P. v. Miller
Filed 5/6/13 P.
v. Miller CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERT MILLER,
Defendant and Appellant.
B238815
(Los Angeles County
Super. Ct. No.
BA359230)
APPEAL
from a judgment of the Superior Court of
County.
Leslie A. Swain, Judge. Affirmed.
Barbara
A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Joseph P. Lee and Tita Nguyen, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________
Defendant and appellant Albert
Miller appeals his conviction, by jury trial, of
a felony (Veh. Code, § 2800.2, subd. (a)), evading an officer against traffic,
a felony (Veh. Code, § 2800.4), and driving with a suspended or revoked
license, a misdemeanor (Veh. Code, § 14601.2, subd. (a)). Appellant maintains that a multiplicity of
errors in the trial court cumulatively denied him a fair trial. We find no error, and so affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Around
12:30 p.m. on July
8, 2009, Los Angeles Police Officers
Minnick and Chavez, who were in a marked police cruiser patrolling the
neighborhood around 68th Street and Hoover Street,
observed a motorcycle cross their path in a residential area at a speed well in
excess of the speed limit. The officers
pursued the motorcycle as it drove through the neighborhood, ignoring stop
signs and weaving through traffic on narrow streets. The motorcycle did not respond to the
cruiser's overhead lights and siren. After
following the cyclist on a circuitous route with multiple turns, the officers
lost sight of the motorcycle near 59th Place and Hoover.
While
they were pursing the motorcycle, the officers radioed their activities to the 77th Street
station. Supervisors at the station
advised the officers to cease pursuing the vehicle if it was only engaged in
reckless driving, and called in a helicopter to take over the pursuit.
A
second patrol vehicle driven by Officer Delgado, heard the radio dispatch,
spotted the speeding motorcycle, and followed it after it turned from Hoover,
going east on Slauson Avenue toward the 110 Freeway. Officer Delgado's unit followed the vehicle
as it sped onto the 110 ramp going north.
Additional
LAPD units pursued the motorcycle on the freeway with their lights and sirens
activated. The motorcycle was weaving
through traffic, causing vehicles to brake or swerve to avoid collisions. The motorcycle ended up in the far left lane,
traveling at 75 to 80 miles per hour, while the flow of traffic was at 25 miles
per hour. Around the Martin Luther King, Jr. Boulevard exit, Officer Delgado radioed that he had lost sight of the
motorcycle.
Sergeant
Ramirez, listening to the police radio regarding the pursuit, parked on the Vernon Avenue onramp
of the northbound 110, approximately one mile south of Martin Luther King, Jr. Boulevard. After less than three
minutes, he observed the cyclist driving the wrong way (south) on the collector
road to the east of the 110 freeway between the Martin Luther King, Jr. exit
and the Vernon Avenue exit.
The
motorcycle proceeded the wrong way down the onramp; it stopped when it met
Sergeant Ramirez's vehicle. The cyclist
laid down the cycle within feet of the patrol car. Sergeant Ramirez unholstered his service
revolver, and the cyclist ran up the ramp, across the northbound freeway to the
median, south down the median, across the southbound freeway, and ended up in
bushes on an embankment on the southbound side of the 110 freeway, near the 49th Street overpass,
where appellant was apprehended by another police officer.
Appellant
was charged with felony evading an officer with willful disregard, felony
evading an officer against traffic, and driving with a suspended license.
Appellant's
defense was one of mistaken identity. He
testified that he was not the cyclist observed by Officers Minnick and Chavez
to be speeding on Hoover Street and observed by Officer Delgado to speed onto
the northbound Slauson Avenue onramp, nor did he travel against the traffic on
either the freeway or the collector road.
Rather, he got on the freeway at 51st Street and was following all
traffic laws when a helicopter ordered him to pull over. Appellant further explained that he ran from
Sergeant Ramirez because he had been shot in the head the prior year, and
"freaked out" when the sergeant pulled his gun. The freeway traffic was at a standstill, so
he crossed the freeway to surrender himself to officers he saw on the other
side.
Appellant's
first trial ended in a hung jury on the two felony counts; he was convicted of
evading an officer with willful disregard and felony evading an officer against
traffic. After the jury returned its
verdicts, the prior strike and prior prison term allegations were tried to the
court, which found all prior conviction allegations to be true.
The
court denied the defense request to dismiss certain prior strike convictions,
but did limit the sentence to a term doubled for one of the strikes. Consequently, the court imposed a total term
of four years (the two-year midterm, doubled) on the first count of felony
evading, and stayed punishment on all other counts and enhancements.
Appellant
timely filed a notice of appeal.
CONTENTIONS
Appellant
claims that "several significant errors distorted the jury's consideration
of his guilt on the two felony counts of conviction." He cites three such "significant
errors:" (1) The trial court's
refusal to permit evidence regarding LAPD's policy regarding car chases; (2)
the lack of instructions regarding eyewitness identifications; (3) and the
lack of a unanimity instruction. Appellant
concludes that the judgment must be reversed because "this cumulation of
errors denied appellant due process and a fair trial, in a manner which meets
both state and federal standards of prejudice." We consider each alleged error separately
below.
DISCUSSION
1. Evidence
of LAPD's policy on police pursuits of vehicles
Appellant contends that the trial
court deprived him of his constitutional right to confrontation when it
improperly denied him the opportunity to impeach Officer Minnick with the LAPD policy
against high-speed chases.
To put the argument in context,
Officer Minnick's supervisors at the 77th Street Station radioed that she was
to discontinue the pursuit of the speeding motorcycle if the only offense she
observed was reckless driving. Officer
Minnick testified that she had already lost sight of the fleeing cyclist when
the supervisor radioed the instruction to discontinue the pursuit. She further testified that LAPD policy
allowed her to pursue a reckless driver, and that her conduct was in compliance
with the Department's policy. She stated
that officers are "allowed to go on a pursuit of a reckless driver. I believe that watch commander didn't know those
facts. The only facts he knew was when
he heard the first radio broadcast on Vermont.
So he didn't know what had occurred previously." The defense wished to impeach this testimony
with the following statement from the LAPD Police Manual published on the LAPD
website: "Officers shall not
initiate a pursuit based on an infraction, misdemeanor evading, including
failure to yield or reckless driving in response to enforcement action taken by
department personnel." The
prosecution objected, arguing that the LAPD policy was irrelevant, it had
little bearing on the officer's credibility, and it would likely confuse the
jury regarding the material issues in the case.
The trial court excluded the evidence pursuant to Evidence Code section
352, ruling that it involved impeachment on an immaterial issue that would be
unduly confusing and time consuming.
We find no error in this
ruling. No element of the charged
offenses required the prosecution to prove that Officer Minnick or the other
officers were acting within the proper discharge of their duties during the pursuit. This made the LAPD policy regarding when
officers may or may not pursue a driver irrelevant.
Moreover, the policy which appellant
sought to introduce into evidence is subject to multiple interpretations. For instance, it appears to concern only the
("Officers shall not initiate a pursuit . . ."), not whether or not a
pursuit must be abandoned. Appellant
does not contend that Officer Minnick acted contrary to LAPD policy when she
followed the speeding motorcycle onto Hoover Street, but that she failed to
abandon the pursuit in accordance with LAPD policy. If this interpretation of the policy were
accepted, the policy would not impeach Officer Minnick's testimony. Similarly, it could be argued that the
proffered policy concerns only a very specific factual circumstance: when an "enforcement action taken by
department personnel" (presumably, activating lights and siren, for
example) elicits a response from the targeted driver which response constitutes
an infraction, misdemeanor evading, or reckless driving. In the absence of this specific factual
situation, the policy would not apply.
The factual predicates to application of this policy are not present in
this case. That is to say, appellant did
not speed in response to Officer Minnick's enforcement action, he sped
and siren.
title="">[1]
On the other hand, appellant's
interpretation of the policy could be the correct one. The point is that introducing a one-sentence
summary of the LAPD's policy on police pursuits in a case in which the policy
has no relevance to the issues to be litigated creates a red herring which has
the clear potential to consume undue time and confuse the jury on an immaterial
issue. (See, e.g., People v. Morrison (2011) 199 Cal.App.4th 158, 164
["admissibility of collateral impeachment evidence is subject 'to the
trial court's "substantial discretion" under [Evidence Code] section
352 to exclude prejudicial and time-consuming evidence.'"].) The trial court properly excluded the
evidence.
2. Eyewitness
identification instructions
Appellant contends that the trial
court erred by failing to instruct the jury with CALCRIM No. 315, the
eyewitness identification instruction.
Sergeant Ramirez testified for the
first time at appellant's second trial that he saw appellant in profile fleeing
on foot, and could consequently "facially identify" him. Appellant argues: "[Sergeant Ramirez] explained how no one
asked the right question in the 28 months since the incident, to elicit an
identification of the traditional sort.
This certainly seemed odd, and it would have been useful for the defense
to have eyewitness identification instructions, which would ask the jury to
consider factors almost all militating against giving Sergeant Ramirez's late
identification much credence."
Because appellant acknowledges that
"he was the cyclist who ran from Sergeant Ramirez," his purpose in
seeking the identification instruction was not to challenge whether appellant
was actually the person Ramirez saw – he admitted he was – but to challenge
Ramirez's truthfulness in belatedly identifying appellant. And appellant did not need CALCRIM No. 315 to
suggest that Ramirez's late identification of him was suspect. Appellant was free to argue to the jury, as
he argues in his appellate brief, that "[i]t strains credulity to suppose
than an officer with 21 years experience would not think to mention he could
make a facial identification of a suspect, whose face was mostly obscured
during salient portions of the events in question." In sum, the trial court did not err in
failing to instruct the jury with CALCRIM No. 315.
3. Unanimity
Instruction
Appellant contends that the trial
court had a duty to instruct the jury that it was required to unanimously agree
on the factual basis for the findings that defendant evaded officers with
willful and wanton disregard, and evaded against traffic.
As our Supreme
instruction lies in considering its purpose.
The jury must agree on a 'particular crime' [citation];
some jurors believed the defendant guilty of one crime and other jurors
believed [him] guilty of another. But
unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is
appropriate 'when conviction on a single count could be based on two or more
discrete criminal events,' but not 'where multiple theories or acts may form
the basis of a guilty verdict on one discrete criminal event.' [Citation.]
In deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime.
In the first situation, but not the second, it should give the unanimity
instruction." (People v. Russo
(2001) 25 Cal.4th 1124, 1134–1135.)
Appellant contends that, because the
prosecution introduced evidence of more than one act on the part of the
appellant which could constitute the offense charged in count 1 (for instance,
evidence that appellant perceived and ignored the attempts of two pursuing
officers in two separate patrol cars to stop his progress) and count 2
(evidence that appellant drove against traffic both on the freeway and on the
connector road) a unanimity instruction was required. We do not agree.
Appellant's flight from pursuit was
charged as two separate criminal offenses, covering two discrete time
periods: Count 1 focused on appellant's
conduct from the time he was first observed to be speeding on Hoover Street by
Officer Minnick until Officer Delgado lost sight of him on the freeway. Count 2 pertained to appellant's conduct when
he was observed travelling against traffic, near the end of the pursuit.
While there was evidence of various
factual bases for a jury finding that appellant was evading an officer
(Minnick, Delgado) in willful disregard for safety (speeding, running stop
signs), "jury unanimity is not required 'as to the exact way the defendant
is guilty of a single discrete crime.'"
(People v. Datt (2010) 185
Cal.App.4th 942, 950.) Moreover,
"[t]here also is no need for a unanimity instruction if the defendant
offers the same defense or defenses to the various acts constituting the
charged crime." (People v.
Jennings (2010) 50 Cal.4th 616,
679.) Here, appellant's defense to both
count 1 and count 2 was that he did not commit the acts testified to by the
officers. Because there was no
reasonable basis for the jury to believe that appellant evaded Officer Delgado
but not Officer Minnick with willful disregard for safety, or drove the wrong way
on the connector road but not on the freeway, a unanimity instruction was not
required.
In sum, appellant's argument that
the cumulative effect of the trial court's errors deprived him of a fair trial
fails, as it is based on the false premise that there were errors. As explained above, none of the assignments
of error identified by appellant were in fact errors on the part of the trial
court; thus, there was nothing to cumulate.
DISPOSITION
The
judgment is affirmed.
OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER, P. J.
MOSK, J.
"pursuit?" Is it a violation
of the policy to follow a driver who has committed one of the specified acts
but, while not speeding or driving recklessly, simply waves to the officer and
proceeds on his or her way?
name="_ftn2" title=""> [2] CALCRIM No. 315 Eyewitness
Identification reads as follows:
"You have heard eyewitness testimony identifying the
defendant. As with any other witness,
you must decide whether an eyewitness gave truthful and accurate testimony.
"In evaluating identification
testimony, consider the following questions:
"Did the witness know or have
contact with the defendant before the event?
"How well could the witness see
the perpetrator?
"What were the circumstances
affecting the witness's ability to observe, such as lighting, weather
conditions, obstructions, distance, [and] duration of observation[, and
(continued)
"How closely was the witness
paying attention?
"Was the witness under stress
when he or she made the observation?
"Did the witness give a
description and how does that description compare to the defendant?
"How much time passed between
the event and the time when the witness identified the defendant?
"Was the witness asked to pick
the perpetrator out of a group?
"Did the witness ever fail to
identify the defendant?
"Did the witness ever change
his or her mind about the identification?
"How certain was the witness
when he or she made an identification?
"Are the witness and the
defendant of different races?
"[Was the witness able to
identify other participants in the crime?]
"[Was the witness able to
identify the defendant in a photographic or physical lineup?]
"[
"Were there any other
circumstances affecting the witness's ability to make an accurate
identification?
"The People have the burden of
proving beyond a reasonable doubt that it was the defendant who committed the
crime. If the People have not met this
burden, you must find the defendant not guilty."
