(Santa Clara County Super. Ct. No. CC782248) Trial Judge: Honorable Gilbert T. Brown.
The opinion of the court was delivered by: Mihara, J.
CERTIFIED FOR PUBLICATION
Defendant Yogeshwar Yogi Datt was convicted by jury trial of reckless evading (Veh. Code, § 2800.2, subd. (a)), resisting an officer (Pen. Code, § 148, subd. (a)(1)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The court found true allegations that defendant had suffered four prior felony convictions for which he had served separate prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant was committed to state prison for a term of seven years. On appeal, defendant makes two contentions.*fn1 He claims that the trial court prejudicially erred in instructing the jury that it need not unanimously agree on which Vehicle Code violations supported the "willful or wanton" element of the evading count. Defendant also maintains that his trial counsel was prejudicially deficient in failing to present expert testimony on eyewitness identification. We find no instructional error and no deficiency of counsel and affirm the judgment.
At about 2:00 or 2:30 a.m. on September 30, 2007, Santa Clara County Deputy Sheriff Ramon Marquez was on patrol in a marked patrol vehicle. He observed a purple Honda Civic containing two men who initially appeared to be Hispanic. Marquez considered the Honda "suspicious," so he contacted his dispatcher to check on the registration for the license plate number of the Honda. Although the Honda's license plate bore a registration tab indicating that it was registered through December 2007, Marquez was informed by his dispatcher that the registration for the Honda's license plate number had expired in March 2007. Upon learning that the Honda's registration had expired, Marquez attempted to stop the Honda by activating his lights and siren. The Honda sped off into a residential area, disregarded multiple stop signs and two stop lights, "broke traction with the asphalt in violation of Vehicle Code section law [sic] 23109 which is exhibition of speed," was driven on the shoulder, was twice driven in the opposite lane of travel, and was driven at speeds between 45 and 100 miles per hour in an area with a posted speed limit of 25 miles per hour.
Marquez pursued the Honda and illuminated it with his spotlight. Midway through the pursuit, the Honda slowed down, and the passenger opened the window, stuck his hand out, and sprinkled a powdery substance on the ground. The pursuit lasted for 18 minutes, and it ended when the Honda went down a "dead-end" road. At that point, the driver got out of the Honda, looked back at Marquez, ignored Marquez's order to stop, and fled northbound through a dry creek. The passenger stayed in the Honda. Marquez "focused [his] attention on the driver," and "took a good look at the driver for description purposes." Marquez was about 20 feet away from the driver, and the patrol car's spotlight was focused on the driver. Marquez observed the driver for about 3.5 seconds and perceived the driver to be an adult male, six feet tall, and slender, who was wearing dark pants and a black "windbreaker type" jacket. He also noticed that the driver had a ponytail. The driver "had a very distinctive look." Before the driver left the Honda, Marquez had thought he looked Hispanic, but when he left the Honda Marquez saw that "he didn't quite look Hispanic and his complexion was a little darker, and I broadcasted that he was black."
Immediately after the driver fled, Marquez directed other units to set up a perimeter around the area into which the driver had fled. He provided a description of the driver as a black male adult, six feet to six feet three inches tall, wearing dark clothing and a black jacket. He described the driver as "black" because police procedure limited him to just four "race" options: "Hispanic, black or white or Asian." "Black" was closest to the driver's skin pigmentation. Marquez's broadcast did not mention the ponytail.
Marquez searched the Honda and found a methamphetamine pipe on the front passenger floorboard. Between the center console and the front passenger seat, Marquez discovered a black pouch in which there were four baggies containing methamphetamine residue. The passenger appeared to be under the influence of a controlled substance.
San Jose Police Officer Bryan Washington was asked to assist in the search for the driver. After he and five other officers searched "yard to yard" in a residential area for about 30 minutes, Washington found a man lying face down under an RV that was parked in a residential driveway. This driveway was about half a mile from the spot where the Honda had stopped. Washington had encountered no other civilians walking or running in the area. Washington told the man to come out from under the RV, and the man did so. The man was defendant. Defendant was wearing a black jacket and dark pants, and he matched the description Washington had been given.
Marquez came to Washington's location and identified defendant as the driver of the Honda. Defendant is actually about 5 feet 10 inches tall. While defendant's skin appears to be "black," he is probably not "African-American" but Middle Eastern or Indian.*fn2 Marquez arrested defendant. He subsequently observed that defendant appeared to be under the influence of a controlled substance. Defendant told Marquez: "I'm fucked up on methamphetamine." Defendant identified himself to Marquez as "Rajeshwar M. Dutt" and provided a birth date of September 19, 1973. Both the name and the birth date were false. Defendant's driver's license had been suspended.
The Honda was not registered to defendant or the passenger. Marquez's attempts to contact the registered owner of the Honda were unsuccessful. He concluded that the registered name was "fraudulent" and that such a person did not exist. The Honda's ignition "had been tampered with" so that "any other flat object" could be used instead of a key.
II. Procedural Background
Marquez testified at trial and identified defendant as the driver he had seen flee from the Honda. A DVD of Marquez's pursuit of the Honda, which had been recorded by a camera inside Marquez's patrol car, was played for the jury. The prosecution presented its case in a single day, and the defense rested without presenting any evidence.
At the instruction conference, defendant's trial counsel objected to the trial court's modification of CALJIC No. 12.85 to instruct the jury that it did not have to unanimously agree on any three particular Vehicle Code violations in support of the "willful or wanton" element of the evading count. She asserted that jury unanimity was required. "I believe that they need to agree unanimously on ...