IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES LEE BLAKE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F08163)
The opinion of the court was delivered by: Mauro , J.
P. v. Blake
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 James Lee Blake was convicted of evading an officer in willful or wanton disregard for the safety of persons and property, evading an officer by driving against the flow of traffic, and resisting an officer. He contends on appeal that (1) the trial court denied him an impartial jury by declining to discharge a juror who expressed fear that defendant could possibly retaliate, (2) his conviction for evading an officer by driving against the flow of traffic must be reversed because it is necessarily included in his conviction for evading an officer in willful or wanton disregard for the safety of persons and property, and (3) the trial court abused its discretion in denying his motion to strike his prior strike convictions.
We conclude (1) the trial court did not abuse its discretion in denying the defense motion to discharge the juror, because the juror's assurance that he could be fair was substantial evidence supporting the trial court's determination that the juror was not actually biased against defendant; (2) evading an officer by driving against the flow of traffic is not necessarily included in the offense of evading an officer in willful or wanton disregard for the safety of persons and property, because under the statutory elements test it is possible to violate Vehicle Code section 2800.2*fn1 without violating section 2800.4; and (3) the trial court recognized and exercised its discretion in ruling on the motion to strike the prior strike convictions, and it did not abuse its discretion in denying the motion based on defendant's extensive criminal history.
We will affirm the judgment and direct the trial court to correct an omission in the abstract of judgment.
Officer Bob Barnes saw defendant driving a car that had been reported stolen. Barnes called for assistance. When backup arrived, Barnes activated his patrol car lights and "chirped" his siren to pull the car over. Defendant pulled over, but when a second officer ordered him to turn the car off, defendant revved the engine and drove away.
Officer Barnes pursued defendant with lights and siren engaged. Barnes pursued defendant for 33 minutes and over 52 miles. Defendant drove at speeds up to 110 miles per hour on Bond Road, Grant Line Road, Highway 99, Highway 50, Watt Avenue and Sierra Street (a residential neighborhood). During the pursuit defendant repeatedly drove in oncoming traffic lanes (once for over six miles), crossed multiple traffic lanes, ran red lights and stop signs, and forced other cars to take evasive action to avoid a collision. At one point he swerved over two traffic lanes to avoid a "tack strip."
Defendant ultimately drove across a sidewalk and crashed into a ditch. He attempted to flee on foot but he was apprehended by a police canine.
Following a jury trial, defendant was convicted of evading a police officer in willful or wanton disregard for the safety of persons and property (§ 2800.2, subd. (a); count three), evading an officer by driving against the flow of traffic (§ 2800.4; count four), and resisting an officer (Pen. Code, § 148, subd. (a)(1); count five). He was acquitted on other counts. In bifurcated proceedings, the trial court denied defendant's Romero motion*fn2 to strike allegations of his prior strike convictions, found the prior strike allegations true (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), and sentenced defendant to an aggregate term of 25 years to life in prison.*fn3
Defendant contends the trial court denied him his right to an impartial jury by refusing to discharge a seated juror when the juror expressed fear of defendant's possible retaliation. Defendant asserts the juror's comment revealed an actual bias against defendant.
During the trial court's voir dire, Juror No. 4 admitted he had some "stage fright" because of the number of people in the courtroom and acknowledged he would rather be elsewhere. Nonetheless, he confirmed he could be fair to both parties with "[n]o problem." He did not think law enforcement manufactured charges but he also did not think they were infallible. He said he would not vote to convict without hearing all the evidence, and he would not vote to convict if the prosecution failed to meet its burden. He was comfortable with juror obligations. When defense counsel asked the entire venire panel if any of them could think of anything which would prevent them from being fair and impartial, Juror No. 4 did not raise any concern.
However, on the first day of trial, Juror No. 4 asked to speak with the trial court privately. He told the trial court he had some "personal issues" that had "[n]othing to do with the case." Juror No. 4 said his unemployment benefits would expire soon and he should be looking for a job rather than sitting on a jury. He also expressed his concern that voir dire had been conducted in front of a courtroom full of people, which he found awkward and uncomfortable. He did not like having his name used in open court, because "I mean, nothing personal with the Defendant or anything, but I don't know him. I don't know what he is capable of, you know. I don't know. I'm not -- I don't want to be insulting to anyone." The trial court assured the juror that the trial would be short and that juror information was sealed and would not be available to anyone. Juror No. 4 requested clarification regarding jury wages, because he had to report his earnings on his unemployment forms. The trial court answered his question and asked if he had any further concerns. Juror No. 4 said he did not.
Defense counsel asked Juror No. 4 if he was concerned about his personal safety. Juror No. 4 responded, "You never know these days. You know, people retaliate and stuff. Who knows what could happen." Defense counsel then asked if the juror's judgment would be affected by his concerns and the juror said it would not. Defense counsel asked, "you would not vote one way or another based on your fear?" and Juror No. 4 replied, "No." The trial court asked Juror No. 4, "Do you have any concerns at all about serving as a juror?" Juror No. 4 said, "No, not really." The trial court added, "Do you think you can be fair? We have had all of this discussion, we had some further discussion now. Do you have concerns at all about your ability to remain fair throughout the process?" Juror No. 4 responded, "No."
Outside the presence of the juror, defense counsel moved to excuse the juror for cause. The trial court denied the motion, noting that the juror said he could be fair. The trial court added that it was becoming more common for jurors to express concern about their name being made public. Defense counsel said that may be the case, but he was concerned about this particular juror's ability to be fair in this particular case. The trial court said it was also concerned with this case, but that Juror No. 4 indicated that "although he had concerns, he can set aside those concerns and he can be fair in considering this case."
We review a decision to discharge a juror under a heightened abuse of discretion standard. (People v. Wilson (2008) 44 Cal.4th 758, 821; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Under this standard, we determine whether the court's exercise of discretion is supported in the record as a "demonstrable reality," considering not just the evidence, but the reasons provided by the court and whether the reasons actually relied upon support the court's conclusion. (People v. Wilson (2008) 43 Cal.4th 1, 26.)
When the alleged misconduct involves the unintentional concealment of material information that may call into question the impartiality of the juror, the test for bias is whether the juror is sufficiently biased to constitute good cause for the court to find that the juror is unable to perform his duty. (People v. San Nicolas (2004) 34 Cal.4th 614, 644.) "Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination." (People v. McPeters (1992) 2 Cal.4th 1148, 1175.) A juror's unequivocal statement that he or she is unbiased and can maintain impartiality may properly be relied upon by the trial court in ruling on a motion to discharge the juror. (People v. Harris (2008) 43 Cal.4th 1269, 1305.)
Defendant contends that Juror No. 4's fear of possible retaliation demonstrated actual bias, because "[s]uch fear could exist only to the extent the juror had prejudged the case and considered [defendant] guilty." But the decision in People v. Navarette (2003) 30 Cal.4th 458 is instructive in this regard. In that case, a sitting juror sent a note to the trial court asking whether the defendant had access to the juror questionnaires and expressing concern for the safety of his property and family. The trial court did not speak to the juror privately, but explained to the entire jury panel that jury questionnaires had only been seen by court personnel and the attorneys, and asked jurors to speak up if they believed they could not be fair to the defendant. (Id. at p. 500.) The Supreme Court rejected an argument that the trial court should have dismissed the juror. "The [trial] court specifically asked the jurors to report if they could no longer be fair and unbiased, and [the juror who wrote the note] did not pursue the matter further, apparently satisfied by the court's assurances. A decision whether to remove a juror for cause rests in the discretion of the trial court." (Id. at p. 500.)
In these circumstances, the test of bias is not whether a juror may have been affected in some way by safety concerns or even a fear of the defendant, but whether the juror's decisionmaking process and, ultimately, the juror's ability to deliberate impartially was likely to be influenced. (People v. Navarette, supra, 30 Cal.4th at p. 500; see also In re Hamilton (1999) 20 Cal.4th 273, 306.) The trial court specifically asked Juror No. 4 if his concerns about his safety would affect his judgment. Juror No. 4 said they would not. The trial court also asked the juror if his concerns would affect his ability to remain fair, and the juror said they would not. The trial court believed the juror's assurances and expressly relied on them in denying the motion to discharge Juror No. 4. Those assurances were substantial evidence supporting the trial court's determination that the juror was not actually biased against defendant, and the record makes clear the trial court actually relied on that evidence. Accordingly, the trial court did not abuse its discretion in denying the defense motion to discharge the juror.
Defendant next contends that his conviction for evading an officer by driving against the flow of traffic (§ 2800.4) must be reversed because it is necessarily included in his conviction for evading an officer in willful or wanton disregard for the safety of persons and property (§ 2800.2). We disagree.
A defendant may not be convicted of an offense that is necessarily included within another offense for which he is also convicted. (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).) To determine whether one offense is necessarily included within the other, we look to the statutory elements of the offenses.*fn4 "[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at p. 1227.) In other words, to constitute a necessarily included lesser offense, it must be impossible to commit the greater offense without also committing the lesser offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
Section 2800.4 is not necessarily included in section 2800.2, because it is possible to violate section 2800.2 without also violating section 2800.4. Section 2800.2 is violated "[i]f a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." (§ 2800.2, subd. (a).) On the other hand, section 2800.4 is violated "[w]henever a 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." (§ 2800.4.)
Defendant argues that a person who violates section 2800.2 while driving on the wrong side of the road necessarily violates section 2800.4 as well. That may be true, but it is also possible to violate section 2800.2 in other ways. The traffic violations that could support a conviction under section 2800.2 include driving under the influence (§ 12810, subd. (b), (d)(2) & (i)(4)), failing to stop after an accident (§ 12810, subd. (a)), engaging in street racing (§ 12810, subd. (d)(1)), failing to properly secure a child passenger in a child seat (§ 12810, subd. (h)), driving with a suspended license (§ 12810, subd. (e)), driving with someone in the trunk of the car (§ 12810, subd. (i)(3)), or "any other traffic conviction involving the safe operation of a motor vehicle upon the highway" (§ 12810, subd. (f)). The statutory elements of section 2800.2 do not include all of the elements of section 2800.4. Accordingly, section 2800.4 is not a necessarily included offense of section 2800.2.
Defendant further contends that the trial court abused its discretion when it declined to strike defendant's prior strike convictions. Defendant asserts that under Penal Code section 1385 and Romero, supra, 13 Cal.4th 497, the trial court should have given more weight to defendant's background, character and prospects.
In ruling on a Romero motion to strike a prior strike conviction, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The three strikes law establishes a sentencing norm, "circumscribes the trial court's power to depart from this norm" and requires an explicit justification for such a departure. (People v. Carmony (2004) 33 Cal.4th 367, 378.) "In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.) Accordingly, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Where the trial court, aware of its discretion, "'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Id. at p. 378.)
As defendant notes, the trial court was supplied with ample information regarding defendant's background, character, and prospects. Defendant had a long-standing drug addiction problem, but he was employable and he had shown himself capable of being a responsible parent and partner. He also had a significant criminal history. In 1997, he committed a forgery and theft. Two months later, he committed a residential burglary and stole a rifle. Eight months later, while still on probation, he committed another burglary. Sentenced to four years in prison, he was released in October 2001 and discharged from parole in October 2004. Less than two years later, he was found in possession of a concealed knife, counterfeit money and narcotics paraphernalia. One month after that, while under the influence of methamphetamine, he fled from police officers by driving through multiple red lights, weaving through lanes of traffic and reaching speeds of 115 miles per hour. Then, in May 2007, while driving a stolen SUV, defendant led officers on another high speed chase, running red lights and driving against the flow of traffic. When he stopped, he fled from the officers on foot before he was caught. The instant offenses occurred a few months later.
In evaluating defendant's Romero motion, the trial court considered the probation report, the papers and argument from counsel, and defendant's statement at the hearing. The trial court noted that things had been going "relatively well" for defendant between October 2001 and March 2006, but that things deteriorated after that. The trial court said it was lucky nobody had been killed in any of the high-speed chases, but the evidence at trial suggested defendant had intentionally tried to cause accidents to delay the pursuing officers. The trial court denied the Romero motion.
Defendant has not pointed to anything in the record that shows the trial court was unaware of its discretion to dismiss a strike, that it declined to exercise its discretion based on a clearly improper reason or that it did not properly consider the mitigating factors. "Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.) It is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial judge who in this case clearly expressed the view that defendant's criminal history did not justify striking the priors. The trial court's ruling is supported by the record.
We have identified an omission in the abstract of judgment which requires correction. The box in item 8 should be checked to reflect that defendant was sentenced pursuant to "PC 667(b)-(i) or PC 1170.12" We will direct the trial court to make this correction.
The judgment is affirmed.
The trial court is directed to correct the abstract of judgment by checking the box in item 8 to reflect that defendant was sentenced pursuant to "PC 667(b)-(i) or PC 1170.12" and to forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. ROBIE , J.