California Court of Appeal Dec 17, 2014 No. D064449Unpublished
Filed 12/17/14 P. v. Abalos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064449
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245873)
VLADIMIR ABALOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert F. O'Neill, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal
and Tami S. Falkenstein-Hennick, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Vladimir Abalos of evading a peace officer with reckless
driving and resisting, delaying or obstructing a peace officer in the performance of
his duties. He appeals, contending the trial court erred by failing to instruct the
jury (1) with a unanimity instruction on the charge of evading a peace officer with
reckless driving, (2) on the lesser included offenses of evasion of a peace officer
and reckless driving, and (3) on the defense of mistake of fact. We reject these
arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, San Diego Police Officer Daniel Stanley observed Abalos
driving a gold Honda. Abalos jerked the wheel and pulled to the side of the road
without using his signal. Officer Stanley initiated a traffic stop by activating his
lights and pulling behind Abalos's vehicle. At that point, Abalos pulled back into
traffic and sped off.
Officer Stanley followed Abalos at a speed of 50 miles per hour in a 15-
mile-per-hour zone. Abalos drove through two red lights as Officer Stanley
followed him. A police helicopter unit joined the pursuit, allowing Officer Stanley
to keep his distance.
Officers Rodolphe Sainte-Agathe and Mario Perez joined the pursuit in
their patrol car. Officer Sainte-Agathe saw Abalos commit numerous traffic
violations. Abalos ran approximately five or six red lights and three to five stop
signs. Abalos was also speeding, making sharp turns, and failed to use his signal
before turning.
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Just before Abalos entered a cul-de-sac, a front tire of his car exploded and
Abalos came to a stop. Abalos did not follow officers' commands to show his
hands. Officer Perez deployed his taser on Abalos and the officers pulled him out
of the car. Officers also pulled Abalos's passenger, Kaitlin McQuaid, out of the
car. Officers directed Abalos to stop resisting and restrained him on the ground.
The pursuit lasted approximately 20 minutes and covered 13 miles.
Detective Gary Lawrence interviewed McQuaid on the night of the
incident. McQuaid told the detective that when she asked Abalos why he was not
stopping for officers, he stated it was because he was thirsty. Abalos did not tell
McQuaid that he was fleeing because he was scared.
McQuaid testified that she was a passenger in Abalos's car. She noticed a
police car's lights activated behind them and heard chirping from the car's siren.
According to McQuaid, the police car approached Abalos's car in a "very
aggressive manner." Abalos told McQuaid he was scared and thirsty. Abalos
continued to drive despite being surrounded by police cars and a helicopter
overhead. During this time, Abalos mentioned to McQuaid that he previously had
an incident with an officer in the area who made a threatening statement to him.
Abalos testified on his own behalf. He stated police had previously
threatened him and he did not stop for officers on the day at issue in this case
because he believed his life was in danger. Abalos testified he wanted to get to a
well-lit area before stopping his vehicle. He also stated that he did not obey traffic
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signals and signs because he feared for his life. He believed if he stopped his car
before the helicopter got there, he would have been killed.
DISCUSSION
I. Unanimity Instruction
Abalos argues the trial court erred by failing to give a unanimity instruction
on the charge of evading a police officer with reckless driving. Specifically, he
asserts a unanimity instruction was required because the jury was required to agree
on which three of multiple traffic violations constituted a willful or wanton
disregard for the safety of persons or property. We disagree.
Vehicle Code section 2800.2, subdivision (a), elevates the offense of
evasion of a peace officer to a felony where the defendant flees or evades an
officer by driving a vehicle "in a willful or wanton disregard for the safety of
persons or property. . . ." (Undesignated statutory references are to the Vehicle
Code.) Subdivision (b) of section 2800.2 defines willful or wanton disregard as
including, but not limited to, "driving while fleeing or attempting to elude a
pursuing peace officer during which time either three or more violations that are
assigned a traffic violation point count under Section 12810 occur, or damage to
property occurs."
"The unanimity instruction is required where there is a single count
charged, but the evidence shows the defendant committed multiple crimes that
could qualify for a conviction under that count. [Citation.] No such instruction is
required, however, merely because the jury may be divided on the exact way the
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defendant may be guilty of the charged count. [Citation.]" (People v. Varela
(2011) 193 Cal.App.4th 1216, 1220 (Varela) [finding a unanimity instruction is
not required in a prosecution for reckless evasion of a peace officer under section
2800.2 because the jury was not required to agree on the predicate traffic
violations]; People v. Datt (2010) 185 Cal.App.4th 942, 949-951 (Datt) [finding
the jury was not required to unanimously agree on which traffic violations
supported the "willful or wanton" element of evading].)
Abalos does not challenge officers' testimony that he committed three or
more traffic violations. Instead, he asserts that because different officers testified
as to different observations of the alleged violations, the jury must have
unanimously agreed on which three violations constituted the predicate offenses
under section 2800.2, subdivision (b).
As in Varela and Datt, we conclude a unanimity instruction was not
required in this case. (Varela, supra, 193 Cal.App.4th at p. 1220; Datt, supra, 185
Cal.App.4th at pp. 949-951.) "While there was evidence of various factual bases
for a jury finding that defendant's flight from pursuit was done in 'willful or
wanton disregard for the safety of persons or property,' jury unanimity is not
required 'as to the exact way the defendant is guilty of a single discrete crime.' "
(Datt, at p. 950.) "The different Vehicle Code violations upon which the 'willful
or wanton' element could have been premised were simply 'alternate ways of
proving' that element, not separate chargeable offenses of reckless evading."
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(Ibid.) Accordingly, we reject Abalos's argument that a unanimity instruction was
required on the charge of reckless evasion of a peace officer.
II. Lesser Included Offense Instructions
Abalos argues the trial court erred in failing to instruct the jury on the lesser
included offenses of evasion of a peace officer (section 2800.1) and reckless
driving (section 23103). We reject his arguments.
"Even without a request, a trial court must instruct on general principles of
law that are closely connected to the facts before the court and that are necessary
for the jury's understanding of the case. [Citation.] It must instruct sua sponte on
a lesser included offense where there is evidence that, if believed by the trier of
fact, would absolve the defendant of the greater offense, but not of the lesser.
[Citation.] This obligation extends to all theories of a lesser included offense that
find substantial support in the evidence. [Citation.] However, the court need not
instruct on a lesser offense when there is no evidence the offense was less than
that charged." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833; accord,
People v. Avila (2009) 46 Cal.4th 680, 704-705 (Avila).) On appeal, we
independently review whether the trial court properly declined to instruct on a
lesser included offense. (Avila, at p. 705; People v. Cole (2004) 33 Cal.4th 1158,
1215.)
A. Evasion of a Peace Officer (Section 2800.1)
Evasion of a peace officer under section 2800.1 is a lesser included offense
of felony evasion of a peace officer under section 2800.2. (People v. Springfield
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(1993) 13 Cal.App.4th 1674, 1680-1681 (Springfield).) "The only distinction
between the two crimes is that in committing the greater offense the defendant
drives the pursued vehicle 'in a willful or wanton disregard for the safety of
persons or property.' " (Id. at p. 1681.) The People concede this point but assert
that the trial court was not required to instruct on the lesser offense because there
was no evidence that Abalos's offense was anything less than felony evasion. We
agree.
As we previously explained, the "willful or wanton" element of section
2800.2 is satisfied where the People prove defendant committed three or more
traffic violations or caused property damage. (Ante, part I.) Multiple officers in
this case testified that Abalos committed numerous traffic violations, including
speeding, disregarding traffic signs and running red lights. Further, Abalos did not
deny committing the traffic violations. Instead, he testified that he did not obey
traffic signals and signs because he feared for his life. Abalos's counsel also
conceded the traffic violations in his closing argument.
Despite this evidence, Abalos asserts the jury could have convicted him of
the lesser offense under section 2800.1. To support his argument, he relies on
Springfield, supra, 13 Cal.App.4th at p. 1681, in which the court reversed
defendant's section 2800.2 conviction because the trial court failed to instruct the
jury on the lesser offense under section 2800.1. In that case, however, "there was
conflicting evidence concerning the manner [defendant] drove the pursued vehicle.
While there was substantial evidence to support a finding, based on the officers'
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testimony, that [defendant] drove with a willful and wanton disregard for the
safety of other persons and property, there was also evidence, based largely on
[defendant's] testimony, that he did not drive in such a manner." (Springfield, at
pp. 1680-1681.)
Unlike Springfield, supra, 13 Cal.App.4th at pp. 1681-1682, there was no
evidence in this case that the offense Abalos committed was less than the offense
charged. Abalos did not contradict the officers' testimony regarding his traffic
violations. Instead, he admitted the violations. Where, as here, there is no
evidence the offense was less than that charged, the trial court was not required to
provide a lesser included offense instruction. (People v. Szadziewicz, supra, 161
Cal.App.4th at p. 833; accord, Avila, supra, 46 Cal.4th at pp. 704-705.)
B. Reckless Driving (Section 23103)
The crime of reckless driving occurs when a person "drives a vehicle upon
a highway in willful or wanton disregard for the safety of persons or property."
(§ 23103, subd. (a).) For purposes of this crime, the "willful or wanton disregard"
element requires knowledge one's actions present a substantial and unjustifiable
risk of harm and intentional ignorance of that risk. (People v. Schumacher (1961)
194 Cal.App.2d 335, 338-340; People v. McNutt (1940) 40 Cal.App.2d Supp. 835,
837-838; CALCRIM No. 2200.) Neither negligent nor grossly negligent conduct
is sufficient to satisfy this requirement. (People v. Allison (1951) 101 Cal.App.2d
Supp. 932, 935.) Violation of a statutory duty is also not sufficient to satisfy this
requirement. (People v. Young (1942) 20 Cal.2d 832, 837-838.)
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In contrast, for purposes of the crime of reckless evading under section
2800.2, "willful or wanton disregard for the safety of persons or property" may
include "driving while fleeing or attempting to elude a pursuing peace officer
during which time either three or more violations that are assigned a traffic
violation point count under Section 12810 occur, or damage to property occurs."
(§ 2800.2, subd. (b).) Thus, the willful or wanton disregard element of the crime
of reckless evading, unlike the crime reckless driving, may be satisfied by
negligent or grossly negligent conduct, or by violations of a statutory duty.
Accordingly, a person can commit the crime of reckless evading without
necessarily committing the crime of reckless driving and the trial court did not err
in failing to instruct on reckless driving as a lesser included offense.
III. Mistake of Fact Instruction
Abalos argues the trial court erred by failing to sua sponte instruct the jury
on the defense of mistake of fact on the felony evasion of a peace officer charge.
Specifically, he asserts the trial court should have provided the instruction because
he had a good faith belief that the officer would physically injure him if he
stopped. We reject Abalos's argument.
A trial court has a sua sponte duty to instruct on a defense if it is supported
by substantial evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People
v. Shelmire (2005) 130 Cal.App.4th 1044, 1054.) The duty to instruct does not
arise if there is any evidence, no matter how weak, to support the defense; rather,
the evidence must be sufficient to deserve consideration by the jury. (People v.
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Williams (1992) 4 Cal.4th 354, 361.) The trial court should give the instruction if
the defendant is relying on the defense or if it is not inconsistent with the
defendant's theory of the case. (People v. Dominguez (2006) 39 Cal.4th 1141,
1148; People v. Montoya, at p. 1047.)
Here, Abalos did not rely on the defense of mistake of fact. Instead, he
asserted defenses of duress and necessity to the charge of felony evasion of peace
officer. Further, defense counsel specifically informed the court that "mistake of
fact [did] not apply in this particular case" and agreed when the court stated it
would not instruct the jury with CALCRIM No. 3406 regarding mistake of fact.
Moreover, the evidence did not support a mistake of fact defense. The
officers testified that Abalos drove recklessly while evading them for 20 minutes
over 13 miles. Although McQuaid testified that Abalos said he was scared, she
told Detective Lawrence immediately after the incident that Abalos evaded
officers because he was thirsty. Abalos testified that he did not stop because he
was scared. This evidence was not sufficient to require a mistake of fact
instruction.
"As a general matter . . . a mistake of fact defense is not available unless the
mistake disproves an element of the offense." (In re Jennings (2004) 34 Cal.4th
254, 277.) Abalos asserts his mistake was his belief that officers would harm him.
While this may support a defense of necessity, it does not support a defense of
mistake of fact because the mistake of fact under which Abalos was allegedly
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operating did not negate the specific intent to evade officers. Accordingly, the
trial court did not err by failing to instruct the jury on mistake of fact.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a unanimity instruction was not required for felony evading a peace officer, the trial court properly declined to instruct on lesser included offenses, and the trial court correctly omitted a mistake of fact instruction.
Issues
Whether a unanimity instruction is required for the charge of evading a peace officer with reckless driving under Vehicle Code section 2800.2.
Whether the trial court erred by failing to instruct on the lesser included offenses of evasion of a peace officer and reckless driving.
Whether the trial court erred by failing to sua sponte instruct the jury on the defense of mistake of fact.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The different Vehicle Code violations upon which the 'willful or wanton' element could have been premised were simply 'alternate ways of proving' that element, not separate chargeable offenses of reckless evading.”
“Where, as here, there is no evidence the offense was less than that charged, the trial court was not required to provide a lesser included offense instruction.”
“As a general matter . . . a mistake of fact defense is not available unless the mistake disproves an element of the offense.”