P. v. Russell 3/29/07 CA1/3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2007 » P. v. Russell 3/29/07 CA1/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A112325

Case Date: 06/13/2007

Preview:Filed 3/29/07 P. v. Russell CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. SHAWN CHADLEY RUSSELL, Defendant and Appellant. (Mendocino County Super. Ct. No. SCUKCRCR0565778) A112325

Appellant Shawn Chadley Russell was tried before a jury and convicted of reckless driving while evading a peace officer in violation of Vehicle Code section 2800.2.1 He admitted a prior prison term allegation under Penal Code section 667.5, subdivision (b), and was sentenced to prison for the three-year upper term on the evading count plus an additional year for the special allegation. Appellant contends: (1) section 2800.2 is unconstitutional because it creates a mandatory presumption; (2) a new trial is required because the trial court did not give a unanimity instruction informing the jurors that they must agree on the acts underlying the offense; (3) it was prejudicial error to instruct the jury that flight could be considered as consciousness of guilt; and (4) the court's imposition of an upper term sentence violated the Sixth and Fourteenth Amendments because it was based on aggravating factors not found true by the jury. We affirm.

1

Statutory references are to the Vehicle Code unless otherwise indicated. 1

FACTS Mendocino County Sheriff Patrol Sergeants Edwards and Van Patten went to a local U-Haul facility with Deputy McBride to serve an arrest warrant on John Hutchens. All three of them were in uniform. They saw Hutchens talking to appellant, who was sitting parked in a gold Honda. Sergeant Edwards approached Hutchens, told him they had a warrant, and placed him in handcuffs. He noticed that appellant's eyes were bloodshot and saw him make a motion as though he were hiding something between the seat and center console of the Honda. Edwards told appellant to stop and show his hands, but appellant put the car into gear, peeled the tires, and drove away. Deputy McBride got into his marked patrol car and began following appellant with the lights and siren activated. He pursued him down several streets in a residential neighborhood and estimated that appellant was traveling between 35 and 70 miles per hour in zones that were marked between 25 and 30 miles per hour. McBride reached speeds of 80 miles per hour during the chase. During the pursuit, appellant ran two stop signs. Appellant drove into a cul-de-sac and attempted to turn around. As he was doing so, he hit Deputy McBride's patrol car and bent the patrol car's bumper. Appellant got out of his Honda and ran into a nearby yard. McBride followed on foot and apprehended appellant by pushing him into a swimming pool. A records check showed that appellant was on active parole at the time of his arrest. No drugs, contraband or other items of interest were found inside the Honda when it was searched. Appellant testified that he had driven to the U-Haul facility to rent a truck but did not notice any law enforcement personnel while he was there. He drove away, but did not realize he was being pursued by a patrol car. He did not recall speeding or failing to stop at any stop signs. When he reached the cul-de-sac and attempted to leave, he saw a patrol car with its lights activated. He stopped because he was scared due to his prior contacts with police. McBride got out of the patrol car, but apparently did not put it in park, because it rolled into appellant's car. Appellant ran because he realized he had just been in an accident with an officer and was afraid. He was on parole at the time.

2

DISCUSSION Constitutionality of Section 2800.2 Appellant argues that his conviction under section 2800.2 must be reversed because the statute creates an improper mandatory presumption that relieves the prosecution of its burden of proof on the "willful and wanton" element of the offense. We disagree. Section 2800.1 makes it a misdemeanor for a driver to attempt to evade a peace officer in a distinctively marked patrol vehicle. Under section 2800.2, subdivision (a), the offense is elevated to a felony "[i]f a person 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. . . ." Section 2800.2, subdivision (b), provides, "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 three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." A mandatory presumption tells the trier of fact that it must find an element of the offense has been proved when it finds a specified predicate fact to be true. (People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1445.) "In criminal cases, a mandatory presumption offends constitutional principles of due process of law because it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt. [Citations.]" (Id. at p. 1445.) We reject appellant's contention that section 2800.2 creates an impermissible mandatory presumption because a jury must find willful and wanton conduct upon a determination that three traffic offenses or property damage occurs. A law that defines in precise terms the conduct establishing an element of the offense is not a presumption at all, because there is nothing to rebut. " `Wherever from one fact another is said to be conclusively presumed, in the sense the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a 3

rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.' [Citations.]" (People v. McCall (2004) 32 Cal.4th 175, 185; see also id. at pp. 187-188 [statute deeming possession of red phosphorus and iodine with intent to manufacture methamphetamine to be possession of hydriodic acid with intent to manufacture methamphetamine was rule of law rather than impermissible presumption].) Three published decisions by our sister courts have held that section 2800.2, subdivision (b), permissibly establishes a substantive rule of law under which the commission of three traffic offenses or the occurrence of property damage is the legal equivalent of willful or wanton disregard. (People v. Laughlin (2006) 137 Cal.App.4th 1020, 1027-1028; People v. Williams, supra, 130 Cal.App.4th at p. 1446; People v. Pinkston (2003) 112 Cal.App.4th 387, 392-394.) We agree with the reasoning of those cases and likewise conclude that section 2800.2 is constitutional. Unanimity Instruction The California Constitution gives a criminal defendant the right to a unanimous verdict. (Cal. Const., art. I,

Download P. v. Russell 3/29/07 CA1/3.pdf