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recounting that the defendant "ran stop signs, drove on the wrong side of the street toward oncoming traffic, swerved to avoid collisions, violated speed restrictions, skidded in an intersection, and appeared to side-swipe both a school bus and another vehicle"
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A156082
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DANRICK GERALD SWEET, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-180549-8)
A jury convicted Danrick Sweet of two felony violations of the Vehicle Code for fleeing a pursuing peace officer while driving with willful or wanton disregard for the safety of persons or property (§ 2800.2) and while driving against traffic (§ 2800.4). Sweet was also convicted of misdemeanor hit and run driving resulting in property damage. (§ 20002, subd. (a)). The trial court sentenced Sweet to an aggregate two-year prison term.
Statutory references are to the Vehicle Code unless another statute is cited. --------
On appeal, Sweet contends: (1) section 2800.2 contains an unconstitutional mandatory presumption; (2) the trial court made prejudicial jury instruction errors; (3) his presentence credits were miscalculated; and (4) his sentence violates Penal Code section 654. We agree that Sweet's presentence credits were miscalculated and that his sentence violates Penal Code section 654, but otherwise affirm the judgment.
BACKGROUND
On the morning of January 23, 2017, Sweet was driving a 1997 gold Nissan with no rear license plate and no registration sticker in the window. It had rained the previous night and the roadways were still damp. At around 10:40 a.m., Pinole Police Officer Duggan encountered Sweet on San Pablo Avenue, activated his overhead emergency lights, and attempted to make a traffic stop.
Sweet made a left turn and accelerated his speed to 40 miles per hour in a 25-mile-per-hour zone. Duggan activated his siren. Sweet continued to flee, turning onto several streets. In the process, he ran stop signs, drove on the wrong side of the street toward oncoming traffic, swerved to avoid collisions, violated speed restrictions, skidded in an intersection, and appeared to side-swipe both a school bus and another vehicle.
Officer Duggan was approximately five car lengths behind Sweet when his dispatch officer advised him to terminate the vehicle pursuit. At that point, Duggan saw Sweet turn into a driveway and hit a fence. Sweet and a female passenger exited the vehicle and ran through the hole that Sweet had put in the fence. Duggan updated dispatch, got his canine out of his vehicle and began a foot pursuit. As he passed the Nissan, he noticed a male passenger in the back seat and detained him. A few minutes later, the female passenger was detained by other officers who responded to Duggan's dispatch report. She was carrying identification cards for herself and Sweet and a check stub with Sweet's name on it. Sweet was detained by another officer who found him walking away from the scene.
DISCUSSION
I. Sweet's Conviction for Violating Section 2800.2
Sweet contends that his conviction for violating section 2800.2 must be reversed because both the statute and the 2017 version of CALCRIM No. 2181 that was used in this case (former CALCRIM 2181) contain a defect that deprived him of his constitutional right to due process.
A. Additional Background
Section 2800.1 states that "[any] person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor" when several specified conditions exist, including that the peace officer's vehicle is equipped with a visible red lamp and is distinctively marked. (§ 2800.1, subd. (a).)
Under section 2800.2, a person commits a felony if he or she "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).) "For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count . . . occur, or damage to property occurs." (§ 2800.2, subd. (b).)
Former CALCRIM 2181 outlines the elements of a section 2800.2 offense, and provides the following instructions regarding the "willful or wanton disregard" element: "A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage. [¶] Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point." (Italics omitted.)
B. Analysis
Sweet contends that section 2800.2 and former CALCRIM 2181 create a presumption that a person had the requisite criminal intent to act with willful or wanton disregard for safety if he committed three qualifying traffic violations or caused property damage and that this "mandatory" presumption is unconstitutional. We disagree.
"A mandatory presumption tells the trier of fact that if a specified predicate fact has been proved, the trier of fact must find that a specified factual element of the charge has been proved, unless the defendant has come forward with evidence to rebut the presumed connection between the two facts." (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1445, italics omitted (Williams.).) This type of presumption violates due process because "it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt." (Id. at 1445.)
However, a statute that establishes a rule of substantive law, which is sometimes referred to as a conclusive presumption, does not violate due process. (People v. McCall (2004) 32 Cal.4th 175, 185-187.) The term conclusive presumption is a misnomer because "[a] rule of substantive law defines in precise terms conduct that establishes an element of an offense as a matter of law. [Citation.] There is no presumption and there is nothing to rebut." (People v. Laughlin (2006) 137 Cal.App.4th 1020, 1026 (Laughlin).)
Section 2800.2, subdivision (b) defines in precise terms certain conduct that constitutes willful or wanton disregard for the safety of others under section 2800.2. This is not an improper mandatory presumption that can potentially be rebutted, but a rule of substantive law. Thus, we join other courts who have rejected the claim Sweet makes here, concluding that section 2800.2, subdivision (b) does not create an impermissible mandatory presumption. (People v. Pinkston (2003) 112 Cal.App.4th 387, 390-394 (Pinkston); Williams, supra, 130 Cal.App.4th at p. 1445; Laughlin, supra, 137 Cal.App.4th at p. 1025; People v. Taylor (2018) 19 Cal.App.5th 1195, 1201 (Taylor).)
Disputing our conclusion, Sweet adopts the rationale of the dissenting opinion in Pinkston, supra, 112 Cal.App.4th at pp. 395-398. According to this argument, the term "willful or wanton disregard," which appears in both section 2800.2 and the reckless driving statute (§ 23103), has been interpreted by courts to require proof of a culpable mental state that is beyond negligence or even gross negligence. Thus, by permitting the prosecutor to prove this complex mental state element of recklessness with evidence showing only that the defendant committed three qualifying traffic violations or caused property damage during the pursuit, section 2800.2, subdivision (b) creates a mandatory presumption that the intent element of the statute was satisfied.
This argument rests on the false premise that the willful or wanton disregard element of section 2800.2 has a separate meaning, independent of the statute itself. To the contrary, section 2800.2, subdivision (b) defines this element in its own terms by establishing a rule of substantive law that sets forth two ways the prosecutor may prove "wanton or willful disregard." The prosecutor may proceed on a theory that property damage occurred, or that the requisite traffic violations were committed. Proof of the mental state required to constitute reckless driving is not an element of the crime but, instead, a third method of establishing the statutory requirement that the defendant acted with willful or wanton disregard for the safety of others. (Taylor, supra, 19 Cal.App.5th at pp. 1201-1204.)
In his reply brief, Sweet makes a new argument that if section 2800.2, subdivision (b) is construed as a rule of substantive law rather than a mandatory presumption, it would transform section 2800.2 into a strict liability offense, which is something the Legislature surely did not intend. This argument is not only forfeited but unsound.
Section 2800.2 incorporates the elements of section 2800.1, which requires "the intent to evade." (§ 2800.1, subd. (a).) When the statutory definition of a crime " 'refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' " (People v. Atkins (2001) 25 Cal.4th 76, 82.) Consistent with this settled principle, the jury in this case was instructed that both the section 2800.2 felony charge and the lesser included offense of violating section 2800.1 are specific intent crimes and "[f]or you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with specific intent."
Sweet contends that even if section 2800.2 is valid, former CALCRIM 2181 creates an improper mandatory presumption that prejudicially impacted his trial. Sweet bases this argument on Taylor, supra, 19 Cal.App.5th 1195, which involved the same jury instruction.
Taylor affirms the majority view "that subdivision (b) of section 2800.2 constitutes only a substantive rule of law properly within the Legislature's power to enact." (Taylor, supra, 19 Cal.App.5th at p. 1204.) As support for this view, the Taylor court explained that, when section 2800.2 was amended to add subdivision (b), the Legislature exercised its authority to modify the definition of this crime to permit "the prosecution to show the requisite driving with 'willful or wanton disregard' by establishing three or more traffic violations, as an alternative to showing that the defendant drove in a manner manifesting the mental state required for the reckless driving offense." (Taylor, at p. 1203.) Thus, after the enactment of section 2800.2, subdivision (b), "the mental state relating to the reckless driving offense is no longer an essential element or component of the section 2800.2 offense." (Taylor, at p. 1203.)
Consistent with its statutory analysis, the Taylor court went on to find potentially misleading statements in former CALCRIM 2181. Specifically, the instruction contains a statement describing the mental state required to prove reckless driving, which is immediately followed by a summary of section 2800.2, subdivision (b). According to the Taylor court, this juxtaposition suggests incorrectly that "the 'reckless driving' mental state is an essential element or component of the section 2800.2 offense." (Taylor, supra, 19 Cal.App.5th at p. 1206.) The court concluded, however, that this "defect" could not have prejudiced the defendant: "To the extent the instruction may have conveyed an excessively demanding understanding of the elements of the section 2800.2 offense, that feature of the instruction cannot reasonably be regarded as prejudicial to appellant, as it only enhanced the quantum of proof required of the prosecution to establish his guilt." (Id. at pp. 1206-1207.)
Sweet argues that the "defect" in former CALCRIM 2181 that was identified by the Taylor court creates a mandatory presumption. Under his theory, regardless whether a reckless mental state is or is not an element of section 2800.2, the former CALCRIM instruction told the jury that it is, thus creating a mandatory presumption problem as to the subsequent directive allowing the prosecutor to prove this element based on the evidentiary facts outlined in section 2800.2, subdivision (b).
We are not persuaded by Sweet's attempt to turn Taylor on its head. The Taylor court identified a potentially misleading aspect of former CALCRIM 2181 that favors criminal defendants. If the jury in this case misconstrued the instruction the way Taylor contemplated—to mean that the prosecutor had to prove that Sweet acted with a reckless mental state—that error could not have been prejudicial. Phrased differently, if the jury erroneously believed that evidence of property damage or three qualifying traffic violations was not sufficient by itself to prove willful or wanton disregard, any such misunderstanding redounded to the defendant's benefit, and does not constitute prejudicial error.
II. The Jury Deliberation Instruction
In addition to his section 2800.2 conviction, Sweet was convicted of violating section 2800.4, which makes it a felony for a person to flee or attempt to elude a pursuing officer in violation of section 2800.1 when he or she "willfully drives . . . on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway."
Sweet contends his two felony convictions must be reversed because the trial court mis-instructed the jury about how to consider these charged crimes in relation to the lesser included offense of violating section 2800.1. Specifically, Sweet argues that the court used a specially drafted instruction that violated the holding of People v. Kurtzman (1988) 46 Cal.3d 322, 325 (Kurtzman), which precludes trial courts from restricting the order in which the jury considers the crimes at issue.
A. Additional Background
Before the jury was impaneled, the trial judge took a "first cut" at the jury instructions. Urging counsel to look at them "carefully," the judge explained that he had his own versions of general instructions because he believed they are often poorly written.
After the close of evidence, the court conducted a "fairly lengthy informal instructions conference . . . off the record." Then, the court revised the instructions, provided them to counsel for review, and offered the opportunity to comment or make objections on the record. Neither party did.
Shortly thereafter, the court instructed the jury, beginning with a set of general instructions that included a special instruction that was titled "3517A." We repeat the entire instruction here and bold the specific text that Sweet finds objectionable:
"Two of the charges in this case involve consideration of what is called a 'lesser included charge'. A lesser included charge is one that you must consider if, but only if, you have found the defendant not guilty of the greater charge. A defendant cannot be convicted of both a greater charge and the corresponding lesser charge. Thus, if you find the defendant guilty of the greater charge, you need not and should not consider whether or not the defendant is guilty of the corresponding lesser charge. But if you find the defendant not guilty of the greater charge, you must go on to decide whether the defendant is guilty or not guilty of the lesser charge.
Count 1 charges the defendant with evading with driving against traffic (Instruction 2181A below)—the greater charge. The corresponding lesser charge is simple evading (Instruction 2182 below).
Similarly, Count 2 charges the defendant with evading with wanton disregard for safety (Instruction 2181 below) —the greater charge. The corresponding lesser charge is simple evading (Instruction 2182 below). This is the same lesser charge as for Count 1.
Do not consider the lesser charge (simple evading) unless you have found the defendant not guilty of both Count 1 (evading with driving against traffic) and Count 2 (evading with wanton disregard for safety). If you have found the defendant guilty of either Count 1 or Count 2 (or both), or if you have been unable to reach a verdict as to either Count 1 or Count 2 (or both), do not go on to consider the lesser charge.
There is no lesser included charge for Count 3 (hit and run). [¶] To return a verdict of guilty or not guilty on any count or charge, you must all agree on that decision.
You may consider the charges in this case in any order you wish. I will explain to you, however, how the greater and lesser charges relate to each other. It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the corresponding greater crimes.
• If all of you agree on a verdict of 'guilty' for either the greater charge in Count 1 (evading with driving against traffic), or the greater charge in Count 2 (evading with wanton disregard for safety), do not proceed to decide whether the defendant is guilty of the lesser charge (simple evading).
• If all of you agree on a verdict of 'not guilty' for both the greater charge in Count 1 and the greater charge in Count 2, you must proceed to decide whether the defendant is guilty of the lesser charge.
• If you cannot decide unanimously whether the defendant is guilty or not guilty of the greater charge in either Count 1 or Count 2, do not complete any verdict form as to the greater charge on which you cannot decide unanimously, and do not go on to decide the lesser charge. Instead, report to me that you cannot reach a verdict as to one or both greater charges.
• If all of you agree unanimously on a verdict of 'not guilty' for the greater charges in Count 1 and Count 2, but you cannot decide unanimously whether the defendant is guilty or not guilty of the lesser charge, mark the verdict forms for the greater charges in Count 1 and Count 2 as 'not guilty', and then report to me that you are unable to reach a verdict as to the lesser charge.
Regardless of what verdicts you do or do not reach with respect to the greater or lesser charges in Counts I and 2, you should proceed to consider Count 3. [¶] Do not find the defendant guilty of any charge, greater or lesser, unless you are all convinced beyond a reasonable doubt that the defendant is guilty of that charge." (Italics omitted.)
B. Analysis
In the trial court, Sweet did not argue that instruction 3517A violated Kurtzman. He contends, however, that the issue is cognizable on appeal because the alleged error affected his substantial rights. (See People v. Olivas (2016) 248 Cal.App.4th 758, 772.) Our standard of review is de novo. If we find that the challenged instruction is ambiguous, we must then determine whether there is a " 'reasonable likelihood that the jury construed or applied the challenged instructions in a manner' contrary to law." (Id. at pp. 772-773.)
The issue before our Supreme Court in Kurtzman was whether a trial court had erred in its response to a question posed by a deliberating jury. (Kurtzman, supra, 46 Cal.3d at pp. 324-325.) The jury asked whether it could find the defendant guilty of manslaughter without unanimously finding him not guilty of second degree murder. The court responded: " 'No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.' " (Id. at p. 328.)
The Kurtzman court found the trial court had erred. (Kurtzman, supra, 46 Cal.3d at pp. 324-325.) It explained that a court may instruct "that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that the defendant is not guilty of the greater crime charged," but it may not "prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense." (Id. at p. 329, italics omitted.)
Importantly, the Kurtzman court also found that the erroneous instruction was harmless, applying the state standard of prejudice. (Kurtzman, supra, 46 Cal.3d at p. 335-336.) It reasoned that the record showed that "the jurors had in fact deliberated" on both charges for two days before asking their question and, despite the trial court's erroneous response, "they obviously continued to consider" both charges before returning verdicts. (Id. at p. 335.)
In the present case, the trial court's special instruction did not violate the Kurtzman rule in a way that affected Sweet's substantial rights. Sweet focuses on two sentences in the instruction that use the word "consider" in an ambiguous way. When viewed in context, these statements did not tell the jury that they could not discuss the lesser charge until after making determinations regarding the greater charges. Rather, the jury was told that they could and indeed "must" make a decision about the lesser charge only if Sweet was found guilty of the corresponding greater charge. This directive was clarified later in the same instruction, when the court stated: "You may consider the charges in this case in any order you wish. . . . It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the corresponding greater crimes."
Thus, when viewed as a whole, the trial court's special instruction did not prohibit the "jury from considering or discussing the lesser offenses before returning a verdict on the greater offense[s]." (Kurtzman, supra, 46 Cal.3d at p. 329, italics omitted.) Furthermore, even if this instruction erroneously implied that the jury could not discuss the lesser included offense whenever they chose to do so, we are not persuaded by Sweet's prejudice analysis.
Sweet argues the alleged error cannot be "[d]eemed" harmless because there is no evidence in this record to indicate that the jury "did not adopt a 'strict' acquittal-first procedure in response to the erroneous instruction." By making this argument, Sweet asks us to presume prejudice occurred, which is not the law. Sweet also argues, without authority, that the quality of the evidence supporting this judgment is not a relevant consideration. Again, we disagree.
The focus of our prejudice analysis is whether it is reasonably probable the result of this case would have been different absent the alleged error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We find no such probability here for a combination of reasons. In fashioning its own instruction, the trial court would have been well advised to avoid using the word "consider" in a potentially ambiguous way. However, the instruction also stated in very clear language that the jury could "consider" the crimes in any order it chose. We find nothing in the record to suggest that a more clear recitation of the Kurtzman rule would have led the jury to convict Sweet of the lesser charge of fleeing a pursuing officer rather than either of the felony charges.
The prosecution case was strong, the defense presented no evidence, and, indeed, there was no real dispute that the felony driving offenses occurred. Instead, the defense theory that was argued to the jury was that Sweet was not the driver who committed those felonies. Defense counsel argued that Officer Duggan's perceptions were impaired, and that Sweet was actually a passenger in the vehicle that had been driven by the woman who was also caught attempting to flee from the scene. We find no indication whatsoever that the jury would have been more persuaded by this theory if it had received an unambiguous instruction regarding the Kurtzman rule.
III. Sentencing Issues
Sweet contends the trial court miscalculated his presentence conduct credits under Penal Code section 4019, subdivision (e), in that he should have received a total of eight days credit instead of six. The People agree. Therefore, we do not address the matter further.
Finally, Sweet argues that his sentence violates Penal Code section 654. The trial court sentenced Sweet to a two-year prison term for his section 2800.4 conviction for evading a pursuing officer by driving against traffic, and a concurrent 16-month term for his section 2800.2 conviction for evading a pursing officer while driving in wanton disregard for safety. On appeal, Sweet contends the concurrent term for his section 2800.2 offense should have been stayed under Penal Code section 654.
Penal Code section 654 precludes multiple punishment for more than one offense arising out a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Its purpose "is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) Here, Sweet contends that his two convictions for evading a pursuing officer were "based on the same indivisible course of conduct—the car chase."
Generally, the question whether a course of criminal conduct is divisible within the meaning of section 654 depends on the " 'intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) However, a defendant who " 'harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, . . . may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005.)
The People concede that when Sweet committed his offenses, his sole criminal objective was to evade the pursuing officer. Nevertheless, they argue that the crimes Sweet committed during the car chase were divisible by time. There is authority that "even if a course of conduct is 'directed to one objective,' it may 'give rise to multiple violations and punishment' if it is 'divisible in time.' " (People v. Deegan (2016) 247 Cal.App.4th 532, 542.) "Where the defendant's acts are 'temporally separated' they 'afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense,] thereby aggravating the violation of public security or policy already undertaken.' " (Ibid; see People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
However, we are not persuaded by the People's theory that Sweet's crimes are divisible. They contend that when Sweet was attempting to flee from Officer Duggan, he had multiple opportunities to stop and reflect on his conduct and, therefore, when he drove against traffic, he committed a separate crime from other driving maneuvers that amounted to wanton disregard for safety. The People cite no authority for parsing a car chase into multiple events simply because the person being chased had an opportunity to stop and surrender. The record shows that during the three-minute car chase in this case Sweet did not stop or alter his behavior in any way to signify a material change in his plan. Sweet's wanton driving took multiple forms, including driving against traffic, which were all part of his brief unsuccessful attempt to evade Officer Duggan. Indeed, on this record, the jury could have concluded that the two felony Vehicle Code violations were committed virtually simultaneously. Thus, as the trial court noted at the sentencing hearing, Sweet's evading offenses were "essentially duplicative."
The People rely on People v. Trotter (1992) 7 Cal.App.4th 363, which involved materially different facts. The Trotter defendant was convicted of unlawfully taking a vehicle, felony evasion of a police officer, and three counts of assault on a peace officer with a firearm. The trial court imposed consecutive sentences for two of the assaults without violating Penal Code section 654 because there was evidence that each shot the defendant fired at the pursuing officer constituted a distinct volitional act, which evinced a separate intent to do violence. (Id. at p. 368.) Here, by contrast, the People concede that Sweet harbored a single criminal objective during the three minutes that he attempted to evade the pursuing officer. Because Sweet's two felony evading convictions were based on an uninterrupted, indivisible course of conduct, multiple punishment is prohibited by section 654.
DISPOSITION
The judgment is modified to award Sweet a total of eight days of presentence credit and to stay Sweet's sentence for violating Vehicle Code section 2800.2. The trial court is directed to amend the abstract of judgment to reflect these changes and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J. STREETER, J., Concurring.
I join the opinion, except I would hold that the trial court's customized jury deliberation instruction, titled 3517A, is inconsistent with People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman). Rather than defend Instruction 3157A, the Attorney General argues harmless error. I would affirm on that ground without trying to rescue Instruction 3157A by interpretation under the read-as-a-whole doctrine. The contradiction in its language, in my view, is irreconcilable. To minimize the risk of error in the future, the trial court would probably be well advised to adjust the language of Instruction 3157A to ensure full compliance with Kurtzman, or to use the standard form instruction instead.
/s/_________
STREETER, J.