Felony evasion of a peace officer by car

California Courts of Appeal Reports

PEOPLE v. MUTUMA, F048799 (Cal.App. 11-1-2006) THE PEOPLE,
Plaintiff and Respondent, v. JOSHUA MARETE MUTUMA,
Defendant and Appellant. F048799 Court of Appeal of
California, Fifth District, Division Three Filed November
1, 2006

Appeal from a judgment of the Superior Court of Stanislaus
County, No. 1081185, Ricardo Cordova, Judge.

Meredith J. Watts, 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, Stan Cross and Susan J. Orton, Deputy
Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

Defendant Joshua Mutuma challenges his conviction under
Vehicle Code section 2800.2 for felony evasion of a peace
officer by car.[fn1] He claims that the court did not
properly submit to the jury the question of whether three
traffic violations committed during the evasion showed
willful and wanton disregard for the safety of persons or
property, elevating the crime to felony status. We
disagree. Following a recent decision of this court, we
first hold that any three violations for which points are
assessed against the driver’s license under section 12810
are predicate offenses under section 2800.2 as a matter of
law, so no jury findings were called for on that issue.
Second, we address a question of first impression: If the
claimed predicate offenses are not enumerated in section
12810 but arguably fall into a catch-all provision of that
section (subd. (f)), assessing one point for all violations
“involving the safe operation of a motor vehicle upon the
highway,” must the jury decide whether the claimed
predicate offenses satisfy that description, or is that a
question of law for the judge? Our answer is that this is a
question of law and there is no need for a jury
determination. The catch-all provision means simply that a
point should be assessed for every traffic violation
involving a motor vehicle, with specific, stated
exceptions. Applying this rule, the trial judge should
determine whether the violations asserted by the People are
point violations and instruct the jury accordingly. That is
what happened in this case.

We also reject defendant’s contention that the jury
instructions failed to convey the requirement that the
predicate offenses must be proved beyond a reasonable doubt
if relied on by the jury. The court’s general
reasonable-doubt instruction was adequate. The judgment is
affirmed.

FACTUAL AND PROCEDURAL HISTORIES

A Modesto police officer on patrol late one night received
a dispatch describing defendant and his car and stating
that they were involved in a possible robbery. It was not
clear from the dispatch whether defendant was a perpetrator
or a victim. Shortly after receiving the dispatch, the
officer saw defendant’s car drive by. Uniformed and at the
wheel of a standard black-and-white patrol car, the officer
activated his lights and attempted to pull defendant over.
Defendant did not pull over. Soon, however, he stopped at a
red light and the officer and officers in two other cars
pulled up behind him. The first officer got out of his car
and shouted to defendant to shut off his engine and hold
his hands out of the window. Defendant instead sped away,
with the light still red.

The three police cars pursued, at least two with their
lights and sirens on. Defendant made a right turn onto a
residential street, taking the turn wide because of his
speed and driving in the opposing lane as he did so. The
speed limit was 25 miles per hour, but the officer had to
go about 50 miles per hour to catch up with defendant.
Concluding that the chase had become a danger to the
public, the officer then informed the dispatcher that he
was giving up the pursuit. Defendant made a second wide
turn, again driving into the opposing lane. Although he had
terminated the pursuit, the officer continued driving in
the same direction and watching defendant’s car; he saw
defendant sideswipe a parked car, damaging it. A short time
later, defendant drove into a garage, where he was
arrested. The chase lasted less than two minutes. Defendant
was given tests for alcohol intoxication after his arrest.

The District Attorney filed an information charging four
counts: (1) felony evasion of a peace officer while
operating a motor vehicle (§ 2800.2); (2) driving
while under the influence of alcohol (§ 23152, subd.
(a)); (3) driving with a blood alcohol level of 0.08
percent or above (§ 23152, subd. (b)); and (4)
departing the scene of an accident resulting in property
damage without leaving written notice of his name and
address or locating the owner (§ 20002). Counts 2
and 3 also alleged that defendant’s blood alcohol level was
0.20 percent or above and that he had a previous conviction
of driving with a blood alcohol level of 0.08 percent or
above.

At trial, defendant testified that he knew he was drunk
when he got in the car, but drove anyway to escape from
some people who had attacked and tried to rob him. On this
basis, defendant mounted a necessity defense to the
drunk-driving charges.

One factual scenario that can elevate evasion of a peace
officer from a misdemeanor under section 2800.1 to a felony
under section 2800.2 is the perpetrator’s commission,
during the chase, of three traffic violations that count
for a point or points against the perpetrator’s driver’s
license. (§ 2800.2, subd. (b).) At trial in this
case, the People argued that the evidence showed three
violations during the chase: making an unsafe turning
movement (§ 22107); driving on the wrong side of the
road (§ 21650); and violating the basic speed law
(§ 22350).

The trial court gave the jury this instruction:

“Every person who flees or attempts to flee a pursuing
peace officer in violation of Section 2800.1(a) and drives
[the] pursued vehicle with a willful or wanton disregard
for the safety of persons or property is guilty of a
violation of Vehicle Code Section 2800.2(a), a felony.

“A willful or wanton disregard for the safety of persons
or property also includes, but is not limited to, driving
while fleeing or attempting to elude a pursuing peace
officer during which time the person driving commits three
or more Vehicle Code violations such as Vehicle Code
Section 21650, 22107 and 22350.”

The court also read provisions of those three Vehicle Code
sections:

“A turning movement as defined in Vehicle Code Section
22107[:] [No] person shall turn a vehicle from a direct
course or move right or left upon a roadway until such
movement can be made with reasonable safety.

“Basic speed law [, section] 22350[:] [N]o person shall
drive a vehicle upon a highway at a speed greater than is
reasonable or prudent having due regard for weather,
visibility, the traffic on, and the surface and the width
of the highway, and in no event at a speed which endangers
the safety of person[s] or property.

“Right side of the roadway, [section] 21650. Upon all
highways a vehicle shall be driven upon the right half of
the roadway.”

The jury found defendant guilty of felony evasion and not
guilty of the remaining charges. The court sentenced him to
three years’ probation, including 180 days in county jail.

DISCUSSION

Defendant argues that the jury instructions just quoted
were erroneous because (1) they did not direct the jury to
determine whether the three traffic violations amounted to
willful and wanton disregard, and (2) they did not
specifically say the jury had to find that the three
violations occurred beyond a reasonable doubt.[fn2] As we
will explain, the instructions were adequate.

At trial, defendant did not object to the instructions or
request different ones, but a trial court in a criminal case
is required — with or without a request — to
give correct jury instructions on the general principles of
law relevant to issues raised by the evidence. (People v.
Michaels (2002) 28 Cal.4th 486, 529-530.) Further, an
appellate court can address an incorrect instruction to
which no objection was made at trial if the instruction
impaired the defendant’s substantial rights. (Pen. Code,
§ 1259.)

I. Point violations and willful and wanton disregard

Under section 2800.1, it is a misdemeanor to flee willfully
in a motor vehicle from a uniformed peace officer in a
marked patrol car with lights flashing and siren sounding.
Under section 2800.2, the offense is a felony if the evader
drives with willful or wanton disregard for the safety of
persons or property. The statute further 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 either
three or more violations that are assigned a traffic
violation point count under

Section 12810 occur, or damage to property occurs.”
(§ 2800.2, subd. (b).) Section 12810 provides that
several specifically enumerated violations, none of which
are at issue here, are assigned one or two points.
(§ 12810, subds. (a)-(e), (h).) It also contains the
catch-all clause providing that, with certain exceptions,
“any other traffic conviction involving the safe operation
of a motor vehicle upon the highway shall be given a value
of one point.” (§ 12810, subd. (f).)

The court instructed the jury that violations of sections
21650, 22107, and 22350 amounted to a willful and wanton
disregard for persons or property within the meaning of
section 2800.2. Defendant claims he “was entitled to have
the jury decide whether these Vehicle Code offenses
constituted `willful and wanton’ . . . driving, thereby
elevating the offense from a misdemeanor to felony.”

This claim raises two separate questions. First, assuming
the three violations were point violations, did the jury
have to decide whether they added up to willful and wanton
disregard, or do any three point violations constitute
willful and wanton disregard as a matter of law? We
recently held that any three point violations suffice as a
matter of law, following two other Courts of Appeal that
did the same. (People v. Laughlin (2006) 137 Cal.App.4th
1020, 1025, 1027-1028, citing People v. Pinkston (2003) 112
Cal.App.4th 387 and People v. Williams (2005) 130
Cal.App.4th 1440.) The rule set forth in section 2800.2,
subdivision (b) — that three point violations
constitute willful and wanton disregard — “is not a
mandatory rebuttable presumption but is instead a rule of
substantive law.” (People v. Laughlin, supra, 137
Cal.App.4th at p. 1025.) Three point violations are willful
and wanton disregard by definition, so there is nothing
other than their existence for the jury to find.

The second question is this: Where, as here, the claimed
violations are not enumerated in section 12810, must the
jury decide whether or not they fall into the catch-all
provision because they “involv[e] the safe operation of a
motor vehicle,” as the statute phrases it? (§ 12810,
subd. (f).) Or is that also a question the court must
answer as a matter of law? As we will explain, it is a
question of law for the court’s determination.

The statutory language is somewhat obscure. What is a
violation “involving the safe operation of a motor
vehicle”? More specifically, does the application of this
language require findings about how safe or unsafe the
driving in question was?

In interpreting a statute, our objective is “to ascertain
and effectuate legislative intent.” (People v. Woodhead
(1987) 43 Cal.3d 1002, 1007.) To the extent that the
language in the statute may be unclear, we look to
legislative history and the statutory scheme of which the
statute is a part. (People v. Bartlett (1990) 226
Cal.App.3d 244, 250.) We look to the entire statutory
scheme in interpreting particular provisions “so that the
whole may be harmonized and retain effectiveness.” (Clean
Air Constituency v. California State Air Resources Bd.
(1974) 11 Cal.3d 801, 814.) “In the end, we `”must select
the construction that comports most closely with the
apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the
statute, and avoid an interpretation that would lead to
absurd consequences.” [Citation.]'” (Torres v. Parkhouse
Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.)

Applying these principles, we can rule out the conclusion
that the catch-all provision requires a finding of unsafe
operation of a motor vehicle. If the statute said “unsafe”
instead of “safe,” we might well hold that the question of
whether the driving at issue was unsafe was a question for
the jury. But if the Legislature had meant “unsafe,” it
could easily have used that word.

We can also rule out the opposite conclusion: that an
unenumerated violation only counts for a point if the
driving involved was safe. The literal words of the statute
may seem to suggest this, but it cannot be correct, for it
would be absurd to make evasion a felony based on
unenumerated violations only where the perpetrator
committed them safely.

If no finding of safety or unsafety is called for, does
the statute mean simply that a point is assessed for any
traffic violation involving the operation of a motor
vehicle, regardless of safety or unsafety? Provisions of
the larger statutory scheme point to an affirmative answer.
The complete text of the catch-all provision, section
12810, subdivision (f), states: “Except as provided in
subdivision (i), any other traffic conviction involving the
safe operation of a motor vehicle upon the highway shall be
given a value of one point.” Subdivision (i) then lists
several sections the violation of which does not count for
a point. These include section 40001, subdivision (b)(1)
— driving an unregistered car — but only if
“the driver is not the owner of the vehicle.” (§
12810, subd. (i)(1).) It follows that if the driver of an
unregistered car is the owner, the offense of driving it is
assessed a point.

There is no reason why an unregistered car cannot be
driven safely. The statute thus contemplates that traffic
violations involving the operation of a motor vehicle,
including those not related to safety, are worth a point
unless otherwise stated.

The question of whether an alleged violation was a traffic
violation involving the operation of a motor vehicle has
two parts: Was it a traffic violation? And did it involve
the operation of a motor vehicle? The first part is
undoubtedly a question of law. Whether an offense is a
traffic offense or something else depends on what statute
has been violated, not on any of the circumstances of the
particular violation.

The second part is also a question of law. Whether a
traffic offense involves the operation of a motor vehicle
depends simply on whether driving is part of its definition
— driving on the wrong side of the road, driving
over the speed limit, driving an unregistered car, and so
on. The court therefore determines whether a traffic
offense involves the operation of a motor vehicle by
reading the statute allegedly violated, not by examining
the evidence of the particular violation.

For all these reasons, the court was correct not to give a
separate instruction directing the jury to decide (a)
whether or not the three alleged violations constituted
traffic violations involving the safe operation of a motor
vehicle, or (b) whether or not the violations constituted
willful and wanton disregard for the safety of persons or
property. Those were questions of law properly resolved by
the trial judge.

Defendant also takes issue with the court’s omission of
any instruction regarding elevation of the evasion offense
to felony status by means of proving property damage.
(§ 2800.2, subd. (b).) The court did not mention
this, even though there was evidence of property damage
(the sideswiped car), and both counsel discussed it in
their closing statements. Defendant argues that this
omission supports his claim of prejudicial instructional
error. We do not see how. Defendant could not have been
harmed by the court’s failure to tell the jury that the
property damage evidence was one more basis on which it
could find him guilty. Defendant does not claim that
counsel misstated the law or that a unanimity instruction
was required. The court’s omission of a property-damage
instruction was not prejudicial error.

II. Reasonable doubt

Defendant also contends that the jury should have been
told that, if it was relying on the three traffic
violations to return a felony verdict, it had to find each
violation beyond a reasonable doubt. We disagree. The court
gave standard instructions on the reasonable-doubt standard
of proof. Defendant has cited no authority, and we know of
none, supporting the view that a trial court must, on its
own motion, give additional reasonable-doubt instructions
whenever underlying predicate offenses are part of the
proof of a crime. In the absence of that authority, the
controlling consideration is that “`”the correctness of
jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of
an instruction or from a particular instruction.”‘” (People
v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Here the
entire charge included correct reasonable-doubt
instructions and there is no reason to suppose the jury
failed to apply them when considering whether the predicate
violations existed.

In his reply brief, defendant argues that, even apart from
the issue of reasonable doubt, the instructions were
erroneous because they did not expressly state that the
jury was required to find the predicate offenses happened
at all if it was going to rely on them. This contention has
no merit. The court told the jury that the predicate
offenses could show willful and wanton disregard, an
element of the crime. Before this, it had already told the
jury that “each fact that is essential to complete a set of
circumstances necessary to establish the defendant’s guilt .
. . must be proved beyond a reasonable doubt.” There is no
requirement that when the court sets forth the elements of
the charged offenses it must repeat the point that each
element must be proved.

III. Apprendi

In addition to claiming ordinary instructional error,
defendant says the court’s instructions contravened the
Supreme Court’s ruling in Apprendi v. New Jersey (2000) 530
U.S. 466 by removing the finding of a factual element of
the offense from the jury’s purview. This is not so for the
same reasons the instructions were not erroneous. The
question of whether the three predicate offenses existed
was submitted to the jury. The questions of whether these
were point violations and whether three point violations
add up to willful and wanton disregard were questions of
law properly resolved by the trial judge. The instructions
withdrew no factual finding from the jury.

DISPOSITION

The judgment is affirmed.

We Concur:

HARRIS, Acting P.J.

HILL, J.

[fn1] Subsequent statutory references are to the Vehicle
Code unless noted otherwise.

[fn2]In his reply brief, defendant appears to withdraw the
first argument and rely only on the second, saying he
contends that the error “was in simply . . . not asking the
jury to make affirmative findings that [his] driving
violated [the three Vehicle Code sections], beyond a
reasonable doubt.” Out of an abundance of caution, we will
address the first argument in spite of this.