P. v. Bourguignon

Filed 4/6/06 P. v. Bourguignon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

A jury convicted Reed Bourguignon of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), recklessly evading a peace officer (Veh. Code, § 2800.2),^[1] and resisting an executive officer (Pen. Code, § 69). In addition, the jury found Bourguignon personally used a deadly weapon, a car, in the commission of resisting an executive officer. (Pen. Code, § 1192.7, subd. (c)(23).)

The court suspended imposition of sentence and placed Bourguignon on three years' formal probation, subject to conditions, including 365 days' custody in county jail and participation in any treatment or therapy program recommended by his probation officer, with court and probation department access to medical records related to the prescribed treatment.

Bourguignon appeals, contending the court erred by including a general intent instruction defining "willfully" although section 2800.2, subdivision (a) requires proof of a specific intent. He further contends the court's imposition of a probation condition requiring him to release certain medical records to the court and probation department is invalid and violates his constitutional right to privacy. We affirm the judgment.

FACTS

On the night of August 21, 2004, Officer Kevin Lehan drove to a business park in Carlsbad to investigate a report of drag racing. When he arrived, Lehan saw three cars on Fleet Street. Two cars were parked side by side in the road and the third was parked along the curb. The two cars parked in the street sped off in an apparent drag race. Lehan turned on the lights of his police car and followed the two racing cars.

Lehan reported to dispatch the license plate numbers for the car parked by the curb and one of the cars in the race. Lehan was unable to see the license plate number of the lead car in the race, but he saw it had a burned-out left taillight and appeared to be a dull white Honda Civic.

The car directly in front of Lehan pulled over to the curb and the lead car turned into a parking lot driveway. Lehan followed the lead car into the parking lot, and saw 25 to 30 cars parked in the lot with people standing around. The people got into the cars and started driving them out of the parking lot. Lehan turned on his siren and continued to follow the car with the broken taillight (the suspect car).

Lehan followed the suspect car back onto Fleet Street and then onto Armada. At a turnabout in the road, the suspect car turned around and headed toward Lehan. Before the turnabout, Lehan started to make a U-turn over a raised median so he could continue following the suspect car. As the front tires of Lehan's car came off of the median, the suspect car swerved toward him, forcing Lehan to quickly brake to avoid a collision.

After the suspect car passed Lehan, he completed the U-turn and continued to follow the suspect car. The suspect car made another U-turn ahead of Lehan. Lehan started to U-turn in front of the suspect car to position himself to continue following the car. As Lehan was turning, the suspect car turned towards Lehan's car. Lehan quickly braked and turned his car to avoid being hit. Lehan briefly lost control of his car and was forced over the center median.

After he regained control of his car, Lehan resumed his pursuit of the suspect car. Several other cars entered the street and drove in a group with the suspect car. The cars turned on Lego Drive and then Cannon Road. The cars entered Interstate 5 at Cannon Road, followed by Lehan and Officer Peter Mann. Lehan told Mann to focus on the car with the broken taillight and Mann assumed the lead position in the pursuit. At Tamarack Avenue, Officer Kelli Zavala joined the pursuit and assumed the second position.

The pursuit continued north on Interstate 5 at speeds over 100 miles per hour. While on the freeway, the suspect car passed numerous cars, causing some to brake or swerve into other lanes. The suspect car also cut across multiple lanes of traffic, drove in the center median lane, and drove on the right shoulder. At Mission Road in Oceanside, the suspect car cut across all lanes of traffic and drove over a raised exit median to exit the freeway. The suspect car drove east on Mission Road followed by Oceanside and Carlsbad police. The suspect car turned right on Canyon Road. The officers lost sight of the suspect car when it turned left on Carey Road.

Officer Mickey Williams heard reports of the car chase on his police radio. He drove in the direction of the pursuit and stopped in an area just south of where the other officers lost sight of the suspect car. Two or three minutes later, he saw a Hispanic man running down the street. Williams stopped the man and asked him to identify himself and explain what he was doing. The man identified himself as Reed Bourguignon. Bourguignon told Williams he was running to the store from a friend's house but he did not know where the friend lived. Williams said he did not believe Bourguignon's story and he believed Bourguignon was involved in the police pursuit. Bourguignon admitted he was involved in the pursuit and agreed to take Williams to East Street where his car was parked. The car appeared to be a primer gray or white Honda Civic.

Williams asked the officers involved in the pursuit to identify the car. Lehan turned on the car's lights and found the left rear taillight was broken. Lehan, Mann, and Zavala each identified the car as the suspect car based on seeing the broken taillight. In addition, the officers noticed the car had at least one flat tire and damage to the front end. Mann smelled burned rubber from the tires. Mann also noticed the inside of the car had only a driver's seat and there was a nitrous tank in place of the front passenger seat.

After identifying the car, Lehan arrested Bourguignon and advised him of his Miranda^[2] rights. Bourguignon waived his rights and admitted to street racing, attempting to ram Lehan's car, and trying to evade Lehan. At trial, Bourguignon denied being involved in the police pursuit. He claimed he was in the area searching for a party and his tire became flat. He said he was walking to the store because he did not have a spare tire.

DISCUSSION

I

Jury Instructions

Bourguignon contends the trial court erred by instructing the jury with the definition of "willfully." (CALJIC No. 1.20.) He claims this was error because CALJIC No. 1.20 defines general criminal intent, but the crime of recklessly evading a peace officer (§ 2800.2, subd. (a)) requires proof of a specific intent to evade the officer. Because we find the trial court properly limited the application of CALJIC No. 1.20 to the general intent crime of resisting an executive officer (Pen. Code, § 69), we affirm the judgment.

A

It is the burden of the prosecution to prove beyond a reasonable doubt each element of the charged offense. (People v. Cole (2004) 33 Cal.4th 1158, 1208.) This burden includes proving whether the defendant possessed the requisite criminal intent. (People v. Hood (1969) 1 Cal.3d 444, 458-459, fn. 7.) Whether a jury was properly instructed on an element of the charged offense is predominantly a legal issue and may be examined without deference to the trial court's ruling. (Cole, at p. 1208.)

Even though the instruction on general intent was given in a case involving both general and specific intent crimes, there is no reasonable likelihood the jury was confused. The instructions provided to the jury, both orally and in writing, clearly explained that a guilty verdict under section 2800.2, subdivision (a) required finding Bourguignon had a specific intent to evade the officers. Three times during the presentation of the jury instructions the court discussed the specific intent requirement. The court also noted the other two crimes charged required a finding of general intent and explained the difference between the two types of intent. Finally, the contested instruction was used to define "willfully" as it was used in CALJIC No. 7.50, which defined the elements of the crime of resisting an executive officer.

The general intent instruction Bourguignon asserts was in error, CALJIC No. 1.20, was limited to modifying the definition of resisting an executive officer. When a court carefully distinguishes between the general and specific intent offenses, it avoids the possibility of confusing the jury. (People v. Cline (1969) 2 Cal.App.3d 989, 1000.) The court read CALJIC No. 1.20 to the jury after it read CALJIC No. 7.50, the instruction used by the court to define the elements of resisting an executive officer. CALJIC No. 7.50 includes the word "willfully" to describe the intent required for the crime. Because the court limited the application of CALJIC No. 1.20 to modify CALJIC No. 7.50, we conclude the court left little room for the jury to apply the instruction to the other charges.

In addition, the closing remarks of the People helped prevent jury confusion. "Though the prosecution's argument may not be enough to conclusively prove that the jury applied the correct instruction . . . , it greatly enhances the probability that the jury was not misled . . . ." (People v. Dollar (1991) 228 Cal.App.3d 1335, 1344.) In closing argument, the People distinguished specific and general intent and highlighted the requirement of specific intent for a conviction under section 2800.2, subdivision (a). The People also provided a definition of "willfully" as it related to the charge of resisting an executive officer. Because the court and the People repeatedly distinguished the specific and general intent requirements and the court limited the use of CALJIC No. 1.20 to a general intent crime, we conclude the court did not err in instructing the jury.

B

Even were CALJIC No. 1.20 given in error, we conclude the error was harmless. "Under federal law, the 'Fifth Amendment right to due process and the Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.' [Citations.]" (People v. Cole, supra, 33 Cal.4th at p. 1208, italics added.) An instructional error having the effect of removing an element from the jury's review is a federal constitutional error. (Ibid.) Therefore, reversal of the conviction is warranted unless "it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict." (Ibid; Chapman v. California (1967) 386 U.S. 18, 24.)

The facts supporting a specific intent to evade a peace officer were very strong. By activating his lights and siren, Officer Lehan made it clear he was attempting to stop the cars involved in the street race. Lehan continued to follow Bourguignon's car rather than stop behind the other cars involved in the race. Lehan followed Bourguignon through two U-turns, for several miles on Interstate 5, and after he left the freeway in Oceanside. In addition, several other officers joined the pursuit on the freeway and followed Bourguignon after he left the freeway. Finally, when he turned on Carey Road, Bourguignon actually succeeded in evading the officers. Because the evidence against Bourguignon was strong and the court's instructions left little room for confusion, we conclude beyond a reasonable doubt the result in the trial would not be different absent the CALJIC No. 1.20 instruction on "willfully." Therefore, any error on the part of the court was harmless.

II

Probation Condition

Bourguignon contends the court improperly conditioned his probation on making certain medical records available to the court and probation officer. He claims the condition is invalid because it is not related to the offenses for which he was convicted and it is not reasonably calculated to prevent future criminality. He further claims the condition impermissibly violates his constitutional right to privacy. We conclude the condition is valid and does not unreasonably burden his constitutional right to privacy.

A

A defendant must timely object to a probation condition or the claim is waived on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Here, Bourguignon made a timely objection to the contested probation condition at his sentencing hearing. Therefore, this issue is not waived and may be considered on appeal.

B

"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "[A] condition of probation [that] requires or forbids conduct . . . not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486.)

Here, Bourguignon challenges a condition requiring the court and probation department to have access to certain medical records. The medical records in question are those relating to any treatment or counseling prescribed by the probation officer, a probation condition not challenged by Bourguignon on appeal. We presume any treatment would be related to Bourguignon's rehabilitation and, therefore, is intended to prevent future criminality. Treatment to prevent future criminality is supported by the court's order for Bourguignon to attend anger management class during the pendency of the trial, and can be inferred from the court's statement it granted probation and local jail time, rather than imposing a prison sentence, only because of Bourguignon's youth and no significant criminal history. In addition, the court expressed a hope that Bourguignon would handle himself more maturely in the future. Therefore, it can be inferred that any treatment will be reasonably related to the prevention of future criminality. Because access to related medical records allows the court and probation officer to monitor Bourguignon's progress and the success of the prescribed treatment, we conclude the probation condition requiring court and probation access to those medical records is valid under the Lent test.

C

The constitutional guarantee of privacy is violated when there is "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious invasion of the privacy interest." (In re Christopher M. (2005) 127 Cal.App.4th 684, 695, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37, 39-40.) However, an invasion of a privacy interest is not unconstitutional if justified by a legitimate competing interest. (Hill, at p. 38.) When a condition of probation limits a constitutional right, it must be narrowly drawn and reasonably related to the compelling state interest in reformation and rehabilitation. (People v. Burden (1988) 205 Cal.App.3d 1277, 1279.)

We found only one case addressing the privacy considerations of a probation condition requiring access to medical records. In In re Christopher M., supra, 127 Cal.App.4th at p. 695, this court concluded a similar probation condition was valid and did not violate appellant's constitutional right to privacy. Unlike Bourguignon's case, the court in Christopher M. had already prescribed a treatment program. (Id. at p. 689.) In addition, because the case was a juvenile dependency case, the court had broader discretion to impose probation conditions. (Id. at p. 692.) However, the contested condition in Christopher M. was broader because it required all records related to Christopher's medical and psychological treatment to be made available to the court and probation officer. (Id. at pp. 690-691, fn. 5.) This court concluded the condition of probation did not violate Christopher's constitutional right to privacy because the state had a legitimate interest in protecting the public and determining the success of the treatment. (Id. at p. 695.)

Here, Bourguignon has a protected privacy interest in his medical records. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 90.) The state has a legitimate interest in protecting the public against criminal and antisocial conduct. (In re Christopher M., supra, 127 Cal.App.4th at p. 695.) The treatment required as a condition of Bourguignon's probation is presumably intended to serve this interest and is not challenged on appeal by Bourguignon. Access to Bourguignon's related medical records is necessary to determine if he is complying with the prescribed treatment and if the treatment is successful. (Ibid.) Therefore, the state has a legitimate interest in accessing the medical records related to Bourguignon's treatment.

In addition, the court narrowly tailored the condition. The court limited access to only those medical records related to Bourguignon's psychiatric and mental health treatment, and drug and alcohol tests and treatment. The court did not require disclosure of records related to physical examinations, blood tests, or immunizations. Because the court narrowly tailored the requirement to minimize the intrusion into Bourguignon's privacy interests, we conclude the probation condition does not violate his constitutional right to privacy.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] All further statutory references are to the Vehicle Code unless otherwise specified.

^[2] Miranda v. Arizona (1966) 384 U.S. 436.