P. v. Clerk

Filed 6/1/11 P. v. Clerk CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CHARLES CLERK, Defendant and Appellant.

F059218 (Super. Ct. No. MCR025582) OPINION

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a jury trial, appellant William Charles Clerk (who is also known as William Charles Lane) was found guilty of felony driving in willful or wanton disregard for safety of persons or property while fleeing from pursuing police officers (Veh. Code, § 2800.2, subd. (a)), and the allegation that appellant had suffered two prior strikes (Pen. Code, § 667, subds. (b)-(i))^[1] was found true. The trial court sentenced appellant to 25 years to life in state prison.
Appellant contends that the trial court prejudicially erred when it: (1) denied his motion for mistrial and/or failed to exclude specific testimony; (2) abridged his right to present a defense; (3) failed to find that the prosecutor had committed misconduct; (4) denied his request to call the prosecutor as a witness; (5) improperly admitted photographs into evidence; (6) failed to strike his prior strike convictions; and (7) did not understand its discretion to reduce his conviction to a misdemeanor. Appellant also contends the sentence imposed constitutes cruel and/or unusual punishment. We disagree and affirm.
FACTS
At approximately 10:30 p.m. on March 2, 2006, California Highway Patrol (CHP) officers Mayolo Banuelos and Rafael Rivera were in uniform and on duty in a marked patrol vehicle. Banuelos was merging onto southbound Highway 99 in Madera County when he noticed two motorcycles travelling together at a high rate of speed. Banuelos paced the motorcycles and clocked their speed at 90 miles per hour. A records check revealed that one of the motorcycles was stolen. Banuelos decided to instigate a stop and asked for vehicle and helicopter or airplane assistance.
Once the backup vehicle and the helicopter were in place, Officer Banuelos activated the patrol car's lights while the helicopter put a spotlight on the motorcycles. In response to Officer Rivera's request over the public address system, the motorcycle driven by appellant slowed down and began to pull over. But appellant then sped off, and Banuelos turned on his siren and followed appellant.
Appellant turned off the headlights of the motorcycle and continued at a high rate of speed. Officer Banuelos travelled at 135 miles per hour, but was unable to see the motorcycle. When appellant crossed from Madera County into Fresno County, two Fresno CHP officers, Jared Banta and Chad Moran, were waiting and took over the pursuit. While pursuing appellant, Banuelos observed appellant commit several Vehicle Code violations, namely driving without lights at night, going over the speed limit, and traveling in excess of 100 miles per hour.
Officers Banta and Moran were on duty at Olive Avenue and Highway 99 when they saw appellant pass them going at least 130 miles per hour. The officers, with lights and sirens activated on their patrol car, chased appellant on southbound Highway 99 to southbound High 41 and then to Adams Avenue, where appellant turned around and proceeded north on Highway 41 back to Highway 99 northbound. Appellant exited at Golden State Boulevard and again turned south on Highway 99.
When appellant exited at Belmont Avenue, he slowed down, but did not stop at the stop sign. Instead, he traveled north on a frontage road and reentered southbound Highway 99, but travelling north on the shoulder of the lanes. Appellant exited at McKinley Avenue, using the on-ramp as an off-ramp, and ran the stop sign at McKinley and Hughes. The motorcycle came to a stop when the patrol car was able to cut him off.
Officer Orie Lamb, a flight officer who was in the helicopter with a pilot, followed appellant's course from the air. During the flight, Lamb videotaped the pursuit, which was played for the jury. During the pursuit, Lamb observed appellant driving at â€