Filed 1/17/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Robert P. Whitlock and Randall A. Pinal, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant, James Peracchi, of reckless driving while evading a police officer, and being a felon in possession of a firearm. The jury acquitted appellant on an additional charge of assaulting a peace officer with a firearm. In a bifurcated proceeding, the trial court found that appellant had suffered two prior convictions within the meaning of the three strikes law.

The trial court sentenced appellant to two concurrent terms of 25 years to life.

At approximately 1:00 a.m. on June 20, 1996, California Highway Patrol officers Gregory Taylor and John Layfield were on duty in a marked patrol vehicle driving east on North Avenue near Chestnut in Fresno County. Officer Taylor, who was driving the patrol car, noticed a red Volkswagen in front of him driving at a slow rate of speed and weaving. Suspecting that the driver of the red car was under the influence, Officer Taylor initiated a traffic stop. The vehicle pulled over immediately, and Officers Taylor and Layfield began approaching the car on foot. Before the officers could reach the front of the car, the red car sped off. The officers followed the red car which began swerving back and forth across both lanes of traffic, driving from shoulder to shoulder. The car continued driving in an erratic manner, slowing down as if it were going to stop and then suddenly speeding up.

The Volkswagen turned north on Willow Avenue and continued driving in an erratic manner. It slowed for a stop sign at Jensen Avenue but proceeded through the intersection without stopping. Jensen Avenue is comprised of two lanes of traffic in each direction and is positioned in such a way that one cannot see if cross traffic is approaching without coming to a complete stop. There was traffic on Jensen when the red car crossed the intersection. In crossing Jensen, the red car "bottomed out" and threw some sparks. There were marks on the roadway at that point indicating that other cars had done the same thing.

The car resumed its erratic driving pattern and ran another stop sign on Church Avenue, traveling about 20-30 miles per hour. Continuing on Willow to Butler Avenue, the car turned east, traveling through a stop sign at 30 miles per hour. The car sped up to 60 miles per hour approaching Peach Avenue. At the intersection of Butler and Peach there is a stop sign and a cement barrier preventing eastbound traffic from continuing across Peach. The car went through the stop sign and swerved into the westbound lane, traveled around the barrier, and continued heading east on Butler. Officer Taylor testified that a vehicle which was traveling west at that intersection had to take evasive action to avoid being hit by the red car.

After going through this intersection, Officer Taylor noticed grinding noises coming from the red Volkswagen, and the car slowed to 40 miles per hour. The car made a sharp left turn onto Minnewawa, traveling at approximately 30-40 miles per hour, which caused it to spin out and come to rest facing the wrong direction.

The vehicle chase lasted approximately four minutes and covered four miles. The car was driven in a serpentine manner throughout the chase at speeds ranging from 20-60 miles per hour in 40- to 50-mile per hour speed zones. Officer Taylor left his emergency lights on throughout the chase; however, he did not recall if he used his siren.

When the vehicle chase ended, two men exited the Volkswagen and ran toward nearby houses. The officers gave chase but were unable to find the men.

Officers Taylor and Layfield started to return to the Volkswagen to secure it. On the way back, Officer Layfield became separated from Officer Taylor when he stopped because he heard or sensed something. Officer Layfield shined his flashlight in the direction of a garbage can and a man jumped up, pointed a gun at him and told him not to move. The officer ran for cover, and the man began firing, striking him in the right leg. Officer Layfield returned fire, but the suspect was able to flee.

A substantial amount of evidence was produced at trial regarding who shot Officer Layfield. The jury ultimately acquitted Peracchi of the assault on the police officer. Since the identity of the shooter is not an issue on appeal, we will not recount that evidence here.

Officers subsequently found Peracchi at 7:56 a.m. hiding in a shed a quarter of a mile from the shooting scene. A loaded, .45-caliber handgun wrapped in a black watch cap was found in the shed, along with a .45-caliber bullet.

A search of the Volkswagen, which belonged to Peracchi, disclosed two ski masks, a dent puller with a screw on the tip, a live .45-caliber bullet, a screwdriver and a pair of pliers.

In an interrogation, Peracchi admitted driving the Volkswagen and possessing the gun.

After hearing this evidence, the trial court stated that there did not appear to be any coercion in questioning Peracchi about the reason he did not want to talk, and went on to find "that there’s proof beyond a reasonable doubt that the defendant made a voluntary, knowing, and intelligent statement to the extent that he felt that he was only giving, I guess, a shortened version of it at that time."

Respondent argues Peracchi’s response to the officer’s questions regarding whether he would waive his right to remain silent was ambiguous and the officer was justified in clarifying why he wished to remain silent to ensure that Peracchi was indeed invoking that right. We disagree.

Peracchi’s conviction for possession of the handgun, however, need not be reversed. The evidence established that Peracchi was arrested in a shed located a quarter of a mile from the scene of the shooting. A loaded, Llama .45-caliber semiautomatic handgun was found in the shed wrapped in a black watch cap. Located next to the gun was a live .45-caliber bullet which was of the same type and brand as bullets found in the gun. A shirt and gloves were also found in close proximity to the gun. A live .45-caliber bullet was found in the Volkswagen between the driver and passenger seats. Two additional watch caps/ski masks were found in the back seat of the car. Given the fact that the gun was located in close proximity to Peracchi when he was arrested, that the gun was concealed in a watch cap, that a bullet matching the caliber of the bullets loaded in the gun was found in Peracchi’s car, and the fact that additional watch caps/ski masks were also located within Peracchi’s car, we conclude that the evidence overwhelmingly established that Peracchi was in possession of the handgun and that the jury would have come to the same result without the admission of Peracchi’s statement that he possessed the gun. Since Peracchi’s admission relating to the handgun was harmless beyond a reasonable doubt, that conviction will stand.

Although we have found appellant’s conviction for evasion of arrest must be reversed, we must also decide whether the conviction is supported by substantial evidence. This is because a finding that the evidence was legally insufficient to support the conviction would bar a retrial.

In order to sustain a finding of felony evasion of arrest, the jury must find that appellant, while operating a motor vehicle and with the intent to evade, willfully fled or attempted to elude a peace officer’s motor vehicle. In addition, the officer’s motor vehicle must have exhibited at least one lighted red lamp which was visible from the front and the defendant either saw or reasonably should have seen it, the officer sounded a siren as may be reasonably necessary, the vehicle was distinctively marked, the vehicle was operated by a peace officer, and the suspect drove with a willful or wanton disregard for the safety of persons or property. Appellant argues there was insufficient evidence to support a finding of felony evasion of arrest. Specifically, he claims there was a lack of evidence that he drove with willful and wanton disregard for the safety of persons or property. We disagree.

An appellate court reviewing a criminal conviction challenged as lacking evidentiary support "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. If the findings supported by the evidence are reasonable, the appellate court will not reverse because a different finding might also be reasonable. The question on appeal is whether substantial evidence supports the jury’s conclusion, not whether guilt was established beyond a reasonable doubt.

Peracchi argues that there was insufficient evidence to support a finding that he acted with a conscious disregard for the safety of others. To support his contention, Peracchi points to evidence demonstrating that, at most, he drove 20 miles over the speed limit, he slowed down at intersections, the chase took place primarily in rural areas with light traffic, the officers failed to turn on their siren or call for assistance, and Officer Castellanos characterized the conduct as only a misdemeanor when speaking with Peracchi. Appellant’s argument overlooks the standard of review. While the record supports the facts Peracchi points to, the record also established that appellant proceeded through four stop signs without stopping, he drove through a blind intersection which crossed four lanes of traffic where cross traffic was present without being able to see if there was oncoming traffic, he drove in an erratic manner repeatedly crossing both lanes of traffic, he drove around a barrier on Butler Avenue, crossing into the wrong lane of traffic and forcing another vehicle to take evasive action, and he rounded a corner at a high speed causing his car to spin out and come to rest in the opposite direction than he was driving. These facts allowed the jury to infer that Peracchi drove with the conscious disregard for the safety of others.

The fact that Peracchi drove through the blind intersection, where Officer Taylor testified that he would not be able to see cross traffic without coming to a stop, and the fact that another vehicle had to take evasive action while Peracchi was driving on the wrong side of the street, amply support a finding that Peracchi drove with conscious disregard for safety. Peracchi’s argument that only one officer testified as to cross traffic at the blind intersection, and that Officer Taylor’s initial report failed to mention the vehicle that had to take evasive action, raises only the issue of credibility, which is exclusively within the province of the trier of fact. In convicting Peracchi of the felony evasion of arrest count, the jury credited the officer on these points. We will not disturb those findings on appeal.

Peracchi makes a number of objections relating to items of evidence which were introduced at trial, claiming they constituted prejudicial error. We find no error.

Before trial Peracchi made in limine motions to exclude physical evidence tending to show his involvement in robberies and to exclude any evidence tending to show he was involved in a street gang. The motion in relation to the evidence of robberies was denied, with the trial court finding it was probative as to his motive to evade the officers. The motion to exclude evidence tending to show gang involvement was granted.

At trial the prosecutor asked Officer Layfield to describe the type of clothing the suspects were wearing. The following exchange took place in response to that question:

After the sidebar conference, the prosecutor conferred with Officer Layfield off the record and then asked the following questions:

At the next break, appellant’s counsel stated on the record out of the presence of the jury that he wanted

Peracchi seems to argue that the trial court committed prejudicial error in allowing the jury to consider evidence that he was affiliated with a gang. However, it is clear from the preceding record that the trial court ruled in its in limine motion that gang evidence was to be excluded, and the officer’s reference to the suspects wearing baggy clothing, of the type gang members would wear, was not elicited by the prosecution, but rather was mistakenly blurted out by the officer. Peracchi’s counsel immediately objected to the information, the prosecutor spoke with the officer off the record, presumably to make sure he would make no similar references, and the prosecutor revisited the description of the clothing this time without any reference to its similarity to gang attire. The trial court did not allow the prosecution to elicit evidence tending to demonstrate Peracchi was involved in a gang. To the extent that appellant is arguing that the trial court erred in allowing the officer’s statement to stand, we note there was never a motion to strike this statement, and Peracchi’s counsel further stated that he was not "asking that the Court take any specific action at this time, as I think it was cured a little bit by [the prosecutor]’s questions thereafter." Therefore, the issue is waived.

Peracchi argues for the first time in his reply brief that if this court deems any of his objections waived, then this conduct constituted ineffective assistance of counsel. However, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier. Peracchi has not attempted to show any reason here.

Peracchi contends the trial court erred in allowing Officer Taylor to explain what a "punched" ignition was. In addition, he claims the trial court erred in allowing the prosecution to present evidence that items which could be associated with robberies were found in Peracchi’s car. We find no error.

Respondent argues these issues are waived. We agree in part. As to the issue of the "punched" ignition, we find Peracchi’s claim that it was inadmissible as improper bad acts evidence waived. Peracchi’s motion dealt with physical evidence tending to demonstrate he was involved in uncharged robberies. It is difficult to see how the officer’s explanation of a "punched" ignition and the fact that the ignition in Peracchi’s car was not punched, tended to demonstrate that he was involved in robberies or car theft, and Peracchi has made no attempt to demonstrate how evidence that his ignition was not punched had any tendency in reason to show that he was involved in robberies. Although Peracchi objected to allowing the officer to define the term for the jury, the objection was made on relevancy grounds. Now, for the first time on appeal, he claims such evidence was improper "bad acts" evidence. Because he did not make such an objection in the trial court, the issue is waived.

As to the physical evidence tending to indicate involvement in robberies, Peracchi moved to exclude all such evidence. This motion certainly encompassed the evidence of the dent puller, pliers, screwdriver, as well as the ski masks. Furthermore, the trial court made mention of each of these items in ruling on the motion, indicating that each piece of evidence was subject to the motion. Since Peracchi objected to this evidence, the issue is not waived.

The trial court ruled in limine that the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b) and further found that the admission of the evidence did not violate Evidence Code section 352. Peracchi argues the trial court erred in admitting this evidence. We disagree.

"When a trial court overrules a defendant’s objections that evidence is irrelevant, unduly prejudicial and inadmissible character evidence, we review the rulings for abuse of discretion." It is well established that evidence of uncharged misconduct is inadmissible to prove a defendant’s propensity to commit criminal acts or to prove bad character. However, such evidence is admissible when it is relevant to prove a fact at issue, such as motive, intent, preparation or identity. If the trial court determines evidence is admissible under Evidence Code section 1101, subdivision (b), it must go on to determine whether it is also admissible under Evidence Code section 352. That section provides that the trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

Here the trial court found the evidence of the ski masks and tools was relevant to demonstrate Peracchi’s motive to flee from the police. We find no abuse of discretion.

We also reject Peracchi’s contention that probative value of the evidence in this case was substantially outweighed by its prejudicial effect. As we have already explained, the evidence was probative of his motive to elude arrest. Peracchi argues that the evidence was unduly prejudicial because it tended to indicate he was involved in other or ongoing crimes. However, evidence of a ski mask and certain tools certainly was less prejudicial than evidence tending to show he had a loaded firearm or that he assaulted or aided and abetted in the assault of a peace officer. Therefore, we cannot find the probative value of this evidence was substantially outweighed by its prejudicial effect.

Peracchi, relying on a single case, goes on to contend that the admission of this evidence denied him of his federal constitutional due process right to a fundamentally fair trial. However, Peracchi has failed to demonstrate how the admission or relevant, admissible evidence which was not unduly prejudicial violated his right to a fair trial. Therefore, the issue is waived.

Trial courts are granted wide discretion when ruling on a motion to discover police personnel records. In reviewing a trial court’s ruling on the discoverability of such material, we apply an abuse of discretion standard.

Peracchi makes two additional arguments which relate to alleged sentencing error: that the trial court inappropriately delegated its sentencing discretion to the prosecution, and that his sentence constituted cruel and unusual punishment. Because we have found that appellant’s conviction for felony evasion of arrest must be reversed, we will remand for retrial on that count and for resentencing. In light of this disposition, the issues Peracchi has raised regarding the sentencing are moot.

The conviction for evading a police officer is reversed. The matter is remanded for retrial on that count, if the prosecutor so elects, and for resentencing. In all other respects the judgment is affirmed.

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Buckley, J.