Opinion
A164403
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. CAREY MENGHI-GRIFFIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 23309184)
STEWART, P.J.
Carey Menghi-Griffin appeals from a judgment entered after a jury trial convicting him of felony evasion of a peace officer. (Veh. Code, § 2800.2.) He argues the trial court prejudicially erred by excluding evidence of his injuries after the pursuing officer collided with his motorcycle and by failing to instruct the jury concerning the traffic violations the officer said he committed during the pursuit.
Except as otherwise indicated, code section references are to the Vehicle Code.
We conclude there were no prejudicial errors and therefore affirm.
BACKGROUND
I.
The Pursuit
During the early morning of October 17, 2019, a motorcyclist was speeding along El Portal Drive in or near the city of Richmond heading eastbound toward the westbound Highway 80 on-ramp. Around the same time, an officer from the San Pablo Police Department broadcast over the radio that a motorcycle had "take[n] off from him" heading toward El Portal Drive.
Deputy Thomas Brook of the Office of the Sheriff, Contra Costa County was in his patrol vehicle heading westward on El Portal Drive from El Sobrante into Richmond when he heard the broadcast and saw a motorcycle driving toward him at a high rate of speed. Deputy Brook made a U-turn and got behind the motorcycle and saw it enter westbound Interstate 80 at high speed, keeping it in sight as he followed. He saw it turn toward the westbound Interstate 80 on-ramp traveling at about 50 miles per hour. Deputy Brook attempted to follow behind it and catch up.
The deputy and the motorcycle were traveling at rates exceeding 100 miles an hour on the interstate. When Deputy Brook caught up to the motorcycle at the Barrett off-ramp, he saw that its license plate was "tucked up" and folded underneath the back of the motorcycle so that he was unable to see the complete license plate number. At the bottom of the off-ramp, the motorcycle failed to stop at a red light and "just continued onto San Pablo Avenue." As he approached the intersection of San Pablo and Solano Avenues, Deputy Brook activated his overhead lights and sirens. As he did, the motorcycle again failed to stop for a red light and "blew through" the fourway intersection. According to Deputy Brook, it then drove over the double yellow solid lines into oncoming traffic on San Pablo to "maneuver around" slower traffic. It was traveling at "[s]peeds of 60 to 80 miles an hour" in an area with a 35-mile-per-hour speed limit.
The motorcycle continued northbound on San Pablo Avenue at high rates of speed and failed to stop at a light-controlled intersection. It proceeded on to Robert Miller Drive still at high speed and failed to stop at another light-controlled intersection at Robert Miller and Hilltop. The motorcycle got back on westbound Interstate 80, where the speed limit is 65 miles per hour, and drove at speeds exceeding 100 miles per hour with Deputy Brook still in pursuit. The motorcycle, with Deputy Brook in pursuit, exited at Carlson Boulevard and then got back on Interstate 80 heading east, again at over 100 miles per hour.
The deputy later clarified that there was a third location at which the motorcycle "blew the intersection": San Pablo Avenue and Esmond.
Deputy Brook continued to follow the motorcycle, which exited at the El Portal Drive off-ramp in the same area where the pursuit began. There was a sharp turn from the off-ramp onto El Portal, where the motorcycle driver "hit his brakes" and "the rear end started to kind of slide out." Deputy Brook tried to brake, but the motorcycle slowed faster than the patrol vehicle, which ultimately collided with the motorcycle. Other deputies soon arrived at the scene and requested medical assistance for the downed motorcyclist.
II.
The Trial
In April 2021, the People filed an information charging Menghi-Griffin with fleeing a pursuing peace officer's motor vehicle while driving recklessly (section 2800.2) and fleeing a pursuing peace officer's motor vehicle and driving against traffic (section 2800.4).
A. Deputy Brook's Testimony
Deputy Brook was the only witness for the People. He testified to the pursuit as described above and identified Menghi-Griffin as the driver he had pursued. He said that after the collision, he read Menghi-Griffin his Miranda rights and asked him "why he ran from me," and that Menghi-Griffin replied, he "just felt like running." Later on the morning of the pursuit, the deputy learned from Menghi-Griffin's probation officer that there was a warrant out for his arrest.
Deputy Brook's radio dispatches during the pursuit were played for the jury. On cross-examination, Menghi-Griffin's counsel questioned the deputy about how he was able to identify the motorcycle and its driver and keep them in sight during the chase. He asked about why the synopsis to the deputy's report refers to a Yamaha motorcycle (which Deputy Brook called a typo) when Menghi-Griffin drove a Kawasaki. Menghi-Griffin's counsel also pressed Deputy Brook about the speed and safety of his own driving and his justification for engaging in the pursuit.
B. Menghi-Griffin's Testimony
Menghi-Griffin testified on his own behalf. He said that on the morning in question, he left his home around midnight to get something to eat. He was not aware there was a warrant out for his arrest, although he acknowledged he had failed to respond to a request by his probation officer to speak with him. Menghi-Griffin testified he was on his Kawasaki motorcycle and denied his license plate was ever folded in half. He got on Interstate 80 at El Portal Drive, heading west, and did not see any police vehicles in the area.
Approaching the Carlson exit, Menghi-Griffin saw red and blue lights in his rearview mirror. He put on his right-hand blinker and slowed down to pull over on the shoulder in case the officer behind him was trying to pull him over. But the police vehicle was approaching so fast it made him nervous, so he pulled back into the traffic lane, intending to get off at the exit. As he did this, the police vehicle bumped the back of his tire-"[n]ot a soft bump either."
Menghi-Griffin took a left from the off-ramp at a green light. He tried to indicate that he was attempting to pull over, but the police vehicle continued to "spe[e]d up on" him and he was scared the officer was trying to run him off the road. He decided to get back on the freeway and go home so there would be witnesses to whatever happened next. He drove about 60 miles an hour to the El Portal exit, taking care not to speed. As he exited, he slowed down for a turn. He heard sliding screeching tires, looked up and saw the police car and then blacked out.
Menghi-Griffin testified that he had no memory after the collision but saying he "just felt like running" was not something he would do or say. On cross-examination, the People questioned him about a prior conviction for fleeing a pursuing police officer (section 2800.1) and Menghi-Griffin said that was a one-time thing, was something he "learned not to do" and wasn't something he would do again.
C. Officer Thomason's Testimony
Menghi-Griffin also called Officer Sammantha Thomason with the California Highway Patrol, who responded to the scene of the collision. Officer Thomason explained that she spoke to Deputy Brook at the scene and observed the damaged motorcycle. She determined that when the collision occurred, Deputy Brook was traveling at an unsafe speed given his relation to the motorcycle.
III.
The Verdict
The trial court instructed the jury on the elements of the two charged offenses. The jury found Menghi-Griffin guilty on the section 2800.2 count (evading a peace officer while driving recklessly) and deadlocked ten to two on the section 2800.4 count (evading a peace officer and driving against traffic). Menghi-Griffin filed a timely notice of appeal.
DISCUSSION
I.
Excluding Evidence of Menghi-Griffin's Injuries and Recovery Was Not Prejudicial Error.
A. In Limine Rulings
Before trial, the People moved in limine under Evidence Code sections 350 to 352 to exclude evidence of Menghi-Griffin's medical issues, medical treatment and health status. Menghi-Griffin moved to admit evidence of his experience after the pursuit, including his operations, his hospital stay, his health, when he awoke, what he remembered and how he felt about what happened. He argued this evidence was relevant to impeach a witness-presumably Deputy Brook.
The trial court granted the People's motions and denied Menghi-Griffin's, finding evidence of his health and recovery was irrelevant. It also applied Evidence Code section 352 to exclude photographs depicting Menghi-Griffin's condition after the collision that ended the pursuit, reasoning that the images were inflammatory and prejudicial. The court directed: "[Y]ou're not going to be going into what happened after the accident. You can say he crashed. You can say that [Deputy Brook] caused the accident, but you're not going to go into these photographs." It continued: "I'm going to allow the fact he was taken to the hospital, but I am not going to allow any evidence of any kind of medical injuries . . . because they are not relevant to the issues in this case."
Menghi-Griffin contends the court erred by finding evidence of his injuries and recovery was irrelevant and inflammatory. He urges this evidence would have bolstered his testimony that Deputy Brook aggressively followed him and tried to run him off the road and provided a motive for Deputy Brook to fabricate a different version of events. Menghi-Griffin maintains these rulings violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and corresponding provisions of the California Constitution.
B. Governing Legal Principles
Under the Evidence Code, all relevant evidence is admissible unless prohibited by statute. (Evid. Code, § 351.) The test is whether evidence tends logically, naturally and by reasonable inference to establish material facts. (People v. Young (2019) 7 Cal.5th 905, 931.) This encompasses evidence bearing on the credibility of a witness (People v. Contreras (2013) 58 Cal.4th 123, 152 (Contreras)), including with regard to his or her "bias, interest, or other motive" or "attitude toward the action" (Evid. Code, § 780, subds. (f) &(j)).
Evidence Code section 352 gives the trial court discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice ...." Prejudice does not mean damage to a party's case that flows from relevant, probative evidence. (People v. Cortez (2016) 63 Cal.4th 101, 128.) Rather, it means a tendency to evoke an emotional bias against a party because of extraneous factors unrelated to the issues. (Id. at pp. 128-129.) Evidence is substantially more prejudicial than probative only if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Eubanks (2011) 53 Cal.4th 110, 144.)
We review a trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Young, supra, 7 Cal.5th at p. 931.) The ruling will not be disturbed absent a showing that the court acted in an arbitrary, capricious or absurd manner resulting in a miscarriage of justice. (Ibid.) Further, even if evidence bearing on credibility was excluded in error, reversal is generally appropriate only if the error is prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836, that is, if it is "reasonably probable the result would have been different had the jury considered" the evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 494-495 [applying Watson prejudice standard to claim that trial court erroneously excluded evidence of witness bias].) Finally, where evidence would not have produced a significantly different impression of a witness's credibility, the confrontation clause and related constitutional guarantees do not limit the trial court's discretion to exclude it. (Contreras, supra, 58 Cal.4th at p. 152; see also Hillhouse, at p. 494.)
C. Analysis
In considering Menghi-Griffin's arguments, we bear in mind that the jury heard undisputed evidence that the pursuit ended in a collision before which Deputy Brook was travelling at an unsafe speed. There was undisputed evidence that Menghi-Griffin came to rest "a little ways off from the motorcycle but on the street," that a deputy who arrived on the scene quickly requested medical assistance and that Menghi-Griffin was provided with medical care. The trial court was clear it would also allow the defense to elicit "the fact [that Menghi-Griffin] was taken to the hospital," although the defense did not do so. The relevance of additional details about the injuries Menghi-Griffin sustained as a result of the collision was slim at best. Menghi-Griffin argues that such evidence "was relevant to bolster his defense and to provide a motive for Deputy Brook to fabricate a different version of events." We are not persuaded.
As we have indicated, that defense was "that Deputy Brook[] aggressively followed [Menghi-Griffin] and tried to run him off the road" and then "fabricate[d] or at least downplay[ed] his own behavior on the night of the incident." It is not clear how the severity of Menghi-Griffin's injuries "bolstered" that theory. It was undisputed that Brook collided with the motorcycle and was travelling at an unsafe speed, facts which Menghi-Griffin was permitted to argue. Thus, the dispute at trial was not who hit whom or whether Deputy Brook caused the accident. Rather, it was whether the deputy was trying to hit the motorcycle (as Menghi-Griffin testified) or was pursuing it in response to a dispatch coupled with the observation of a motorcycle traveling at high speeds and running red lights. The severity of Menghi-Griffin's injuries has little or no bearing on which of these two versions of the events was accurate (and, in turn, which witness was more credible). As the People point out, severe injuries or minor ones can result from a collision that is either accidental or deliberate.
Even if the testimony had been relevant, its exclusion was not in any event prejudicial. Menghi-Griffin was free to argue and did argue to the jury based on the undisputed evidence that the deputy was driving at unsafe speeds, that his doing so caused the collision and that the collision required an emergency medical response. Further, he could have proffered evidence that he had to be hospitalized. Given this record, we conclude there was no reasonable probability the jury would have reached a different conclusion had it considered additional details about Menghi-Griffin's injuries. And because these details "would not have painted a materially different picture" of Deputy Brook's credibility, there was no constitutional violation. (People v. Mickle (1991) 54 Cal.3d 140, 169.) This is not a case like Delaware v. Van Arsdall (1986) 475 U.S. 673 and others cited by Menghi-Griffin where a defendant was prohibited from "all inquiry" into a theory of bias (id. at p. 679) or from cross-examining a witness at all. Rather, the record evidence "was susceptible of the same basic inferences as the proffered evidence" that was excluded. (Mickle, at p. 169.) And Menghi-Griffin had ample opportunity to cross-examine Deputy Brook about the key issues, including the reliability of his identification of the fleeing motorcyclist and his own unsafe driving. (See Contreras, supra, 58 Cal.4th at p. 153.)
Finally, it was not an abuse of discretion for the trial court, under Evidence Code section 352, to exclude this evidence, the primary, if not only, purpose of which would be to evoke the jurors' sympathy, suggesting Menghi-Griffin should not be convicted or punished because he had already suffered enough from the injuries he sustained. This is precisely the kind of extraneous factor that Evidence Code section 352 gives trial courts discretion to exclude as unduly prejudicial, especially where, as here, its relevance is minimal or nonexistent. (See People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1191-1192 [pre- and post-accident photographs of a victim "invoke[d] a strong emotional response that risked inflaming the jury's passion and sympathy"].) This concern informed the trial court's decision to exclude the photographs and other evidence depicting or detailing Menghi-Griffin's injuries and recovery. (See People v. Doolin (2009) 45 Cal.4th 390, 438 [court need not expressly state that it has weighed prejudice against probative value if the record as a whole shows it was aware of and performed its balancing functions].) The trial court did not abuse its discretion in excluding the evidence of Menghi-Griffin's injuries under Evidence Code section 352 as more prejudicial than probative.
D. Menghi-Griffin Was Still Able to Present His Defense.
Menghi-Griffin further contends the trial court's rulings improperly deprived him of the opportunity to present a full defense, violating his constitutional rights under the Fifth, Sixth and Fourteenth Amendments. Generally, applying the ordinary rules of evidence does not impermissibly infringe on the right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding evidence on a minor or subsidiary point does not. (Id. at p. 1103.)
Here, Menghi-Griffin presented a defense very similar to the one he claims he was prevented from presenting. He testified to Deputy Brook's aggressive driving and presented undisputed evidence that the deputy collided with his motorcycle, injuring him to the point that he required emergency medical care. His counsel cross-examined Deputy Brook about the safety of and justification for the pursuit. Although defense counsel did not challenge the deputy's account of the initial reason for the pursuit, he argued Deputy Brook had "confused" Menghi-Griffin with someone else, a defense more plausible than any claim that the deputy fabricated the explanation for the pursuit. He also suggested the deputy may have realized he had made a mistake and continued to pursue Menghi-Griffin rather than just stopping the chase out of "ego." Menghi-Griffin's attempt to inflate a garden-variety evidentiary ruling into a constitutional violation is unpersuasive. (People v. Boyette (2002) 29 Cal.4th 381, 427.)
II.
There Was No Prejudicial Error in the Jury Instructions.
A. The Section 2800.2 Instruction
The trial court used CALCRIM No. 2181 to instruct the jury on the section 2800.2 count. For the third element, it instructed the People must prove the defendant either "drove with willful or wanton disregard for the safety of persons or property" or "committed three or more violations, each of which would make the defendant eligible for a traffic violation point." The court did not identify the violations that might qualify under the second option or provide the jury with definitions of the violations to which Deputy Brook testified at trial. Menghi-Griffin contends the trial court erred by failing to instruct the jury as to the elements of the Vehicle Code violations referenced in the instruction. He urges this error impacted his rights under the Sixth and Fourteenth Amendments.
B. Governing Legal Principles
The trial court has a sua sponte duty to instruct the jury on the elements of a charged offense. (People v. Mil (2012) 53 Cal.4th 400, 409.) It must also instruct on general principles of law connected with the evidence and necessary for the jury's understanding of the case. (People v. Estrada (1995) 11 Cal.4th 568, 574.)
The legal adequacy of jury instructions is reviewed de novo. (Ilczyszyn v. Southwest Airlines Co. (2022) 80 Cal.App.5th 577, 594.) Instructional errors-whether misdescriptions, omissions or presumptions-generally fall within the broad category of trial errors subject to review under the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Huggins (2006) 38 Cal.4th 175, 211-212.) Such errors are reversible unless harmless beyond a reasonable doubt. (People v. Aledamat (2019) 8 Cal.5th 1, 9 (Aledamat).)
C. Analysis
Section 2800.2 is violated when 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." (§ 2800.2, subd. (a).) As the jury was instructed here, willful and wantondisregard means an intentional and conscious disregard for the safety of persons or property, not necessarily including an intent to cause harm. (People v. Richie (1994) 28 Cal.App.4th 1347, 1361.) As an alternative to this general definition, the statute also defines the required willful or wanton disregard to include flight or evasion from a police officer "during which time . . . three or more violations that are assigned a traffic violation point count under Section 12810 occur." (§ 2800.2, subd. (b).) Menghi-Griffin characterizes the different violations upon which willful or wanton disregard could be premised as predicate offenses to the section 2800.2 offense. We will assume without deciding that he is correct, or at least that the trial court erred by failing to identify and define these violations as relevant principles of law. (See People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [because the term speeding is not clear and definite in the context of the basic speed law, the trial court had a duty to give an amplifying or clarifying instruction defining it].)
Still, we must "examin[e] the entire cause, including the evidence, and consider[] all relevant circumstances" to determine whether the error was harmless beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at p. 13.) In other words, we must ask whether it appears beyond a reasonable doubt that the instructional error did not contribute to the verdict. (Id. at pp. 12-13.) The arguments of counsel are relevant to this inquiry. (Id. at p. 14.) In addition, instructional error has been deemed harmless where the defendant concedes the issue in question, or the verdict demonstrates the jury credited the testimony of certain witnesses and resolved relevant issues in favor of the prosecution. (See People v. Flood (1998) 18 Cal.4th 470, 504-505.) We ask whether "in view of the actual verdict returned by the jury in this case" there is any "reasonable or plausible basis for finding that the instructional error affected the jury's verdict." (Id. at p. 505.)
Here, Menghi-Griffin does not dispute that the jury was properly instructed on the general definition of willful and wanton disregard and could have properly convicted him on that theory. For purposes of our harmless error analysis, we will assume Menghi-Griffin was instead convicted based on his commission of three underlying Vehicle Code violations, since this is the theory the People argued to the jury and the one the error claimed by Menghi-Griffin relates to.
Menghi-Griffin calls the Vehicle Code violation theory "legally erroneous," but does not explain why. This characterization is incorrect: Menghi-Griffin does not claim any of the violations presented to the jury couldn't be used to establish willful or wanton disregard, as in cases addressing a legally erroneous theory. (See, e.g., People v. Diaz (2005) 125 Cal.App.4th 1484, 1492 [addressing legally erroneous instruction "that a violation of section 21806 could be used as one of the three Vehicle Code violations which establish the element of willful or wanton disregard"]; People v. Smith (1984) 35 Cal.3d 798, 802-808 [addressing legally erroneous instruction concerning underlying felony that could support felony murder conviction].) In any event, the Chapman harmless error test still applies to an "alternative-theory" error involving a legally erroneous theory. (Aledamat, supra, 8 Cal.5th at p. 13, disapproving contrary interpretations of People v. Green (1980) 27 Cal.3d 1.) Menghi-Griffin's suggestion that a higher standard applies-in particular, his assertion that reversal is required unless "no juror relied on the [Vehicle Code violation] theory"-is incorrect.
Focusing on that theory, the instruction given by the court as well as closing argument by both sides made it clear the jury needed to find Menghi-Griffin committed three Vehicle Code violations incurring a point each to convict. There was undisputed evidence that the motorcyclist pursued by Deputy Brook committed more than three such violations after the deputy activated his overhead lights and sirens at the intersection of San Pablo and Solano Avenue. Specifically, Deputy Brook described at least three times that the motorcyclist ran a red light and multiple times that he exceeded the speed limit. There is no dispute that these red light and speeding violations are each assigned a point by section 12810, and the deputy testified accordingly. (See People v. Mutuma (2006) 144 Cal.App.4th 635, 643 [the statute "contemplates that traffic violations involving the operation of a motor vehicle . . . are worth a point unless otherwise stated"].) During closing argument, Menghi-Griffin "grant[ed]" the People these red light and speeding violations-his defense was that the deputy had confused another motorcycle with his own, beginning near the Carlson exit. Whether or not the jury accepted it, this mistaken-identity defense had nothing to do with whether each of the actions Deputy Brook observed met the definition of a Vehicle Code violation that resulted in a point. On this record, there is no plausible scenario where the failure to instruct the jury on the definitions of the Vehicle Code violations or which violations resulted in a point could have affected its verdict. (See People v. Gary (1987) 189 Cal.App.3d 1212, 1217 [harmless error where appellant's sole defense was identity and it was otherwise uncontroverted that he was driving the wrong way down a one-way street], disapproved on another ground in People v. Flood, supra, 18 Cal.4th at p. 481.)
Menghi-Griffin stresses that the jury failed to convict him of driving against traffic in violation of section 2800.4 and that this shows his section 2800.2 conviction was a close case. But Menghi-Griffin's approach to the section 2800.4 violation was different. Unlike with the other violations, his counsel cross-examined Deputy Brook about the details of where and how the motorcyclist was driving during the asserted section 2800.4 violation in a manner that implicated its definition (driving "in a direction opposite to that in which the traffic lawfully moves"). And just after "grant[ing]" the red light and speeding violations during closing argument, Menghi-Griffin's counsel questioned the deputy's recollection of the asserted section 2800.4 violation. Under these circumstances, the jury's failure to convict Menghi-Griffin of the section 2800.4 violation does not suggest the section 2800.2 conviction was a close case or that the trial court's failure to instruct the jury on the elements or definitions of other Vehicle Code violations (i.e., what it means to run a red light or to go 100 miles per hour in a zone marked for 65) had any impact on that conviction.
Finally, unlike in People v. Minor (1994) 28 Cal.App.4th 431, the instruction here did not suggest that the jury was not required to find any Vehicle Code violations to convict on the primary theory the People advanced. (See Minor, at pp. 437-439.) On the contrary, the instruction clearly informed the jury that it had to find three Vehicle Code violations incurring a point to convict on that theory.
DISPOSITION
The judgment is affirmed.
We concur. RICHMAN, J., MILLER, J.