People v. Romero

• Court: California Court of Appeals
• Writing for the Court: CURREY, J.
• Decision Date: 01 October 2020
• Docket Number: B301540
• Citation: People v. Romero, B301540 (Cal. App. Oct 01, 2020)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MARCO ROMERO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MARCO ROMERO, Defendant and Appellant.

B301540

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

October 1, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

Los Angeles County Super. Ct. No. KA118993

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Attorney General, David. E. Madeo and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted appellant and defendant Marco Romero of fleeing a pursuing peace officer's motor vehicle while driving recklessly, and driving with a suspended or revoked license. Romero admitted he sustained a prior strike conviction, and the trial court sentenced him to six years in state prison. On appeal, Romero raises four arguments: (1) the trial court prejudicially erred by providing an incorrect response to a jury question; (2) the court prejudicially violated due process by instructing the jury using an impermissible mandatory presumption; (3) the court erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 by imposing assessments and a restitution fine without determining Romero's ability to pay; and (4) the court violated its duty to consider a limited probation report when determining the amount of the restitution fine. We affirm.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an information charging Romero with fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2; count one)¹ and driving with a suspended or revoked license (§ 14601.1, subd. (a); count two). The information further alleged Romero sustained one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and six prior prison term convictions (Pen. Code, § 667.5, subd. (b)).

The jury found Romero guilty on both counts. Romero admitted the strike prior and two of the six alleged prison priors.The trial court sentenced Romero to six years in state prison, consisting of an upper term on count one, doubled to six years for the prior strike. The court dismissed count two, struck the two prison prior enhancements Romero admitted, and struck the remaining four prison prior enhancements in the interest of justice under Penal Code section 1385.

Romero timely appealed.

FACTUAL BACKGROUND

On September 2, 2018, at about 5:00 p.m., Romero was driving a pickup truck in Pomona without a front license plate. Pomona Police Officers Sacca and O'Mahony, who were driving an unmarked police car, activated their lights and sirens and attempted to stop Romero. Romero drove a short distance then pulled over to the curb. A woman exited Romero's car from the passenger door, Romero drove away, and the officers gave chase.

Officer Gomez joined the pursuit. During the pursuit, Gomez was wearing his uniform and driving a marked police car with his lights and sirens activated. Officer Hernandez, who was also driving a marked police car with his lights and sirens activated, joined the pursuit as well. Several other marked patrol cars also joined the pursuit.

During the chase, Romero committed numerous traffic violations. He sped while driving on the freeway and in residential and business districts, ran through red lights without stopping, made unsafe lane changes without signaling, drove off the road, and unsafely passed other cars on the right. The chase ended when Officer Joseph Davila performed a PursuitIntervention Technique (PIT) maneuver on Romero's truck. Officer Davila took Romero into custody.

Officer Sacca spoke to Romero at the Pomona city jail after advising him of his Miranda² rights. Romero admitted he knew he was being pursued by the police and stated he did not pull over because he did not want to go to jail.³ He said his plan was to drive until he ran out of gas.

The defense presented no evidence.

DISCUSSION

I. Romero's argument concerning the jury question

Romero first argues the trial court prejudicially erred in violation of his constitutional rights by inadequately responding to the jury's mid-deliberation request for a definition of willful or wanton disregard for the safety of persons or property. The Attorney General argues Romero has forfeited the argument because defense counsel's position below was to resubmit CALJIC No. 12.85 to the jury rather than further define willful and wanton disregard. The Attorney General further argues that, even assuming Romero had not forfeited the argument, the court's answer was not an abuse of discretion and did not prejudice Romero. We agree with the Attorney General. Romero has forfeited his argument, and even assuming he had not forfeited the argument, we find no error or prejudice.

A. Procedural background

Using CALJIC No. 12.85, the trial court instructed the jury on both felony reckless evading (§ 2800.2, subd. (a)) and the lesser included offense of misdemeanor evading (§ 2800.1, subd. (a)). The court stated to the jury: "Every person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1, subdivision (a) and drives the pursued vehicle in a willful or wanton disregard for the safety of person or property is guilty of a violation of Vehicle Code Section 2800.2, subdivision (a), a felony." (See CALJIC No. 12.85)

The court then defined the term "willful or wanton disregard for the safety of persons or property" with greater specificity. It explained: "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 motor vehicle violations, such as violation of Vehicle Code Section 21755(a), passing on the right; 21453, failure to stop for a red light; 22350; speeding; 22349, exceeding the maximum 65 miles an hour; 22107, unsafe turn; 22450 failure to stop for a stop sign." (See CALJIC No. 12.85.) The court further explained: "Willful or wanton also means act or acts intentionally performed with a conscious disregard for safety of persons or property. It does not necessarily include an intent to injure." (See ibid.) Next, still using CALJIC No. 12.85, the court instructed the jury on the elements of a section 2800.2, subdivision (a) violation, which included the following element: "the driver of the pursued vehicledrove the vehicle in a willful or wanton disregard for the safety of persons [or] property."⁴

During deliberations, the jury submitted the following question: "Please provide clarification on the definition or what constitutes [element] #8 'The driver of the pursued vehicle drove the vehicle in a willful or wanton disregard for the safety of persons or property.'"

The trial court conferred with the parties regarding the jury question. Defense counsel proposed the court simply refer the jury back to CALJIC No. 12.85 in its entirety. The prosecution proposed the court respond by focusing the jury on the definition of willful and wanton disregard as committing three or more traffic violations. Defense counsel argued that highlighting only one of the two definitions in CALJIC No. 12.85 would be improper, particularly because the prosecution had argued Romero acted with a willful or wanton disregard based onboth theories.⁵ The prosecution offered a compromise with defense counsel's position, proposing the court answer the question by excerpting both definitions. Defense counsel objected to the proposed compromise, noting the prosecution's wording of the second definition was slightly different than how it was worded in CALJIC No. 12.85. The court explained that the different wording was the clearest way to respond to the jury, and the proposed compromise was still a correct statement of law. Over defense counsel's objection, the court opted to use the prosecution's proposed compromise. The court provided the jury with the following answer: "Willful and wanton disregard for the safety of persons or property includes: [¶] 1. Driving while fleeing or attempting to elude a peace officer during which time the person driving commits three or more Vehicle Code violations, such as: speeding in violation of Vehicle Code section 22350, exceeding 65 mph on a highway in violation of Vehicle Code section 22349, passing on the right in violation of Vehicle Code section 21755, unsafe turning movements in violation of Vehicle Code section 22107, failing to stop at a stop sign in violation of Vehicle Code section 22450, or failing to stop for a red light in violation of Vehicle Code section 21453; [¶] OR [¶] 2. Driving in any other manner that amounts to willful or wanton disregard for the safety of persons or property. [¶] See 12.85."

B. Applicable legal principles

"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.' [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) "Indeed, comments diverging from the standard are often risky. [Ci...