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People v. Fulton

December 2, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID LOUIS FULTON, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Tehama County, John J. Garaventa, Judge. Affirmed as modified. (Super. Ct. No. NCR72573).

The opinion of the court was delivered by: Sims, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION ON REHEARING

A jury convicted defendant David Louis Fulton of evading an officer with willful or wanton disregard (Veh. Code, § 2800.2, subd. (a); count I) and driving on a suspended license, a misdemeanor (Veh. Code, § 14601.1, subd. (a); count II). In bifurcated proceedings, defendant waived his right to a jury determination and entered a negotiated admission to a prior prison term allegation (Pen. Code, § 667.5, subd. (b)) in exchange for dismissal of the remaining allegations.

After denying defendant's motion to withdraw his admission to the prior prison term allegation, the trial court sentenced defendant to state prison for an aggregate term of four years. Defendant appeals. With respect to his admission of the prior prison term, defendant filed a request but did not obtain a certificate of probable cause (Pen. Code, § 1237.5 (CPC)). He contends (1) insufficient evidence supports his conviction for evading in that there was no evidence that an illuminated red lamp was visible from the front of the officer's vehicle, (2) the trial court failed to instruct the jury on one of two theories of guilt for evading and it cannot be determined which theory the jury relied upon in reaching its verdict, (3) his conviction for driving on a suspended license must be reversed because the trial court failed to instruct that defendant knew his license was suspended, (4) he did not knowingly and intelligently waive his constitutional rights in admitting the prior prison term allegation, and (5) the record is ambiguous as to the trial court's imposition of fees and fines for driving on a suspended license (count II). In an unpublished portion of this opinion, we agree that the record is ambiguous with respect to the fees and fines imposed on count II and will remand for clarification. We also reject defendant's remaining contentions and will otherwise affirm the judgment.

We previously concluded that defendant needed a certificate of probable cause to challenge his admission to the prior prison term allegation but granted rehearing, vacated our decision filed February 13, 2009, and allowed briefing on the issue. In the published portion, we now reaffirm our earlier conclusion.

FACTS

About 10:25 a.m. on September 4, 2007, Tehama County Deputy Sheriff Stephen Hoag and Deputy Sheriff Knox were on patrol in Los Molinos when they saw an older model pickup truck with no license plates and two occupants. Each deputy wore a uniform which consisted of a "tan shirt, name plate, badge, green pants . . . . duty belt, sidearm, handcuffs, [and] flashlight." The deputies were in a white patrol vehicle which was marked "Sheriff" on the side and on the back. The patrol vehicle had "a light bar on top" and was "equipped with red forward-facing lights." Deputy Hoag turned on the overhead lights to stop the pickup truck. The pickup truck sped away at a high rate, "screeching [] the tires." Deputy Hoag then activated the patrol siren. The pickup truck failed to stop at a stop sign, turned left onto the highway, causing traffic to "brake heavily to avoid a collision," and drove erratically, "fishtailing back and forth," and entered a dirt parking lot, passing pedestrians and other vehicles, including a tow truck. The tow truck driver, Ted Smith, heard over the police scanner that the deputies were in pursuit of the pickup truck and saw the pickup truck pass within five feet of the tow truck, making eye contact with the driver, defendant. Smith also saw the sheriff's patrol vehicle which had on its lights and siren.

The pickup truck continued and failed to stop at a railroad crossing where the guard arms were coming down, hitting one of the arms. The pickup truck turned onto a dirt access road and collided with a barrier of brush, stopping the pickup truck. Deputy Hoag was about 20 to 30 yards behind the pickup truck at the time. The pickup truck's driver and passenger got out and ran in opposite directions. The driver, defendant, had brown hair and was wearing a dark colored T-shirt and blue jeans. Deputy Hoag pursued defendant on foot. Defendant crossed the railroad tracks and headed back towards the highway. Deputy Hoag was unable to find defendant but heard over his radio that Deputy Knox had detained someone in the front yard of a home. Deputy Knox had driven the patrol car to the area where defendant had fled. So did Smith who had been watching defendant get out of the pickup truck and run. Smith drove his tow truck after defendant, stopped in an intersection, got out and confronted defendant. Defendant tried to hit Smith who was chasing defendant. Smith grabbed defendant and knocked him to the ground. Smith positively identified defendant as the driver of the pickup truck.

Deputy Hoag found that defendant had been detained by Deputy Knox and Smith. Defendant wore a dark shirt and blue jeans. When Deputy Hoag asked defendant what he was doing, defendant responded that he had a suspended license and did not want to go to jail. Defendant stated that he had been using the pickup truck to transport debris to another location.

Defendant did not testify and called no witnesses to testify on his behalf. Defense counsel questioned Deputy Hoag concerning the lack of a description of the passenger in his report. Deputy Hoag believed that the passenger had dark hair and a medium build, the same as defendant. Defense counsel elicited that defendant did not own the truck and no fingerprints were taken from the truck. Defense counsel also elicited that defendant never stated that he had been driving. Defense Exhibit A, a drawing by Smith of the direction his tow truck was facing while listening to the scanner, was admitted into evidence.

DISCUSSION

I.

Defendant first contends that insufficient evidence supports his conviction for felony evading because there was no evidence that Deputy Hoag activated the forward-facing red lamp. We find sufficient evidence supports defendant's conviction.

In considering a sufficiency of the evidence claim, we view the evidence in the light most favorable to the judgment, presume in support of the judgment every fact which may be reasonably deduced from the evidence, and "determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 510; People v. Stanley (1995) 10 Cal.4th 764, 792-793; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Felony evading (Veh. Code, § 2800.2, subd. (a)) occurs when "a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." The prosecution must prove, inter alia, that "[t]he peace officer's motor vehicle [] exhibit[ed] at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp." (Veh. Code, § 2800.1, subd. (a)(1).)

Here, defendant claims there was no evidence that the officer activated the red lights. We disagree.

Deputy Hoag testified that his patrol car had a light bar on top that included a forward-facing red light and that when he attempted to pull the pickup truck over, he activated the light bar. The jury could reasonably conclude that the emergency lights the deputy activated included the red forward-facing light.

Defendant's reliance upon People v. Brown (1989) 216 Cal.App.3d 596 (Brown) and People v. Acevedo (2003) 105 Cal.App.4th 195 (Acevedo) is misplaced. In Brown, the officer testified that her patrol car had three light signals (flashing amber light to the rear, blinking blue and white lights to the front and rear, and a rotating red, white and blue lights) and each was activated by a separate switch position. The officer testified that she could not recall which switch position she activated. (Brown, supra, 216 Cal.App.3d at pp. 599-600.)

In Acevedo, the officer testified that he activated his overhead emergency lights and siren in his pursuit of the defendant. The officer did not testify that his overhead lights included a forward-facing red light. (Acevedo, supra, 105 Cal.App.4th at pp. 197-199.)

Here, Deputy Hoag did not testify that his patrol car had three light signals with separate switch positions. Brown is thus distinguishable. Deputy Hoag testified that he had a light bar with a forward-facing red light and that he activated his light bar when he tried to stop defendant. Acevedo is thus distinguishable.

Because defendant does not otherwise challenge the evidence adduced at trial to support the offense of felony evading, we will not discuss the evidence further. Sufficient evidence supports his conviction for felony evading.

II.

Defendant next challenges the instruction on the felony evading offense. He argues that the trial court gave the jury two theories to support the offense, that is, property damage or at least three violations of the law, and it cannot be determined which theory the jury relied upon in reaching its verdict. Further, as defendant notes, the trial court failed to define the violations of the law, that is, the failure to stop at a stop sign, the failure to stop at the railroad crossing, driving on a suspended license, and reckless driving. We conclude that no unanimity was required as to the means of committing felony evading and that any error in failing to define the violations of the law was harmless beyond a reasonable doubt.

In instructing the jury on felony evading, the trial court gave the jury CALCRIM No. 2181 which provided:

"The defendant is charged in Count 1 with evading a peace officer with wanton ...


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