Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17000652) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant John Howard Wilkerson fled officers in his vehicle as they attempted to stop him for running a stop sign and a high-speed chase ensued through residential areas. Following a jury trial, defendant was convicted of evading a peace officer with wanton and willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a); count 5). In a bifurcated proceeding, pursuant to a negotiated disposition, defendant admitted that he had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)). In return, the remaining prior conviction allegations were dismissed.
Defendant was acquitted on count 1, assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and count 3, assault with a deadly weapon, to wit, a knife (Pen. Code, § 245, subd. (a)(1)). In addition, the jury was unable to reach a verdict on count 2, infliction of corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)), and count 4, assault on a peace officer (Pen. Code, § 245, subd. (c).) At the People's request, the trial court dismissed counts 2 and 4.
Defendant waived preparation of a probation report and was subsequently sentenced to 10 years in state prison with 500 days of credit for time served as follows: three years on count 5, doubled to six years due to the prior strike, plus four consecutive one-year terms for the four prior prison term allegations. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.
Because defendant was convicted on only count 5, acquitted on counts 1 and 3, and the jury hung on counts 2 and 4, the factual background is limited to those facts which support count 5 for the conviction of evading a peace officer with wanton and willful disregard for safety. --------
On March 4, 2017, around 2:00 a.m., San Bernardino Deputy Sheriff Drost was on uniformed patrol duty in a marked vehicle when he observed a black Mitsubishi Lancer sedan run a stop sign at Willow and 8th Street in the city of Hesperia. After he made a U-turn, Deputy Drost saw the black vehicle turn onto 9th Street and turn off its headlights and taillights. The vehicle accelerated to about 90 miles per hour, and slowed a bit at Main Street, and then went through the traffic signal without stopping at about 60 miles per hour. When the chase reached Main Street and 9th, the Mitsubishi's lights came back on.
As he approached Orange Street, Deputy Drost activated the patrol vehicle's overhead emergency lights, but still the vehicle did not yield. Deputy Drost activated the patrol vehicle's siren to get the vehicle's driver's attention. Deputy Drost was two or three car lengths behind the Mitsubishi. Deputy Drost estimated the Mitsubishi was driving 80 to 90 miles per hour in a largely residential area, which was above the speed limit and placed the public in danger. During the pursuit, the Mitsubishi went through three narrow alleys, one of them twice. Near the streets of Lime and Cottonwood, the Mitsubishi went through an alley at 45 miles per hour, and passed through 14 stop signs without pausing.
At one point, another patrol vehicle took a position behind Deputy Drost's patrol unit. Deputy Drost announced the pursuit over the radio and other units began travelling parallel to the high-speed pursuit. At one point near Smoketree and 3rd, the Mitsubishi turned east on Smoketree from a dirt alley and drove head on towards a patrol unit driven by Deputy Williams. The Mitsubishi was driving at about 45 to 50 miles per hour and accelerated at the turn. The speed limit on Smoketree was 25 miles per hour. Deputy Williams's patrol vehicle was stopped in the middle of Smoketree and had its emergency lights and siren activated.
When the Mitsubishi got to about 10 feet from Deputy Williams's patrol unit, it made a quick jerking motion as if it was trying to avoid hitting anything in its way. Deputy Williams drove his patrol vehicle over the curb to the right to avoid a collision. As the Mitsubishi passed Deputy Williams's car it was two to 12 inches away. Deputy Drost was still two to three car lengths behind the Mitsubishi and slowed his vehicle to about 30 miles per hour. The Mitsubishi moved ahead and Deputy Drost accelerated to get back to two or three car lengths behind the Mitsubishi.
At some point, the pursuit passed Mesquite Street going southbound on 3rd Avenue where Deputy Curtis joined the pursuit behind Deputy Drost. The Mitsubishi continued running stop signs, indicating the driver was trying to evade Deputy Drost. The Mitsubishi failed to pause at another stop sign and then turned into an alleyway where it slowed down. At that point, Deputy Drost saw the driver's side door open and the driver, identified as defendant, flee on foot. Deputy Drost then stopped his vehicle and pursued defendant on foot.
Deputy Drost observed that defendant was wearing a black jacket and dark blue jeans. Defendant jumped a chain link fence as Deputy Drost was 20 to 30 feet behind. Defendant then jumped over another chain link fence and ran through a property where he approached a wrought iron fence. Deputy Drost lost sight of defendant for a second or so and then saw defendant standing in a nearby shadow. Deputy Drost pulled his firearm and ordered defendant to put his hands in the air. When Deputy Drost told him to get on the ground, he complied. Several other officers arrived at the scene. When defendant was asked whether he was absconding, defendant said that he was. Defendant was handcuffed, and placed in Deputy Williams's patrol vehicle.
At trial, multiple Google map images of the locations of the pursuit were introduced into evidence. As the pursuit took place, Officer Drost's oral communications with dispatch were recorded. Deputy Drost later reviewed a CD recording which was played for the jury. Deputy Drost believed the 14-minute recording was accurate. The pursuit covered 10 to 11 miles. Defendant did not testify or present any witnesses at trial.
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: McKINSTER
Acting P. J. MILLER