Appeal from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed, as modified. (Super. Ct. No. SCN217314).
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
Following a court trial, Karl Joseph Russell, Jr. was convicted of first degree murder (Pen. Code,*fn1 § 187, subd. (a) & § 189), evading an officer and causing serious bodily injury or death (Veh. Code, § 2800.3), residential burglary (§§ 459 & 460), and vehicle theft (Veh. Code, § 10851, subd. (a)). The court also found true an allegation that Russell inflicted great bodily injury in the commission of the vehicle theft (§ 12022.7, subd. (a)).
Russell was sentenced to an indeterminate term of 26 years to life, composed of 25 years to life for first degree murder, plus one year for the use of a deadly weapon enhancement pursuant to section 12022, subdivision (b). The court stayed the terms for the remaining counts and enhancements pursuant to section 654.
Russell appeals challenging only his conviction for first degree murder. Russell contends that the felony-murder escape rule should not apply to flight during the commission of a burglary and that even if it does apply the evidence is insufficient to show that the death in this case occurred during an escape from the commission of a burglary. Russell also contends that a sentence of 26 years to life for first degree felony murder is cruel and unusual punishment. We will reject both contentions and affirm the conviction.*fn2
At about 4:30 or 4:35 a.m. on September 5, 2006, Ryan Creighton was outside of his house on North Tremont Street in Oceanside. Creighton was loading his truck in order to go to a 5:30 a.m. fire academy class at Palomar College. Creighton observed movement taking place on the porch of his neighbors across the street, Klaas and Golda Meurs. Creighton saw a shadowy figure moving quickly on the porch of the Meurs's residence. In the process of loading his truck Creighton made a loud sound when he dropped the tail gate of the truck. Creighton noted then that the quickly moving figure stopped, looked in his direction for three to five seconds, then bent over, turned around and went back inside the Meurs's residence. Thereafter, Creighton observed a flashlight sweep in the interior of the Meurs's house. Creighton then noticed what he thought were lights in the upper story bedroom of the Meurs's residence and therefore decided he did not need to call the police.
Creighton continued to load his truck and then drove away for his training class. He estimated based upon his normal schedule that he would have left about 4:40 a.m. When Creighton left his house, the neighbor's garage door was still down in the normal position.
Investigation later determined that the Meurs's family was away at the time of these events. They had left their white Oldsmobile in their closed garage
Since Russell does not challenge the sufficiency of the evidence to prove the residential burglary, the vehicle theft or his flight from police causing death, we will truncate the discussion of all the facts surrounding those events and deal only with those necessary to provide a foundation for the discussion of the issue of sufficiency of the evidence to prove felony murder.
The investigation revealed that the Meurs's home had been burglarized, that items were taken, including taking the Meurs's white Oldsmobile from the garage. The garage door remained open when the burglar left with the Oldsmobile.
Russell left a duffel bag close to the sliding glass door of the Meurs's residence. Items of Russell's personal property and property taken from the residence were located in that duffel bag.
At about 4:52 a.m., approximately 12 minutes after Creighton had left the Meurs's home where the garage door remained closed, Carlsbad Police Sergeant Mickey Williams observed the Meurs's white Oldsmobile stopped at a red light at the intersection of Plaza Drive and El Camino Real in the city of Carlsbad. Russell was driving the Oldsmobile. The location in Carlsbad is around four miles from the area in Oceanside where Russell had been last seen.
At the time Officer Williams was likely observed by Russell, Williams was driving a marked patrol car, was in uniform and was about to exit the parking lot near the intersection where Russell was stopped at a red light.
Before the light changed, Williams observed Russell rapidly accelerate, driving through the red light and across the intersection. The officer could hear the Oldsmobile accelerating at a rapid rate proceeding southbound on El Camino Real. The police officer activated the patrol car's emergency overhead lights and pursued the white Oldsmobile. The officer estimated that at times the Oldsmobile was traveling 70 to 80 miles per hour in a 35 mile per hour zone.
The chase continued at high speeds with the white Oldsmobile running red lights, driving erratically, weaving in and out of traffic. At one point, Russell drove 60 to 80 miles per hour down the center median of a shopping area designated for left turns. At one point the Oldsmobile reached speeds of 100 miles per hour.
Ultimately with the police officer remaining in pursuit of Russell, the stolen Oldsmobile crashed into the front passenger side of a pickup truck driven by the victim, Rodrigo Vega. Vega was killed as a result of that collision. When Officer Williams approached Russell at the crash scene, Russell threatened the officer stating that he had a gun and then ran away. Carlsbad police pursued Russell and found him crouching in the corner next to an office building.
Police officers recovered items of property stolen in the burglary in Russell's pants pockets and from the Oldsmobile. They also found a silver flashlight under the passenger seat of the car. A blood sample taken from Russell at about 6:07 a.m. showed he had a blood alcohol of .12. A later blood sample showed a blood alcohol of .11. A forensic criminalist testified that at the time of the fatal crash, Russell likely had a blood alcohol of .14.
Russell testified in his own defense and testified to drinking prior to the burglary. He said he met his friend Kurt McFarlane at the Rusty Spur bar in Oceanside at about 9:30 p.m. He testified about entering the Meurs's residence with McFarlane and acknowledged leaving a bag outside the door of the residence. He said they were in the house for about an hour and that McFarlane was the one seen on the porch.
Russell testified that after they left the residence he dropped McFarlane off at an area near the beach where McFarlane often slept on a boat several blocks away. Russell said he then drove around to see if he could "kick it with some friends," but did not find anyone and got lost in the Oceanside area. He did not remember driving in the manner in which Officer Williams described his driving and only remembered he was trying to find a place to sleep.
I. THE FIRST DEGREE FELONY MURDER ...