Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F7637
RAYE, J.A jury found defendant Timothy Michael Myers guilty of attempting to elude a police officer while driving in willful or wanton disregard for the safety of others. (Veh. Code, § 2800.2.) In a bifurcated court trial, the court found true special allegations that defendant had four prior convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant was denied probation and sentenced to an aggregate term of five years in state prison.
All further statutory references are to the Vehicle Code unless otherwise indicated.
On appeal, defendant contends the evidence was insufficient to establish that the pursuing police vehicle was “distinctively marked” as required by sections 2800.1 and 2800.2, thus requiring reversal of his conviction. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Officers Rowen, Harrison, and Zalesny were on routine patrol in an unmarked police car, a gold Mitsubishi equipped with a fold-down red light located underneath the rearview mirror and visible from the front of the car, a forward siren, and “wig-wags” (i.e., red lights within the front headlights that flash on and off in an alternating pattern). Rowen was wearing black cargo pants, a gun belt, and a black vest with police insignia on it. Harrison and Zalesny were wearing similar attire.
Harrison testified that in his 20 years as a peace officer, he had never seen wig-wag lights on a civilian vehicle.
The officers saw defendant’s car and noticed that the license plate lamp was not functioning. Harrison positioned the unmarked police car behind defendant’s vehicle and activated the red light and wig-wags, attempting to conduct a traffic stop. When defendant failed to stop, Harrison activated the siren and continued pursuit. Defendant increased his speed and eventually turned down a one-way street going the wrong direction, causing oncoming traffic to veer out of his way to avoid being hit. Harrison continued to follow defendant until he turned and sped the wrong way down another one-way street, at which point Harrison terminated the pursuit out of concern for public safety. Police later identified defendant in photographic and live lineups.
Defendant was subsequently arrested and charged with one count of evading a police officer. (Veh. Code, § 2800.2.) The information specially alleged four prior felony convictions for which defendant served separate prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant pled not guilty to all charges.
The jury found defendant guilty as charged. At defendant’s request, trial on the prior convictions was bifurcated. Following a court trial, the court found all four enhancements true beyond a reasonable doubt.
Finding defendant presumptively ineligible for probation, the court sentenced him to two years (the middle term) as to count 1, plus an additional one-year term each for three of the four prior convictions, striking the remaining prior conviction in the interest of justice. The court awarded defendant 231 days of presentence custody credits and ordered him to pay specified fees and fines.
Defendant filed a timely notice of appeal.
DISCUSSION
A person violates section 2800.2 if he “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.” (§ 2800.2, subd. (a).)
Section 2800.1 provides that a person is guilty of attempting to elude a pursuing peace officer if (1) the peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp; (2) the peace officer’s motor vehicle is sounding a siren as may be reasonably necessary; (3) the peace officer’s motor vehicle is distinctively marked; and (4) the peace officer’s motor vehicle is operated by a peace officer, and that peace officer is wearing a distinctive uniform. (§ 2800.1, subd. (a).)
Defendant contends the evidence was insufficient to establish that the unmarked police car driven by Harrison was “distinctively marked” as required by section 2800.1. We disagree.
This state’s highest court recently addressed the question regarding what constitutes “distinctively marked” for purposes of section 2800.1. In People v. Hudson (2006) 38 Cal.4th 1002 (Hudson), police pursued the defendant in a plain car equipped with a forward-facing interior red light located directly under the rearview mirror, a blue amber blinking light in the back, and a siren. (Hudson, supra, 38 Cal.4th at p. 1006.) After receiving a modified instruction on the meaning of “distinctively marked,” the jury found the defendant guilty of violating section 2800.2, subdivision (a). (Hudson, supra, 38 Cal.4th at p. 1007.) The Court of Appeal affirmed the judgment, and the Supreme Court granted the defendant’s petition for review. (Ibid.)
On review, the California Supreme Court agreed with People v. Estrella (1995) 31 Cal.App.4th 716 (Estrella) and People v. Mathews (1998) 64 Cal.App.4th 485 (Mathews), both of which required that a “distinctively marked” vehicle exhibit features in addition to a red light and a siren (Estrella, supra, 31 Cal.App.4th at pp. 722-723 [pursuing police vehicle equipped with light bar inside front windshield, warning lights in rear, and alternating wig-wag lights in addition to a siren had sufficient distinctive marks to satisfy the statutory requirement]; Mathews, supra, 64 Cal.App.4th at pp. 489-490 [pursuing vehicle equipped with red lights, siren, and wig-wag headlights was distinctively marked]), and concluded that, “for purposes of section 2800.1, a pursuing peace officer’s vehicle is ‘distinctively marked’ if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the fleeing motorist that the pursuit is by the police.” (Hudson, supra, 38 Cal.4th at pp. 1010-1011.)
Here, the unmarked police vehicle driven by Harrison was equipped with a fold-down red light and a siren, both of which were activated early in the pursuit. In addition to those features, the vehicle was equipped with wig-wag lights that were also activated soon after the pursuit began. Defendant does not argue that he could not see the lights, nor does he claim he could not hear the siren.
Although defendant argues that neither Hudson nor any other case specifically establishes that wig-wags satisfy the “distinctively marked” requirement in section 2800.1, he acknowledges the Estrella court’s holding that a pursuing vehicle equipped with a front windshield light bar, rear warning lights, wig-wags, and a siren satisfies the statute. More to the point, however, is this court’s holding in Mathews that “red lights, siren, and wigwag headlights [are] sufficiently distinctive markings to inform any reasonable person he [is] being pursued by a law enforcement vehicle.” (Mathews, supra, 64 Cal.App.4th at p. 490.)
Defendant argues the wig-wag lights were the only additional feature on Harrison’s vehicle, implying more was required to satisfy the statute. Not so. Again, as we held in Mathews, a police vehicle is “distinctively marked” if it is equipped with red lights, a siren, and a single additional feature -- wig-wag lights. Nothing more is required. (Mathews, supra, 64 Cal.App.4th at p. 490.)
Defendant also argues wig-wag lights are not visible until activated. Even assuming that were true, defendant did not dispute any of the officers’ testimony that the wig-wags were activated and visible to him during the pursuit.
Finally, defendant argues no evidence was presented to demonstrate wig-wags are strictly used on emergency vehicles. However, he acknowledges Harrison’s testimony that he had never seen wig-wags on a civilian vehicle during his 20 years of service as a peace officer, and there is nothing in this record to contradict that testimony.
Coupled with the activated red light and siren, the wig-wag light “distinguish[ed the police car] from vehicles not used for law enforcement so as to give reasonable notice to the fleeing motorist [defendant] that the pursuit [was] by the police.” (Hudson, supra, 38 Cal.4th at pp. 1010-1011.) Thus, there was sufficient evidence to establish that the police vehicle in pursuit of defendant was “distinctively marked” as required by section 2800.1.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., SIMS, J.