Filed 4/22/14 P. v. Sandoval CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058197
v. (Super.Ct.No. RIF1200719)
AMADOR JUNIOR SANDOVAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Amador Sandoval is serving seven years and four months in prison as a
second striker for leading police on a car chase in a stolen vehicle and then resisting
1 arrest. Defendant argues the trial court erred when it failed to instruct the jury that it
could convict him of misdemeanor evading an officer rather than felony evading an
officer. Defendant also asks this court to independently examine the sealed transcript of
the in camera hearing on his motion under Pitchess v. Superior Court (1974) 11 Cal.3d
531. As discussed below, we find no basis for the court to have instructed the jury on
misdemeanor evading an officer. In addition, we have examined the sealed transcript of
the trial court’s examination of the arresting deputies’ personnel records and find nothing
discoverable.
FACTS AND PROCEDURE
On March 6, 2012, Sheriff’s Deputy Schmidt was driving a Dodge Magnum
“stealth police vehicle” in Moreno Valley, along with his partner, Deputy Moline. The
vehicle was unmarked, but was equipped with about 20 flashing red and blue lights and a
siren. At the instruction of another deputy, who had been surveilling defendant for a few
days as part of a Narcotics Enforcement Team, Deputy Schmidt began to follow a black
Acura being driven by defendant.
Deputy Schmidt followed the Acura down a major street, Cottonwood Avenue,
and into a residential area at high speeds.1 The Acura made several turns without
signaling or stopping at stop signs. After Deputy Schmidt activated his siren and lights,
defendant continued to speed, made two left turns without signaling, ran a stop sign, and
1 Defendant’s request for judicial notice of a Google street map depicting the area of the car chase, filed June 21, 2013, is granted.
2 then finally ran up a curb and hit a signpost. The Acura was disabled. Defendant and a
passenger both left the car and ran in different directions. Defendant was eventually
found hiding underneath a truck in the neighborhood and was apprehended with the help
of a K-9 unit. The black Acura had been reported stolen six weeks previously.
Prior to trial, defendant filed a Pitchess motion seeking evidence or complaints of
excessive force against, and/or false statements made by Sheriff’s Deputies Schmidt and
Moline, along with those of another deputy. The trial court granted the motion as to
evidence regarding the honesty and credibility of Deputies Schmidt and Moline because
these two had identified defendant as the driver of the Acura, whereas defendant claimed
he was only a passenger. After conducting an in camera review of the deputies’
personnel files, the court stated it found nothing discoverable.
On January 14, 2013, a jury convicted defendant of receiving a stolen vehicle
(Pen. Code, § 496d, subd. (a)), felony evading a peace officer (Veh. Code, § 2800.2) and
misdemeanor resisting or delaying a peace officer (Pen Code, § 148, subd. (a)(1)).2 The
jury acquitted defendant of possessing and transporting methamphetamine. (Health &
Saf. Code, §§ 11377, subd. (a) & 11379, subd. (a).) Defendant admitted to having a prior
strike conviction (§§ 667, subd. (c), (e)(1) & 1170.12, subd. (c)(1)) and to having served
two prior prison terms (§ 667.5, subd. (b)).
On March 1, 2013, the trial court sentenced defendant to a total of seven years and
four months in prison as follows: the middle term of two years, doubled to four as a
2 All section references are to the Penal Code unless otherwise indicated.
3 second strike for receiving a stolen vehicle, plus one year and four months for felony
evading a peace officer, plus two one-year terms for the prison priors. The term for the
misdemeanor resisting a peace officer was stayed.
This appeal followed.
DISCUSSION
1. There Was No Instructional Error
Defendant contends the trial court erred when it failed to instruct the jury on
misdemeanor evasion of a peace officer as a lesser-included offense of felony evasion of
a peace officer.
“A court must instruct sua sponte on general principles of law that are closely and
openly connected with the facts presented at trial. [Citations.] This sua sponte obligation
extends to lesser included offenses if the evidence ‘raises a question as to whether all of
the elements of the charged offense are present and there is evidence that would justify a
conviction of such a lesser offense. [Citations.]’ [Citations.] . . . ‘A criminal defendant
is entitled to an instruction on a lesser included offense only if [citation] “there is
evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt
of the greater offense” [citation] but not the lesser. [Citations.]’ [Citation.]” (People v.
Lopez (1998) 19 Cal.4th 282, 287-288.)
The elements of Vehicle Code section 2800.2, felony evading a police officer, are
identical to Vehicle Code section 2800.1, misdemeanor evading a police officer, making
the latter a necessarily lesser included offense of the former (People v. Springfield (1993)
13 Cal.App.4th 1674, 1679-1680), except that Vehicle Code section 2800.2 adds one
4 additional element: “the pursed vehicle is driven in a willful or wanton disregard for the
safety of persons or property . . . .” (Veh. Code, § 2800.2, subd. (a).) Subdivision (b) of
Vehicle Code section 2800.2 defines willful or wanton disregard as including, but not
limited to, “driving while fleeing or attempting to elude a pursuing officer during which
time either three or more violations that are assigned a traffic violation point count under
Section 12810 occur, or damage to property occurs.”
So, the question here is whether the record contains evidence which, if accepted
by the jury, would allow the jury to find that defendant fled from the officers, but did so
while committing fewer than three traffic violations and damaging no property.
In his opening brief, defendant does not point to any evidence whatsoever that
would show he committed the evasion crime but without driving recklessly, and we have
not found any. For example, the jury did not hear any evidence that defendant was
driving the fleeing car but did not violate three or more traffic laws, or that he did not
cause any property damage. Rather, the crux of the defense case was that defendant was
not driving the car at all.
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Filed 4/22/14 P. v. Sandoval CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058197
v. (Super.Ct.No. RIF1200719)
AMADOR JUNIOR SANDOVAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Amador Sandoval is serving seven years and four months in prison as a
second striker for leading police on a car chase in a stolen vehicle and then resisting
1 arrest. Defendant argues the trial court erred when it failed to instruct the jury that it
could convict him of misdemeanor evading an officer rather than felony evading an
officer. Defendant also asks this court to independently examine the sealed transcript of
the in camera hearing on his motion under Pitchess v. Superior Court (1974) 11 Cal.3d
531. As discussed below, we find no basis for the court to have instructed the jury on
misdemeanor evading an officer. In addition, we have examined the sealed transcript of
the trial court’s examination of the arresting deputies’ personnel records and find nothing
discoverable.
FACTS AND PROCEDURE
On March 6, 2012, Sheriff’s Deputy Schmidt was driving a Dodge Magnum
“stealth police vehicle” in Moreno Valley, along with his partner, Deputy Moline. The
vehicle was unmarked, but was equipped with about 20 flashing red and blue lights and a
siren. At the instruction of another deputy, who had been surveilling defendant for a few
days as part of a Narcotics Enforcement Team, Deputy Schmidt began to follow a black
Acura being driven by defendant.
Deputy Schmidt followed the Acura down a major street, Cottonwood Avenue,
and into a residential area at high speeds.1 The Acura made several turns without
signaling or stopping at stop signs. After Deputy Schmidt activated his siren and lights,
defendant continued to speed, made two left turns without signaling, ran a stop sign, and
1 Defendant’s request for judicial notice of a Google street map depicting the area of the car chase, filed June 21, 2013, is granted.
2 then finally ran up a curb and hit a signpost. The Acura was disabled. Defendant and a
passenger both left the car and ran in different directions. Defendant was eventually
found hiding underneath a truck in the neighborhood and was apprehended with the help
of a K-9 unit. The black Acura had been reported stolen six weeks previously.
Prior to trial, defendant filed a Pitchess motion seeking evidence or complaints of
excessive force against, and/or false statements made by Sheriff’s Deputies Schmidt and
Moline, along with those of another deputy. The trial court granted the motion as to
evidence regarding the honesty and credibility of Deputies Schmidt and Moline because
these two had identified defendant as the driver of the Acura, whereas defendant claimed
he was only a passenger. After conducting an in camera review of the deputies’
personnel files, the court stated it found nothing discoverable.
On January 14, 2013, a jury convicted defendant of receiving a stolen vehicle
(Pen. Code, § 496d, subd. (a)), felony evading a peace officer (Veh. Code, § 2800.2) and
misdemeanor resisting or delaying a peace officer (Pen Code, § 148, subd. (a)(1)).2 The
jury acquitted defendant of possessing and transporting methamphetamine. (Health &
Saf. Code, §§ 11377, subd. (a) & 11379, subd. (a).) Defendant admitted to having a prior
strike conviction (§§ 667, subd. (c), (e)(1) & 1170.12, subd. (c)(1)) and to having served
two prior prison terms (§ 667.5, subd. (b)).
On March 1, 2013, the trial court sentenced defendant to a total of seven years and
four months in prison as follows: the middle term of two years, doubled to four as a
2 All section references are to the Penal Code unless otherwise indicated.
3 second strike for receiving a stolen vehicle, plus one year and four months for felony
evading a peace officer, plus two one-year terms for the prison priors. The term for the
misdemeanor resisting a peace officer was stayed.
This appeal followed.
DISCUSSION
1. There Was No Instructional Error
Defendant contends the trial court erred when it failed to instruct the jury on
misdemeanor evasion of a peace officer as a lesser-included offense of felony evasion of
a peace officer.
“A court must instruct sua sponte on general principles of law that are closely and
openly connected with the facts presented at trial. [Citations.] This sua sponte obligation
extends to lesser included offenses if the evidence ‘raises a question as to whether all of
the elements of the charged offense are present and there is evidence that would justify a
conviction of such a lesser offense. [Citations.]’ [Citations.] . . . ‘A criminal defendant
is entitled to an instruction on a lesser included offense only if [citation] “there is
evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt
of the greater offense” [citation] but not the lesser. [Citations.]’ [Citation.]” (People v.
Lopez (1998) 19 Cal.4th 282, 287-288.)
The elements of Vehicle Code section 2800.2, felony evading a police officer, are
identical to Vehicle Code section 2800.1, misdemeanor evading a police officer, making
the latter a necessarily lesser included offense of the former (People v. Springfield (1993)
13 Cal.App.4th 1674, 1679-1680), except that Vehicle Code section 2800.2 adds one
4 additional element: “the pursed vehicle is driven in a willful or wanton disregard for the
safety of persons or property . . . .” (Veh. Code, § 2800.2, subd. (a).) Subdivision (b) of
Vehicle Code section 2800.2 defines willful or wanton disregard as including, but not
limited to, “driving while fleeing or attempting to elude a pursuing officer during which
time either three or more violations that are assigned a traffic violation point count under
Section 12810 occur, or damage to property occurs.”
So, the question here is whether the record contains evidence which, if accepted
by the jury, would allow the jury to find that defendant fled from the officers, but did so
while committing fewer than three traffic violations and damaging no property.
In his opening brief, defendant does not point to any evidence whatsoever that
would show he committed the evasion crime but without driving recklessly, and we have
not found any. For example, the jury did not hear any evidence that defendant was
driving the fleeing car but did not violate three or more traffic laws, or that he did not
cause any property damage. Rather, the crux of the defense case was that defendant was
not driving the car at all. Neither did the defense cross-examination of the police officers
reveal any evidence that defendant was driving the fleeing vehicle but did not drive
recklessly.
To the contrary, the only evidence the jury heard as to whether defendant drove
recklessly is the following: After Officer Schmidt activated the police car’s siren and
lights, defendant drove about 60 miles per hour through a residential neighborhood (first
traffic violation), ran a stop sign (second traffic violation), turned left without using a turn
signal (third traffic violation), turned left again without using a turn signal (fourth traffic
5 violation), crashed into a curb and hit a sign post, causing property damage to both the
vehicle he was driving and the sign post. Defendant did not present any evidence to
counteract the evidence regarding his reckless driving. For this reason, the jury would
have had no evidentiary basis upon which to convict defendant of misdemeanor evading
a peace officer, and so there was not error in not instructing the jury on the misdemeanor
offense.
2. Pitchess Motion
Defendant requests that we review independently the sealed transcript of the
Pitchess examination to determine whether the trial court abused its discretion in ruling
that there were no discoverable materials to be produced to the defense.
A criminal defendant has a limited right to discovery of peace officer personnel
records based on the fundamental proposition that a defendant is entitled to a fair trial and
an intelligent defense in light of all relevant and reasonably accessible information. (City
of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1141.) An accused may
compel discovery by demonstrating that the requested information will facilitate the
ascertainment of facts and a fair trial. (Ibid.)
In order to obtain discovery of the personnel records of a peace officer, the
moving party must submit affidavits showing good cause for such discovery and setting
out the materiality of the information requested. (Evid. Code, § 1043, subd. (b).) Under
Pitchess, a defendant demonstrates good cause for discovery when the defendant shows
the information requested is (1) relevant to a defense, (2) necessary in that the defendant
could not readily obtain the information through his own efforts, and (3) described with
6 adequate specificity to preclude the possibility that the defendant was engaging in a
fishing expedition. (Pitchess, supra, 11 Cal.3d at pp. 537-538.) Evidence Code section
1045 provides that if production is warranted, the trial court must examine the personnel
files in camera to determine whether they contain any relevant information.
Defendant filed his Pitchess motion on October 4, 2012, and on November 2,
2012, the trial court granted the motion and conducted an in camera review of the
materials pertaining to Deputies Schmidt and Moline. The court found no discoverable
material and ordered the records sealed. Because defendant was not present at the
records review hearing, he requests this court to conduct an independent review of the
sealed transcript of the hearing to determine whether any error occurred. The People do
not oppose this request.
We have reviewed the sealed reporter’s transcript of the in camera Pitchess
motion proceeding. We conclude the trial court properly exercised its discretion in
excluding from disclosure the deputies’ personnel records. (People v. Samayoa (1997)
15 Cal.4th 795, 827.)
7 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
KING J.