P. v. Head CA5

California Court of Appeal Jul 8, 2013 No. F064047Unpublished

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Holding. The court reversed the defendant's felony evasion convictions because the prosecution failed to present evidence that the pursuing officers' vehicles exhibited at least one lighted red lamp, a statutory requirement. Additionally, the court ordered the striking of an improperly stayed prior prison term enhancement.

Issues

Whether substantial evidence supports felony evasion convictions when the record lacks proof that the pursuing police vehicle displayed a lighted red lamp.
Whether a trial court may stay a prior prison term enhancement instead of imposing or striking it.

Disposition. Affirmed as modified; reversed in part; remanded.

Quotations verified verbatim against the opinion

“One element of felony evasion of a peace officer is that the pursuing officer’s vehicle exhibit at least one lighted red lamp visible from the front.”

“Evidence that establishes only that the law enforcement vehicle’s lights were on, but does not establish whether any of the lights were red, is insufficient to support a conviction.”

“Prior prison term enhancements may be imposed or stricken but not stayed.”

Filed 7/8/13 P. v. Head CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064047 Plaintiff and Respondent, (Tulare Super. Ct. No. VCF252277) v.

ERICK JOEL HEAD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Poochigian, J. and Peña, J.

INTRODUCTION A jury convicted appellant/defendant Erick Joel Head (defendant) of multiple crimes after he crashed his vehicle while evading police, killing three people. Defendant seeks reversal of his felony evasion convictions. He contends that no substantial evidence supported a common element of those offenses: that the pursuing peace officer’s vehicle exhibits “at least one lighted red lamp.” (See Veh. Code, § 2800.1, subd. (a)(1), bold print and italics added. See also Veh. Code, §§ 2800.3, subd. (b) [referring to § 2800.1] & 2800.2, subd. (a) [referring to § 2800.1].) Respondent concedes that the felony evasion convictions (counts IV, V, VI, and VII) must be reversed. We agree.1 PROCEDURAL BACKGROUND Defendant was charged with three counts of murder (Pen. Code,2 § 187, subd. (a); counts I, II and III); three counts of evading a peace officer causing death (Veh. Code, § 2800.3, subd. (b); counts IV, V, and VI); one count of evading a peace officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count VII) and one count of evading an officer causing injury (Veh. Code, § 2800.3, subd. (a); count VIII). One prior prison term (§ 667.5, subd. (b)) and one prior strike (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) were alleged as to all counts. A prior serious felony conviction enhancement (§ 667(a)(1)) was alleged as to counts I through III. Defendant was convicted by a jury of counts I through VII,3 and the trial court found

P. v. Head CA5

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