Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04NF2856, William L. Evans, Judge.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant stands convicted of recklessly evading a police officer and other crimes. He contends his convictions must be reversed due to instructional error, but we are not persuaded. Other than to correct some undisputed clerical errors, we affirm the judgment in its entirety.
FACTS
One Saturday night around 10 o’clock, appellant fled the scene after being involved in a traffic accident. Police Officer Benjamin Starke responded to the area and saw appellant driving on Anaheim Boulevard. Starke drove up behind appellant and turned on his roof lights. Appellant pulled over to the side of the road, but when Starke exited his vehicle and approached him, appellant looked back at the officer and inched his car forward. He then merged back into traffic and resumed driving on Anaheim Boulevard.
Starke returned to his car and followed appellant with his emergency lights and siren on. Using his loudspeaker, he identified himself as a police officer and ordered appellant to pull over, but appellant failed to yield. Upon approaching Disney Way, he slowed down and ran the red light, and at Anaheim Way, he made a U-turn against the red arrow. He continued to Katella Boulevard, where he made another U-turn against the red light. Then, returning to Disney Way, he ran the light there yet again.
By this time, several other police cars had joined the pursuit. At one point, appellant stopped his car in the right lane and put up his hands. The officers ordered him to surrender, but instead he took off again, and the chase resumed. Appellant ran several more red lights as he fled. Sometimes he slowed down for the lights, and sometimes he didn’t. At times, he crossed the center median and drove on the wrong side of the road, forcing oncoming vehicles to pull over or stop.
Eventually, Police Officer Timi Fife joined the chase. Being trained in “pursuit intervention techniques,” she hit the rear of appellant’s car near North Street. However, appellant was able to maintain control of his vehicle and keep going. As he rounded the corner at La Palma, Fife bumped him again, causing his car to spin around 180 degrees and come to a stop. Appellant began turning his steering wheel, as if he wanted to flee again, but Fife positioned her car behind his vehicle to prevent his escape. She then opened her door and began to step outside. As she did, appellant reversed his vehicle and backed into her open door. Fortunately, Fife was able to get her leg back inside her car before the door slammed shut from the force of the collision. At that point — some 20 minutes into the chase — appellant drove forward a few feet and stopped his vehicle for good.
But that wasn’t the end of the ordeal. Appellant crawled out his window and proceeded to prance about as though he were dancing. The officers ordered him to get on the ground, and when he did not comply, they shot him with bean bags. This sent appellant to the ground momentarily, but he got right back up again. He shook off a police dog and tried to run away. At that point, the officers shot him with pepper ball pellets and released the hound again. This time, the dog bit appellant’s leg, allowing the officers to swarm in and take him to the ground. It took about five officers to finally get him under control. When they did, appellant appeared to be disoriented and under the influence of a controlled substance. The police found one bag of methamphetamine in his sock and a second in his car.
At trial, appellant testified that during the chase, he was “off [his] medication” and feeling “paranoid.” He said he was trying to get help and get to his medication, but voices in his head were telling him to keep driving. The voices told him he was in a rap music video and gave him specific instructions, such as “go left, go right.” Appellant obeyed the voices, thinking, at times, he was in a video. However, he admitted that at other times, he was aware of what was actually going on. During these lucid moments, he was scared and “wanted to pull over because [he] knew that if [he] didn’t pull over [he] would get life in jail.” He also admitted he slowed down when running some of the red lights because he didn’t want to hurt anyone. Describing his various thoughts, appellant testified his mind was going “off and on” and “in and out” during the chase.
Appellant also said he could remember seeing the officers’ lights and hearing their sirens. Explaining why he refused to surrender after Officer Starke initially pulled him over, he said he didn’t trust the police. And when the police rammed his vehicle and surrounded him, he thought “the white people were trying to get [him.]” He said, “I thought I was in the middle of the Mohave Desert right there, and I thought they were... going to hang me.” According to appellant, the officers encouraged him to dance and laughed at him once he exited his vehicle. However, after they shot him with the bean bags, he began to understand “this is real stuff. This ain’t no rap video.” At that point, he “started getting conscious” and realized what was happening. He said he did not use any drugs that night, but did use methamphetamine the day before.
The incident resulted in appellant being charged with assaulting Officer Fife with a deadly weapon, recklessly evading a police officer, possessing a controlled substance, hit and run, and resisting arrest. It was also alleged he had suffered two prior strikes and served a prior prison term. The hit and run count was ultimately dismissed, and the jury deadlocked on the assault count. However, appellant was convicted on the remaining counts and admitted the enhancement allegations. After striking one of the prior strikes, the court sentenced him to eight years and four months in prison.
I
Appellant claims the court’s instructions on the intent required for the crime of recklessly evading a police officer were ambiguous and prejudicial. He is correct that the crime requires the specific intent to evade the police, and that therefore the trial court should not have described the crime as a general intent offense. However, looking at the court’s instructions as a whole, it is not reasonably likely the jury applied an incorrect intent standard in this case. Therefore, the court’s error was not prejudicial.
As we have noted, the crime of recklessly evading a police officer is a specific intent crime in that it requires the willful evasion of a police offer with the intent to evade. (Veh. Code, §§ 2800.2, subd. (a), 2800.1, subd. (a).) Consistent with this requirement, the trial court properly instructed the jury that, in order to convict appellant of recklessly evading a police officer, it must find, inter alia, he willfully fled from or tried to elude the officer “intending to evade the officer.” (See CALCRIM No. 2181.) This clearly signaled to the jury that the crime required a specific intent above and beyond the act of evading.
The problem is, the court also gave CALCRIM No. 250, which speaks to the requirement of a union of act and intent for general intent crimes. Pursuant to that instruction, the court told the jury, “The crimes charged in this case require proof of a union or joint operation of act and wrongful intent. For you to find a person guilty of the crime[] of... [recklessly evading a police officer]... the person must not only commit the prohibited act, but must do so with a wrongful intent. [¶] A person acts with a wrongful intent when he or she intentionally does a prohibited act, however, it’s not required that he or she intend to break the law. The act required is explained in the instructions for each of the crimes.”
Because recklessly evading a police officer is a specific intent crime, the court should not have given this general intent instruction in connection with that offense. (People v. Dollar (1991) 228 Cal.App.3d 1335, 1342.) However, reversal is not required unless it is reasonably likely the jury misunderstood and misapplied the court’s instructions to appellant’s detriment. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) In making this determination, we must consider the court’s instructions “as a whole, in light of one another,” without “singl[ing] out a word or phrase.” (People v. Holmes (2007) 153 Cal.App.4th 539, 545-546.) We must also keep in mind that “‘“‘[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’”’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) And, we must presume the jurors were intelligent people capable of understanding and correlating all of the instructions they received. (Ibid.)
This is not the first case in which a general intent instruction has been given in conjunction with a specific intent offense. In People v. Zerillo (1950) 36 Cal.2d 222 and People v. Lyons (1991) 235 Cal.App.3d 1456, the courts considered this very situation and found it significant that while the general intent instruction speaks broadly to the issue of “wrongful intent,” it also directs the jury to consider the instruction in light of the substantive offense or act at issue. In that way, “the general intent instruction is dependent for its effect upon the substantive provisions of the law to which it is applied. [Citation.]” (People v. Lyons, supra, 235 Cal.App.3d at p. 1463.) If the court’s instructions on those substantive provisions plainly and accurately describe the intent requirement for the charged offense, those provisions will be deemed to control over the general intent instruction. (Ibid.; People v. Zerillo, supra, 36 Cal.2d at p. 232.)
Such is the case here. The court instructed the jury that a person acts with wrongful intent when he or she intentionally does a prohibited act. The court also explained that the “act required is explained in the instructions for each of the crimes.” After that, the court defined the crime of recklessly evading a police officer in three basic elements, one of which was that the defendant fled from or tried to elude the officer “intending to evade the officer.” The court also made it clear to the jury that in order to find appellant guilty of that offense, the People must prove this element beyond a reasonable doubt.
Taken together, these instructions conveyed the correct intent requirement for the crime of recklessly evading a police officer. At worst, the jury might have understood the instructions to mean appellant had to intend to evade a police officer but not necessarily intend to break the law. Given appellant’s admission he was fleeing because he did not want to spend the rest of his life in jail, this would have been a meaningless distinction and harmless error. Although the court should not have described that offense as being a general intent crime, this was tantamount to “giv[ing] the wrong label for the correct substantive instructions.” (People v. Lyons, supra, 235 Cal.App.3d at p. 1463.) The error, although regrettable, was “patently harmless” under the circumstances presented. (Ibid.)
II
Appellant also claims the court erred in failing to instruct the jury per CALCRIM No. 3428 that it could consider evidence of mental illness in determining whether he had the specific intent to evade the police. We disagree.
CALCRIM No. 3428 (Mental Impairment: Defense to Specific Intent or Mental State) provides, “You have heard evidence that the defendant may have suffered from a mental (disease[,]/[or] defect[,]/[or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state.... If the People have not met this burden, you must find the defendant not guilty[.]”
The law is clear that the trial court does not have a sua sponte duty to instruct on mental illness as a defense to specific intent crimes. (People v. Saille (1991) 54 Cal.3d 1103, 1117-1119.) Rather, the court need only give CALCRIM No. 3428 when it is requested and there is substantial evidence supporting the defense. (People v. Ervin (2000) 22 Cal.4th 48, 91 [referring to predecessor to CALCRIM No. 3428].) Because defense counsel did not request the instruction in this case, the trial court was not required to give it. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.)
Appellant argues his attorney was ineffective for failing to request CALCRIM No. 3428, but even if she had done so, there was not substantial evidence to support a mental illness defense. It is true that appellant testified that he was “off [his] medication” and feeling “paranoid” during the chase. But to substantiate a claim of mental illness, the defense must present expert testimony from a person who is qualified in that field. (People v. Kelly (1992) 1 Cal.4th 495, 540 [mental illness or defect must be based on a medical diagnosis]; People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117 [jurors can not determine if a defendant is mentally ill from their common experience; expert medical testimony is necessary].) Here, there was no expert medical testimony presented to the jury regarding appellant’s mental state or possible illness and, equally important, no evidence such evidence could be obtained. Therefore, defense counsel was not ineffective for failing to request instructions on that issue.
III
Appellant also contends the court erred in failing to instruct the jury on the defense of unconsciousness. Again, we disagree.
Unconsciousness is generally a complete defense to a criminal charge. (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) And contrary to popular belief, it does not require that the defendant be in a coma or unable “to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’ [Citation.]” (Ibid.) However, when, as here, the defense does not request instructions on unconsciousness, the trial court is not required to give them unless “‘it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Breverman (1998) 19 Cal.4th 142, 157, italics omitted; see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 887.)
Here, the defense did not claim appellant was unconscious while he was fleeing the police. During closing argument, defense counsel argued appellant was confused and disoriented, but she did not contend appellant was not conscious of what he was doing. Thus, instructions on unconsciousness were only required if there was substantial evidence to support them and the defense was not inconsistent with appellant’s theory of the case. The first condition was not satisfied.
In arguing otherwise, appellant relies on his testimony that his mind was “off and on” and “in and out” during the chase. He also reminds us of his claim that he felt like he was in a rap video at times, and after the officers shot him, he “started getting conscious.” Taken at face value, these statements do suggest appellant was perhaps non compos mentis at various times during the fiasco. But appellant’s testimony also firmly established that there were other times when he was fully cognizant of what was going on. To wit, he said, “I was scared and... I wanted to pull over because I knew that if I didn’t pull over I would get life in jail.” This statement shows that, as a potential third-strike offender, appellant was keenly aware that his actions could land him behind bars for the rest of his life. Such precise awareness of the legal consequences of his conduct is strong proof appellant was conscious of his actions.
Appellant also testified that he fled the officers because he distrusted the police and that he deliberately slowed down at many of the intersections to avoid hurting anyone. These statements also show appellant was aware of the circumstances surrounding him and made a conscious decision not to surrender. While it is possible he was not fully aware of everything that was going on at every moment of the chase, this possibility did not trigger the trial court’s duty to instruct on the defense of unconsciousness. We can find no instructional error in not giving an unconsciousness instruction sua sponte on such wildly divergent facts.
IV
Next, appellant claims the court erred in failing to instruct on reckless driving as a lesser included offense of recklessly evading a police officer. Not so.
A lesser offense is deemed to be “included” in a greater offense “if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test).” (People v. Parson (2008) 44 Cal.4th 332, 349, italics omitted.) In this case, these two tests are the same because the information charged the subject offense in its statutory language. (People v. Wolcott (1983) 34 Cal.3d 92, 99.) The question is simply whether the greater offense of recklessly evading a police officer can be committed without committing the lesser offense of reckless driving. (Ibid.) If so, reckless driving is not a lesser included offense of reckless evading.
Pursuant to Vehicle Code section 2800.2, the crime of recklessly evading a police officer requires that “the pursued vehicle be driven in a willful or wanton disregard for the safety of persons or property....” (Veh. Code, § 2800.2, subd. (a).) For purposes of this section, “willful and wanton disregard” means “driving while fleeing or attempting to elude a pursuing peace officer during which time... three or more violations that are assigned a traffic violation point count under [Vehicle Code] Section 12810 occur....” (Veh. Code, § 2800.2, subd. (b).)
The crime of reckless driving is defined in similar terms, in that it prohibits “driv[ing] any vehicle upon a highway in willful or wanton disregard for the safety of persons or property.” (Veh. Code, § 23103, subd. (a).) However, unlike the reckless evading statute, the reckless driving statute does not attach any special meaning to the term “willful and wanton disregard.” Rather, the requirement will be deemed satisfied upon proof the driver intentionally and consciously acted with reckless disregard of the consequences of his actions. (People v. Schumacher (1961) 194 Cal.App.2d 335, 340.) Because of this distinction, it is possible for a person to recklessly evade a police officer without committing the crime of reckless driving: For purposes of Vehicle Code section 2800.2, subdivision (a), a person who committed three violations would, on that basis alone, satisfy the “willful and wanton disregard” requirement; but for purposes of Vehicle Code section 23103, subdivision (a), a jury would have to decide whether these violations were sufficient to evidence “wanton and willful disregard.” So it would be possible to commit a Vehicle Code section 2800.2 violation and not violate Vehicle Code section 23103, subdivision (a).
For example, say a driver is intentionally evading a police officer on a deserted street late at night. Although he is otherwise driving safely, he slowly rolls through three stop signs. Since failing to come to a complete stop at a stop sign is an infraction for which a traffic violation point is assigned (Veh. Code, §§ 21802, 22450, 12810, subd. (f); People v. Howard (2005) 34 Cal.4th 1129, 1137-1138), the driver would be guilty of acting in willful or wanton disregard for the safety of persons or property within the meaning of Vehicle Code section 2800.2. But he would not necessarily be guilty of driving with reckless disregard of the consequences of his actions, as is required for reckless driving: A jury would have to decide whether his actions constituted willful and wanton conduct under the circumstances. Therefore, the trial court did not err in failing to instruct on reckless driving in this case.
V
Appellant asserts that when considered cumulatively, the trial court’s instructional errors deprived him of due process. However, the sole instructional error that occurred was, for reasons explained in section I, ante, harmless under the circumstances presented. We therefore find no due process violation.
VI
Lastly, appellant contends the record should be corrected to accurately reflect the jury’s verdict in this case. The Attorney General agrees, as do we.
Appellant admits the jury convicted him in count 2 of the felony offense of recklessly evading a police officer within the meaning of Vehicle Code section 2800.2. However, in announcing the verdict, the foreperson referenced the wrong Vehicle Code section — section 2800.1 — which covers misdemeanor evading, and which was presented as a lesser included offense in count 2. The jury also mistakenly completed guilty verdict forms for both of these offenses. Because a defendant cannot be convicted of both a greater and lesser included offense (People v. Ortega (1998) 19 Cal.4th 686, 692), we will strike the jury’s guilty finding on the lesser included offense of misdemeanor evading under Vehicle Code section 2800.1.
We will also correct the record to reflect the fact that as to count 3, possession of a controlled substance, appellant was convicted by jury, not by guilty plea as indicated in the clerk’s minute order.
DISPOSITION
As to count 2, the jury’s guilty finding on the lesser included offense of misdemeanor evading is stricken. In addition, the clerk’s minute order is modified to reflect the fact appellant was convicted in count 3 by jury, not by guilty plea. In all other respects, the judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.