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The People v. Martin Varela

March 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARTIN VARELA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 1309628) (Santa Barbara County)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A two-wheeled device with a motor and a seat for a driver is called a "pocket bike." While riding a pocket bike, defendant Martin Varela evaded a police officer who was attempting to stop him.

A jury convicted Martin Varela of felony evading a peace officer while driving a motor vehicle. (Veh. Code, § 2800.2.)*fn2 Varela contends a pocket bike is not a motor vehicle. We conclude it is a motor vehicle, and the trial court properly instructed the jury. We recalculate conduct credits pursuant to an amendment to Penal Code section 4019. As amended, we affirm.

FACTS

On March 9, 2009, Santa Maria Police Officer Nathan Totorica was on patrol in a marked police car. He saw Varela driving a pocket bike at the intersection of Lincoln and Tunnel Streets. The pocket bike did not appear to be registered, and Varela was not wearing a helmet.

Totorica turned on the red overhead lights on his patrol car and attempted to stop Varela. Varela refused to stop. He traveled east on Tunnel Street, south on Lincoln Street and into an alley. Totorica followed him and turned on his full rotor lights, hit his horn and turned on his siren. Varela still refused to stop. As he fled, he failed to stop at stop signs, failed to signal before turning, and drove on the wrong side of the road and on the sidewalk. Totorica called for assistance and five other police units responded. Eventually, Varela abandoned the pocket bike for a bicycle and was then arrested. Varela admitted that he knew the pocket bike was not "street legal" and that he was driving on a suspended license.

DISCUSSION

I

Varela contends the pocket bike is not a motor vehicle within the meaning of section 2800.2.

Subject to certain conditions section 2800.1, subdivision (a), makes it a misdemeanor for any person who, while operating a motor vehicle, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle.

Section 2800.2, subdivision (a) provides in part: "If 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 person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison[.]"

Section 670 provides: "A 'vehicle' is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks."

Section 415 defines a "'motor vehicle' [a]s a vehicle that is self-propelled." Under the broad definition of motor vehicle it is not required that the vehicle be legally self-propelled on a highway. (Lambert v. ...


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