People v. Estrella

• Court: California Court of Appeals
• Writing for the Court: BUCKLEY; ARDAIZ, Acting P.J., and DIBIASO
• Citation: People v. Estrella, 37 Cal.Rptr.2d 383, 31 Cal.App.4th 716 (Cal. App. 1995)
• Decision Date: 18 January 1995
• Docket Number: No. F019030,F019030
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ramon A. ESTRELLA, Defendant and Appellant.

Page 383

37 Cal.Rptr.2d 383

31 Cal.App.4th 716

The PEOPLE, Plaintiff and Respondent, v. Ramon A. ESTRELLA, Defendant and Appellant.

No. F019030.

Court of Appeal, Fifth District, California.

Jan. 18, 1995.

Certified for Partial Publication ^*

Review Denied April 12, 1995.

[31 Cal.App.4th 718] Charles A. Pacheco, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry and Louis M. Vasquez, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

BUCKLEY, Associate Justice.

At a jury trial defendant was convicted of being a felon in possession of a firearm (count one, Pen.Code, § 12021, subd. (a)); driving recklessly while fleeing from a police officer (count two, Veh.Code, § 2800.2); and auto theft with an armed enhancement (count three, Veh.Code, § 10851, subd. (a), Pen.Code, § 12022, subd. (a)(1)). At a bifurcated trial before the court, it was found that defendant suffered a prior conviction and served a separate prison term therefor as to all three counts within the meaning of Penal Code section 667.5, subdivision (b). From his conviction and sentence, defendant appeals. We will affirm.

FACTS

While on duty in the afternoon of June 12, 1992, Senior Police Officer Kristen Borton was in an unmarked white Buick car, wearing plain clothes. She began to follow a white Toyota ¹ as it turned eastward and then turned southbound onto Chester Avenue. By way of a hand-held instrument she transmitted information regarding her location and progress to the communication center as well as to other officers who were monitoring their radios. By the time the Toyota led her westbound on 21st Street, Borton could hear sirens but could not see any other police vehicles.

Borton continued her pursuit of the Toyota, which turned northbound on "Eye" Street. At that point Sergeant David Haskins, driving a white Chevrolet Caprice with a light bar and siren, advised Borton by radio that he was following her. Borton then turned to the right to permit Haskins to follow the Toyota because Haskins's car had a light bar and siren. Thereafter, Borton observed the Toyota pass through the intersection of "Eye" Street and 23d without any reduction in speed despite the presence of a stop sign. Borton observed similar conduct at the intersection of "Eye" Street and 24th, where the Toyota proceeded past the stop sign at about 40 or 45 miles per hour. A westbound vehicle collided broadside with the Toyota. The occupant of the Toyota crawled out of a window and began to run in a northwesterly direction. Borton observed the person from a distance of about 40 feet and at trial was able to identify defendant as the person. In her car Borton pursued defendant to a dirt field where other officers took defendant into custody after defendant cut across the field and jumped a fence.

During the pursuit Borton dressed herself in a bulletproof vest and was putting on a gunbelt and a teddy, or covering for the vest, which bore the word "Police." She observed defendant looking into his rearview mirror while she was dressing.

Although Haskins was dressed in plain clothes, he wore a Bakersfield Police Department vest with a cloth badge, a gunbelt, and a navy blue baseball cap with the word "Police" across the front in bright yellow lettering. ²

Borton's vehicle was a white 1983 Buick owned by the police department; there was nothing distinctive about it to identify it as a police vehicle. Haskins was driving a 1989 white Chevrolet Caprice with a light bar inside the windshield on the front passenger side. Its siren was not visible from the outside. It had alternating headlights (called "wigwag" lights) and warning lights to the rear. The light bar was eighteen inches long and four or five inches from top to bottom. It had a steady red light in the middle, a flashing blue light on one side, and a flashing red light on the other. It was permanently mounted in the vehicle behind the windshield pointing forward, in the vicinity of the passenger side sun visor.

The wigwag was internal; it operated the headlights. Haskins stated that the vehicle was not a normal patrol vehicle, or "black and white." Those cars have light bars on the top of the vehicle which are about five feet across. Thus, one can identify a normal patrol vehicle from a distance of hundreds of yards. The spotlights on Haskins's car were about five or six inches in diameter and were of a type that could be installed on any vehicle. There was no writing or sign on the vehicle or anything else to indicate what agency owned the vehicle. Haskins confirmed that if the lights were off, one observing the vehicle from the front would not see anything that identified the car as a police vehicle unless that person paid close enough attention to notice the light bar inside. However, Haskins had never seen a passenger car light up as his car did when he was following defendant. The light bar was designed to be seen by someone he was following.

Upon pulling in behind Borton's car, Haskins turned northbound onto "Eye" Street and activated the emergency lights (the steady red and flashing blue and red lights on the light bar), the alternating lights (wigwags) and the siren. Haskins continued to follow the Toyota, which accelerated from 30 to 35 miles an hour to about 50 miles per hour. It failed to stop for the posted stop signs at "Eye" Street and 23d and then "Eye" Street and 24th. Haskins estimated the Toyota's speed when it ran the stop sign at 24th was 55 to 60 miles per hour. The Toyota did not pull over, yield or park even though there were ample opportunities to do so.

After defendant left the Toyota and ran northbound, Haskins continued pursuing defendant in his vehicle with the siren and red lights going. Defendant ran along a sidewalk to a dirt parking lot, which he cut across in a northwesterly direction. Haskins stopped his patrol car at the curb, got out of his vehicle, and yelled in a loud voice at defendant, telling him that he was a police officer and demanding that defendant stop. Although defendant was only 25 or 30 feet away, he kept running away from the officer. Haskins observed defendant run northbound across 25th Street and then heard a shot from Officer Payne's vehicle. Defendant fell to the ground, where he was later taken into custody.

After defendant's arrest, officers found a nine millimeter semiautomatic handgun on the front passenger seat of defendant's vehicle. The weapon was operable and was loaded with one unexpended round in the chamber and fourteen in the magazine; the safety was "on."

DISCUSSION

I. Service of Prior Prison Term ^**

II. Conviction of Vehicle Code section 2800.2 ³

Section 2800.2 provides:

"If 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 of property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, by imprisonment in the county jail for not more than one year, or by a fine of not less than one hundred seventy dollars ($170) nor more than two thousand dollars ($2,000), or by both that fine and imprisonment."

Section 2800.1 provides:

"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 if all of the following conditions exist:

"(a) 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.

"(b) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary.

"(c) The peace officer's motor vehicle is distinctively marked.

"(d) The peace officer's motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform." (Stats.1988, ch. 504, § 1, p. 1918.)

A. Distinctively Marked Vehicle

Defendant argues that the vehicles were unmarked, which omission is fatal to his conviction of section 2800.2. The People counter that Haskins's car was "distinct from average street cars" as it was equipped with spotlights on both sides, a permanently stationed 18-inch light bar inside the windshield on the front passenger side, a siren, alternating headlights (wigwag lights), warning lights at the rear of the car, and a push-bar on the front of the vehicle. The People respond that even assuming that these items did not distinguish the vehicle from other vehicles (while not activated), once the lighting equipment and sirens were turned on, it could not reasonably be said that the vehicle was not "distinctively marked."

Section 2800.2 incorporates and thus expressly requires a violation of section 2800.1. It must be determined whether or not Haskins's vehicle was "distinctively marked" within the meaning of section 2800.1, subdivision (c).

Provisions of the Penal Code are to be construed according to the fair import of their terms, with a view to effect their objects and to promote justice. (Pen.Code, § 4.) In construing a statute, this court is to ascertain the intent of the Legislature in order to effectuate the law's purpose. The court should first turn to the words used in the statute. When the statutory language is clear and unambiguous, there is no need for construction, and the court should not undertake it. (People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.) It must be determined whether the words of the statute, given their ordinary and popular meaning, are reasonably free from uncertainty or ambiguity. (People v. Mel Mack Co. (1975) 53 Cal.App.3d 621, 626, 126 Cal.Rptr. 505.)

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