P. v. Flores

Filed 3/21/06 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Paul A. Vortmann and Joseph A. Kalashian, Judges.^*

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Harry Joseph Colombo and Mark A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Alfonso Gerrard Flores suffered numerous convictions arising from two separate cases consolidated in this appeal. He appeals, claiming Vehicle Code section 2800.2, subdivision (b)^[1] is unconstitutional, and that the trial court committed errors in its instructions to the jury, sentencing and calculating of conduct credits. We affirm.

FACTS AND PROCEEDINGS

No. 116133

Porterville police officer Jake Castellow was in uniform and on patrol in his marked patrol car at 12:11 a.m. on September 17, 2003. He saw a car being driven by defendant going in the wrong direction. He followed the car and saw that the car was weaving. After defendant failed to stop at a stop sign, Castellow activated his lights and siren. The car accelerated and Castellow followed. Defendant violated several traffic laws, including exceeding the speed limit through a blind intersection on more than one occasion, exceeding the speed limit in other areas, and failing to stop at a stop sign. The car slowed and the driver's door opened. Defendant fell out and ran. Castellow chased him and found him. Castellow struck defendant with his flashlight and then his baton when defendant would not comply with his orders. Defendant eventually complied and was arrested.

Defendant was transported to the hospital and was tested for alcohol and controlled substances. His blood alcohol level was .13 and he had methamphetamine in his system.

Defendant's license was suspended at the time of this incident.

Defendant admitted he was evading the officer but contested the question of whether the evading was in willful or wanton disregard for people or property. In addition, defendant claimed that Castellow beat him for no reason.

The three strikes alleged against defendant arose from one incident in 1980 when defendant was 17 years old. He and a companion tried to rob two individuals. They robbed one individual but the other individual took off running. Defendant shot the other individual and he died. Defendant was convicted of first degree murder with the special circumstance that the murder was committed during a robbery, robbery, and attempted robbery. He spent several years in the California Youth Authority.

Defendant pleaded no contest to one count of driving under the influence of alcohol, one count of driving under the influence of methamphetamine, and one count of driving with a suspended license. Two other counts were dismissed. He proceeded to jury trial on the one remaining count and was found guilty of evading a peace officer in a willful or wanton disregard of the safety of persons or property pursuant to Vehicle Code section 2800.2. In addition, the trial court found that defendant suffered three prior serious felony convictions under the Three Strikes Law.

No. 133303

On August 1, 2004, defendant was driving a truck belonging to his employer. He brandished a shotgun at an individual on a bicycle. He was arrested shortly thereafter. The shotgun was in the truck; it was loaded. Defendant was loaded too, having a blood alcohol level of .14. Defendant was on bail in case No. 116133 when he was arrested in this case.

Defendant pleaded no contest to one count of being a felon in possession of a firearm, one count of carrying a loaded unregistered firearm, one count of driving with a blood alcohol level at or above .08, one count of driving with a suspended license, and once count of resisting a peace officer. In addition, he admitted an on-bail enhancement. He proceeded to jury trial on two counts. The trial ended in a mistrial after the jury was unable to reach a unanimous verdict. The People dismissed the two counts. The trial court then determined the strike allegations related to the felony counts that defendant had pleaded no contest to and found that defendant suffered three prior serious felony convictions within the meaning of the Three Strikes Law.

Sentencing

Defendant was originally sentenced on January 12, 2005 in case No. 116133. On February 8, 2005 defendant was resentenced in No. 116133 and sentenced in case No. 133303. The court denied defendant's motion to strike one or more of his strikes and sentenced defendant to a term of 25 years to life on the felony evading count in No. 116133 and ordered the misdemeanor sentences to run concurrently. In case No. 133303, the court ordered a sentence of 25 years to life for the felon-in-possession charge, with a two-year consecutive on-bail enhancement. The court stayed the sentence for the carrying an unloaded firearm conviction, and ran the misdemeanor sentences concurrently. The court ordered the sentence in case No. 133303 to run consecutive to the sentence in case No. 116133.

DISCUSSION

I. Characterization of Section 2800.2, Subdivision (b)

Section 2800.2 defines the crime of driving in a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer. In 1996, subdivision (b) was added to this section.

Section 2800.2 provides: â€