(Super. Ct. Nos. SF115278A, SF097038A, SF097248A)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In case No. SF115278A, a jury convicted defendant Michael Vincent Hutchinson of evading a police officer (Veh. Code, § 2800.2), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)),*fn1 possession of ammunition by a felon (former § 12316, subd. (b)(1)), and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court found that defendant had a prior serious felony conviction (§ 667, subds. (b)-(i)) and had served two prior prison terms (§ 667.5. subd. (b)). Accordingly, the trial court sentenced defendant to eight years and eight months in state prison.
In conjunction with the same trial, the court heard the allegations that defendant violated his probation in case Nos. SF097248A and SF097038A. The court found that in both cases defendant failed to obey all laws as required by the conditions of his probation. Defendant's probation was summarily revoked, and the court imposed two consecutive eight-month sentences for the violations of probation.
On appeal, defendant does not challenge the result in his revocation of probation cases. Instead, his arguments focus exclusively on case No. SF115278A, which he contends must be reversed because (1) the government failed to preserve the motorcycle on which defendant had been riding even though the prosecution was aware of its potential exculpatory value, (2) the trial court erred in allowing defendant to be impeached by his seven prior felony convictions, (3) the court improperly ordered that he be physically restrained during the jury trial, and (4) his motion for new trial should have been granted based on newly-discovered evidence regarding the incompetence of the toxicologist who testified against him. On our own motion, we requested that the parties submit supplemental briefs on the issue of whether defendant received the correct number of presentence custody credits. In response, defendant argued that he correctly received credits for half of his actual days in custody, and that any reduction of credits would violate equal protection after the Legislature amended section 4019 in October 2011.
We reject defendant's contentions. We conclude that the government did not have a duty to preserve a motorcycle that was not in its possession and the location of which was known to the defense. Defendant was properly impeached with his prior convictions. The trial court did not abuse its discretion in ordering defendant to be physically restrained in a manner that the jury was not able to observe. And, the court did not err in denying the motion for new trial given that testimony from the arresting officer provided the evidence that defendant had been under the influence of methamphetamine. Finally, we order the presentence custody credits corrected to add one day. Based on the recent California Supreme Court decision in People v. Lara (2012) 54 Cal.4th 896, we conclude that equal protection does not require retroactive application of the October 2011 amendment of section 4019. As modified to correct the presentence custody credits, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
At approximately 11:00 p.m. on July 7, 2010, California Highway Patrol Officers Kris Glenn and John Edwards were on duty in uniform and driving a marked patrol vehicle in Stockton, California. Officer Glenn noticed a motorcycle being driven without a rear taillight and activated the emergency lights on the patrol car. The motorcyclist, later identified as defendant, soon brought the motorcycle to a complete stop in the middle of Lafayette Street. Officer Glenn used the patrol vehicle's public address system to instruct defendant to pull over on the side of the street. Defendant looked back "for a second" and accelerated down Lafayette Street. Officer Glenn activated his siren and followed defendant.
During the ensuing pursuit, defendant exceeded the posted speed limits, ran a stop sign and three red lights, and nearly lost control of the motorcycle when he took turns too quickly. Officer Glenn finally caught up to defendant on Netherton Avenue, where he saw defendant get off of the motorcycle. The officer saw defendant attempt to hide the motorcycle by laying it down behind a parked car. Defendant took off his helmet and put it into the back of a pickup truck. He then began "trotting" away from the pursuing officers.
Officer Glenn maneuvered the patrol car in front of defendant in an attempt to intercept defendant. However, defendant quickly walked behind a nearby garage. Defendant soon reemerged and began walking toward the officers. Officer Glenn observed defendant put his hands up and throw away a silver-colored metal object. The officers arrested defendant. In the area where defendant had thrown the object, Officer Glen found a silver and black colored snub-nose .38 revolver. The gun was fully loaded and bore the serial number W242987.
Officer Edwards examined the motorcycle. The officer had experience with motorcycles. Officer Edwards observed that defendant's motorcycle had a few dents and dings on it, "but nothing that looked fresh." The officer found no mechanical defects -- such as a stuck throttle. He noticed that the motorcycle rolled freely when the clutch was engaged and that the gears shifted freely. Officer Edwards did not discover anything to indicate that the motorcycle had been malfunctioning.
Officer Glenn observed that defendant "was agitated, very excited. Seemed to be on edge." The officer also noticed that defendant appeared to be sweating profusely. Officer Glenn considered this unusual because defendant had not been running or engaging in "apparent exertion of any kind." The officer asked defendant questions to make sure that defendant was not suffering a medical condition that required immediate attention. However, defendant invoked his rights to remain silent.
The officers transported defendant to a local hospital where his blood was drawn at 1:17 a.m. Department of Justice forensic toxicologist Ronald Kitagawa tested the blood sample and found that it contained both amphetamine and methamphetamine. Kitagawa explained amphetamine and methamphetamine are stimulants that can cause symptoms of elevated heart rate, profuse sweating, and even result in greater risk-taking behavior. In Kitagawa's opinion, defendant's behavior during and after the motorcycle chase was consistent with the effects of methamphetamine.
At trial, the parties stipulated that defendant had a prior felony conviction that prohibited him from owning or possessing a firearm or ammunition. The prosecution called Luis Ramirez, who testified that he borrowed his father's .38-caliber revolver in September 2009. During that month, someone broke into Ramirez's truck and stole the gun from his glove compartment. Ramirez reported the gun stolen and gave the police the serial number for the firearm. In court, Ramirez identified the firearm found near defendant to be that owned by Ramirez's father. Ramirez never gave defendant permission to have the gun.
Dennis Wilkison, a friend of defendant, is a mechanic. Wilkison worked on defendant's motorcycle in July 2010. In doing so, he found that the throttle cable was too short. Wilkison told defendant "he shouldn't be driving it until we got him the right throttle cable." Wilkison acknowledged that the motorcycle had a kill switch, clutch, and other mechanical features that would allow the rider to stop it.
Defendant testified on his own behalf, stating that he had purchased the motorcycle only about a month prior to the chase that led to his arrest. He had ridden it only once prior to July 7, 2010. On the evening of July 7, defendant "had a burning desire to ride" the motorcycle. Defendant got on the bike and drove onto the freeway where he quickly realized something was wrong with the motorcycle. He found it unusual that the motorcycle was "idling at half throttle." Defendant exited the freeway at the Filbert Street off-ramp and stopped for a red light. When the light turned green, defendant drove to his friend's house near Washington and Filbert Streets. By that time, the motorcycle was "revving up. It's really loud." Defendant leaned over to try to make adjustments to the bike.
Since his friends were not home, defendant left. As he turned down various streets, he tried to downshift and use the brakes because the throttle was nearly completely open. The motorcycle was going so fast that defendant nearly crashed into a fence. Defendant was "just trying to hang on to this bike." As he turned north on the bike, he continued to be unable to bring it to a stop. Thus, he "blew through" an intersection despite the red traffic light. Defendant was not aware that he was being followed by the police. He did not hear any sirens or see any flashing emergency lights.
At the corner of Netherton and Marsh Streets, defendant crashed into a parked car. People from a nearby house came out to see what happened. Defendant took off his helmet and was putting it in the back of a truck when the police arrived. Defendant was still very excited at the time he was arrested because he had thought he was going to die on the back of the motorcycle. Defendant attempted to explain that the throttle had been stuck, but the police refused to listen.
Defendant acknowledged that he had methamphetamine in his system, having ingested the drug with his wife three days earlier. However, he denied throwing a gun.
At the direction of the California Highway Patrol, the motorcycle was transported to the storage yard of Advanced Tow. Unclaimed, the motorcycle was sold at a lien sale to Peter Matuz. Matuz, in turn, sold it to Steven Castilleja. Castilleja testified that the motorcycle ran "a little bit rough" because the throttle cable was kinked. He "moved it by hand" and fixed the cable problem.
On cross-examination, defendant admitted that he had been previously convicted of seven felonies.
The prosecution presented rebuttal evidence in the form of Officer Edwards's testimony. The officer explained that, even if the motorcycle's throttle had been stuck, it could have been stopped by pressing the kill switch, pulling the clutch, turning the engine off, stalling the bike, and turning the gas off. Officer Edwards also testified that defendant's driving was not consistent with someone on a motorcycle with a stuck throttle. Specifically, the officer noted that defendant came to a stop on Filbert Street before accelerating and driving away. Defendant also slowed down at various points during the pursuit by the police. Finally, defendant made numerous turns even though it would have been easier to continue going straight while trying to remedy the mechanical problem.
Officer Edwards also explained that he examined the throttle immediately after the chase and did not find it to be stuck.
Failure to Preserve the Evidence
Defendant contends his conviction must be reversed because the People failed to preserve the motorcycle even though it had obvious exculpatory value. We reject the argument.
Denial of Motion to Dismiss
Three weeks before trial, the defense moved to have the case dismissed on grounds that the People breached their duty to preserve exculpatory evidence. Defense counsel argued that the motorcycle could have proven "that the 'accelerator had gotten stuck'" so that defendant was not fleeing from the police but riding an out-of-control motorcycle. Counsel further argued that if the motorcycle had a taillight, it would refute the police officers' statements that they initiated a traffic stop because defendant did not have a taillight.
The People countered that the defense had full access to the motorcycle from July 9, 2010, until it was sold on October 22, 2010, from the tow yard where it had been kept. The prosecution noted that the motorcycle was not destroyed or lost, and that the defense was trying to contact the new owner. At the hearing on the motion, the People ...