People v. Byrd

• Court: California Court of Appeals
• Writing for the Court: Duarte, J.
• Citation: People v. Byrd, 1 Cal.App.5th 1219, 205 Cal.Rptr.3d 670 (Cal. App. 2016)
• Decision Date: 29 July 2016
• Docket Number: C077269
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dywon Levell BYRD, Defendant and Appellant.

1 Cal.App.5th 1219

205 Cal.Rptr.3d 670

The PEOPLE, Plaintiff and Respondent

v.Dywon Levell BYRD, Defendant and Appellant.

C077269

Court of Appeal, Third District, California.

Filed July 29, 2016

Certified for Partial Publication.^*

Steven Schorr, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Marcia A. Fay, Deputy Attorney General, for Plaintiff and Respondent.

Duarte, J.

A jury found defendant Dywon Levell Byrd guilty of first degree murder (Pen. Code, § 187, subd. (a) ; count 1) and driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a) ; count 3).¹ The jury found true the special allegation that defendant used a firearm in committing first degree murder. (Pen. Code, § 12022.53, subd. (b).)² The trial court sentenced defendant to 25 years to life for first degree murder, a consecutive 25 years to life on the firearm allegation, plus a consecutive two-year sentence for driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer.

On appeal, defendant contends the trial court erred in instructing the jury with the last bracketed paragraph of CALCRIM No. 226. He further contends that his conviction for violating section 2800.2 is not supported by substantial evidence because there was no proof that either of the pursuing officers wore a distinctive uniform. As we will explain in the published portion of our opinion, we agree with the latter contention. We will reverse count 3 (§ 2800.2, subd. (a) ) and order it dismissed. We affirm the judgment in all other respects.

BACKGROUND

At around midnight on December 7, 2011, Sacramento Police Officer Robert Hamm was dispatched to a residence on Samos Way in response to a report of a shooting. When he arrived at the residence, he observed two vehicles parked in the driveway, one of which had its engine running. Inside that vehicle was the victim, who had been shot in the neck.

On the same night at approximately 12:10 a.m., Sacramento Police Officers Carl Chan and David DeLeon were on patrol in a fully marked traditional black and white police car near Samos Way when they observed a silver sport utility vehicle (SUV) driving without its headlights on. The SUV did a “burn out” and accelerated at a high rate of speed away from the officers. Officer DeLeon activated the patrol car's emergency overhead red and blue lights and attempted to initiate a traffic stop. The SUV initially slowed and started to yield but then suddenly accelerated and drove off. Officer DeLeon activated the patrol car's siren and a high-speed pursuit ensued, ending when the driver, later determined to be defendant, stopped his vehicle and fled on foot. A perimeter was established by law enforcement officers, and defendant was apprehended and arrested several hours later. We will supply the relevant details of the evading conviction in Part II of the Discussion, post .

DISCUSSION

I^**

IISufficiency of the Evidence

Defendant contends that his conviction for violating section 2800.2 is not supported by substantial evidence because there was no proof that either of the pursuing officers wore a distinctive uniform. We agree, because no evidence was presented, by either party, to support this essential element of the offense.

A. Applicable Law

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 operating a motor vehicle is guilty of fleeing or attempting to elude a pursuing peace officer's motor vehicle if all of the following conditions exist: (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), italics added.) “Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.” (People v. Hudson (2006) 38 Cal.4th 1002, 1008, 44 Cal.Rptr.3d 632, 136 P.3d 168 (Hudson ).) The prosecution must prove each element beyond a reasonable doubt. (People v. Acevedo (2003) 105 Cal.App.4th 195, 197–198, 129 Cal.Rptr.2d 270.)

For purposes of section 2800.2, “a law enforcement officer's ‘distinctive uniform’ is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.” (People v. Mathews (1998) 64 Cal.App.4th 485, 490, 75 Cal.Rptr.2d 289.) “The statute does not require that the uniform be of any particular level of formality or that it be complete.”

(People v. Estrella (1995) 31 Cal.App.4th 716, 724, 37 Cal.Rptr.2d 383.) Nor does the statute require that the person eluding capture actually see that the police officer is wearing a distinctive uniform. (Ibid. )

To assess the sufficiency of the evidence, we review the whole record to determine whether it discloses substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396, 133 Cal.Rptr.2d 561, 68 P.3d 1.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 352, 100 Cal.Rptr.3d 351.) In applying the standard, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480, 42 Cal.Rptr.3d 677, 133 P.3d 581.) “ ‘[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]” (People v. Guerra, supra, 37 Cal.4th at p. 1129, 40 Cal.Rptr.3d 118, 129 P.3d 321.)

The officers testified that they were assigned to the patrol unit of the Sacramento Police Department, which involved basic patrol duties such as responding to calls for service and performing proactive policing. The officers were on patrol in a fully marked traditional black and white police car, and the car's siren and emergency overhead red and blue lights were activated during the pursuit of defendant. At trial, defendant admitted that he saw the patrol car behind him with its lights on, and that he made a conscious decision to flee from the police. However, no direct evidence was presented at trial demonstrating that either officer was wearing a distinctive uniform. None of the witnesses at trial testified as to the officers' attire, nor is there any other evidence in the record about the officers' attire.

The People cursorily argue only that the jury could have reasonably inferred that the officers wore a distinctive uniform because they were assigned to the patrol unit and were on patrol in a marked police vehicle at the time of the pursuit, and because defendant admitted to knowing the police were chasing him. However, they point to no actual evidence that either officer wore a distinctive uniform within the meaning of section 2800.1. We see no such evidence in the record. Nor do they cite any authority for the argument that such an inference is even potentially proper.

The fact that the officers were assigned to the patrol unit and were in a patrol car at the time of the pursuit is not sufficient to prove that either officer was wearing a police uniform or other distinctive police attire. To infer evidence of a distinctive uniform rather than plainclothes or another less than distinctive outfit from the evidence in the record before us would be pure speculation. (See People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 238, 11 Cal.Rptr.3d 590 [reversing conviction under section 2800.2 because the record “did not include any reference to the fact that ... [the officer] wore a distinctive uniform”], disapproved on other grounds by Hudson, supra , 38 Cal.4th at pp. 1009–1011, fn. 3, 44 Cal.Rptr.3d 632, 136 P.3d 168.)

The People do not provide any authority in support of their brief argument that we should look to proof introduced to satisfy the other elements (that these were peace officers on patrol in a marked car) as a substitute for proof satisfying the distinctive uniform requirement, and we are aware of none. In Hudson, our Supreme Court concluded that, in order for a peace officer's vehicle to be distinctively marked within the meaning of section 2800.1, its outward appearance during the pursuit must include, in addition to the separate statutory requirements of 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 notice to the person being pursued that the pursuit is by the police. (Hudson, supra , 38 Cal.4th at pp. 1010–1011, 44 Cal.Rptr.3d 632, 136 P.3d 168.) In so concluding, Hudson disapproved People v. Chicanti (1999) 71 Cal.App.4th 956, 84 Cal.Rptr.2d 1, and People v. Shakhvaladyan, supra , 117 Cal.App.4th 232, 11 Cal.Rptr.3d 590, both of which held that a red light...