(Super. Ct. No. 09F03098)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ...