California Court of Appeal Mar 12, 2013 No. D060439Unpublished
Filed 3/12/13 P. v. Lopez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D060439
Plaintiff and Respondent,
v. (Super. Ct. No. SCN281561)
JOSEPH MARCOS LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Kearney, Judge. Affirmed.
INTRODUCTION
A jury convicted Joseph Marcos Lopez of evading a police officer with reckless
driving (Veh. Code,1 § 2800.2, subd. (a)) (reckless evading). In addition, he pleaded
guilty to driving without a license (§ 12500, subd. (a)), and he admitted having a prior
1 Further statutory references are also to the Vehicle Code unless otherwise stated.
strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a prior prison
conviction (Pen. Code, §§ 667.5, subd. (b), 668).
At the sentencing hearing, the trial court struck the punishment for the prior prison
conviction finding, but declined Lopez's invitation to dismiss the prior strike conviction
finding. The trial court sentenced him to six years in prison, consisting of the upper term
Sess., ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011). We conclude there is no
merit to these contentions and affirm the judgment.
2 The trial court sentenced Lopez to time served for his driving without a license conviction.
2
BACKGROUND
Oceanside police officers Todd Ringrose and Duane Schott were outside a
Carlsbad home surveilling a vehicle. Ringrose was in uniform and was driving an
unmarked police car with a light bar mounted behind the rear visor so that the lights were
visible in the windshield. In addition, when the lights were activated, the car's headlights
and strobe lights on the side-view mirrors flashed. Schott was also in uniform and was
driving a marked police car with overhead lights.
Ringrose previously determined Lopez had access to the vehicle and did not have
a valid driver's license. At around 6:30 a.m., Ringrose saw Lopez get into the vehicle,
back out, and head east through a parking lot. Ringrose drove ahead to an intersection in
the parking lot and waited for Lopez. Lopez stopped at the intersection facing Ringrose
and the two made eye contact from about seven to 10 feet away. Ringrose recognized
Lopez from a previously obtained Department of Motor Vehicles photograph. Lopez had
a large tattoo of the letters "SD" across the front of his neck.
Lopez drove north and exited the parking lot onto a street. Ringrose radioed
Schott to advise him the vehicle was moving. Ringrose followed one or two car lengths
behind Lopez. Schott followed 200 to 300 feet behind Ringrose.
When Lopez turned left onto a street without stopping for a stop sign, Ringrose
activated his car's lights and Schott activated his car's lights and sirens. Lopez
accelerated through a roundabout and turned right onto another street without stopping
for a red light, even though it was a blind corner and there were two approaching cars
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with the right of way. Lopez sped toward the next intersection and once again turned
right without stopping for a red light.
He briefly slowed the vehicle, causing Ringrose to think he was going to pull over
and flee on foot, or make a U-turn or some other maneuver. Instead, he moved the
vehicle into the fast lane and rapidly accelerated to a speed Ringrose estimated exceeded
65 miles per hour. He then crossed the double yellow lines of a simulated island and
drove head on into traffic for several hundred feet. Ringrose followed, straddling the
double yellow lines to warn both directions of traffic.
The oncoming traffic yielded, stopping at an upcoming intersection. Ringrose
backed off as Lopez approached the intersection, which also had a blind corner. Lopez
turned left from the wrong side of one street onto the wrong side of another. A large
oncoming vehicle braked hard to avoid Lopez. Lopez came within a car's length of
colliding with the vehicle and within two or three car lengths of colliding with another.
Lopez continued traveling on the wrong side of the road for about 200 to 250 feet.
Ringrose and Schott turned left onto the road to follow Lopez, but Ringrose
cancelled the pursuit after seeing a school up ahead. Lopez turned right near the school
and continued out of sight. The pursuit covered approximately one mile and lasted one to
two minutes.
Ringrose and Schott returned to Lopez's home and spoke with the woman
babysitting Lopez's children. She initially denied seeing Lopez that morning, but later
said he had left the home shortly after she arrived. She told the officers Lopez had just
called her and told her not to open the door because police officers had just chased him.
4
At trial, however, she denied telling the officers she had spoken with Lopez by phone that
morning or that he had told her not to answer the door because of the police chase.
DISCUSSION
I
Failure To Instruct on Reckless Driving as Lesser Included Offense
A
The reckless evading charge alleged Lopez "did unlawfully, while operating a
motor vehicle and hearing a siren and seeing a lighted red lamp emanating from a
distinctively marked vehicle operated by a peace officer, evade, flee and otherwise
attempt to elude the pursuing peace officers' motor vehicle, and in doing so did drive and
attempt to drive a vehicle in willful and wanton disregard for the safety of persons and
property in violation of [section 2800.2(a)]."3 During the jury instruction conference,
3 Section 2800.2, subdivision (a), provides: "If 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, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine." Section 2800.1, subdivision (a), provides: "Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The 5
defense counsel requested the trial court instruct the jury on reckless driving in violation
of section 23103, subdivision (a),4 as a lesser included offense of reckless evading. The
trial court determined reckless driving was not necessarily a lesser included offense and
denied the request.
B
Lopez contends the trial court erred in its determination and its denial of the
requested instruction requires us to reverse his conviction. We disagree.
A trial court must instruct the jury on a lesser included offense if there is
substantial evidence to support it. A lesser offense is included in a greater offense "if
either (1) the greater offense, as defined by statute, cannot be committed without also
committing the lesser (the elements test), or (2) the language of the accusatory pleading
encompasses all the elements of the lesser offense (the accusatory pleading test)."
(People v. Parson (2008) 44 Cal.4th 332, 349.) Where, as here, the charging allegations
echo the statutory language, the test is the same: whether commission of the greater
offense necessarily requires commission of the lesser offense. (People v. Wolcott (1983)
34 Cal.3d 92, 99.)
peace officer's motor vehicle is operated by a peace officer, as defined in [Penal Code section 830 et seq.], and that peace officer is wearing a distinctive uniform."
4 Section 23103, subdivision (a), provides: "A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving."
6
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.)
The crime of reckless evading occurs when a person, with the intent to evade,
operates a motor vehicle with willful or wanton disregard for the safety of persons or
property while fleeing from or attempting to elude a pursuing peace officer who is
wearing a distinctive uniform and is driving a distinctively marked vehicle exhibiting at
least one lighted red lamp visible from the front and sounding a siren as reasonably
necessary. (§§ 2800.1, subd. (a), 2800.2, subd. (a).) For purposes of this crime, "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
7
duty. Accordingly, the trial court correctly determined 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 declining to instruct on reckless driving as a lesser included
offense.
C
Moreover, contrary to Lopez's assertion, the trial court's decision not to instruct
the jury on the crime of reckless driving did not deprive him of his constitutional right to
defend himself on the theory he did not intentionally evade a peace officer. Intent to
evade and evading are elements the prosecution had to prove to establish the crime of
Holding. The court affirmed the defendant's conviction for reckless evading and the trial court's sentencing decisions, holding that reckless driving is not a lesser included offense of reckless evading and that the trial court did not abuse its discretion in refusing to dismiss a prior strike conviction.
Issues
Whether the trial court erred by failing to instruct the jury on reckless driving as a lesser included offense of reckless evading.
Whether the trial court abused its discretion by declining to dismiss a prior strike conviction finding.
Whether the defendant was entitled to retroactive application of amended Penal Code section 4019 regarding presentence conduct credits under equal protection principles.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the trial court correctly determined a person can commit the crime of reckless evading without necessarily committing the crime of reckless driving”
“we conclude equal protection principles do not require us to apply the current version of Penal Code section 4019 to Lopez”