(Super. Ct. Nos. 05F07611, 10F02352)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 ...