IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RANDY HOOKER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F03098)
The opinion of the court was delivered by: Mauro , J.
P. v. Hooker
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Randy Hooker was convicted of willfully driving a vehicle on the wrong side of the road during flight from a pursuing peace officer. He contends on appeal that the trial court erred in failing to instruct the jury (1) sua sponte on the defense of duress, (2) on the People's burden to prove that he drove "willfully" on the wrong side of the road, and (3) sua sponte on the lesser included offense of willful flight from a pursuing peace officer. Defendant also contends that the cumulative prejudice of the foregoing errors requires reversal.
We conclude that (1) substantial evidence does not support a sua sponte instruction on duress, because there is no evidence that it was reasonable for defendant to flee the police on the wrong side of the road, and no evidence that defendant had insufficient time to formulate a reasonable alternative to the commission of the crime; (2) any error in instructing on willfulness was harmless beyond a reasonable doubt, because the trial court instructed the jury that "[s]omeone commits an act when he does it willingly or on purpose"; (3) there was no sua sponte duty to instruct on the lesser included offense, because substantial evidence does not support a conviction on the lesser offense instead of the charged offense; and (4) finding no prejudicial error, we reject the claim of cumulative prejudice.
We will affirm the order granting probation.
Officers in a marked police car patrolling late at night began to follow a pickup truck in an effort to run a registration check. There were two occupants in the truck. The truck pulled to the east curb near the intersection of Lexington Street and Glenrose Avenue and abruptly stopped. Defendant, the driver, opened his door and put one foot on the ground, but the door bounced back into him. Defendant pulled his leg back into the truck and closed the door.
Defendant then drove up Glenrose Avenue at a high rate of speed. As the police car came closer, the truck fishtailed. The police activated the lights and siren on the patrol car and continued to follow the truck, which was approaching the intersection of Glenrose Avenue and Del Paso Boulevard. The truck's speed was about 40 miles per hour in a residential area. The truck turned north on Del Paso Boulevard and drove on the wrong side of the boulevard for about two-tenths of a mile. No other traffic was on the road. The truck increased its speed, but as it approached the intersection of Del Paso Boulevard and Las Palmas Avenue, it went into a locked-wheel skid and went over the northwest curb of the intersection. Defendant jumped out while the truck was still moving, breaking his leg. Defendant surrendered to the police. The police also took the passenger into custody on an outstanding warrant. There is no indication in the record that the passenger possessed weapons or contraband at the time of his arrest.
An amended information charged defendant with unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count one) and willfully driving a vehicle on the wrong side of the road during flight from a pursuing peace officer (Veh. Code, § 2800.4; count two.)
Defendant testified at trial. He said he met the passenger at the home of an acquaintance who arranged a meeting for defendant with two other people who had a truck for sale. The acquaintance asked the passenger to go with defendant when he took the truck to his parents' house. Defendant drove the truck (with the passenger as a chaperone) to his parents' home so that defendant's father could inspect the truck. But when defendant tried to start the truck again, the key would not work. The passenger called someone on defendant's cell phone and sounded angry. Defendant's father and the passenger tinkered with the ignition and got the truck to start. Defendant drove back to his acquaintance's house, but everyone was gone. The passenger gave defendant directions to the Del Paso Heights home of the people who were selling the truck.
Defendant testified that when the patrol car began to follow them, the passenger became agitated, turned to watch it out the back window, and bounced up and down in his seat. He screamed at defendant to get going. The passenger kept putting his hands inside his large coat, which made defendant wonder if the passenger was reaching for a gun. Defendant claimed he feared for his life. Defendant decided the best thing was to stop the truck and get away from the passenger. Defendant jumped out of the truck and welcomed the intercession and protection of the police. Defendant denied stopping the truck earlier when the police first began following them, claiming the officer's recollection to the contrary was mistaken.
The passenger testified in rebuttal. His ex-wife was the girlfriend of defendant's acquaintance, and he saw defendant at their home a few times when defendant was working on their car. The passenger did not know anything about the couple selling the truck, other than the fact that the man was a tow truck driver.
The passenger testified that when the patrol car began to follow them, defendant quickly stopped the truck and started to get out, then got back in and accelerated quickly. The passenger did not threaten the defendant or brandish any weapon. The passenger admitted that he was the subject of a no-bail warrant for missing a court appearance in connection with his drug-program probation, but he was only a little worried at the prospect of arrest because he anticipated quick reinstatement on probation. He believed he had mentioned the warrant to defendant earlier in the evening. It was not his idea to flee, because he would not have had any place to go.
A jury convicted defendant of willfully driving a vehicle on the wrong side of the road during flight from a pursuing peace officer. But the jury acquitted defendant on the charge of unlawful taking of a vehicle.*fn1 The trial court suspended imposition of sentence and placed defendant on five years' formal probation, including six months in jail.
Defendant claims the trial court had an obligation to instruct sua sponte on duress, because defendant's testimony about his fear of the passenger was substantial evidence of duress as a defense.
Duress is available as a defense when a defendant actually and reasonably accedes to a direct or implied demand to commit the charged criminal act under imminent threat of death or great bodily injury, and with insufficient time to formulate a reasonable alternative to the threat or committing the crime. (People v. Saavedra (2007) 156 Cal.App.4th 561, 567; People v. Petznick (2003) 114 Cal.App.4th 663, 676; People v. Condley (1977) 69 Cal.App.3d 999, 1012; see People v. Perez (1973) 9 Cal.3d 651, 657 [threat of great bodily injury sufficient]; compare People v. Subielski (1985) 169 Cal.App.3d 563, 567 [unspecified bodily injury insufficient even if unreasonable duress available as a defense].)
Here, even if we assume that the passenger urged defendant to evade the police because the passenger had an outstanding warrant, and even if we further assume that defendant subjectively feared death or great bodily injury from the passenger, there is still no substantial evidence of a reasonable basis for defendant to accede to the passenger's demand, and no substantial evidence that defendant had insufficient time to formulate a reasonable alternative to the commission of the crime. There is no evidence that a threat of death or great bodily injury is objectively and reasonably inferable from the passenger's behavior. Moreover, there is no evidence that defendant's continued flight from peace officers down the wrong side of the road was his only reasonable course of action under the circumstances. If defendant welcomed the intervention and protection of the police, as he claimed, the evidence indicates he could have acted on his desire sooner. On this record, defendant was not entitled to a sua sponte instruction on duress.
Defendant next contends that the trial court improperly instructed the jury on the elements of a violation of Vehicle Code section 2800.4.
A person violates Vehicle Code section 2800.4 when the person "willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway . . . ." (Veh. Code, § 2800.4.)
CALCRIM No. 2182 is an approved jury instruction for the lesser offense of a violation of Vehicle Code section 2800.1. In this case, the trial court instructed the jury with a modified version of CALCRIM No. 2182 to make it applicable for a violation of Vehicle Code section 2800.4. The modified instruction provided in pertinent part as follows:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. A peace officer driving a motor vehicle was pursuing the defendant;
"2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer;
"3. During the pursuit, the defendant drove against the proper direction of traffic on a roadway. [¶] . . . [¶]
"Someone commits an act when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage."
Defendant argues that the trial court erred in failing to include the word "willfully" in paragraph No. 3 of the instruction. He notes that Vehicle Code section 2800.4 expressly provides that a defendant violates that section if he "willfully" flees from a peace officer and also "willfully" drives on the wrong side of the road. Defendant contends the failure to include the word "willfully" in paragraph 3 allowed the jury to convict him without finding that he willfully drove on the wrong side of the road.
Defendant's theory of the case is that his fear of the passenger negated his willfulness. Defendant testified that he did not willfully flee from the police, but instead welcomed police intervention and protection. In convicting defendant under Vehicle Code section 2800.4, the jury necessarily rejected defendant's theory, finding that defendant willfully fled from the police. Defendant does not explain how a jury could reject his "fear" defense in this context but accept it as a basis for driving down the wrong side of the road, especially on this record, where the evidence indicates that defendant drove on the wrong side of the road for approximately two-tenths of a mile.
In any event, the instruction also expressly directed the jury that "[s]omeone commits an act when he does it willingly or on purpose. It is not required that he intend to break the law . . . ." In light of the entire instruction, we do not find it reasonably likely that the jury would have thought the act of driving on the wrong side of the road did not need to be intentional, as defendant suggests. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316, 327, 329]; People v. Kelly (1992) 1 Cal.4th 495, 525.) Any error in giving this instruction was harmless beyond a reasonable doubt.
Vehicle Code section 2800.4 expressly states that a person cannot violate that section unless he or she also violates Vehicle Code section 2800.1. Accordingly, willful flight from a pursuing peace officer (Veh. Code, § 2800.1) is a lesser included offense of willfully driving a vehicle on the wrong side of the road during flight from a pursuing peace officer. (Veh. Code, § 2800.4.) Defendant contends the trial court was obligated to instruct sua sponte on the lesser included offense.
A trial court must instruct sua sponte on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction on the lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365.)
As we have previously explained, willfulness is a necessary element of both the charged offense and the lesser included offense, but defendant's theory of the case is that his fear of the passenger completely negated his willfulness. His defense is not that he willfully fled the police but did not intend to drive on the wrong side of the road. Instead, his defense is that "all of his illegal actions were not willful but involuntary . . . ." If the jury had accepted defendant's theory, he would have been entitled to acquittal on both the charged offense and the lesser included offense.
The jury rejected defendant's theory that he lacked willfulness, and substantial evidence does not support the theory that defendant acted involuntarily. In addition, there is no basis in the record to justify a conviction on the lesser offense but not the charged offense. Accordingly, the trial court did not have a sua sponte duty to instruct on the lesser included offense.
Defendant argues that the cumulative prejudicial effect of the foregoing errors requires reversal. As we have explained, however, we do not find any prejudicial error, and we reject the claim of cumulative prejudice.
Moreover, although our March 2010 miscellaneous order No. 2010-02 deems defendant to have raised the issue of the calculation of his presentence conduct credits without further briefing, defendant is not entitled additional conduct credits. (See, e.g., Stats. 1982, ch. 1234, § 7, p. 4554; Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 [eff. Jan. 25, 2010]; Stats. 2010, ch. 426, §§ 2, 5 [eff. Sept. 28, 2010].)
The order granting probation is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.