Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF197378. James W. Hollman, Judge.
Donna J. Hooper, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and David A. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Moises Chavez was convicted after jury trial of recklessly evading an officer (count 1) and possessing burglary tools (count 2). (Veh. Code, § 2800.2, subd. (a); Pen. Code, § 466.) He was sentenced to two years imprisonment on count 1. No time was imposed on count 2. Execution of the sentence was suspended and he was granted probation for a period of three years with various conditions.
Unless otherwise specified all statutory references are to the Vehicle Code.
Appellant contends count 1 must be reversed because there is insufficient evidence proving two elements of the offense: (1) the pursuing vehicle displayed a red lamp; and (2) the officer was wearing a distinctive uniform. Having examined the record, we agree that there is no proof the officer was wearing a distinctive uniform. Because principles of double jeopardy bar retrial for this offense, we need not address appellant’s contention that there was insufficient proof of a red lamp. (People v. Mathews (1998) 64 Cal.App.4th 485, 491.) Appellant also argues the court erred by admitting evidence of a prior uncharged incident in which he evaded an officer. This contention fails for lack of prejudice. We will reverse the conviction on count 1 and remand for resentencing. In all other respect, the judgment will be affirmed. (Ibid; People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 238.)
FACTS
Tulare County Sheriff’s Deputy Matthew Hardy was on duty during the evening of January 21, 2008. Around midnight, he noticed a Ford Taurus with a broken taillight. He pulled behind the Taurus and activated his overhead emergency lights. The Taurus’s driver accelerated and turned off the vehicle’s headlights. A chase ensued. Eventually, the Taurus crashed in a vineyard.
Hardy exited his patrol vehicle and observed appellant and a female running towards the rear of the vehicle. They complied with Hardy’s command to halt. The female spontaneously stated that “Jose Ayon” was driving the Taurus.
Additional law enforcement officers arrived at the scene. A perimeter was established within ten minutes after the crash. No third person was ever located. At the crash scene, two sets of footprints were located. One set appeared to match appellant and the other matched the female.
Appellant told a Highway Patrol officer that Jose had exited out of the driver’s side window. However, the officer testified that this window was down only approximately five to six inches. Also, the officer had to pry the driver’s side door open using his entire body weight. The officer did not see any foot prints leading away from the driver’s side door.
A broken-off key was found in the Taurus’s ignition. A screwdriver and key ring were found in the middle portion of the front seat. The key ring contained several keys and an identification card. The identification card was in the name of “Chavez, Valencia Guadalupe” and had a photograph of appellant’s mother on it. An auto theft investigator testified that one of the keys on the key ring appeared to be a “shaved” ignition key, another appeared to be the door key to a Ford vehicle and a third appeared to be a broken ignition key. The investigator testified that a “shaved” key has been filed down so it fits in a vehicle’s ignition and can bypass the tumblers inside of the safety mechanism, permitting the vehicle to start. Four tires with chrome rims were stacked up in the rear seat. There was a pillow on the driver’s seat. From prior contacts with appellant, Tulare County Deputy Sheriff Joseph England testified that he knew appellant drove with a pillow on the seat because he has a full prosthetic leg.
Tulare County Sheriff’s Deputy James Guy testified that on May 6, 2005, he attempted to conduct a traffic stop on a vehicle appellant was driving. Guy activated the patrol vehicle’s overhead lights and turned on the siren. Appellant accelerated, ran four stop signs and attempted to ram the patrol vehicle. Appellant turned into an almond orchard. Eventually, the vehicle got stuck in the mud and stopped. Five people and an infant child were in the vehicle. They all got out of the car and fled. Appellant was apprehended. He appeared to be extremely intoxicated. He kicked out the back window of the patrol vehicle. Guy believes appellant was prosecuted for this incident. Appellant was a juvenile when it occurred.
DISCUSSION
I. Count 1 must be reversed because the People did not prove that Hardy was wearing a distinctive uniform.
“Any person, who, while driving a car, intentionally flees from or tries to elude a pursuing police car, is guilty of a misdemeanor. [Citation.])” (People v. Acevedo (2003) 105 Cal.App.4th 195, 197.) “The offense becomes a felony when the defendant drives in a willful or wanton manner with disregard for the safety of persons or property. [Citation.]” (Ibid.) To establish the crime of reckless evasion, section 2800.2, subdivision (a) requires the People to prove “four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.” (People v. Hudson (2006) 38 Cal.4th 1002, 1008.) “The prosecution must prove each statutory element--the corpus delicti--beyond a reasonable doubt.” (People v. Acevedo, supra, 105 Cal.App.4th at pp. 197-198.)
Appellant argues the conviction for violating section 2800.2 is not supported by substantial evidence because there is no proof that Hardy was wearing a “distinctive uniform” on the evening of January 21, 2008. We agree.
When assessing a challenge to the sufficiency of the evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Under this standard, “an appellate court must draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) “‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
For purposes of section 2800.2, “a law enforcement officer’s ‘distinctive uniform’ is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.” (People v. Mathews, supra, 64 Cal.App.4th at p. 490.) “The statute does not require that the uniform be of any particular level of formality or that it be complete.” (People v. Estrella, supra, 31 Cal.App.4th at p. 724, fn. omitted.) However, an officer who is in plain clothes with only a badge to identify himself as a police officer is not wearing a “‘distinctive uniform.’” (People v. Mathews, supra, 64 Cal.App.4th at p. 491.)
In this case, the record is devoid of any evidence about Hardy’s attire on the evening of January 21, 2008. The record does not contain any testimony proving that Hardy was wearing a uniform. Neither Hardy nor any of the other officers gave any testimony about Hardy’s attire. Recognizing the absence of direct proof that Hardy was uniformed, respondent argues that jurors could reasonably infer that Hardy was uniformed from his testimony that he was on duty in a marked patrol vehicle. Such an inference would be purely speculative. Hardy testified that his “[r]outine duties are patrol, calls for service, and investigate any type of criminal activity.” Investigation may be conducted by officers in uniform or street clothes. The fact that Hardy was in a patrol vehicle when the chase occurred is insufficient to prove that he was wearing a uniform or other distinctive police attire. Proof that Hardy was armed with a department issued handgun does not tend to establish that he was uniformed. Officers working in street clothes also carry department issued handguns, as do some officers even when they are off-duty. (See, e.g., People v. Mathews, supra, 64 Cal.App.4th at p. 487.)
In sum, we are limited to the record before us and it does not contain substantial evidence from which a juror could reasonably find beyond a reasonable doubt that Hardy was wearing a distinctive uniform when the chase occurred. Thus, there is insufficient evidence to support a conviction for evading a police officer and count 1 must be reversed. (People v. Shakhvaladyan, supra, 117 Cal.App.4th 232, 238 [§ 2800.2 conviction reversed for insufficient proof where evidence did not include any testimony that a siren was activated or that the officer wore a uniform]; People v. Mathews, supra, 64 Cal.App.4th at pp. 490-491 [§ 2800.2 conviction reversed for insufficient proof of “‘distinctive uniform’” where officer was in street clothes with only a badge to identify himself as an officer].)
II. Admission of evidence about the prior evading incident was harmless.
Appellant also argues the trial court erred by admitting evidence of the prior evading incident. Assuming for purposes of this discussion only that this evidence should have been excluded, we reject the contention for lack of prejudice. It has already been determined that the conviction for evading an officer (count 1) must be reversed and double jeopardy principles bar retrial. (People v. Mathews, supra, 64 Cal.App.4th at p. 491.) Thus, we must assess whether there is a reasonable probability appellant would have been acquitted of the crime of possessing burglary tools (count 2) in the absence of testimony about the prior eluding incident. (People v. Rivera (1985) 41 Cal.3d 388, 393 [erroneous admission of prior bad acts requires reversal if there is reasonable probability of a more favorable verdict].) We answer this question in the negative.
The People produced overwhelming proof that appellant was the driver of the Taurus and that he possessed the burglary tools found inside the vehicle. A broken-off key was found in the ignition of the Taurus and a key ring and screwdriver were found on the front seat. The key ring held three keys, one of which was “shaved,” and an identification card with a photograph of appellant’s mother on it. An auto theft investigator testified that a “shaved” key has been filed down so it fits in a vehicle’s ignition and can bypass the tumblers inside of the safety mechanism, permitting the vehicle to start. A pillow was found on the driver’s seat. There was testimony that appellant drives with a pillow on the seat because he has a prosthetic leg. The defense position that a third person was the driver was not supported by the evidence; only two sets of footprints were found after the crash and no third person was located by the officers. A third person could not have exited out of the driver’s side of the Taurus because the window was open only five to six inches and the driver’s door was jammed.
Also, there was no testimony that the prior evading incident involved possession of burglary tools or a stolen vehicle. The facts of the prior incident were not so inflammatory that they would have caused the jury to feel personal antipathy against appellant.
Accordingly, we conclude it is not reasonably probable that admission of testimony about the prior evading incident affected the verdict on count 2. Therefore, the claimed evidentiary error is harmless.
III. The recent amendments to section 4019 do not affect appellant because they apply prospectively only.
Pursuant to a standing order of this court issued on February 11, 2010, the issue of the applicability of the January 25, 2010, amendments to section 4019 (Stats. 2009-2010, 3d Ex. Sess, ch. 28, § 50) is deemed raised without further briefing by the parties. The amendments increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. In People v. Rodriguez (2010) ___ Cal.App.4th ___ [2010 WL 682459], we held the amendments to section 4019 applied prospectively only to those persons who had not been sentenced at the time the amendments went into effect. We also rejected the contention that prospective application of the amendments violated equal protection. Since appellant was sentenced prior to the effective date of the amendments, he is not entitled to any additional custody credits.
DISPOSITION
The judgment of conviction as to count 1 is reversed. Count 1 is ordered dismissed. The matter is remanded for resentencing on count 2. The judgment is affirmed in all other respects.
WE CONCUR: Ardaiz, P.J.Gomes, J.