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The People v. Larry Walker Mccaslin

April 5, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LARRY WALKER MCCASLIN, DEFENDANT AND APPELLANT.



(Super. Ct. No. NCF78625)

The opinion of the court was delivered by: Mauro J.

P. v. McCaslin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After the police stopped defendant for an expired registration tag, they suspected he was under the influence of alcohol and called the California Highway Patrol (CHP) for a driving under the influence (DUI) turnover. Defendant took off in his car, knocking an officer down and injuring him. Defendant continued to flee after the CHP arrived and joined in the pursuit. A jury convicted defendant of assault with a deadly weapon on a peace officer, resisting an executive officer, driving under the influence of alcohol with a previous DUI conviction, driving with a blood alcohol level of .08 percent or more with a previous DUI conviction, and resisting a peace officer.

Defendant contends on appeal that the trial court erred in denying his motion for self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). He further contends there is insufficient evidence to support the conviction for resisting a peace officer.

We conclude the trial court did not abuse its discretion in denying defendant's request to represent himself where defendant made his request minutes before jury selection was to begin and the trial court determined defendant was not ready to represent himself and the untimely request would delay and disrupt the trial. We also conclude that the evidence was sufficient to support a conviction for resisting a peace officer where defendant fled a pursuing CHP vehicle with activated lights and siren, then continued to flee on foot. We will affirm the judgment.

FACTS

Deputy Kyle Lovelady was on patrol one night when he saw a green Pontiac with an expired registration tab and made an enforcement stop. Deputy Danielle Harris was on duty in a separate car and also stopped. Defendant was driving the Pontiac, accompanied by his dog. Defendant had no license, but gave Lovelady his California identification card. Defendant was agitated and asked, "Why are you fucking with me?" Harris noticed defendant smelled of alcohol and had red, watery eyes. Suspecting defendant was under the influence, Lovelady had Harris call the CHP for a DUI turnover.*fn1

A white female was walking nearby and Harris made contact with her. Meanwhile, defendant kept trying to get out of his car, once leaving to chase down his dog. Lovelady told defendant to stay in the car. Finally, defendant said, "Fuck this," slammed his door shut, and started his car. Lovelady ran to the car, opened the driver's door, and grabbed defendant's arm to remove him from the car. Defendant stepped on the accelerator. Lovelady took a few steps forward with the car but he was losing his balance. He let go of defendant and fell to the ground, trying to get out of the way of the car. Lovelady hurt his left hand and left knee in the fall. He still had pain in his knee at the time of trial.

Harris asked Lovelady if he was okay and Lovelady told her to go after defendant. As Harris ran to her car, CHP Officers Ferguson and Keffer arrived and saw Harris pointing toward a cloud of dust. The car in that dust turned on Mariposa and was accelerating rapidly. The CHP officers activated the lights and siren and followed. When they turned on Mariposa, they saw defendant had stopped, left his car, and was running into a yard. The CHP stopped as defendant was about to climb a fence. Ferguson ordered defendant to stop and Keffer threatened to use a taser. Defendant stopped and was arrested.

At the jail defendant took a breath test. The test was administered three times and the results showed a blood alcohol level of .12 percent, .09 percent, and .10 percent.

A jury convicted defendant of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), resisting an executive officer (Pen. Code, § 69), driving under the influence of alcohol with a previous DUI conviction (Veh. Code, §§ 23152, subd. (a), 23550, 23550.5), driving with a blood alcohol level of .08 percent or more with a previous DUI conviction (Veh. Code, §§ 23152, subd. (b), 23550, 23550.5), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant pled guilty to driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and admitted he had a strike prior (Pen. Code, §§ ...


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