P. v. Whipple






Filed 4/27/11 P. v. Whipple CA1/4




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. KENNETH RYAN WHIPPLE, Defendant and Appellant.

A127236 (Mendocino County Super. Ct. Nos. SCWLCRCR 08-86164, SCWLCRCR 09-89483)

I.
INTRODUCTION
Appellant Kenneth Ryan Whipple appeals from his convictions for reckless driving while evading police (Pen. Code, § 2800.2, subd. (a)[1]), and assault with a deadly weapon (§ 245, subd. (a)(1)) in Case No. SCWLCRCR 09-89483 (Case No. 09-89483). He also challenges the sentences imposed in Case No. 09-89483, and in Case No. SCWLCRCR 08-86164 (Case No. 08-86164) following his guilty plea to one count of auto theft in that case. He contends on appeal that: (1) there was insufficient evidence upon which the jury could convict him of either felony in Case No. 08-86164; (2) there was instructional error on the issue of the mental state necessary for the assault conviction; and (3) there were sentencing errors both in imposing consecutive sentences for evasion and assault, and in calculating his entitlement to custody credits.
We agree that appellant is entitled to additional custody credits based on a recent amendment to section 4019, and we order his abstract of judgment amended accordingly. Otherwise, we affirm his convictions and sentence.
II.
RELEVANT PROCEDURAL HISTORY
An amended information was filed in Case No. 09-89483 by the Mendocino County District Attorney on August 14, 2009, charging appellant with one count of assault with a deadly weapon (§ 245, subd. (a)(1)), and one count of recklessly driving while evading a police officer (Veh. Code, § 2800.2, subd. (a)). The information also alleged special allegations, including that appellant had served three prior prison terms within the meaning of section 667.5, subdivision (b), and that he was on bail at the time of the current offenses. Appellant thereafter pleaded not guilty to the charges, and denied the special allegations.
Case No. 09-89483 proceeded to jury trial on August 17, 2009, and concluded the following day with the jury's verdict of guilty as to both counts in the amended information. Appellant waived a jury trial on the special allegations. After the jury was discharged, the court considered the evidence presented by the prosecutor as to the special allegations, and found special allegations one through four to be true beyond a reasonable doubt. The court found the fifth special allegation not to be true.
As to Case No. 08-86164, an information was filed on April 1, 2009, charging appellant with one count of auto theft (Veh. Code, § 10851, subd. (a)), one count of failure to stop at the scene of an accident (Veh. Code, § 20002, subd. (a), and one count of driving while privilege suspended (Veh. Code, § 14601.1, subd. (a)). Appellant entered a plea of guilty to the auto theft charge on September 30, 2009, and judgment and sentencing in Case No. 08-86164 was continued and consolidated with the entry of judgment and sentencing in Case No. 09-89483.
Judgment and sentencing took place on November 10, 2009. Probation was denied and appellant was sentenced to serve four years in state prison on the assault conviction, and consecutive terms of eight months each were imposed for the auto theft and recklessly evading a police officer convictions. The court ordered appellant to serve an additional consecutive term of two years for the special allegations found true, for a total aggregate state prison term of seven years four months. A motion to strike special allegation two was granted. Appellant was given credit for 259 days of custody actually served, plus 128 days of good time/work time credit. This timely appeal followed.
III.
Facts Underlying the Jury's Verdicts
The first witness called at trial was tribal chief of police Lindon Duke, who had known appellant all of appellant's life. On the afternoon of February 21, 2009, Chief Duke was on duty driving southbound on Highway 162 outside the town of Covelo, when he saw appellant driving a blue Dodge Durango at an excessive speed northbound in the opposing lane of travel. He saw appellant clearly through the windshield. There were two other people in the vehicle with appellant, but he could not tell who they were. Chief Duke knew Danny Montalvo, who owned the Durango, almost as well as he knew appellant, and would have recognized Montalvo if he had been driving the vehicle.
Mendocino County Deputy Sheriff James Elmore also knew appellant from over 100 contacts with him while he had been in law enforcement. Deputy Elmore was on duty the evening of February 21, 2009, and had been told by Chief Duke that a blue Durango was seen traveling recklessly through Covelo earlier that day. Therefore, Elmore was on the lookout for that vehicle. He saw the Durango stopped at the Redwood Oil gas station in Covelo at about 10:30 p.m. Appellant was standing next to the vehicle fueling it with the driver's door open.
Deputy Elmore began to turn his vehicle around with the intention of stopping and talking to appellant when he saw appellant get into the driver's seat and drive away northbound on Highway 162. After observing appellant drive through Covelo at approximately 35 miles per hour in a posted 25-mile-per-hour speed zone, Elmore activated his patrol car lights and siren, and the Durango sped up. The two vehicles were going around 70-75 miles per hour on Highway 162. The Durango then pulled off the main road onto a dirt lane at a speed of about 25 to 35 miles per hour, and then sped up to at least 85 miles per hour as it reached Henderson Lane. Elmore pursued the Durango and lost sight of it only for a few seconds.
Deputy Elmore encountered tribal police officer Carlos Rabano's vehicle, and saw that it was damaged on the driver's side. Elmore stopped briefly and was told by a â€