Filed 5/29/18 P. v. Wilson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered pub-lished for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
DOUGLAS WILSON,
Appellant and Defendant.

A150818
(Contra Costa County
Super. Ct. No. 5-161132-6)


Defendant Douglas Wilson appeals from the trial court’s entry of judgment of conviction against him after jury trial, ordering him to be placed on three years felony probation, and to serve six months in county jail, regarding criminal misconduct that occurred on April 9, 2016. Defendant’s court-appointed counsel has filed a brief that does not raise any legal issues. Counsel requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues requiring further briefing and affirm the judgment.
BACKGROUND
In May 2016, the Contra Costa County District Attorney filed a felony complaint charging defendant with one count of felony fleeing from a police officer while driving recklessly (Veh. Code, § 2800.2; count one) and one count of misdemeanor driving when his license was suspended (id., § 14601.1, subd. (a); count two). At the preliminary hearing, the defense requested that the court reduce the first count to a misdemeanor under Penal Code section 17, subdivision (b). The court denied this request and held defendant to answer for both counts. In July 2016, the district attorney filed an information containing the same charges against defendant.
A jury trial was held in February 2017. Before trial, counsel and the court discussed what portions of recorded statements made by defendant out loud while sitting alone in the back of a police vehicle should be admitted. Defense counsel objected to a portion in which defendant referred to having been to jail as irrelevant and prejudicial under Evidence Code section 352, and also as inconsistent with defendant’s later, admissible statements that he did not know if his car would be towed if he pulled over for the police. The court found the challenged portion was relevant to motive and admitted it.
I.
The Prosecution’s Case
The prosecution presented one witness, as well as recordings and photographs of the incident. Brian Holscher testified that he was a deputy with the Contra Costa County Sheriff’s Office providing police services to the City of Lafayette by contract between the two agencies. On the morning of April 9, 2016, he was on duty patrolling in a marked Lafayette police vehicle dressed in his full Lafayette police uniform. His vehicle was equipped with light and siren systems. At full activation, the light system displayed a red light forward from an overhead light bar and a number of other flashing lights in a “very bright” display. Holscher had successfully tested the vehicle’s light and siren systems earlier that morning.
At approximately 8:02 a.m., Holscher was driving alone in his police vehicle, heading eastbound on route 24 in the “Number 2” lane at 79 miles an hour. The roads were slick because of a light rain and traffic conditions were “medium.” A black Nissan Altima passed him on his left and moved into his lane directly in front of him. Holscher activated all of his vehicle’s lights, intending to stop the Altima. Seconds later, he activated the vehicle’s “very loud” siren. Video taken from a forward-facing camera in his vehicle shows a black car pass to the left of Holscher’s vehicle, come into Holscher’s lane, dodge around several cars and speed away from Holscher’s vehicle as Holscher pursues it. A siren can be heard during this pursuit.
Holscher pursued the Altima for approximately 1.4 miles. Although he drove up to speeds exceeding 100 miles per hour, the Altima pulled away from him. This was so, Holscher testified, even though the wet road conditions generally required people to drive slower than usual in order to be safe. Holscher then saw the Altima spin out, hit a guardrail on the south shoulder of route 24 and spin around. Over a speculation objection by the defense, Holscher said he saw the Altima get “back on the freeway as if it was going to continue driving,” as the Altima “moved forward and stopped suddenly and moved forward.” Holscher did not recall seeing brake lights until the Altima came to a complete stop. He did not know, however, whether defendant actually had his foot on the gas or was dazed or confused at the time the Altima got back on the freeway. The front end and rear bumper of the Altima were damaged in the crash.
Holscher got out of his vehicle and ran towards the Altima, his gun drawn because he was alone and conducting a high-risk stop. He accepted assistance from an armed stranger who identified himself as a retired San Mateo police officer. Holscher opened the Altima’s driver’s side door. Defendant had his seat belt on and his hands in his lap. When defendant did not get out of his car as instructed, Holscher yanked him out, grabbed his shoulders and pushed him towards the police vehicle. Holscher handcuffed and searched him. He put him in the back of the police vehicle while Holscher searched the Altima.
Defendant, as he sat in the back of the police vehicle, talked aloud occasionally, which was recorded by the vehicle’s camera system. He made three statements that were played for the jury, as follows:
(1) “Tore up my fuckin’ shit, bro. I tore my shit up, bro. I’m so worried about my car. Shit. I shoulda just fuckin’ stopped, man.”
(2) “My brakes locked up on me. That’s what happened. I fuckin’ woulda got away if my brakes didn’t lock up.”
(3) “Just tore up my own shit. [Pause.] I know they were gonna tow my shit either way it go. Already behind me. Fuck it . . . gonna tow my shit, though. [Long pause.] Man, bro. Just ‘cause . . . So they gonna tow my car. I might as well take my chances, nigga. They gonna tow my car either way it go, and I’m gonna go to jail, so.”
At about 8:20 a.m., other officers arrived at the scene to assist. At some point, Holscher drove defendant to a nearby location, where an emergency medical technician checked him for injuries. As seen on the video recording of this event, the technician examined defendant while defendant sat in the back of the vehicle. The technician and the defendant conversed, including as follows, a recording of which was played for the jury during the prosecution’s cross-examination of defendant:
“[TECHNICIAN]: You just like driving fast?
“[DEFENDANT]: No, um, I just had a feeling that if I pulled over, I was gonna get my car towed.
“[TECHNICIAN]: Why would you get your car towed?
“[DEFENDANT]: Because I don’t have a license.
“[TECHNICIAN]: Oh.”
The defense later stated on the record that it had objected to the admission of this evidence as including inadmissible testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Defense counsel also noted that defendant’s statements were made before Holscher read him his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The court stated that it had overruled the objection because the technician was not a law enforcement officer, Holscher was close enough to hear the conversation in any event and the technician’s comments were questions that did not involve any truth or falsity.
After no injuries were found, Holscher drove defendant to a local police station and read him his Miranda rights. Defendant continued to talk to Holscher. As recorded by Holscher’s body camera, defendant asked Holscher, “Be honest with me now, if you woulda got behind me, and you woulda pulled me over, you woulda pulled me over, and I woulda stopped, like a, like I was supposed to—would you still have towed my car? . . . —knowing that I don’t have a license?”
Holscher also testified on rebuttal that he was three to four feet away when defendant spoke to the medical technician, and did not discuss his investigation with the technician. Holscher thought his interaction with defendant was friendly. At the police station, Holscher overheard defendant talking on his phone in the holding area. Defendant said “[s]omething to the effect of he saw the lights, the—my emergency lights, he heard the siren, and he just took off.”
Over a defense objection that was stated in chambers and noted on the record without explanation, the court admitted into evidence a certified copy of defendant’s driving record from the Department of Motor Vehicles (DMV). It showed his license was suspended.
II.
Defendant’s Case
Defendant, who is African-American, testified that he was 25 years old. On the morning of the incident, he drove from Pittsburg to Hayward for his job as a construction equipment operator. He knew his license was suspended because he could not afford to pay his tickets. Still, he felt he had no choice but to drive because it was his only means of transportation.
Once at his work site, defendant realized there was no work for him and that he had “wasted [his] gas for no reason.” He headed home, flustered and angry because he had used up his gas money and had to figure out how to get to work the next week. Without paying attention to anything, he drove 75 to 80 miles an hour as he played music at maximum volume. He usually drove fast.
On Route 24, defendant, distracted by his problems, drove around a slow van that was in the fast lane without noticing the police vehicle next to him or behind him. He was supposed to be wearing contacts or glasses, but he could not afford them. He was probably driving at 85 miles an hour, a normal speed for him. He slowed down for a truck in front of him, his brakes locked and his car swerved and turned around. He then spotted a police vehicle.
Defendant did not realize the police officer, Holscher, was there to stop him. He put his hands in the air, afraid, because of the way blacks are treated in the world. When Holscher ordered him out of his car, he could not comply because his seat belt was on, which he told Holscher. Holscher got “all rough” with him and pulled him out of the car. Holscher checked and handcuffed him, and another officer grabbed him by the pants, giving him “a wedgie,” and “basically carried” him to the police vehicle. As he was taken to the police vehicle, Holscher asked him why he had run, and defendant said he had not seen Holscher. Defendant had “a lot of stuff going on” in his mind at the time. He had just wrecked his car, did not have a way to go to work, had just been arrested, did not have money for bail and did not know what was going to happen to his children. He was scared and “wanted to survive, so by any means necessary.”
As for the first of his statements aloud while sitting alone in the back of the police vehicle, when he said he should have “stopped,” defendant said he was referring to speeding and thinking that his mother always told him to slow down; his statement was only a “partial thought.” As for his second statement out loud, when he said he could have gotten away if his brakes had not locked, he meant that if the accident had never happened he would have never seen the Holscher and “would have just been gone.” As for his third statement out loud, he “was just generally speaking about what was already going”; he had thought about running away after the crash, but decided not to because he had done nothing wrong except for speeding. As for his later question to Holscher about whether Holscher would have towed his car if he had stopped, he was just wondering “where [Holscher’s] head was at.”
Defendant further testified that he spoke to Holscher after being read his Miranda rights because he “felt like it was a lot of tension” and he “was trying to survive by any means.” He thought from Holscher’s initial demeanor that Holscher could take his life. He decided to say what he thought Holscher wanted to hear so that he could get bailed out, and was not truthful when he spoke to Holscher and to the medical technician, whom defendant thought was working with Holscher. He at first testified that he did not think he had driven recklessly, then said on cross examination that he had driven recklessly.
III.
Jury Instructions, Verdict and Sentencing
The trial court instructed the jury with CALCRIM No. 372, stating, “If the defendant fled or tried to flee after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” The defense timely objected, and later stated the basis for its objection for the record. It thought the instruction was only supported by speculation and was confusing. The prosecutor argued the instruction was relevant to motive for both counts, and to defendant’s conduct after his reckless evasion was complete. The court allowed the instruction to stand on condition that the prosecutor make clear to the jury that it did not replace any element of count one. The prosecutor agreed, and later did so.
After the jury retired to deliberate, defense counsel put on the record her objec-tion, made first at a side bar during closing rebuttal argument, that the prosecutor had committed prosecutorial misconduct by telling the jury that she, defense counsel, was misleading it. The court found the prosecutor had not said the defense counsel had mis-led the jury, and concluded there was no prosecutorial misconduct.
The jury found defendant guilty of both counts. At sentencing, the court denied another defense motion under Penal Code section 17, subdivision (b) to reduce count one to a misdemeanor, the court expressing its concern about defendant’s conduct dur-ing the incident and his testimony that he drives fast all the time. The court selected count one as the base term and ordered defendant be placed on three years felony pro-bation, and to 180 days in county jail; imposed a concurrent sentence of 30 days in county jail on count two; and awarded defendant 22 presentence credits, consisting of 11 days for time served and 11 days of conduct credits. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant was charged and convicted of two statutory crimes. He was convicted in count one of violating Vehicle Code section 2800.2, which “makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer’s vehicle in ‘violation of Section 2800.1’ and ‘in a willful or wanton disregard for the safety of persons or property.’ Under section 2800.1, a person who operates a motor vehicle ‘with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor . . . if all of the following conditions exist: [¶] (1) The peace officer’s 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 officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer . . . wearing a distinctive uniform.’ ” (People v. Hudson (2006) 38 Cal.4th 1002, 1007–1008, italics omitted.)
Defendant was convicted in count two of violating Vehicle Code section 14601.1, subdivision (a), which states in relevant part, “No person shall drive a motor vehicle when his or her driving privilege is suspended or revoked for any reason other than those listed in Section 14601, 14601.2, or 14601.5, if the person so driving has knowledge of the suspension or revocation.”
Defendant’s count two conviction is simply explained. Defendant, after being told his Miranda rights, asked Holscher whether Holscher would have towed defendant’s car knowing defendant had a suspended license, indicating defendant knew his license was suspended. The certified DMV record established that suspension as fact. Defendant apparently objected to the admission of this record, but the basis for his objection is not apparent from the record. We see no arguable appellate issues regarding the court’s decision to admit it. (People v. Henriquez (2017) 4 Cal.5th 1, 31 [trial court ruling on the admissibility of evidence reviewed for abuse of discretion].)
Regarding defendant’s count one conviction for evading a peace officer while driving recklessly, Holscher’s testimony and the video recording of the incident established the elements of the crime, and defendant’s recorded statements aloud while he sat alone in the police car support the inference that he observed and attempted to evade Officer Holscher. Defendant’s efforts to explain away these statements were entirely unconvincing and in any event the jury was not required to credit them.
Further, we see no arguable appellate issues regarding the court’s four rulings related to this count. First, the court rejected defendant’s objection to his pre-Miranda conversation with the medical technician on Crawford and hearsay grounds. Crawford held in relevant part that under the confrontation clause of the Sixth Amendment of the federal Constitution, “Testimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross examine.” (Crawford, supra, 541 U.S. at p. 59.) Here, the medical technician did not make any testimonial statement, as he said nothing of substance; it was defendant’s responses to the technician’s questions that were the testimonial statements. These statements were not made by an absent witness, but by defendant himself, who was, of course, present at the trial. Further they were admissible under the party admissions exception to the hearsay rule contained in Evidence Code section 1220, which states, “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . .”
It might be argued that the medical technician’s questions to defendant violated defendant’s Miranda rights because the technician asked them in the presence of Officer Holscher before Holscher read defendant his Miranda rights. We need no further briefing on this issue, however, because assuming for the sake of argument that such a violation occurred, it was undoubtedly harmless beyond a reasonable doubt under the federal standard for error. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant’s statements aloud as he sat alone in the police car, his comments to Holscher after he was read his Miranda rights, and his statements on the telephone while in the holding cell of the police station, along with the evidence of his reckless driving, thoroughly established that he knowingly evaded Holscher while driving recklessly.
Second, the record supports the court’s rejection of the defense contention that the prosecutor engaged in misconduct by accusing defense counsel of “misleading” the jury about the law. “It is generally improper for the prosecutor . . . to imply that counsel is free to deceive the jury.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) However, a prosecutor also “has wide latitude in describing the deficiencies in opposing counsel’s tactics.” (Ibid.) “An argument which does no more than point out that the defense is attempting to confuse the issues . . . is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Here, the prosecutor said nothing about defense counsel’s intent, but merely stated without pejorative connotation that counsel “gave you an inaccurate and incomplete description of the law.” There are no arguable appellate issues regarding the court’s determination that this was not misconduct.
Third, regarding the court’s decision to instruct the jury with CALCRIM No. 372, “[a] party is entitled to a requested instruction if it is supported by substantial evidence.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049.) On the other hand, “instructions not supported by substantial evidence should not be given.” (Id. at p. 1050.) “ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Holscher’s testimony that he witnessed defendant’s Altima appear to head back onto the highway and did not see any brake lights initially applied after the incident was substantial evidence that defendant made an effort to continue on after his crash, and any effort to continue on occurred after events had established all of the elements of evading a police officer by driving recklessly. The evidence also tended to show defendant was aware of his guilt in driving with a suspended license. Further, the prosecutor’s statements to the jury, as ordered by the court, that the instruction did not replace any of the elements of the evasion charge eliminated any possible confusion. Therefore, there are no arguable appellate issues regarding the court’s flight instruction.
Fourth, the court denied defendant’s motions to reduce his felony charge and, later his felony conviction, for evading a peace officer while driving recklessly to a misdemeanor. A violation of Vehicle Code section 2800.2 is a so-called “wobbler” because it can be punished as a misdemeanor or a felony. (People v. Statum (2002) 28 Cal.4th 682, 685.) When a defendant is convicted of a felony, the sentencing court has the discretion to reduce this conviction to a misdemeanor under Penal Code section 17, subdivision (b). (People v. Park (2013) 56 Cal.4th 782, 789.) Given the charges, the evidence, and the court’s thoughtful statement at sentencing of its reasons for rejecting defendant’s motion, we see no arguable appellate issues regarding its rejection of defendant’s two motions.
We also see no arguable issues regarding the court’s decision to admit defendant’s recorded statement about previously being in jail. Even if the court had erred in admitting this evidence, the overwhelming evidence supporting his convictions would render any such error undoubtedly harmless. Finally, we have not found any arguable appellate issues regarding the court’s sentencing decisions or other rulings.
DISPOSITION
We have conducted an independent review of the record under Wende and conclude there are no arguable appellate issues requiring further briefing. The judgment is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.








People v. Wilson (A150818)