P. v. Crow

Filed 6/18/08 P. v. Crow CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.

Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant contends the court erred in admitting evidence and in instructing the jury. We affirm.

I

FACTS

Defendant Mark Alan Crow was convicted by a jury of assault with a deadly weapon on a police officer in violation of Penal Code section 245, subdivision (c) as charged in count one of the information. He was also convicted of evading police while driving recklessly in violation of Vehicle Code section 2800.2, as charged in count two, misdemeanor violation of Vehicle Code section 23152, subdivision (a), driving under the influence of alcohol, as charged in count three and driving with a blood alcohol level of .08 or greater in violation of subdivision (b) of the same statute, as charged in count four.

The court sentenced defendant to four years in prison on count one and two years on count two to be served concurrently. Sentence was suspended on counts three and four. He was sentenced to an additional year for a prison prior enhancement under Penal Code section 667.5, subdivision (b). His total prison sentence was five years.

Thomas Spratt, an off-duty deputy sheriff, witnessed a traffic collision on Live Oak Canyon Drive in the unincorporated area of Orange County between 7:30 and 8:00 p.m. on July 14, 2005. Emergency response teams, including five engines, paramedic vehicle and a Highway Patrol police car were at the scene.

While at the scene, Spratt heard some tires screeching from like a from a turning, you know when a car is turning. Its going fast, it turns sharp, theres that kind of screeching sound. I heard that and looked over towards the intersection, saw the black truck coming from Santiago Canyon Road in our direction. Spratt estimated the black trucks speed at 40 m.p.h. as it then went in between the emergency vehicles and my truck and then continued accelerating to 60 miles an hour, probably 65. Spratt said, Few minutes later, I heard saw the truck cresting again, coming back towards us again. It was going probably 50 miles an hour or so. Spratt heard and saw the black truck accelerate and said to one of the police officers, Here comes that black truck again, try to stop him.

California Highway Patrol Officer Robert Ellis testified he saw defendant inside the black truck, and said defendant was laughing, smiling, enjoying himself. Ellis walked into the middle of the road and held up his right hand, palm out, to try to get defendant to stop. Defendant and Ellis made eye contact, but defendant did not stop. Ellis then raised his weapon at defendant. As Ellis was in the middle of the road with his gun drawn, he heard the engine of the black truck accelerate. Ellis explained: Then the vehicle was pointed towards me, so at that point, I had to make a decision. I basically had a couple decisions. One, because I was in the self-defense mode as a police officer, I could have shot the person coming at me or shot at the vehicle. [] But due to the fact that we had bicycles, emergency personnel, fellow officers, victims on the ground and a vehicle coming at me at least 45 miles an hour, even if I would have shot and hit the suspect, the vehicle would have continued. [] . . . [] Second option was to wait until the last minute, get out of the way. Those were the different things that were going through my mind. Ellis waited until the last minute and then ran between an ambulance and a fire engine.

With the lights flashing on his police vehicle, Ellis pursued defendant at 100 to 120 m.p.h. When defendant made a U-turn in a church parking lot, Ellis turned on his siren. Defendant continued and entered the SR 241 toll road at a speed of 75 to 80 m.p.h. and increased it to 90 m.p.h. before exiting the toll road. After driving through many streets and neighborhoods, defendant stopped his truck in a parking lot.

Defendant stepped out of his truck and stumbled. He yelled in slurred speech that Ellis should shoot him. Ellis repeatedly ordered defendant to get on the ground. Defendant continued to walk toward Ellis while yelling at him, but eventually got on the ground.

Sheriffs deputies arrived. Defendant rolled over and pulled out a cigarette. Ellis ordered defendant to roll back over onto his stomach. Instead defendant began sticking his middle finger at Ellis. As Ellis spoke with the Sheriffs deputies, defendant got up and started walking toward them. Ellis walked toward him with pepper spray while ordering him to the ground. Ellis sprayed defendant in the face but defendant continued walking.

The officers struck defendant in the back of his leg with a baton and tackled him to the ground. Defendant put both of his arms under his chest and there was a struggle to get him handcuffed. All the while, defendant was yelling in an angry manner and there was an odor of alcohol about him as well as other objective signs of intoxication.

Defendant sustained some abrasions in the struggle, so he was taken to a hospital. At Saddleback Hospital, defendant was still very combative towards the medical staff. He was handcuffed and strapped to the desk. In response to Elliss inquiry about whether or not defendant would submit to a blood test, defendant uttered an obscenity. Defendant also refused all other sobriety tests. But blood was drawn nonetheless. The result showed .141 blood alcohol.

Prior to jury selection, the defense moved under Evidence Code section 402 to exclude defendants conduct at the hospital. Counsel argued the evidence was irrelevant, and its prejudicial effect would . . . substantially outweigh the probative value of his conduct later at the hospital. When the court made its ruling, the court characterized defendants conduct at the hospital as an 1101 situation.

At the close of evidence, the court stated to counsel: Before we take up the jury instructions, there was one issue one threshold issue regarding the admission of evidence of the defendants allegedly combative conduct at the hospital. [] The there was a motion to exclude that evidence before the trial and the court denied that motion on the ground that the evidence was admissible as other bad acts under 1101(b). [] If the evidence is admissible on that basis, it generates a separate jury instruction, jury instruction 375. What I wanted to take up before we get to the jury instructions is whether there is another or different basis to admit that evidence on the grounds that its intrinsically intertwined with the evidence in the case in general. [] In other words, its combative behavior, which simply continued from the time the defendant was first seen at Cooks Corner through the time of his evasion alleged evasion through the time of his arrest through the time of his hospitalization or initial hospitalization when the blood was drawn over his refusal and he was restrained. [] Let me just ask if counsel wish to be heard on this point.

After counsel argued, the court stated: This is not another act type of evidence, its an act, conviction or another bad act which occurs at a completely separate time and place. [] I think it would be unusual to treat something as other acts evidence when it occurs directly after the defendants arrest in this case. [] . . . [] I think its simply artificial to cut the evidence off after the defendants arrest and treat everything that happened when he was transported to the hospital as somehow other acts evidence. It isnt. [] As I said, its intertwined with the evidence of the defendants evasion, resistance at the time of arrest and continued combative behavior. All that behavior happened one after another and I dont see any reason to treat it as 1101(b) evidence. [] The court is going to, therefore, reconsider its earlier ruling admitting this evidence as 1101(b) evidence, admit it on the grounds its inextricably intertwined in this case that would obviate an instruction 375.

II

DISCUSSION

Defendant contends the trial court erred when it admitted evidence of defendants conduct at the hospital. He says his conduct at the hospital was not relevant to any of the charges and that its probative value was limited while its prejudicial value is great.

A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.] (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Under the circumstances in this record, we find the trial judge carefully considered both the probative value and the prejudicial effect of admission of evidence of defendants conduct at Saddleback Hospital. The court did not abuse its discretion in admitting the evidence.

Defendant claims he was denied his due process rights under the Fourteenth Amendment when the court declined to instruct the jury with Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 375, the instruction given when there is evidence of uncharged crimes under Evidence Code section 1101, subdivision (b).

Defendant points out in his brief that neither the prosecution nor the defense argued the evidence about defendants conduct at the hospital was uncharged criminal conduct. It was the court, when it first ruled the evidence was admissible, that at first characterized it as uncharged crimes, but later explained it did not consider the evidence to be uncharged crimes, but merely relevant evidence.

Defendant does not argue in his brief why evidence of defendants conduct at the hospital might amount to evidence of uncharged crimes. While his legal analysis about uncharged crimes is eloquent, it is misplaced since the court merely permitted the admission of relevant evidence.

Nonetheless, even assuming the trial court erred in either admitting the evidence or in declining to instruct with CALCRIM No. 375, defendant was not deprived of his federal constitutional rights because it was not error which infected the fairness of the entire trial. (Henderson v. Kibbe (1977) 431 U.S. 145, 154.) Nor would a different verdict be reasonably probable had the court ruled the way defendant requested because the evidence of defendants guilt is overwhelming. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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