute in any manner whatsoever to Skibars injuries.

Vasquezs argument is not persuasive because he set in motion a chain of events that caused Skibars injury. (See People v. Schmies (1996) 44 Cal.App.4th 38, 48.) The vehicle that Skibar swerved to avoid was a normal consequence of Vasquezs leading officers on a high speed chase through traffic. (Id. at p. 49.) If Vasquez had stopped, Skibar would not have pursued him, and the accident never would have happened. Just as a midair collision of aircrafts engaged in fighting a fire is a foreseeable risk created by starting a fire (People v. Brady (2005) 129 Cal.App.4th 1314, 1335), a car accident is a foreseeable risk of trying to evade officers while driving a truck through traffic. Vasquez led officers through traffic, driving on top of cars. Skibars accident was part of a continuous sequence started by Vasquez. (See People v. Pike (1988) 197 Cal.App.3d 732, 750.) The conduct of the victim or other third persons, whether negligent or even criminally proscribed, is not, in itself, a defense to crime. (People v. Schmies, supra, 44 Cal.App.4that p. 46.)

The issue in this case is not whether Skibar can sue Vasquez for personal injury. Therefore, the fact that Skibar was working as a police officer at the time he was injured is irrelevant and cases cited by Vasquez discussing the firefighters rule are inapposite. Stated in its most traditional terms, the firefighters rule is that which negates liability to firemen by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman.  (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061.) The rule (which Vasquez fails to recognize is now limited by Civil Code section 1714.9),  is based upon a public policy decision to meet the publics obligation to its officers collectively through tax-supported compensation rather than through individual tort recoveries. This spreads the costs of injuries to public officers among the whole community, making the public in essence a self-insurer against those wrongs that any of its members may commit.  (Id. at p. 1062.) In this criminal trial, the firefighters rule is inapplicable. Even though Skibar was on duty as a police officer, his injuries were caused by events created by Vasquez. Substantial evidence supports the jury finding.

II. Vasquez Does Not Show Any Evidentiary Error Requiring The Reversal of His Conviction.

Over objection, the trial court admitted evidence of two letters Vasquez wrote from jail. In one, he described Skibar as flying Dukes of Hazard style into the embankment. He described himself as an outlaw gangster, and the truck he was driving as an urban assault vehicle. The letters also include reference to a song Vasquez wrote about load[ing] up the pipe and blow[ing] out a cloud and they mention his getting stoned. The court found the letters more probative than prejudicial, and the references objected to by Vasquez to be minimal.

Vasquez argues that the letters were irrelevant. He worries about the reference to drugs and to himself as an outlaw gangster, and the fact that he wanted pictures of the recipient scantily clad. He also believes the jury should not have heard that he associates with a person in a tree farm program or that he would prefer this resolution to his case.

Although as the trial court found the letters overall were probative, additional portions of the letters could have been redacted to minimize any possible prejudice to Vasquez. Specifically, as Vasquez argues, references to drugs, to his being an outlaw gangster, to his desire to participate in a tree farm program, and his request for a picture of the recipient scantily clad are irrelevant to any issue raised in trial and could have been redacted.

In contrast, contrary to Vasquezs argument, his reference to Officer Skibar flying off the freeway Dukes of Hazard style and his description of the truck as an urban assault vehicle are relevant to issues which the prosecution had to prove, including the identity of Vasquez, that he was fleeing from a police officer, and the multiple counts of assault. As the Attorney General argues [t]he fact that he found the destruction amusing contradicted any claim of remorse or surprise at the damage caused. Thus, with respect to these portions of the letters, Vasquez does not show error in admitting them.

There was no prejudice from the courts failure to redact the irrelevant portions of the letters. The evidence in this case was overwhelming. Officers Skibar, Nancy Miranda, William Lee, Michael Henderson, and Daniel Antillon all testified about the pursuit of Vasquez. Barbara Myers, Richard Swartzentruber, Cheong Ho Yang, Marie Moore, and Lori Brandt all testified regarding the damage Vasquez caused to them and their vehicles as he was attempting to flee from police. Vasquez presented no contrary evidence and did not testify in his defense. In the face of this overwhelming evidence, the impact of the references in the letters to being an outlaw gangster, drugs, a tree farm, or that he wanted pictures of the recipient, was not prejudicial. It is not reasonably probable that if the letters had been further sanitized, appellant would have received a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 826.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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[1] Other counts were alleged and tried separately. The jury could not reach a verdict and the trial court declared a mistrial as to those counts.