People v. Ervin

1

THE PEOPLE, Plaintiff and Respondent, v. DALE LEE ERVIN, Defendant and Appellant.

F079348

California Court of Appeals, Fifth District

December 2, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County. No F18906793 John F. Vogt, Judge.

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

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Michael P. Farrell Assistant Attorney General, Robert Gezi and Julie A. Hokans Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY, J.

INTRODUCTION

Defendant Dale Ervin was charged with driving with willful or wanton disregard for the safety of persons or property while fleeing from pursuing peace officers (Veh. Code, § 2800.2, subd. (a) [count 1]); unlawful possession of heroin (Health & Saf. Code, § 11350, subd. (a) [count 2]); unlawful possession of methamphetamine (id., § 11377, subd. (a) [count 3]); and driving under the influence of a drug (Veh. Code, § 23152, subd. (f) [count 4]). The information further alleged that he previously was convicted of a qualifying "strike" offense under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served seven separate prison terms (id., § 667.5, former subd. (b)). Prior to trial, defendant admitted the special allegations. Following trial, the jury found him guilty as charged. Thereafter, the trial court exercised its discretion and struck two prior prison term enhancements.

Defendant received an aggregate prison sentence of nine years on count 1: a doubled middle term of four years plus five years for five prior prison term enhancements. He also received concurrent 365-day jail terms on counts 2, 3, and 4. Defendant was ordered to pay a $500 restitution fine (Pen. Code, § 1202.4) and two $50 laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)). A $500 parole revocation fine (Pen. Code, § 1202.45) was imposed and suspended. Four $40 court operations assessments (id., § 1465.8) and four $30 court facilities assessments (Gov. Code, § 70373) were imposed and stayed.

In his opening brief, defendant makes several contentions. First, the court "should reverse [the] felony reckless evading conviction because [the conviction] is not supported by substantial evidence .…" (Capitalization omitted.) Second, the court "should reverse [the] felony reckless evading conviction because [it] committed instructional error … by giving the jury incomplete and misleading instructions on the siren element." (Capitalization omitted.) Third, the court "should vacate [defendant]'s restitution fine because the trial court abused its discretion by arbitrarily and irrationally determining that [he] is able to pay the fine .…" (Capitalization omitted.) Finally, the court "should vacate [defendant]'s laboratory analysis fee because the trial court violated [his] right to due process by imposing this assessment without a determination that [he] is presently able to pay." (Capitalization omitted.) We conclude: (1) substantial evidence supported the reckless evasion conviction; (2) the court did not commit instructional error; and (3) the restitution fine and the laboratory analysis fees need not be vacated.

In a supplemental brief, defendant argues that the five prior prison term enhancements must be stricken in view of a recent amendment to Penal Code section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020). The Attorney General agrees that these enhancements must be stricken. We accept this concession and strike the five prior prison term enhancements. We remand the matter for resentencing to allow the trial court to exercise its sentencing discretion in light of the changed circumstances. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)

STATEMENT OF FACTS

Fresno County Deputy Sheriff Chapple was on duty in the early morning hours of October 2, 2018. He was operating a patrol car that had a "red and blue emergency light bar on the top" and was "fully marked" with "sheriffs stars on both sides" and the word" 'Sheriff' on the back." Chapple was dressed in his standard uniform, which consisted of a long-sleeved shirt "with Fresno County Sheriffs patches on both shoulders," badge, duty belt, green pants, and steel boots.

At approximately 1:47 a.m., Chapple observed a "white four-door Honda" "pass a car" and "run a stop sign" at the intersection of Princeton Avenue and Thesta Street. He switched on "Code 3 emergency lights"-four flashing red and blue lights "on the front bumper" as well as flashing red and blue lights and solid red and blue lights on the light bar-and pursued the Honda, which "accelerated" westbound on Princeton Avenue "in an attempt to flee." Traveling at a speed of 50 miles per hour in a 25-mile-per-hour residential area, the Honda "ran a four-way stop sign" at the intersection of Princeton Avenue and Clark Street. It then turned onto southbound Clark Street and continued for four blocks, ignoring three more stop signs. After the Honda "ran the [third] stop sign" and turned onto eastbound Clinton Avenue "over a double solid yellow line," Chapple "initiated [the] siren" "to warn" an oncoming car, which "had to completely stop … in order to avoid being hit." The Honda "turned again over a double solid yellow line onto" Thesta Street. By this point, it was traveling at a speed of "35, 40 miles an hour." The Honda headed northbound on Thesta Street, disregarded another stop sign, and then "died in the middle of the intersection" of Terrace Avenue and Thesta Street. The pursuit lasted "[t]hree to five minutes tops" and ended "around … 30 seconds" after Chapple turned on the siren.

Defendant, the driver of the Honda, was apprehended. Crystal methamphetamine, heroin, and a glass pipe were found on his person. California Highway Patrol Officers Carreno and Tucker arrived on the scene at approximately 2:00 a.m. to conduct a DUI evaluation. Carreno, a drug recognition expert, noticed that while the weather was "pretty cold" and defendant was wearing a white tank top, defendant was sweating so profusely that he had "a shine on his body and on his head as well." During questioning by Tucker, defendant admitted that he "did meth earlier" and "had smoked some marijuana earlier." He was also "nodding off," i.e., he "was just not able to stay awake or … kept … leaning over," which Carreno identified as the demeanor of someone "coming down from their high." Because defendant was "on the nod," Tucker "didn't conduct the full range of field sobriety tests." Carreno opined that defendant exhibited objective signs of intoxication consistent with being under the influence of methamphetamine.

Thereafter, defendant was transported to the hospital for a blood draw. Subsequent testing revealed 0.89 milligrams per liter of methamphetamine, a "potentially toxic range" that would impair a person's ability to drive. Testing also revealed 0.16 nanograms per milliliter of cannabis, an amount that would likely not "overpower" "the stimulation and sleep deprivation aspects of [the] methamphetamine used" by defendant.

At trial, on cross-examination, Chapple affirmed that he typically activated his vehicle's siren "to get someone's attention," "[w]hether it's the car that [he's] attempting to pull over or the surrounding cars." On recross-examination, he testified that "[t]here were no vehicles" on Clark Street during that stretch of the pursuit.

DISCUSSION

I. Substantial evidence supported defendant's conviction for reckless evasion on count 1

a. Standard of review

"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]'" (People v. Tripp, supra, at p. 955, italics omitted.) "This standard of review … applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (Ibid.)

"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.)" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Lee (2011) 51 Cal.4th 620, 632.)

b. Analysis

Vehicle Code section 2800.1, subdivision (a) reads:

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