P. v. Ashbaugh

Filed 8/1/06 P. v. Ashbaugh CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary Hoff, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Martin Allen Ashbaugh led California Highway Patrol officers on a pursuit. He was convicted of two counts of evading a law enforcement officer and causing injury, one count of child endangerment, and one count of transportation of a controlled substance. The jury was unable to reach a verdict on one count of second degree murder.^[1] Defendant appeals and raises numerous issues. We affirm, except to strike one of the evading counts.

FACTS

At approximately 6:30 p.m. on August 13, 2003, California Highway Patrol (CHP) officer Perry Miller saw defendant driving a car in the area of Clinton and Blackstone Avenues in Fresno. He decided to stop the car after defendant violated several traffic laws. Defendant was attempting a three-point turn when he saw Miller; Miller signaled to him to pull over. There was a female in the passenger seat of the car. Defendant did not stop, and Miller followed him with his lights flashing and his siren on.

Defendant was pursued by Miller for over 14 minutes and 12 miles, on the streets and highways. Defendant failed to stop at numerous stop lights, exceeded the speed limit, and violated several other traffic laws. In the beginning of the pursuit it appeared that defendant was driving somewhat cautiously.

The manner of defendant's driving changed when he was exiting Freeway 41 at the Herndon Avenue exit. He drove onto the shoulder of the road to avoid the cars on the off-ramp. He accelerated and turned south on Fresno Street. Miller continued to follow defendant, and the pursuit was also being monitored by a CHP helicopter overhead. When defendant reached the intersection of Sierra Avenue and Fresno Street, the light was red. He went through the red light without slowing or braking.

Andrea Brown, the flight officer in the helicopter, advised the sergeant monitoring the pursuit that defendant's car was speeding at approximately 80 miles per hour and that the defendant â€