IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
THEODORE SENECA BOYKIN II, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 05F07611, 10F02352)
The opinion of the court was delivered by: Hoch , J.
P. v. Boykin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case involves defendant Theodore Seneca Boykin II's repeated instances of reckless driving, resulting in convictions in 2005 and 2010. With regard to the 2010 conviction, defendant alleges instructional error and the improper use of the prior serious felony conviction in 2005 to increase the sentence for his 2010 conviction.
In the 2005 case, defendant entered a negotiated plea to reckless driving while fleeing a police pursuit and exhibiting a gun at a police office to prevent his arrest, admitting that the latter was a "serious" felony in which he used a firearm (Pen. Code, § 1192.7, subd. (c)(8) [undesignated section references are to the Penal Code]). The trial court found unusual circumstances; stayed execution of a two-year, eight-month prison sentence; and granted defendant probation for five years conditioned on a one-year jail term.
In the 2010 case, a jury convicted defendant of reckless driving while fleeing a police pursuit, driving with a suspended license, and reckless driving. Pursuant to stipulation, the court entered a finding of guilty to the infraction of driving without insurance. Based on this evidence, the court found a violation of probation in the 2005 case. The trial court sentenced defendant to state prison in the two cases for concurrent terms (doubling the sentence in the 2010 case based on a finding that defendant had the 2005 conviction for a serious felony (§ 667, subds. (d) & (e)). It credited his previous jail term in the 2005 case against his prison term in that matter, and awarded 11 days of conduct credits for 65 days of presentence custody in the 2010 case.
On appeal, defendant argues the court erred in failing to instruct on a lesser-included offense sua sponte, and in failing to obtain his personal admission to the allegation that he had a 2005 conviction for a serious felony coming within the meaning of section 667, subdivisions (d) and (e). Agreeing with the latter point, we vacate the prior serious felony conviction allegation and the sentence in the 2010 case, and remand for further proceedings.*fn1
An officer in an aircraft equipped with a camera system first sighted defendant on a brightly colored orange motorcycle driving recklessly on Highway 50 at 10:30 on a Saturday morning in April 2010. A yellow motorcycle with a passenger was riding with defendant. The officer recorded their driving on a video played for the jury. (As the prosecution expressly elected to limit this conduct to the misdemeanor count of reckless driving and limit the count of reckless fleeing to "conduct after Northrop," we need not describe this stage of his journey further.)
The motorcycles exited the highway at Howe Avenue, heading north. As the aircraft continued to track them on video, an officer in a marked patrol car (whom the aircraft officer had contacted about the motorcycles) pulled onto Howe Avenue and began to pursue them at ground level, activating her lights and siren. Defendant looked back at her, at which point the yellow motorcycle continued north on Howe Avenue and defendant made a wide right turn onto Northrop Avenue, driving against traffic.
As the patrol car followed, defendant rapidly accelerated. He made a left turn onto Bell Street, failing to stop for a stop sign and driving on the wrong side of the road. He reached a speed of close to 100 miles per hour as he drove up Bell Street on the east sidewalk. When the patrol car reached the intersection with Bell Street, the officer abandoned the pursuit at the request of the aircraft officer because of the dangerous speeds required in a residential neighborhood.
As defendant continued to drive up Bell Street, he ran a red light in the crosswalk at a speed in excess of 100 miles per hour, narrowly missing a truck turning right onto Bell Street. At the intersection of Bell Street and Arden Way, defendant drove against traffic to get around cars stopped at the light, made a left turn, then drove against traffic on the south sidewalk and in an eastbound right-turn lane to enter the parking lot of a Jamba Juice.
The aircraft kept the patrol car updated on the location of the motorcycle. The officer eventually located the motorcycle at the Jamba Juice to which the aircraft had directed her. Another officer responding to the broadcast about the pursuit arrived and arrested defendant.
Defendant testified that he was hurrying to the Jamba Juice to join the rest of an organized motorcycle ride. He was unaware of any police pursuit of his motorcycle. He admitted that he had made a very wide turn onto Northrop Avenue into the wrong lane, a dangerous maneuver, because he was driving so fast. However, because he was familiar with the lack of traffic in the area at this time of day, he knew he could drive above the speed limit on Northrop Avenue without incident. He agreed that he cut the corner while driving through the stop sign and onto the Bell Street sidewalk in order to avoid stopping, because his short legs made it uncomfortable for him to pause the motorcycle. He was checking to see if a support vehicle for the ride was still parked at a house on a cul-de-sac off Bell Street. Not only was he in hurry to meet others in his party at the Jamba Juice, he had an urgent need to use the bathroom. As an experienced rider, driving at 100 miles per hour on Bell Street was not discomforting (although he acknowledged that driving through the red light without knowing whether there was cross-traffic was not being in control of the situation). He also acknowledged that he drove "kind of stupid" through the intersection at Arden Way and Bell Street because he did not want to wait for the light, even though he did not know whether or not there would be pedestrians on the sidewalk after he turned.
I. Instruction on Lesser Included Offense
"Facially, it could not be more clear that Vehicle Code section 2800.1" (fleeing a police pursuit in a vehicle) "is a lesser included offense of Vehicle Code section 2800.2," the latter involving commission of the same conduct where the driving is with willful or wanton disregard for the safety of persons or property (i.e., reckless). (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.) As a result, where there is conflicting testimony as to the manner in which a defendant drove while fleeing a police pursuit, a trial court must instruct on the lesser offense sua sponte. (Id. at pp. 1680-1681 [police and defendant gave contradictory accounts of the actions he took while driving].)
Defendant argues that the jury reasonably could have concluded that his driving from Howe Avenue to Bell Street was not reckless, based on his testimony about his subjective perception that his actions were not reckless. In his reply brief, he contends we cannot consider evidence of his driving after the patrol car stopped its pursuit at the intersection of Northrop Avenue and Bell Street at the request of the aircraft officer.
Even if we accept defendant's premise that one ceases to flee a police pursuit once the pursuit is called off rather than when the flight stops (which would seem to reward driving that is extreme enough to cause the police to turn away), the facts are undisputed that defendant made a wide turn onto Northrop Avenue at a high rate of speed into the wrong lane, failed to obey a stop sign while cutting the corner in turning left onto Bell Street, and drove briefly in the wrong lane on Bell Street before driving up the east sidewalk at a rapidly accelerating speed in a residential neighborhood. That defendant did not perceive his driving to be dangerous does not change the nature of his actions. Defendant contested only his knowledge of the police pursuit, not the account of his driving or the video of it. Defense counsel argued to the jury that defendant was simply a reckless driver who was driving "like he'[d] been doing since he first got on the bike," rather than fleeing from a pursuer. Short of an arbitrary rejection of the undisputed video of his driving, which is not a reasonable resolution for a trier of fact (Kneeland v. Ethicon Suture Laboratories, Inc. (1953) 118 Cal.App.2d 211, 229; Dobson v. Dobson (1948) 86 Cal.App.2d 13, 14; see People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463-1464), no reasonable juror could find that his driving was not reckless before the patrol car stopped its pursuit. Based on these facts, the court did not have any duty to instruct sua sponte on the lesser offense.
II Prior Serious Felony Conviction Allegation
The court had granted defendant's motion to bifurcate the issue of his prior conviction, as to which defendant later waived a jury trial. After the jury returned its verdicts, the prosecutor reminded the trial court of the need to make findings on the allegations of a violation of probation and the prior conviction. Defense counsel stated, "[defendant] is prepared to admit the prior strike allegation." The trial court thereafter made a finding of a violation of probation based on the evidence at trial at the request of the prosecution. The court remanded defendant into custody without soliciting a personal admission of the prior conviction.*fn2 The prosecutor lodged the documents establishing the prior conviction with the court as an exhibit. The court doubled defendant's prison term in accordance with section 667, subdivision (e), for the prior conviction.
Defendant contends we must vacate the prior serious felony conviction allegation because he did not personally admit it, citing sections 1018 and 1025. The People do not respond to this claim, instead focusing on the sufficiency of the exhibit to support the prior serious felony conviction allegation. We conclude that the prior serious felony conviction allegation must be vacated.
Section 1018 "'flatly directs'" that a defendant shall enter or withdraw every plea in open court himself; if this procedure is not followed, we must reverse the judgment to allow compliance with this directive. (Johnson v. Superior Court (1981) 121 Cal.App.3d 115, 118-119 [motion to withdraw guilty plea; "we cannot read the words 'himself in open court' out of the code section" and therefore "section 1018 requires that a defendant make some expression in open court which authorizes or adopts a motion made on his behalf to withdraw his plea"; defendant's silence during hearing on motion to withdraw plea did not satisfy this requirement]; People v. Vanley (1974) 41 Cal.App.3d 846, 854-855 [insanity plea must have defendant's concurrence]; see People v. Hofferber (1977) 70 Cal.App.3d 265, 268-269 [same]; compare People v. Weaver (2001) 26 Cal.4th 876, 963-964 [court confirmed that defendant adopted statements of defense counsel regarding defendant's desire to enter plea].)
We have asserted that the statements of defense counsel cannot bind a defendant as an admission that a prior conviction involved personal use of a firearm, citing section 1018 (People v. Golde (2008) 163 Cal.App.4th 101, 113), albeit in dictum.*fn3 However, it may be more accurate to describe this as a violation of section 1025:*fn4 "It is reasonably apparent that the purpose behind . . . section 1025's requirement that a defendant personally answer that he had suffered the subject prior conviction is the same purpose behind . . . section 1018's requirement that the defendant personally enter a guilty plea: to ensure that the incriminatory statement is the defendant's own." (People v. Williams (1980) 103 Cal.App.3d 507, 516, italics added [finding, however, that defendant's guilty plea to the offense included admission of the prior].)*fn5
Defendant never personally admitted the allegation of a prior conviction for a serious felony on the record, either orally or in writing. We are also unable to find any express adoption on defendant's part of his intent to admit the allegation that the attorney announced. Defendant's admission appears only in the trial court's minutes.
Defendant argues that principles of double jeopardy prevent the People from seeking to "retry" him on the allegation. The People do not respond to this argument.
In the first place, a "retrial" is not involved in any sense. We are remanding the matter for defendant personally to admit the prior serious felony conviction allegation, or submit to a court trial in the first instance in accordance with his waiver of a jury.
In the second place, the federal case on which he relies (United States v. Blanton (9th Cir. 2007) 476 F.3d 767) involved the prosecution's appeal from a judgment of acquittal. (Id. at p. 769.) Whatever the merits of the decision (which, as the opinion of an intermediate federal court, is not binding on this court (People v. Rooney (1985) 175 Cal.App.3d 634, 644)), that is not the circumstance of the present case.
Most importantly, defendant's claim ignores a fundamental principle. Double jeopardy applies only where there has been a reversal for a failure in proof. Reversal for a legal error in the trial proceedings does not implicate the same concerns and therefore does not prevent retrial. (Burks v. United States (1978) 437 U.S. 1, 14-15 & fn.9 [57 L.Ed.2d 1].)
In connection with defendant's resentencing after admission or proof of the allegation, we note that the trial court was mistaken in limiting defendant's presentence conduct credit to 20 percent. The provisions of section 667, subdivision (c)(5), limit conduct credits as calculated under sections 2930-2935 to 20 percent. However, section 4019 governed defendant's presentence conduct credits at the time of his original sentencing (see Stats. 2009, 3d Ex. Sess., ch. 28, § 50), and continues to apply because he has a prior conviction for a serious felony (§ 2933, subd. (e)(3)).*fn6 Under section 4019, defendant is entitled to two days of conduct credit for each four-day period of custody. To date, defendant is entitled to 26 days of conduct credit, not 11.
The judgment is affirmed as to the substantive offenses. The 2010 prior serious felony conviction allegation and the sentence on the 2010 offenses are vacated. The matter is remanded for either a personal admission of the underlying allegation or a court trial in the event defendant refuses to admit it, at which time the court may impose sentence with an award of additional conduct credits under Penal Code section 4019. After sentence is imposed in accordance with this opinion, the trial court is directed to amend the abstract of judgment to reflect the new sentence and the award of additional conduct credits and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. NICHOLSON , J.