Filed 7/8/13 P. v. Head CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064047
         Plaintiff and Respondent,
                                                                        (Tulare Super. Ct. No. VCF252277)
                   v.

ERICK JOEL HEAD,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gerald F.
Sevier, Judge.
         Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *   Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
                                     INTRODUCTION
       A jury convicted appellant/defendant Erick Joel Head (defendant) of multiple
crimes after he crashed his vehicle while evading police, killing three people. Defendant
seeks reversal of his felony evasion convictions. He contends that no substantial
evidence supported a common element of those offenses: that the pursuing peace
officer’s vehicle exhibits “at least one lighted red lamp.” (See Veh. Code, § 2800.1,
subd. (a)(1), bold print and italics added. See also Veh. Code, §§ 2800.3, subd. (b)
[referring to § 2800.1] & 2800.2, subd. (a) [referring to § 2800.1].) Respondent concedes
that the felony evasion convictions (counts IV, V, VI, and VII) must be reversed. We
agree.1
                             PROCEDURAL BACKGROUND
       Defendant was charged with three counts of murder (Pen. Code,2 § 187, subd. (a);
counts I, II and III); three counts of evading a peace officer causing death (Veh. Code,
§ 2800.3, subd. (b); counts IV, V, and VI); one count of evading a peace officer with
willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a);
count VII) and one count of evading an officer causing injury (Veh. Code, § 2800.3,
subd. (a); count VIII). One prior prison term (§ 667.5, subd. (b)) and one prior strike
(§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) were alleged as to all counts. A prior
serious felony conviction enhancement (§ 667(a)(1)) was alleged as to counts I through
III. Defendant was convicted by a jury of counts I through VII,3 and the trial court found


       1Defendant also contends that counts V and VI must be stricken as they pertain to
the same actus reus at issue in count IV. Because we reverse the convictions on counts
IV through VII, post, this contention is moot.
       2   All subsequent statutory references are to the Penal Code unless otherwise noted.
       3 The superior court granted defendant’s pretrial motion under section 995 to set
aside the remaining count, count VIII.



                                              2.
the enhancements true. Defendant was sentenced to 99 years to life in prison.4 The trial
court “stayed” the one-year term on the prior prison term enhancement.
                                          FACTS
       First Pursuit - March 30, 2011
       Officer Graciela Parras testified as follows regarding an incident on March 30,
2011. At approximately 1:30 p.m., Officer Parras was in a marked patrol unit equipped
with “overhead lights.” A white vehicle drove past her with no front license plate.
Sometime later, Officer Parras identified defendant as the driver of the white vehicle out
of a six-person lineup. Officer Parras made a U-turn and attempted to “catch up” to
defendant. She eventually caught up with defendant at a stop light, pulling up directly
behind him. Defendant tried to change lanes but could not. When the traffic signal
turned green, Officer Parras activated her “overhead emergency lights and siren .…” The
vehicle did not stop or pull over, and eventually reached speeds of approximately 70 to
80 miles per hour. Officer Parras ultimately terminated the pursuit because she did not
want to endanger the public.
       Second Pursuit – March 31, 2011
       Tulare County Deputy Sheriff Scott Mackey testified to the following. Deputy
Mackey was on duty at 9:45 p.m. on March 31, 2011. He was in full uniform driving a
marked sheriff patrol vehicle with his K-9 partner, Rocket. Prior to starting his patrol, he
checked his “overhead lights” to ensure that they were functioning properly.
       Deputy Mackey was driving northbound on Highway 99 when he observed a
vehicle make a “sudden” lane change without signaling. Deputy Mackey sped up and

       4 Defendant was sentenced to three consecutive 30 years to life prison terms on
counts I, II and III, with an additional consecutive five years on count I pursuant to
section 667(a)(1). Defendant was sentenced to three 12-year prison terms for counts IV,
V and VI, which were stayed pursuant to section 654. Finally, defendant was sentenced
to a four-year prison term on count VII.



                                             3.
observed a white SUV pulling a small utility trailer without working lights. The SUV did
have functioning lights, but the utility trailer was blocking them. Deputy Mackey
decided to make a traffic stop because the vehicle posed a hazard. Deputy Mackey
activated his “overhead lights” to let the driver know he was being pulled over. The SUV
did not immediately pull over. Rather, the SUV exited the freeway and “ran” multiple
stop signs. Eventually, both the SUV and Deputy Mackey reached speeds in excess of 90
miles per hour. As Deputy Mackey and the SUV approached a traffic light at the
intersection of Caldwell and Akers, Deputy Mackey observed that the light was red for
their direction of travel. Deputy Mackey slowed his vehicle to 30 to 40 miles per hour
because of the vehicles and pedestrians in the area. Deputy Mackey’s “lights” were still
on at this point. The SUV did not slow down as it entered the intersection, and it collided
with another vehicle.
       Deputy Mackey approached the scene of the collision and observed a subject
running from the suspect vehicle. Deputy Mackey gave chase and deployed his K-9 to
pursue the subject. The subject surrendered and Deputy Mackey detained him. At trial,
Deputy Mackey identified the subject as the defendant.
       Respondent and defendant agree that there was no evidence adduced at trial that
either Officer Parras’s or Deputy Mackey’s vehicles exhibited a red lamp during their
respective pursuits of defendant.
                                       ANALYSIS

   1. THE ABSENCE OF ANY EVIDENCE THAT THE PURSUING OFFICERS’
      VEHICLES EXHIBITED AT LEAST ONE LIGHTED RED LAMP COMPELS
      REVERSAL OF CONVICTIONS ON COUNTS IV THROUGH VII
       The parties concur that reversal of defendant’s convictions on counts IV, V, VI
and VII is required. Under the plain language of Vehicle Code section 2800.1,
subdivision (a)(1) and relevant case law, we are compelled to agree.




                                            4.
         One element of felony evasion of a peace officer is that the pursuing officer’s
vehicle exhibit at least one lighted red lamp visible from the front. (Veh. Code, § 2800.1,
subd. (a)(1); People v. Brown (1989) 216 Cal.App.3d 596, 599.) Evidence that
establishes only that the law enforcement vehicle’s lights were on, but does not establish
whether any of the lights were red, is insufficient to support a conviction. (People v.
Brown, supra, at p. 600.)
         Absent evidence that the officer’s vehicle exhibited at least one lighted red lamp,
the conviction for violating Vehicle Code section 2800.1 must be reversed. (See People
v. Brown, supra, 216 Cal.App.3d at p. 600; People v. Acevedo (2003) 105 Cal.App.4th
195, 197-200.) Any other interpretation would render the use of the word “red”
meaningless, violating the principle that, “when interpreting a statute, significance should
be given to every word … where possible.” (People v. Sanders (2012) 55 Cal.4th 731,
739.)5

   2. THE “STAYED” PRIOR PRISON TERM ENHANCEMENT (§667.5, subd. (b))
      MUST BE STRICKEN
         The respondent’s brief notes that the court’s purported “stay” of the consecutive
one-year prior prison term (§ 667.5, subd. (b)) was error. We agree. “Prior prison term
enhancements may be imposed or stricken but not stayed. [Citations.]” (People v.

         5As Acevedo notes, the Legislature might find it appropriate to amend Vehicle
Code section 2800.1, subdivision (a)(1) to cover cases where there was evidence
defendant knew he was being pursued by police. (See, People v. Acevedo, supra, 105
Cal.App.4th at p. 200.) For example, instead of requiring both a sounding siren and a
lighted red lamp (see Veh. Code, § 2800.1, subd.(a)(1)-(2)), the subdivision could require
a sounding siren and a lighted lamp of any color. But, as currently enacted, the statute
requires prosecutors to prove that the peace officer’s vehicle is exhibiting “at least one
lighted red lamp visible from the front.” (Veh. Code, § 2800.1, subd.(a)(1). See also
People v. Brown, supra, 216 Cal.App.3d at p. 600, fn. 6 [requirement that lamp be red is
unambiguous].) Having determined the plain meaning of the unambiguous provision, our
job is at an end. (See Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244,
1250 [“If the statutory language is clear and unambiguous our inquiry ends.”].)



                                              5.
Jordan (2003) 108 Cal.App.4th 349, 368.) Because a prior serious felony enhancement
(§ 667, subd. (a)(1)) had already been imposed for the same offense,6 the prior prison
term enhancement (§ 667.5, subd. (b)) should have been stricken. (See, generally, People
v. Jones (1993) 5 Cal.4th 1142.)7
       “The failure to impose or strike an enhancement is a legally unauthorized
sentence.… [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Such a
sentence is subject to correction when it comes to the attention of a reviewing court. (In
re Renfrow (2008) 164 Cal.App.4th 1251, 1256, citing People v. Cunningham (2001) 25
Cal.4th 926, 1044-1045.) Therefore, we will strike the “stayed” section 667.5
subdivision (b) enhancement.
                                      DISPOSITION
       The judgment is reversed only as to defendant’s conviction on counts IV, V, VI
and VII. The “stayed” one-year prior prison term enhancement (§ 667.5, subd. (b)) is
stricken. In all other respects, the judgment is affirmed as modified. The matter is
remanded to the trial court to amend the abstract of judgment accordingly, and to transmit
certified copies of the amended abstract to all appropriate parties and entities.


       6 The information identifies the basis for the prior serious felony enhancement as a
July 18, 2006, conviction for burglary. The information identifies the basis for the prior
prison term enhancement to be an April 15, 2011, conviction for “VOP” (presumably,
violation of parole or probation.) Though the information is confusing, the record is clear
that both defendant’s trial counsel and the prosecutor agreed that the same prior
conviction was the basis for both the section 667, subdivision (a)(1) and section 667.5,
subdivision (b) enhancements to count I. Moreover, at the conclusion of the bifurcated
enhancement trial, the trial court identified the burglary-related prison term (not a
parole/probation violation prison term) as its basis for finding the prior prison term
allegation to be true.
       7The prosecutor and defendant’s trial counsel agreed that the trial court could not
impose the one-year sentence enhancement [prosecutor indicating one-year enhancement
could not be stayed; defense counsel indicating “one year enhancement would have to be
dismissed or stayed.”])



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