People v. Pinkston

• Decision Date: 30 September 2003
• Docket Number: No. B159294.,B159294.
• Citation: People v. Pinkston, 112 Cal. App. 4th 387, 5 Cal.Rptr.3d 274 (Cal. App. 2003)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven Terrose PINKSTON, Defendant and Appellant.

5 Cal.Rptr.3d 274

112 Cal.App.4th 387

The PEOPLE, Plaintiff and Respondent, v. Steven Terrose PINKSTON, Defendant and Appellant.

No. B159294.

Court of Appeal, Second District, Division 3.

September 30, 2003.

Certified for Partial Publication.^*

Review Denied Dec. 17, 2003.

Certiorari Denied May 3, 2004. See 124 S.Ct. 2106.

Gerald M. Serlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

CROSKEY, J.

Steven Terrose Pinkston appeals the judgment entered after conviction by jury of evading an officer with willful disregard for the safety of persons and property, a felony, and evading arrest, a misdemeanor. (Veh.Code, §§ 2800.2, subd. (a), 2800.1, subd. (a).) The trial court sentenced Pinkston to a term of 25 years to life in state prison. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution's evidence.

The evidence introduced at trial established Pinkston's involvement in two separate instances of evading a peace officer.

a. The September nth incident.

On September 14, 2001, at approximately 8:45 p.m., Culver City Police Officer Michael Poulin stopped a Camaro driven by Pinkston. Poulin approached the Camaro and requested Pinkston's driver's license and registration. Pinkston repeatedly asked why Poulin had stopped him. When Poulin asked Pinkston to step from the vehicle, Pinkston sped from the scene. Poulin chased Pinkston with overhead lights and siren at speeds up to 100 miles per hour but was unable to apprehend Pinkston.

Culver City Police Officer Jason Davis assisted Poulin in the pursuit of Pinkston. When Davis attempted to turn north on La Brea Avenue from Slauson Avenue, a vehicle failed to yield to Davis's red lights and siren and a traffic accident ensued in which both cars were "totaled" and the driver of the civilian vehicle was taken from the scene in an ambulance.

b. The incident of October 21.

On Sunday, October 21, 2001, at approximately 10:00 a.m., Sheriffs Deputies Pablo Partida and Dennis Parker attempted to stop Pinkston's Camaro. As Partida and Parker approached the Camaro on foot, it sped away. Partida chased Pinkston with overhead lights and siren. Pinkston went through a posted stop sign at 124th Street and Slater Avenue, continued north on Slater Avenue and then east on 123rd Street at 50 to 60 miles per hour in a residential area. Pinkston ran a posted stop sign at 123rd Street and Compton Avenue, continued south on Compton Avenue and increased the distance between himself and the deputies. Pinkston went through a red light at Compton Avenue and El Segundo Boulevard, ran a stop sign at 132nd Street and Compton Avenue and continued at 60 miles per hour east on Stockwell Avenue from Slater Avenue. Pinkston slowed on Stockwell Avenue because of speed bumps on the street. The convertible top of the Camaro flew open as it went over the speed bumps. Pinkston proceeded north on Grandee Avenue, failed to stop at a posted stop sign at 132nd Street and Grandee Avenue and increased his speed to 60 miles per hour in a residential zone. Pinkston went through a red light at Grandee Avenue and El Segundo Boulevard and proceeded west on 127th Street to a dead end. Pinkston slowed to approximately five miles per hour and jumped from the moving Camaro a few feet before it struck a retaining wall. Pinkston was detained at gunpoint.

2. Defense evidence.

Pinkston presented no affirmative defense.

3. Sentencing considerations.

The jury convicted Pinkston of evading arrest, a misdemeanor, with respect to the September 14 incident, and convicted him of felony evading with respect to the October 21 incident. The trial court found Pinkston had a prior conviction of voluntary manslaughter in 1992 and a prior conviction of making a terrorist threat in 1998. The trial court declined to strike either prior conviction in the interests of justice and sentenced Pinkston to a term of 25 years to life in state prison.

CONTENTIONS

Pinkston contends Vehicle Code section 2800.2 creates an unconstitutional mandatory presumption, the trial court erroneously failed to instruct the jury on unanimity, the prior conviction of making a criminal threat does not qualify as a strike, the trial court abused its discretion in denying Pinkston's motion to strike the prior convictions in the interests of justice and the term imposed constitutes cruel and unusual punishment.

DISCUSSION

1. Vehicle Code section 2800.2 does not create an unconstitutional mandatory presumption.

a. Background.

Vehicle Code section 2800.1, set out in full at footnote 1, post, makes it a misdemeanor to attempt to evade a peace officer wearing a distinctive uniform and driving a distinctively marked patrol vehicle with red light and siren activated.¹ The offense is elevated to an alternate misdemeanor felony by Vehicle Code section 2800.2, subdivision (a), if "the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property...." (Veh. Code, § 2800.2, subd. (a).)

Vehicle Code section 2800.2, subdivision (b), the statute in issue here, was added to section 2800.2 in 1996. It provides: "(b) 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 [Vehicle Code] Section 12810 occur, or damage to property occurs."

Consistent with Vehicle Code section 2800.2, subdivision (b), the trial court instructed Pinkston's jury in the words of CALJIC No. 12.85 that: "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 the person driving commits three or more Vehicle Code violations, such as running a red light ..., failing to stop at a posted stop sign ..., passing a vehicle on the right by driving off the main traveled portion of the roadway ..., driving with a suspended license ... or damage to property. `Willful or wanton' means an act or acts intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure."

b. Pinkston's contention.

Pinkston contends Vehicle Code section 2800.2, subdivision (b) constitutes a constitutionally prohibited mandatory presumption which told the jury the element of willful or wanton disregard for the safety of persons or property existed if the basic fact of three Vehicle Code violations or property damage was present. Pinkston argues the instruction reduced the prosecution's burden of proof.

Pinkston claims the error requires reversal because the jury sent the trial court a note, shortly after deliberations commenced, which asked whether violation of three or more of the enumerated Vehicle Codes sections constitutes willful or wanton disregard for the safety of others "in and of itself?" The trial court responded affirmatively.

Pinkston further claims there was insufficient evidence of willful or wanton disregard absent the presumption. Pinkston argues the felony pursuit occurred on a Sunday in a residential area where traffic was light. Pinkston never came close to striking any other vehicle, he never caused any other vehicle to stop, brake hard or take evasive action to avoid a collision, the risk of danger was reduced by the lights and siren of the pursuing deputies which alerted others to the approach of Pinkston and the chase lasted only two minutes. Because Pinkston committed the required number of Vehicle Code violations in a relatively straightforward manner, the presumption found in subdivision (b) of Vehicle Code section 2800.2 allowed the jury to find the element of willful or wanton disregard without conducting an independent evaluation of the evidence to determine the existence of that element. Pinkston concludes the felony evading conviction must be reversed.

c. Resolution.

An instruction which reduces the prosecutions burden of proving every element of an offense beyond a reasonable doubt violates a defendant's right to due process. (Sandstrom v. Montana (1979) 442 U.S. 510, 523-524, 99 S.Ct. 2450, 61 L.Ed.2d 39; People v. Rooler (1983) 33 Cal.3d 491, 504, 189 Cal.Rptr. 501, 658 P.2d 1302.) "A mandatory presumption is one that tells the trier of fact that it must assume the existence of the elemental fact from proof of the basic fact. [Citations.] The prosecution may not rely on a mandatory presumption unless it is accurate. There must be a "`rational connection'" between the basic fact proved and the ultimate fact presumed [citation] and `the fact proved [must be] sufficient to support the inference of guilt beyond a reasonable doubt.' [Citations.]" (People v. McCall (2002) 104 Cal.App.4th 1365, 1372, 128 Cal. Rptr.2d 917.)

Subdivision (b) of Vehicle Code section 2800.2 does not state a mandatory presumption. Rather, it sets out the Legislature's definition of what qualifies as willful and wanton conduct under subdivision (a). Although Vehicle Code section 2800.2 uses the phrase "willful or wanton disregard for the safety of persons or property" to describe an element of reckless evading, the statute defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations. Thus, section 2800.2, subdivision (b) establishes a rule of substantive law rather than a presumption apportioning the burden of persuasion concerning certain propositions or varying the duty of coming forward with evidence. (See People v. Dillon (1983) 34 Cal.3d 441, 474-475, 194 Cal.Rptr. 390, 668...