P. v. Charleston
P. v. Charleston
Filed 9/24/08 P. v. Charleston CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD WAYNE CHARLESTON,
Defendant and Appellant. |
B203203
(Los Angeles County
Super. Ct. No. TA089568) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Jerry E. Johnson, Judge. Affirmed in part and reversed in part with directions.
Michele A. Douglass for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
Donald Charleston appeals from the judgment entered following a bifurcated jury trial in which he was convicted of assault on a peace officer (Pen. Code, 245, subd. (c); count 1) and evading an officer while driving recklessly (Veh. Code, 2800.2, subd. (a); count 2) and was found to have suffered multiple prior convictions that had been alleged under Penal Code sections 667, subdivision (a), 667.5, subdivision (b), and 1170.12 (the Three Strikes law). Defendant contends that the evidence was insufficient to support his conviction of evading an officer while driving recklessly and further requests that this court independently review the transcript of a Pitchess[1]hearing. We find merit in defendants sufficiency contention and reverse the judgment on count 2. In all other respects, we affirm.
BACKGROUND
In the afternoon of February 13, 2007, Los Angeles Police Officer Charles Garcia, who was in a marked patrol car with his partner, observed defendant in a Chevy Blazer as defendant failed to stop at a posted intersection near Flower and 88th Streets in Los Angeles. Defendant slowed down when he saw the patrol car and stopped next to it. Garcia got out of the patrol car and saw defendant fumbling with something on his lap. Fearing it might be a gun, Garcia took out his own weapon and got closer to defendants car, where he noticed the odor of marijuana. Defendant raised his hands and said he was on parole and was on his way to get gas. Garcia put his weapon back in its holster and ordered defendant to turn off his engine and get out of the car.
Upon this command, defendant opened his car door two or three inches, then suddenly pushed it open harder, hitting Garcia in the leg. Defendant next closed the door and drove off. As defendant did so, the left rear quarter panel of his car hit Garcia.
Garcia next got back in his patrol car and gave chase. Garcia testified that when he and his partner began the pursuit, we turned on our lights and our siren. Garcia explained, [T]he reason why I did that . . . is because theres a lot of kids and stuff, [defendant is speeding], so I turn on my lights and siren to catch peoples attention. The lights and siren were left on for the entire pursuit, during which defendant failed to stop for posted signs and forced pedestrians to get out of his way.
Garcia eventually caught up with defendant and detained him. A search yielded two marijuana cigarettes in defendants left sock. Garcia sustained a bruise as a result of being hit by defendants car, for which he received treatment at a hospital.
Defendant did not present any witnesses in his behalf.
At sentencing, one of two strike prior convictions that had been found against defendant was dismissed in furtherance of justice. Defendant was sentenced to an aggregate term of 20 years 4 months, comprised of an upper term of 5 years for assault doubled to 10 years under the Three Strikes law; a consecutive term of 8 months for evading an officer doubled to 16 months under the Three Strikes law; 5 years for a prior conviction under Penal Code section 667, subdivision (a); and 1 year each for 4 prior convictions under Penal Code section 667.5, subdivision (b).
DISCUSSION
1. Sufficiency of the Evidence
An element of the crime of evading an officer (count 2) is that while the defendant is fleeing, The peace officers motor vehicle is exhibiting at least one lighted red lamp visible from the front . . . . (Veh. Code, 2800.1, subd. (a)(1).) Defendant contends that this element was not proved because there was no evidence regarding the color of the lights on Officer Garcias patrol car. Defendant is correct.
In People v. Acevedo (2003) 105 Cal.App.4th 195 at page 197, Division Eight of this district faced the same fact pattern as exists here a conviction under Vehicle Code section 2800.2, subdivision (a), where the officer in pursuit activated [his] overhead emergency lights with the siren. The Acevedo court took note of People v. Brown (1989) 216 Cal.App.3d 596, 598601, in which there was also no evidence of the color of the lights on the pursuing officers car and a conviction was reversed for insufficient evidence. (People v. Acevedo, supra, 105 Cal.App.4th at p. 198.) The Acevedo court rejected the Attorney Generals attempts to distinguish Brown, concluding that the presumption of performance of an official duty could not be invoked because the jury had not been told about the duty, and common knowledge of the existence of red lights on police cars is not persuasive because is it equally well known that a police car may also have amber, white, or blue lights. (People v. Acevedo, supra, 105 Cal.App.4th at pp. 198199.)
The Attorney General in this case disagrees with Acevedo, arguing that it was reasonable for the jury to infer from Officer Garcias testimony that at least one of the lights on his patrol car was red. We are unconvinced that such an inference would be reasonable given the lack of evidence about the color of Garcias lights. Accordingly, like the Acevedo court, we reluctantly reverse the judgment on count 2 (thereby reducing defendants sentence from 20 years 4 months to 19 years). (People v. Acevedo, supra, 105 Cal.App.4th at p. 200.) We further direct that count 2 be dismissed. (See Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141]; People v. Hill (1998) 17 Cal.4th 800, 848; People v. Pierce (1979) 24 Cal.3d 199, 209210.)
Finally, we note the Acevedo court suggested that [t]he Legislature may consider it appropriate to revisit this statute and consider an amendment that will permit a conviction in circumstances . . . where there could be no doubt that the defendant knew he was being pursued by the police. (People v. Acevedo, supra, 105 Cal.App.4th at p. 200.) Acevedo was decided in January 2003. To date, the Legislature has not acted.
2. Pitchess
Before the start of trial, defendant asked the trial court to review the personnel records of the arresting officers under Pitchess and its progeny. The request was granted as to complaints involving fabrication, false police reports, and planting of evidence. The court conducted an in camera review and concluded that one complaint was discoverable.
Defendant asks us to independently review the sealed transcript of the in camera hearing. We have done so and uphold the trial courts ruling. (See Pitchess, 11 Cal.3d at p. 535; People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
DISPOSITION
The judgment on count 2 is reversed and the trial court is ordered to dismiss it. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
HASTINGS, J.*
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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
*Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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