P. v. Head
Filed 7/8/13 P.
v. Head 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
ERICK JOEL HEAD,
Defendant and
Appellant.
F064047
(Tulare
Super. Ct. No. VCF252277)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Gerald F. Sevier, Judge.
Stephen
Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted
appellant/defendant Erick Joel Head (defendant) of multiple crimes after he
crashed his vehicle while evading police, killing three people. Defendant seeks reversal of his felony
evasion convictions. He contends that no
substantial evidence supported a common element of those offenses: that the pursuing peace officer’s vehicle
exhibits “at least one lighted
bold print and italics added. See also
Veh. Code, §§ 2800.3, subd. (b) [referring to § 2800.1] & 2800.2,
subd. (a) [referring to § 2800.1].)
Respondent concedes that the felony evasion convictions (counts IV, V,
VI, and VII) must be reversed. We agree.
Defendant was charged with three
counts of murder (Pen. Code,
name="_ftnref3" title="">[2]
§ 187, subd. (a); counts I, II and III); three counts of evading a peace
officer causing death (Veh. Code, § 2800.3, subd. (b); counts IV, V, and
VI); one count of evading a peace officer with willful disregard for the safety
of persons or property (Veh. Code, § 2800.2, subd. (a); count VII) and one
count of evading an officer causing
§ 2800.3, subd. (a); count VIII).
One prior prison term (§ 667.5, subd. (b)) and one prior strike
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) were alleged as to all
counts. A prior serious felony
conviction enhancement (§ 667(a)(1)) was alleged as to counts I through
III. Defendant was convicted by a jury
of counts I through VII,
name="_ftnref4" title="">[3]
and the trial court found the enhancements true. Defendant was sentenced to 99 years to life
in prison.
the prior prison term enhancement.
Officer Graciela Parras testified
as follows regarding an incident on March 30, 2011. At approximately 1:30 p.m., Officer Parras
was in a marked patrol unit equipped with “overhead lights.†A white vehicle drove past her with no front
license plate. Sometime later, Officer
Parras identified defendant as the driver of the white vehicle out of a
six-person lineup. Officer Parras made a
U-turn and attempted to “catch up†to defendant. She eventually caught up with defendant at a
stop light, pulling up directly behind him.
Defendant tried to change lanes but could not. When the traffic signal turned green, Officer
Parras activated her “overhead emergency lights and siren .…†The vehicle did not stop or pull over, and
eventually reached speeds of approximately 70 to 80 miles per hour. Officer Parras ultimately terminated the
pursuit because she did not want to endanger the public.
Tulare County Deputy Sheriff Scott
Mackey testified to the following.
Deputy Mackey was on duty at 9:45 p.m. on March 31, 2011. He was in full uniform driving a marked
sheriff patrol vehicle with his K-9 partner, Rocket. Prior to starting his patrol, he checked his
“overhead lights†to ensure that they were functioning properly.
Deputy Mackey was driving
northbound on Highway 99 when he observed a vehicle make a “sudden†lane change
without signaling. Deputy Mackey sped up
and observed a white SUV pulling a small utility trailer without working
lights. The SUV did have functioning
lights, but the utility trailer was blocking them. Deputy Mackey decided to make a traffic stop
because the vehicle posed a hazard.
Deputy Mackey activated his “overhead lights†to let the driver know he
was being pulled over. The SUV did not
immediately pull over. Rather, the SUV
exited the freeway and “ran†multiple stop signs. Eventually, both the SUV and Deputy Mackey
reached speeds in excess of 90 miles per hour.
As Deputy Mackey and the SUV approached a traffic light at the
intersection of Caldwell and Akers, Deputy Mackey observed that the light was
red for their direction of travel.
Deputy Mackey slowed his vehicle to 30 to 40 miles per hour because of
the vehicles and pedestrians in the area.
Deputy Mackey’s “lights†were still on at this point. The SUV did not slow down as it entered the
intersection, and it collided with another vehicle.
Deputy Mackey approached the scene
of the collision and observed a subject running from the suspect vehicle. Deputy Mackey gave chase and deployed his K-9
to pursue the subject. The subject
surrendered and Deputy Mackey detained him.
At trial, Deputy Mackey identified the subject as the defendant.
Respondent and defendant agree that
there was no evidence adduced at trial that either Officer Parras’s or Deputy
Mackey’s vehicles exhibited a red lamp during their respective pursuits of
defendant.
ANALYSIS
1.
THE ABSENCE OF ANY EVIDENCE THAT THE PURSUING OFFICERS’
VEHICLES EXHIBITED AT LEAST ONE LIGHTED RED LAMP COMPELS REVERSAL OF
CONVICTIONS ON COUNTS IV THROUGH VII
The parties concur that reversal of
defendant’s convictions on counts IV, V, VI and VII is required. Under the plain language of Vehicle Code
section 2800.1, subdivision (a)(1) and relevant case law, we are compelled to
agree.
One element of felony evasion of a
peace officer is that the pursuing officer’s vehicle exhibit at least one
lighted red lamp visible from the front.
(Veh. Code, § 2800.1, subd. (a)(1); People v. Brown (1989) 216 Cal.App.3d 596, 599.) Evidence that establishes only that the law
enforcement vehicle’s lights were on, but does not establish whether any of the
lights were red, is insufficient to support a conviction. (People
v. Brown, supra, at p. 600.)
Absent evidence that the officer’s
vehicle exhibited at least one lighted red
lamp, the conviction for violating Vehicle Code section 2800.1 must be
reversed. (See People v. Brown, supra, 216 Cal.App.3d at p. 600;
195, 197-200.) Any other interpretation
would render the use of the word “red†meaningless, violating the principle
that, “when interpreting a statute, significance should be given to every word
… where possible.†(People v. Sanders (2012) 55 Cal.4th 731, 739.)
2.
THE “STAYED†PRIOR PRISON TERM ENHANCEMENT (§667.5,
subd. (b)) MUST BE STRICKEN
The respondent’s brief notes that
the court’s purported “stay†of the consecutive one-year prior prison term
(§ 667.5, subd. (b)) was error. We
agree. “Prior prison term enhancements
may be imposed or stricken but not stayed.
[Citations.]†(
349, 368.) Because a prior serious
felony enhancement (§ 667, subd. (a)(1)) had already been imposed for the
same offense,
title="">[6]
the prior prison term enhancement (§ 667.5, subd. (b)) should have
been stricken. (See, generally,
“The failure to impose or strike an
enhancement is a legally unauthorized sentence.… [Citations.]â€
(People v. Bradley (1998) 64
Cal.App.4th 386, 391.) Such a sentence
is subject to correction when it comes to the attention of a reviewing
court. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256, citing
926, 1044-1045.) Therefore, we will
strike the “stayed†section 667.5 subdivision (b) enhancement.
The
judgment is reversed only as to defendant’s conviction on counts IV, V, VI and
VII. The “stayed†one-year prior prison
term enhancement (§ 667.5, subd. (b)) is stricken. In all other respects, the judgment is
affirmed as modified. The matter is
remanded to the trial court to amend the abstract of judgment accordingly, and
to transmit certified copies of the amended abstract to all appropriate parties
and entities.
Poochigian, J. and Peña, J.
Defendant also contends that counts V and VI must be stricken as they pertain
to the same actus reus at issue in count IV.
Because we reverse the convictions on counts IV through VII,
