Filed 12/18/19 P. v. Williamslalmillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR WILLIAMSALAMILLO,

Defendant and Appellant.

G056555

(Super. Ct. No. 16NF3278)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Victor Williamsalamillo drove his motorcycle over 140 miles-per-hour and committed at least 10 traffic violations while attempting to escape the police. At trial, he was convicted of feloniously evading a peace officer and sentenced to four years in state prison.

Williamsalamillo argues that Vehicle Code section 2800.2, subdivision (b) [evading a peace officer], includes an unconstitutional mandatory presumption, which violated his due process right by lowering the prosecution’s burden of proof. He also argues that the trial court failed to instruct the jury that reckless driving is a lesser included offense of evading an officer. We disagree with both arguments and affirm the conviction.

FACTS

On the evening of November 23, 2016, California Highway Patrol Officer Wesley Tom was on patrol and observed a motorcycle driven by Alamillo . The officer estimated the motorcycle was going 100 miles per hour. He activated his lights and siren, and the motorcycle accelerated to a speed of approximately 130 to 140 miles per hour. Officer Tom testified he pursued Alamillo for almost four minutes before Alamillo pulled over. During the pursuit, Alamillo committed at least eight traffic violations that would earn a traffic violation point.

The court instructed the jury before closing arguments. The instructions included CALCRIM No. 2181, which laid out the elements necessary to find Alamillo guilty of evading a peace officer. Element three of the instruction stated: “During the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property.” The instruction also informed the jury that: “Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point.”

DISCUSSION

Vehicle Code section 2800.2, subdivision (a), provides that a person who drives with willful or wanton disregard for the safety of others while attempting to elude a peace officer is guilty of evasion. Section 2800.2, subdivision (b), provides: “For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point . . . occurs.”

Alamillo argues section 2800.2, subdivision (b), creates an unconstitutional mandatory presumption because it allows the prosecution to prove that he drove with a willful or wanton disregard for the safety of others by establishing that he committed three or more traffic violations. Alamillo acknowledges this issue has been considered by four different courts of appeal and each held that section 2800.2, subdivision (b), did not create an unlawful mandatory presumption. (See People v. Taylor (2018) 19 Cal.App.5th 1195, 1204; People v. Laughlin (2006) 137 Cal.App.4th 1020, 1024, 1028; People v. Williams (2005) 130 Cal.App.4th 1440, 1446; People v. Pinkston (2003) 112 Cal.App.4th 387, 392.)

“A mandatory presumption tells the trier of fact that if a specified predicate fact has been proved, the trier of fact must find that a specified factual element of the charge has been proved, unless the defendant has come forward with evidence to rebut the presumed connection between the two facts.” (People v. Williams, supra, 130 Cal.App.4th at pp. 1444-1445.) Such a presumption violates due process because “it relieves the prosecutor from having to prove each element of the offense beyond a reasonable doubt.” (Id. at 1445.)

There is no due process violation if a statute creates a rule of substantive law rather than a mandatory presumption. (People v. McCall (2004) 32 Cal.4th 175, 185 187.) “A rule of substantive law defines in precise terms conduct that establishes an element of an offense as a matter of law. [Citation.] There is no presumption and there is nothing to rebut.” (People v. Laughlin, supra, 137 Cal.App.4th at p. 1026.)

When it was enacted in 1988, section 2800.2 contained only the language that is now found in 2800.2, subdivision (a). (Stats. 1988, ch. 504, § 3, p. 1919.) In 1996, the Legislature added section 2800.2, subdivision (b). The Senate Rules Committee wrote that this additional section “would define ‘a willful or wanton disregard for the safety of persons or property’ as behavior that includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count occur . . . .” (Sen. Rules Com., Office of Sen. Floor Analyses, analysis of Assem. Bill No.1999 (1995–1996 Reg. Sess.) as amended July 7, 1996, p. 2.) In so doing, the Legislature created a rule of substantive law by defining in precise terms conduct that established willful or wanton disregard for the safety of others for a violation of section 2800.2, subdivision (a). This is not a mandatory presumption.

Alamillo also contends that the court erred when it failed to instruct the jury that reckless driving was a lesser included offense of evading a peace officer. We disagree.

In determining whether reckless driving is a lesser included offense of evasion, “we apply either the elements test or the accusatory pleading test.” (People v. Shockley (2013) 58 Cal.4th 400, 404.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.)

To be guilty of reckless driving, a defendant must drive on a public highway in wanton and reckless disregard for the safety of others. (Veh. Code, § 23103.) Alamillo’s felony complaint did not allege that he drove on a public highway; thus, the accusatory pleading test is not met. The elements test is also not met because the wanton and reckless disregard element of reckless driving is different from that of evading a peace officer. To harbor the wanton and reckless disregard required for reckless driving, the defendant must drive in a manner that is inherently dangerous. (People v. McNutt (1940) 40 Cal.App.2d Supp. 835, 837-838; People v. Schumacher (1961) 194 Cal.App.2d 335, 338.) By adding section 2800.2, subdivision (b), the Legislature defined “willful or wanton disregard” in such a way that a defendant could be guilty of evading a peace officer without driving in an inherently dangerous manner. (People v. Howard (2005) 34 Cal.4th 1129, 1137.) Therefore, applying either the accusatory pleading or the elements test, reckless driving is not a lesser included offense of evading a peace officer.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.