People v. Wallace CA2/6

Filed 11/20/13 P. v. Wallace CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B238946 (Super. Ct. No. KA094768) Plaintiff and Respondent, (Los Angeles County)

v.

JAMES FLOYD WALLACE,

Defendant and Appellant.

James Floyd Wallace appeals from the judgment following his conviction by jury of misdemeanor assault on a peace officer (Pen. Code, § 241, subd. (c));1 felony evasion of an officer (Veh. Code, § 2800.2, subd. (a)); driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); driving with a revoked license (Veh. Code, § 14601.1, subd. (a)); misdemeanor hit-and-run driving (Veh. Code, § 20002, subd. (a)); and resisting an executive officer (Pen. Code, § 69). In a bifurcated proceeding, the trial court found true the allegations that appellant had two prior serious felony convictions or juvenile adjudications (§ 667, subd. (a)(1)); two prior serious or violent felonies within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and had served seven prior prison terms (§ 667.5, subd. (b)). The court sentenced him to a 15-year 8-month

1 All statutory references are to the Penal Code unless otherwise stated.

prison term. Appellant challenges the sufficiency of the evidence to support the felony officer evasion. He further claims he was improperly convicted of misdemeanor assault on a peace officer because it is a lesser included offense of the charge of resisting an officer of which he was charged and convicted. We affirm. FACTUAL BACKGROUND On July 2, 2011, at approximately 9:00 p.m., appellant was driving his Lincoln town car on Holt Avenue in Pomona. He offered Elizabeth Bartlett a ride. She accepted and sat in the front passenger seat. Bartlett thought appellant was drunk. He nearly hit several cars as he drove; he had difficulty speaking; and his breath smelled like liquor. Appellant continued driving west on Holt toward a police-operated checkpoint lane for driving under the influence and driving without a license. Appellant turned from that lane into a well-lit gas station, parked near a gas pump, and stayed inside the Lincoln. Uniformed Pomona Police Department Officer Glenn Sugiki approached the Lincoln and asked appellant for his driver's license. Appellant failed to produce a license. His eyes were bloodshot. Thinking that appellant might be intoxicated, Sugiki repeatedly told him to surrender the car keys, which were in the ignition. Appellant refused to do so, and told Sugiki, "You must be out of your fucking mind." Appellant stayed in the driver's seat, with his door open. Sugiki stood in the space between appellant and the open driver's door, leaned into the car, and tried to remove the keys from the ignition. Appellant still refused to surrender the keys. Sugiki struggled with him, and tried to prevent his driving away. Appellant pushed the accelerator and the Lincoln's wheels started spinning while Sugiki's head was inside the car. Sugiki tried to grab the steering wheel but appellant kept driving. The car lurched forward. Its door hit Sugiki and knocked him off balance. His glasses fell off. Sugiki moved quickly so the Lincoln would not run over his legs, and appellant sped away. Bartlett, who was still in the Lincoln, feared for her life. Appellant was driving at high speeds, after dark, with the lights off, and the Lincoln was "bouncing