People v. Noland: Felony Evading

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

A jury convicted Gerfel M. Noland of one count of evading a peace officer in willful or wanton disregard for the safety of persons or property (Veh. Code,[1] § 2800.2, subd. (a) (hereafter section 2800.2(a)), a felony. Noland admitted he had suffered two prior felony convictions (for violations of Veh. Code, § 2800.2 & Pen. Code, § 487, subd. (b)(3)). The court sentenced him to the upper term of three years.

Noland appeals, contending (1) the court's instruction under CALCRIM No. 2181 regarding the charged crime, felony evading of a peace officer in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)), failed to adequately instruct the jury that the specific intent to evade element must be proved beyond a reasonable doubt; (2) the court's instruction under CALCRIM No. 251 regarding the requisite union of act and intent was similarly defective in that it did not adequately instruct the jury that the criminal act must be accompanied by specific intent, and thus added to the legal insufficiency of CALCRIM No. 2181; and (3) the definition of felony evading in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)) in CALCRIM No. 2181 misled the jury by failing to define " 'willful' " in the " 'willful and wanton disregard' " element of that offense. We conclude the court adequately instructed the jury under CALCRIM Nos. 2181 and 251. Accordingly, we affirm the judgment.

In early June 2006 California Highway Patrol (CHP) Officer Curtis Martin pulled Noland over at about 1:00 a.m. because the motorcycle he was driving had no rear license plate. When Officer Martin contacted Noland and advised him of the reason for the traffic stop, Noland became very angry and told Officer Martin in a raised voice that he should be pulling over drunk drivers. Noland demanded that he be given a warning instead of a ticket, and told Officer Martin he was lucky Noland pulled over and that he (Noland) could have just taken off and Officer Martin would not have caught him.

On December 2, 2006, at about 3:00 p.m., CHP Officer Todd Swanson was in uniform, driving a marked CHP vehicle on northbound Interstate 15 (I-15), north of Center City Parkway. He saw a group of eight to 10 motorcycles traveling on the southbound side of I-15 in a U-shaped formation that was blocking three lanes. One of the motorcyclists was "popping a wheelie" in front of them.

Officer Swanson made a U-turn through the freeway center divider cutout, caught up with the motorcycles, which were traveling at about 50 miles per hour, and activated his overhead lights. A second motorcyclist, later identified as Noland, began "popping wheelies." When no one in the group reacted to his lights, Officer Swanson might have given short bursts of his siren, but he did not activate his siren at this point.

A couple of the motorcyclists looked back and Officer Swanson motioned for them to move aside and, when they did, he drove forward to a position about 20 feet behind the front two motorcycles that were popping wheelies. Officer Swanson activated his siren. The unidentified rider looked back at the officer, then he and Noland, who was right next to him in the same lane, accelerated away from the officer.

Officer Swanson pursued with his lights on and siren activated and accelerated to 110 miles per hour, but the two motorcyclists continued to pull away, weaving across the freeway in and out of traffic and reaching a speed of 110 to 130 miles per hour. Officer Swanson could see the brake lights of other vehicles ahead of him as the motorcyclists moved through the traffic. When the two motorcyclists were about a quarter of a mile ahead, Officer Swanson saw Noland look back at least twice. The other motorcyclist also looked back. The dispatch tape of Officer Swanson's call to dispatch was played for the jury, and the sound of the siren was audible on the tape.

Officer Swanson briefly lost sight of Noland and the other motorcyclist and then saw a cloud of dust or smoke and vehicle parts flying all over the freeway. He alerted dispatch of the collision. Officer Swanson found Noland's body blocking the No. 4 lane.

Karl Goethel was traveling southbound on I-15 in his Toyota pickup at about 70 miles per hour, in moderate traffic, when he was hit from behind. Goethel saw motorcycle pieces fly past him and a body fly by his front windshield, and he immediately pulled over to the center median. When he got out of his truck, Goethel saw a CHP vehicle parked at the right shoulder with its emergency lights on. He did not remember seeing or hearing the pursuit prior to the collision, but he had his windows up, his radio on, and his air conditioning running.

Three of Noland's friends and fellow riders that day testified: Raul Lenderos, William Moore, and Chalintoen Buranasombati. Landeros was driving a car ahead of the group of motorcyclists, going about 80 miles per hour with his windows down and his sunroof open, talking on his cell phone, listening to his radio and watching in his rear view mirror as Noland and another rider were doing wheelies three to four car lengths behind him going about 60 miles per hour. Suddenly, Noland and the other motorcyclist passed Landeros going about 90 miles per hour and accelerating, tucked down to cut air resistance like they were racing. Then a CHP vehicle passed Landeros with its emergency lights on. Landeros did not hear a siren.

Moore and Buranasombati were riding motorcycles in the group. Both were passed by a CHP vehicle that had its emergency lights activated, but neither heard a siren.

Noland first contends the court's instruction under CALCRIM No. 2181 regarding the charged crime, felony evading of a peace officer in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)), failed to adequately instruct the jury that the specific intent to evade element must be proved beyond a reasonable doubt. This contention is unavailing.

Section 2800.2(a) provides in part: "If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year."

Section 2800.1, the misdemeanor statute referenced in section 2800.2(a), provides in part in subdivision (a) (hereafter section 2800.1(a)): "Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform." (Italics added.)

CALCRIM No. 2181 sets forth the elements of a violation of section 2800.2(a). As given by the court in this matter, this instruction states in pertinent part: "The defendant is charged in Count [1] with evading a peace officer with wanton disregard for safety. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] . . . [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer . . . ."[2] (Italics added.)

The California Supreme Court has explained that, " ' "[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." ' [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 149 (Catlin).)

Here, Noland does not claim in his opening brief that CALCRIM No. 2181 omitted the specific intent element of the section 2800.2(a) offense, or that the instruction is not correct in law. He acknowledges the phrase "intending to evade the officer" in CALCRIM No. 2181, which he challenges, does refer to the specific intent element of the offense of evading an officer in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)) of which he was convicted. Noland asserts, however, that (1) the wording of CALCRIM No. 2181 "failed to apprise the jury of the specific intent element to the necessary extent" (italics added); (2) the instruction does not use the words " 'specific intent,' " and uses " 'intending' " rather than " 'intent;' " (3) the intent element is "buried at the end of the sentence defining in the second element" of the offense, and is not set out as a separate element; and (4) the misdemeanor statute (§ 2800.1(a), discussed, ante), by using the phrase "[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees . . . ." (italics added), does a "more adequate job" of assuring that the specific intent element is "not overlooked."

As Noland's foregoing assertions demonstrate, and notwithstanding his new assertion in his reply brief that the challenged instruction was not correct in law, his complaint about the phrase "intending to evade the officer" in CALCRIM No. 2181 is essentially that the instruction could have been more clearly worded. Fatal to his contention on appeal is the fact that, at trial, Noland did not request appropriate clarifying or amplifying language. The record shows that when the court asked the parties' counsel whether they objected to CALCRIM No. 2181, Noland's counsel stated, "Defense does not." Thus, we conclude Noland forfeited his claim of instructional error. (Catlin, supra, 26 Cal.4th at p. 149.)

Even if Noland had not forfeited his claim, his claim of instructional error is unavailing because the court adequately instructed the jury and he has failed to show any prejudicial error. An appellate court may properly review counsel's arguments at trial to determine whether counsel clarified a potentially confusing jury instruction. (People v. Jaspar (2002) 98 Cal.App.4th 99, 111 ["It is proper to review the instruction in combination with other instructions and/or the argument of counsel in determining if the instruction challenged on appeal confused the jury"]; see also People v. Sanchez (1995) 12 Cal.4th 47, 76 [counsel's explanation during argument clarified potential confusion over verdict forms].)

Here, during closing arguments, the prosecutor read the challenged phrase and then said "question No. 1" the jury would need to answer was "whether or not [Noland] intentionally took off trying to get away." The prosecutor answered that question, arguing that Noland "knew that he should have stopped and he tried to take off and he tried to get away." After describing the facts of the pursuit, the prosecutor told the jury, "[t]hat demonstrates someone trying to get away." Later, the prosecutor argued the jury had to "make an inference as to whether . . . [Noland] was reasonably aware that the officer was pursuing him and whether . . . he intended to evade him by taking off and darting in and out of traffic." (Italics added.) The foregoing italicized phrase used by the prosecutor―"intended to evade"―has the same meaning as the phrase "with the intent to evade" that Noland maintains should have been included in CALCRIM No. 2181.

During his closing argument, Noland's trial counsel also read the challenged intent language from that instruction, and later indicated to the jury that the prosecution had to prove beyond a reasonable doubt every element of the charged offense, including the element that Noland "did purposely evade." The record thus shows that even if Noland did not forfeit his instructional error claim, any potential uncertainty stemming from the specific intent element language contained in CALCRIM No. 2181 ("intending to evade the officer") was eliminated or remedied during closing arguments. We conclude the court adequately instructed the jury under CALCRIM No. 2181 with respect to the specific intent element of the charged section 2800.2(a) offense, and Noland has failed to show any prejudicial instructional error.

Noland next contends the court's instruction under CALCRIM No. 251 regarding the requisite union of act and intent was similarly defective in that it did not adequately instruct the jury that the criminal act must be accompanied by specific intent, and thus added to the legal insufficiency of CALCRIM No. 2181. We reject this contention.

The court instructed the jury under CALCRIM No. 251: "Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent [¶] In order to be guilty of the crime of Evading an Officer with Reckless Driving, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for every crime." (Italics added.)

Noland asserts that by using the disjunctive "or" in the foregoing italicized phrases "specific intent or mental state" and "intent or mental state," CALCRIM No. 251 fails to make clear to the jury that "specific intent is required in order for a conviction . . . to be had," and thus it "leaves the jury free to utilize some other mental state . . . ." This assertion is unavailing.

The California Supreme Court has explained that "[i]n assessing a claim of instructional error, 'we must view a challenged portion "in the context of the instructions as a whole and the trial record" to determine " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." ' [Citations.]" (People v. Jablonski (2006) 37 Cal.4th 774, 831.)

Here, viewing the challenged portions of CALCRIM No. 251 in the context of the instructions as a whole and the trial record, we conclude Noland has failed to show a reasonable likelihood that the jury applied that instruction in a way that violates the Constitution. "Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions. [Citation.]" (People v. Tatman (1993) 20 Cal.App.4th 1, 11.) CALCRIM No. 251 referred the jury to the instruction for the crime charged in this matter. In this case, the latter instruction was CALCRIM No. 2181, which, as discussed, ante, adequately instructed the jury on the specific intent element of the section 2800.2(a) offense that Noland was accused of committing. Thus, Noland's assertion that CALCRIM No. 251 "fails [to] properly emphasize the specific intent element" is unavailing.

Last, Noland contends the definition of the crime of felony evading in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)) in CALCRIM No. 2181 misled the jury by failing to define " 'willful' " in the " 'willful and wanton disregard' " element of that offense. We reject this contention.

Under CALCRIM No. 2181 as given by the court (see fn. 2, ante), the second element of a section 2800.2(a) offense requires proof beyond a reasonable doubt that the defendant (among other things) "willfully fled from, or tried to elude, the officer, intending to evade the officer." (Italics added.) As Noland correctly points out, CALCRIM No. 2181 defines the term "willfully" in a separate paragraph: "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."

As already discussed, the criminal statute in question―section 2800.2(a)―contains the phrase "willful or wanton disregard for the safety of persons or property." (Italics added.) Under CALCRIM No. 2181, the third element of a section 2800.2(a) offense requires proof beyond a reasonable doubt that "[d]uring the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property." (Italics added.)

Noland contends that while CALCRIM No. 2181 defines " 'willfully' " as that term is used in the phrase "willfully fled from . . . ." in the second element, the instruction erroneously fails to define " 'willful' " as that term is used in the phrase "willful or wanton disregard for the safety of persons or property" in the third element. (Italics added.) Citing People v. Schumacher (1961) 194 Cal.App.2d 335 (Schumacher), Noland asserts that "the term 'willful' in the context of [the phrase ] 'willful or wanton disregard for the safety of persons or property' requires the mental state of appreciating and then disregarding danger" (italics added), but CALCRIM No. 2181 "in no way communicates" that meaning and is thus "fatally defective." Noland is elevating form above substance.

It is true that CALCRIM No. 2181 does not explicitly define " 'willful' " as that term is used in the phrase " 'willful or wanton disregard for the safety of persons or property.' " (Italics added.) However, it does contain a paragraph that conveys the very meaning that Noland claims is "in no way communicate[d]" in that instruction. Specifically, in the paragraph that immediately follows the paragraph (discussed, ante) that defines " 'willfully' " as that term is used in the phrase " 'willfully fled from . . . .,' " CALCRIM No. 2181 defines "wanton disregard for safety" as that term is used in the phrase "willful or wanton disregard for the safety of persons or property" as follows: "A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, (2) and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage." (Second & third italics added.)

Contrary to Noland's claim, the foregoing language in CALCRIM No. 2181 does convey to the jury that a conviction of evading a peace officer in willful or wanton disregard for the safety of persons or property (§ 2800.2(a)) requires proof of (in Noland's words) "the mental state of appreciating and then disregarding danger." (Italics added.) The paragraph in question requires proof that at the time of the act of disregarding the safety of persons or property, the defendant was "aware that his or her actions present[ed] a substantial and unjustifiable risk of harm." (Italics added.) The mental state of being "aware" of a "substantial and unjustifiable risk of harm" is equivalent to the mental state of "appreciating . . . danger."

The paragraph in question also requires proof that at the time of the act of disregarding the safety of persons or property, the defendant "intentionally ignore[d]" the substantial and unjustifiable risk of harm. The mental state of "intentionally ignor[ing]" such a risk of harm is equivalent to the mental state of "disregarding danger."

Noland's reliance on Schumacher, supra, 194 Cal.App.2d 335, which did not involve section 2800.2(a) or CALCRIM No. 2181, is unavailing. In Schumacher, following a bench trial, the court found the defendant, who was accused of felony drunk driving in violation of former section 23101, guilty of reckless driving in violation of former section 23103 as a lesser offense necessarily included in the charged offense. (Schumacher at pp. 337-338.) The applicable reckless driving statute, former section 23103, provided in part: "Any person who drives any vehicle upon a highway in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving. . . ." (Italics added.)

On appeal, the defendant in Schumacher challenged the reckless driving conviction on the ground reckless driving was not necessarily included in the offense of felony drunk driving. (Schumacher, supra, 194 Cal.App.2d at p. 338.) The Court of Appeal agreed and reversed the conviction, holding that reckless driving is not a lesser offense necessarily included in the felony drunk driving offense defined in former section 23101. (Schumacher, at p. 339.) The Schumacher court explained that felony drunk driving "can be committed without the presence of an element essential to the offense of reckless driving, namely, a 'wilful or wanton disregard for the safety of persons or property.' " (Ibid.) The Court of Appeal also indicated that the term "wilful" used in the statutory phrase "wilful or wanton disregard for the safety of persons or property" meant "intentional," and thus "[t]he intention . . . referred to relate[d] to the disregard of safety, etc., not merely to the act done in disregard thereof." (Schumacher, at p. 340.)

Here, as already discussed, CALCRIM No. 2181 informed the jury that a conviction under section 2800.2(a) required proof that Noland, in disregarding the safety of persons or property, was aware his actions presented a substantial and unjustifiable risk of harm, and he intentionally ignored that risk. We conclude that CALCRIM No. 2181 in substance adequately instructed the jury with respect to the requisite mental state the prosecution was required to prove beyond a reasonable doubt in order to obtain a conviction of evading a peace officer in willful or wanton disregard for the safety of persons or property in violation of section 2800.2(a).

[1] All further statutory references are to the Vehicle Code unless otherwise specified.

[2] CALCRIM No. 2181, as modified and given by the court in this matter, states in full: "The defendant is charged in Count [1] with evading a peace officer with wanton disregard for safety. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. A peace officer driving a motor vehicle was pursuing the defendant; [¶] 2. The defendant, who was also driving a motor vehicle, willfully fled from, or tried to elude, the officer, intending to evade the officer; [¶] 3. During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property; [¶] AND [¶] 4. All of the following were true: [¶] a. There was at least one lighted red lamp visible from the front of the peace officer's vehicle; [¶] b. The defendant either saw or reasonably should have seen the lamp; [¶] c. The peace officer's vehicle was sounding a siren as reasonably necessary; [¶] d. The peace officer's vehicle was distinctively marked; [¶] AND [¶] e. The peace officer was wearing a distinctive uniform. [¶] A person employed as a police officer by the [CHP] is a peace officer. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage. [¶] A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm, (2) and he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage. [¶] Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving. [¶] A vehicle is distinctively marked if it has features that are reasonably noticeable to other drivers, including a red lamp, siren, and at least one other feature that makes it look different from vehicles that are not used for law enforcement purposes. [¶] A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge, without more, is not enough." (First italics added.)