People v. Freeman

THE PEOPLE, Plaintiff and Respondent, v. PAUL MARK FREEMAN, Defendant and Appellant.

F077543

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

October 6, 2020

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion herein filed on October 6, 2020, be modified as follows:

1. On page 21, at the end of the first full paragraph beginning "Third, the jury was instructed" add the following footnote:

⁷ In a petition for rehearing, defendant contends, for the first time, that defense counsel in his closing argument improperly encouraged the jury to rely on the uncharged parked truck incident to find him guilty of the lesser included misdemeanor offenses. Defendant never raised this issue on appeal, challenged any aspect of defense counsel's closing argument, or asserted counsel was prejudicially ineffective. As explained above, the prosecutor clarified to the jury that the charged felony offenses were based on the collision with Ms. Gutierrez at the traffic light, and the court instructed the jury that it could consider the misdemeanor charges as lesser included offenses to the felony counts 1 and 2. The jury was correctly instructed in this case.

2. On page 23, immediately before the first paragraph, which begins "Defendant further argues the evidence is insufficient," insert the following new paragraphs and footnote:

Defendant argues the driver who hit Ms. Gutierrez at the traffic light violated the basic speed law based on the very nature of a rear-end collision. Defendant asserts that since such a violation was an element of both felony offenses, the jury must have concluded he was not driving the car when it found him not guilty of the charged felonies, and improperly relied on the uncharged collision with the parked truck to convict him of the lesser included misdemeanor offenses.

Defendant relies on People v. Ellis (1999) 69 Cal.App.4th 1334 (Ellis), and asserts that it held the basic speed law is violated when a vehicle rear-ends another car at a stoplight. In Ellis, a drunk driver hit another car at a stoplight with such force that the second car was pushed through the intersection. (Id. at p. 1336.) The defendant was convicted of driving under the influence causing injury (Veh. Code, § 23153, subds. (a), (b)), which required proof that the driver violated the basic speed law by speeding (§ 22350). However, the court did not instruct the jury with the legal definition of speeding. (Ellis, supra, 69 Cal.App.4th at p. 1338.) On appeal, the defendant argued the court had a sua sponte duty to define speeding because it was a legal term not commonly understood. (Ibid.)

Ellis agreed and held the trial court had a sua sponte duty to instruct on the legal definition of speeding because "the term speeding, in the context of the basic speed law, is not clear and definite." (Ellis, supra, 69 Cal.App.4th at p. 1339.) Ellis concluded the instructional error was harmless beyond a reasonable doubt, and the defendant's conviction was supported by substantial evidence that he committed an act forbidden by law, speeding. However, the harmless error and substantial evidence analyses were in the unpublished portion of the opinion. (Id. at p. 1336.)

In contrast to Ellis, the jury in this case was properly instructed with CALCRIM No. 704 on the definition of speeding under the basic speed law as an element of felony charges in counts 1 and 2, that "[a] person must drive at a reasonable speed. Whether a particular speed is reasonable depends on the circumstances, such as traffic, weather, visibility, and road conditions. Drivers must not drive so fast that they create a danger to people or property."

Ellis does not support the assertion raised by defendant - that a driver who rear-ends another vehicle conclusively violates the basic speed law. Indeed, Ellis held just the opposite because it explained that when a jury is not instructed on the legal definition, "jurors may view speeding asoccurring anytime one vehicle collides with the rear end of another, regardless of examining questions of circumstance, reasonableness and danger;..." (Ellis, supra, 69 Cal.App.4th at p. 1339.)¹

In addition, the jury's guilty verdicts on the lesser included misdemeanor offenses do not show that it improperly relied on the uncharged crash into the parked truck. The misdemeanor offenses do not require proof of a violation of the basic speed law. However, there was evidence that defendant violated the basic speed law when he crashed into the parked truck. Ms. Freeman testified he hit the truck with such force that it pushed the vehicle two houses from where it had been parked, it ended up on someone's lawn, and it was totaled, which would be consistent with driving "at a speed which endangers the safety of persons or property." (§ 22350.) As a result, it cannot be said that there was only evidence of a violation of the basic speed law based on the collision with Ms. Gutierrez's car. The jury's verdicts do not show that it improperly relied on the uncharged parked truck incident to convict him of the lesser included misdemeanor offenses.

This modification requires the renumbering of all subsequent footnotes.

This modification does not effect a change in the judgment.

The petition for rehearing is denied.

POOCHIGIAN, Acting P.J.

WE CONCUR:

MEEHAN, J.

SNAUFFER, J.

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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Stanislaus Super. Ct. Nos. 1431988, 1491573 & 4003568)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.

Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleksa, and Cavan M. Cox, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2012, appellant/defendant Paul Mark Freeman was placed on probation after pleading no contest to felony driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)).²

In August 2015, someone rear-ended Amanda Gutierrez's vehicle when she was stopped at a traffic light and immediately drove away from the scene. Ms. Gutierrez identified the subject vehicle as a Chrysler 300 with shiny rims. She later found a part from a Chrysler 300 inside her own vehicle. Shortly after Ms. Gutierrez was hit, a Chrysler 300 with similar rims crashed into a parked truck about a half-mile away from scene of the traffic light collision. When the police arrived, defendant was sitting in the driver's seat of the Chrysler, and he was under the influence of alcohol. He was still on probation. Defendant was arrested and released on his own recognizance (OR).

As a result of the August 2015 collision with Ms. Gutierrez, defendant was charged with felony DUI causing injury and other vehicular offenses, with two special allegations based on his 2012 conviction: (1) that he had a prior DUI conviction within the prior 10 years, and (2) that same offense was a prior strike conviction. He was not charged with any offenses from crashing into the parked truck.

While the new charges were pending, defendant failed to appear at a scheduled hearing on whether to revoke his probation and increase bail, and a bench warrant was issued. He was arrested five months later and remanded into custody for the duration of the proceedings. He was also charged with failing to appear.

At defendant's jury trial for the August 2015 traffic light collision, the defense theory was that there was no evidence defendant was driving the car that hit Ms. Gutierrez's vehicle. The jury found defendant not guilty of the charged felonies for DUI causing injury but convicted him of two misdemeanor DUI crimes as lesser includedoffenses. The court found the prior conviction allegations true. The court also found he violated probation in the 2012 case, and defendant pleaded guilty to failing to appear.

At the sentencing hearing, the court treated the two misdemeanor DUI convictions as felonies based on the existence of the prior felony DUI conviction and imposed an aggregate term of eight years four months for all three cases.

On appeal, defendant contends his convictions for the lesser included offenses based on the collision with Ms. Gutierrez must be reversed because he was never identified as the driver of the car that hit her vehicle. Defendant argues that given the absence of any identification evidence, the jury likely convicted him by improperly relying on his admitted collision with the parked truck. Defendant asserts the jury mistakenly believed it could find him guilty of the lesser included misdemeanor DUI offenses based on hitting the parked truck, and the lack of notice of the facts for his convictions violated his due process rights.

Defendant also argues the court improperly treated his two misdemeanor DUI convictions as felonies for sentencing purposes, since the jury only convicted him of misdemeanors as lesser included offenses of the charged DUI felonies for the traffic light collision. Defendant asserts, while the court found the prior conviction allegations true, it never found that the prior conviction from 2012 was a felony, which would have permitted the court to treat the misdemeanor charges as felonies. We correct the abstract of judgment and affirm.

FACTS

THE 2012 CONVICTION AND PROBATION

(Case No. 1431988)

On January 14, 2011, defendant was driving with his fiancée after leaving a bar. Defendant lost control of the car, swerved, veered to the right, spun out, and hit a light pole. Defendant and his fiancée were ejected. She suff...