78 Cal.App.5th 670
Cal. Ct. App.2022Background
- Detective Chavez observed a car reported stolen, ordered the driver (Fuentes) out; Fuentes placed a foot out the door then got back in and fled.
- During the vehicle pursuit Fuentes ran a stop sign, drove into oncoming traffic, and crashed into a brick wall; he then fled on foot.
- Chavez pursued on foot, observed Fuentes reaching toward his waistband, deployed a taser (ineffective), then struck and subdued Fuentes; officers arrested him.
- Fuentes was charged with receiving a stolen vehicle (acquitted), wanton disregard while fleeing (Veh. Code §2800.2; convicted), resisting an officer (Pen. Code §148(a)(1); convicted), and a drug possession count (pleaded guilty).
- Fuentes appealed arguing (1) §148 is a lesser included offense of §2800.2, (2) instructional error on §2800.2, (3) section 654 forbids multiple punishments, (4) Pitchess review, and (5) presentence credit calculation; the court affirmed except it ordered an increase of presentence credits by 4 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resisting an officer (§148) is a lesser included offense of wanton-disregard fleeing (§2800.2) | §148 is not necessarily included because §2800.2 lacks an element requiring the officer be lawfully performing duties | §148 is necessarily included in §2800.2, so convicting both is improper | Not a lesser included offense; §148 requires officer's lawful performance of duty, which §2800.2 does not include |
| Whether jury instructions on §2800.2 were erroneous for omitting lawfulness-of-duty element | No instructional error; lawfulness is not an element of §2800.2 | Instruction was deficient because it should have included lawfulness (if §148 is lesser included) | No error; lawfulness is not an element of §2800.2, so omission was proper |
| Whether section 654 barred multiple punishments for flight by vehicle and flight on foot | Section 654 inapplicable because vehicle flight and subsequent foot flight were distinct, successive conduct creating new risks | Counts derive from the same indivisible course; punishment should be stayed | Substantial evidence supports inapplicability of §654; separate punishments allowed |
| Whether the trial court abused discretion in its in camera Pitchess review of officer personnel files | Trial court properly conducted the in camera review; no abuse | Argued review/disclosure was required | No abuse of discretion; appellate review of sealed transcript affirmed trial court's ruling |
| Whether presentence custody and conduct credits were miscalculated | Parties agreed credits short by 2 days each (total 4 days) | Same | Court ordered amended abstract: award 732 days each of presentence custody and conduct credit (increase of 2 days each) |
Key Cases Cited
- People v. Reed, 38 Cal.4th 1224 (discusses elements and accusatory pleading tests for lesser included offenses)
- People v. Bailey, 54 Cal.4th 740 (elements test requires all elements of lesser be elements of greater)
- People v. Simons, 42 Cal.App.4th 1100 (offenses evading arrest need not require officer be performing duties; resisting requires lawfulness)
- People v. Williams, 26 Cal.App.5th 71 (lawfulness of officer conduct is essential element of §148)
- People v. Southard, 62 Cal.App.5th 424 (unlawful arrest defeats §148 conviction)
- Brown v. Kelly Broadcasting Co., 48 Cal.3d 711 (statutory construction: omission of terms shows different legislative intent)
- People v. Latimer, 5 Cal.4th 1203 (section 654 analysis: divisible course of conduct depends on defendant's intent/objective)
- In re Sosa, 102 Cal.App.3d 1002 (presentence credit applied to parole term when defendant released on parole)