Napa County Super. Ct. No. CR144176
The opinion of the court was delivered by: Haerle, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Michael Dean Green appeals from the judgment following a jury trial in which he was found guilty of several offenses stemming from an incident in which appellant, with police officers in pursuit, crashed his truck while driving under the influence of alcohol. The jury also found true the allegations of a prior driving under the influence conviction, two prior convictions, and two prior prison terms. The court determined that both prior convictions were strikes. On appeal, he argues instructional error, ineffective assistance of counsel, insufficient evidence to support the prior strike findings, and violation of his Sixth and Fourteenth Amendment rights as a result of the denial of his request for a jury trial on the issue of whether his prior convictions were strikes. Finding no error, we will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2009, the Napa County District Attorney filed an information charging appellant with felony evading an officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count 1), misdemeanor driving under the influence (DUI) with a prior DUI (Veh. Code, § 23152, subd. (a); count 2), and driving with a blood alcohol level above 0.08 percent with a prior DUI and with a blood alcohol level of 0.15 percent or higher (Veh. Code, §§ 23152, subd. (b), 23578; count 3). The information alleged that appellant had two prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)).*fn1 The information also alleged that appellant had two prior strike convictions under the Three Strikes law (§ 1170.12, subds. (a)-(d)).
On the evening of September 5, 2008, Officers Garth Bender and Aaron Medina responded in two patrol cars to a reported disturbance at 3115 Encanto Drive in Napa. The officers spoke briefly with the neighbors across the street but then went to speak with Anne Green who resided at 3115 Encanto. After that conversation, the officers returned to speak with the neighbors.
Wayne Law and his wife, Jolin Halstead, lived across the street from 3115 Encanto. At around 6:45 p.m., Law and Halstead heard car tires screeching and what sounded like a car speeding rapidly. The couple went outside onto their driveway and saw a green pickup truck "burn rubber out of the street . . . going right on Salvador."
While the police were talking to them, the green truck returned and slowed down in front of the house across the street where the Green family lived, and then drove away rapidly. Law and Halstead saw that appellant was driving the truck.
The officers heard tires screeching and then saw a green pickup truck turning from Salvador onto Encanto. The truck was driving southbound, toward them, and going very fast. Law and Halstead told Medina, "that's him." Officer Bender held up his hand and yelled for the truck to stop.
The driver's window was open and the driver looked in the officers' direction. The truck was travelling fast, then slowed down to about 20 to 30 miles per hour and steered to the right. The truck then accelerated and continued southbound on Encanto. Medina realized that the driver had swerved to avoid a cat in the road. The officers identified appellant as the driver; they also saw a passenger in the truck.
Appellant drove away fast, at roughly 45 to 50 miles per hour. The officers ran for their patrol cars and pursued appellant with their lights and sirens on. Medina was behind appellant; Bender trailed Medina.
Appellant turned left on Paulson then made two more turns before fishtailing, going off the road, hitting a tree, and then finally stopping after hitting a parked truck and another tree.
The speed limit on Encanto was 25 miles per hour. Medina indicated that appellant committed several violations of the Vehicle Code, including speeding, making an unsafe turn, and running a stop sign.
At the crash scene, Bender covered the driver's side of the truck and Medina covered the passenger's side. Medina saw appellant in the middle of the front bench seat, scooting over to the passenger seat. The other occupant of the vehicle, Dannetta Brown, was lying across appellant with her head toward the driver's side.
Brown climbed out the driver's window and fell into the bed of the parked truck that had been hit. She was incoherent and rolling around. Bender believed that she was under the influence of alcohol and methamphetamines. Her eyes were red, watery, and glazed-over, and she smelled of alcohol. She urinated on herself.
Medina took appellant out of the passenger's door of the truck, checked for injuries, then handcuffed him and put him in his patrol car. Appellant smelled of alcohol, had bloodshot eyes and slurred speech.
Bender escorted Brown to the hospital. She was uncooperative and belligerent in the ambulance, and eventually had to be sedated. She was ultimately arrested for public intoxication and possession of ammunition.
Medina took appellant to the hospital about 15 minutes after the crash, and took a tape-recorded statement from him. During the interview, appellant stated that he had consumed four beers and some whiskey. At first, appellant admitted driving away from the officers on Encanto and being the driver when the truck crashed; he said Brown tried to switch seats with him after the accident. Appellant said he lost control of the truck because he was driving too fast. Later in the interview, he made inconsistent statements about who was driving.
An analysis of appellant's blood drawn at the hospital indicated a blood-alcohol level of 0.19 percent. According to the toxicologist, a person with that level would be too impaired to drive safely and could have mental impairment such as confusion, lack of judgment, and lack of inhibition.
The accident occurred in front of Michael and Myrna Lunceford's house on Gordon Drive. Ms. Lunceford testified that their truck, boat, and car were damaged in the accident. She saw the crash, and recalled officers approaching the green truck. A woman was in the driver's seat trying to climb out the driver's side window, and a man was sitting in the passenger seat. She recalled that the airbags had deployed, but they had deflated by the time the officers approached the truck. Officer Medina told Ms. Lunceford to go back in her house. She came back outside and took photos of the accident scene and her damaged property.
Ms. Lunceford told the CHP officer who interviewed her that the woman had been driving. She concluded the woman was driving because she climbed out on the driver's side, but also because very little time passed between the accident and when she saw the woman climbing out of the window. She testified that she had "no doubt" that appellant was the passenger. On cross-examination, however, she acknowledged that she was basing her statement of who was driving on what she saw after the accident.
Mr. Lunceford saw the accident that damaged his vehicles. He was not able to see who was in the green truck until after the accident when he went outside. Mr. Lunceford saw appellant sitting in the passenger seat; he did not notice whether anyone was in the driver's seat. He saw the woman who had crawled out of the truck rolling around in the flatbed of his damaged truck.
During a subsequent interview, Mr. Lunceford told Officer Medina that he believed appellant was the passenger and Ms. Brown was the driver.
Dannetta Brown testified that she was in a relationship with appellant. She stated that she only remembered "bits and pieces" of the events that day. She remembered being in the driver's seat at the time of the crash and crawling out the driver's side window. Although she remembered being in the driver's seat, she did not remember driving. She remembered getting out of the vehicle, but not the crash itself. She consumed a 12-pack of beer and a bottle of whiskey that day, and she had taken drugs the prior day. She thought she was probably more drunk than appellant; she was "wasted," and in no condition to be in public, let alone drive.
On cross-examination, Brown indicated that her drinking was to blame for why she stated after the accident that appellant was driving. She stated that on the day of the accident, appellant also consumed numerous beers and whiskey. She was not letting appellant drive because of his intoxication. She had a conversation with appellant in jail and told him she would replace his green truck because she wrecked it.
Brown testified that that morning, she and appellant drove from Lake County to appellant's mother's house on Encanto and arrived at about 5:30 p.m. Appellant had apparently argued with his mother, his nephew, and Brown. Brown stated that she and appellant were standing in his mother's yard when police cars arrived and parked across the street. She and appellant got in the truck, with appellant in the driver's seat, and drove away. The next thing she remembered was climbing out of the driver's side window after the accident. She was not sure whether she was driving.
Daniel Green,*fn2 appellant's nephew, lived with appellant's mother at 3115 Encanto. He testified that, after the accident, he went to the scene. He saw appellant getting out of the passenger side and Brown crawl out of the driver's side window.
Four days after the accident, Brown told Daniel they had seen the police, kept driving, and that she and appellant had switched positions at the end of Encanto.
Anne Green, appellant's mother, testified that appellant drove by her house several times on the day of the incident. On the third time, officers were parked across the street. Appellant drove by and slowed down. He then continued on, stopping at the next intersection, when the officers began to pursue him. Anne and Daniel followed the officers in her car. Anne recalled the patrol sirens coming on two streets later. When she arrived at the crash scene, she saw appellant being removed from the vehicle in handcuffs. She took photos of the accident scene.
Anne stated that there had been an earlier dispute between Brown and her husband (not appellant), who was waiting at Anne's house. Anne and Brown had a heated argument.
On cross-examination, Anne testified that she called 9-1-1, but suggested that her call was not completed and speculated that somebody else called 9-1-1 after her. When police came to her house, Anne told them that appellant had been arguing with his girlfriend. Appellant was driving the truck as it passed by Anne's house.
On April 9, 2009, the jury found appellant guilty of evading an officer with willful disregard, driving under the influence, driving with a blood-alcohol level above the legal limit, and found true the allegation that appellant's blood-alcohol level was .15 percent or higher.
The prior conviction and prison term allegations were adjudicated during a bifurcated trial. On April 9, 2009, the trial court found appellant's identity proven as to the prior convictions and prison terms. On April 10, 2009, the jury found the existence of the prior driving under the influence conviction, the two prior prison terms, and the two prior convictions. Subsequently, the trial court found that the two prior convictions were serious felonies and thus qualified as strikes.
On May 29, 2009, the trial court sentenced appellant to a total prison term of 27 years to life.
On June 11, 2009, appellant filed a timely notice of appeal.
Appellant contends his felony conviction for evading the police must be reversed because he was found guilty of evading police officers who had no legal right to detain him. Appellant argues that an officer's lawful performance of his or her duties is an element of Vehicle Code section 2800.2. The trial court's failure to instruct the jury on this ...