The People v. Thomas

• Decision Date: 01 August 2001
• Citation: 110 Cal.Rptr.2d 571
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LENVELL THOMAS, Defendant and Appellant. B144240 SECOND APPELLATE DISTRICT, DIVISION FIVE Filed

110 Cal.Rptr.2d 571 (Cal.App. 2 Dist. 2001)

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LENVELL THOMAS, Defendant and Appellant.

B144240

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FIVE

Filed 8/1/01

Corrected 8/8/01

(Super. Ct. No. KA047705)

APPEAL from a judgment of the Superior Court of Los Angeles County. John W. Bunnett, Judge. (Retired judge of the L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Michelle M. Paffile, Deputy Attorney General, for Plaintiff and Respondent.

[The heading for part I. is deleted]

I. INTRODUCTION

[The following portion of part I. is to be published.]

CERTIFIED FOR PARTIAL PUBLICATION^*

TURNER, P.J.

Defendant, Michael Lenvell Thomas, appeals from his conviction for evading an officer with willful disregard for the safety of persons or property. (Veh. Code, 2800.2, subd. (a).) Defendant was also found to have served two prior prison terms. (Pen. Code,¹ 667.5, subd. (b).) Defense counsel waived defendant's right to a jury trial on the prior prison term allegations. Defendant was not asked to nor did he waive his right to a jury trial on prior prison term allegations. After the court trial on the prior prison term allegations, the United States Supreme Court issued it opinion in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, which held that, other than the fact of prior conviction, sentencing enhancements must be determined by a jury. In the published portion of this opinion, we discuss whether the Fourteenth Amendment Due Process Clause guarantees an accused the right to a jury trial on section 667.5 prior prison term allegations.

[The following indicated portions of parts II. and III.A. III.B. are deleted from publication. See post on page 13 where publication is to resume.]

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 1:20 a.m. on March 2, 2000, Pomona Police Officer Roger Iwig attempted to stop defendant's car for driving with an inoperative taillight. Officer Iwig activated the red and blue lights of his patrol car. However, defendant did not stop. During an ensuing chase, defendant: failed to stop at three stop signs; "skidded" twice; nearly collided with a police car; and reached speeds of 60 to 65 miles per hour in a residential neighborhood. After defendant failed to stop at the first stop sign, Officer Iwig activated the rotating lights and siren on the police car. Other police cars joining the chase also activated their rotating lights and sirens. Defendant eventually stopped his car in front of his mother's home. Defendant complied with the officers' orders to get out of his car. Officer Iwig noted defendant smelled of alcohol. Defendant's speech was "slurred and thick." An open, partially consumed bottle of Cisco, an alcoholic beverage, was found in defendant's car. Defendant admitted that he had consumed the missing portion of the Cisco. Defendant failed a field sobriety test. However, a breath test was inconclusive because defendant sucked the air in rather than blowing into the instrument. Defendant refused to repeat the breath test. Also, defendant refused to take a blood test.

III. DISCUSSION

A. Evidence of Defendant's Prior Contacts With Law Enforcement

Defendant argues that the trial court improperly refused to allow him to testify regarding his prior contacts with law enforcement. He further argues that by so testifying he would have been able to explain why he hesitated to stop during the pursuit until he reached a safe place. He argues that by excluding this evidence he was denied his Sixth and Fourteenth Amendment rights to present a defense of necessity and to negate his intent to evade the officers.

Defendant testified that he did not feel comfortable stopping for police. When defense counsel inquired whether defendant "ever had a situation before with the police department[,]" he responded, "[n]umerous times." The prosecutor objected on relevance grounds. When defense counsel began to argue the basis of the relevance, the trial court inquired whether counsel wanted to argue off the record. Defense counsel responded: "Sure. Off the record, Your Honor." Thereafter, an unreported bench conference was held.

Preliminarily, defendant's constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274; People v. Padilla (1995) 11 Cal.4th 891, 971, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173; People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. McPeters (1992) 2 Cal.4th 1148, 1174; People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.)

Notwithstanding the procedural bar, we find no violation of defendant's right to due process under federal or state law. The United States Supreme Court has held that while a defendant is entitled to present relevant evidence in support of a defense (California v. Trombetta (1984) 467 U.S. 479, 485; Chambers v. Mississippi (1973) 410 U.S. 284, 302), that right is not unlimited. (United States v. Scheffer (1998) 523 U.S. 303, 308; Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303.) The California Supreme Court has likewise held: "'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]'" (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835; see also People v. Jones (1998) 17 Cal.4th 279, 305.) The black letter statement of California law is as follows, ". . . The judge may properly reject a general or vague offer [of proof] which does not indicate with precision the evidence to be presented and the witnesses who are to give it. [Citations.]" (3 Witkin, Cal. Evidence (3d ed., 1986) Introduction of Evidence at Trial, 2042, p. 2001; In re Mark C. (1992) 7 Cal.App.4th 433, 444; see also Evid. Code, 354; People v. Whitt (1990) 51 Cal.3d 620, 648 [offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal, would provide the reviewing court with the means of determining error and assessing prejudice]; People v. Schmies (1996) 44 Cal.App.4th 38, 53 [offer of proof must set forth actual evidence to be produced and not merely the facts or issues to be addressed and argued].) In addition, failure to make an adequate offer of proof precludes consideration of the alleged error on appeal. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17-18; In re Mark C., supra, 7 Cal.App.4th at p. 444.) Defendant made no offer of proof on the record in this case.

In any event, the evidence in question could properly be excluded pursuant to Evidence Code section 352. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The California Supreme Court has repeatedly held, "Rulings under Evidence Code section 352 come within the trial court's discretion and will not be overturned absent an abuse of that discretion. [Citations.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; People v. Cudjo, supra, 6 Cal.4th at p. 609; People v. Hall, supra, 41 Cal.3d at p. 834.) In refusing to allow defendant's testimony regarding his prior encounters with law enforcement officers, the record demonstrates only that the trial court found the evidence irrelevant. Defendant did not dispute his intent to evade the pursuing police officers. Defendant testified that he intentionally did not stop his car because he was uncomfortable. In his closing argument, defense counsel argued that defendant only disputed that he drove willfully and wantonly with disregard for human life. Defense counsel also argued that defendant took responsibility for evading a police officer. There was no abuse of discretion.

Even if the exclusion of such evidence was in error, it is not reasonably probable defendant would have enjoyed a more favorable verdict had the testimony been admitted. (People v. Sakarias (2000) 22 Cal.4th 596, 630; People v. Williams (1997) 16 Cal.4th 635, 673; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant drove recklessly at high speeds through stop signs in a residential area, nearly causing a collision with a police car. We agree with the Attorney General that even if the jurors accepted defendant's offer of proof as to necessity, it would not have established the elements of such a defense "because the risk of vehicular destruction is so great that even the risk of physical assault to the [reckless] driver pales in comparison." (People v. Slack (1989) 210 Cal.App.3d 937,...