Filed 6/7/16 P. v. Sanchez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B263066

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA088090)
         v.

CECILY RENEE SANCHEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Cathryn F. Brougham, Judge. Reversed.


         Roberta Simon, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Robert M.
Snider, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Appellant Cecily Renee Sanchez was charged with three felonies: assault with a
deadly weapon, an automobile (Pen. Code, § 245, subd. (a)(1)) (count 1); assault upon a
peace officer with a deadly weapon (Pen. Code, § 245, subd. (c)) (count 2); and evading
an officer with willful and wanton disregard (Veh. Code, § 2800.2, subd. (a)) (count 3).
       The jury deadlocked on counts 1 and 2, and the trial court declared a mistrial on
those counts, which were later dismissed after the prosecution indicated it was unable to
proceed on them. The jury found appellant guilty on count 3, which the court later
reduced to a misdemeanor over the prosecutor’s objection. Appellant was placed on
summary probation for three years on condition that she serve 180 days in jail.
       Appellant contends there was insufficient evidence to support the jury’s verdict on
count 3 and asks us to conduct an independent review under Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess). We find no Pitchess error. However, we find that the
prosecution did not prove all of the elements of count 3 because there was no evidence
that the pursuing officer’s motor vehicle was exhibiting a lighted red lamp visible from
the front. We therefore reverse the judgment on count 3.
                                         FACTS
Prosecution Case
       On October 6, 2012, shortly after 7:00 p.m., the Monterey Park Police Department
began receiving calls about a fight with shots fired and a man down at the Shakey’s Pizza
Parlor on Atlantic Boulevard. Officers Jeffrey Sanchez, Timothy Wisniewski, and Rudy
Contreras responded to the scene. The parking lot was chaotic, with people running and
screaming. Officer Sanchez saw four Hispanic men fighting in the parking lot. When he
approached and ordered them to lie on the ground, two of the men ignored him and
started walking away.
       Seconds later, appellant, who was driving a black Honda Civic, stopped the car
between Officer Sanchez and the two men. One of the men, who was appellant’s
boyfriend, got into the Honda’s rear seat. Officer Sanchez yelled “stop” at the car half a
dozen times. But appellant drove quickly through the parking lot. Officer Sanchez lost
sight of the car.

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       Officer Wisniewski then saw Officer Contreras in the parking lot. Officer
Contreras was in uniform and in a “marked black and white police vehicle.” Officer
Wisniewski ran up to him and pointed out the fleeing Honda. Officer Contreras
immediately “turned on his emergency lights and siren” and pursued appellant through
the parking lot to Atlantic Boulevard.
       When appellant drove onto Atlantic Boulevard, the Honda’s tires squealed.
Officer Contreras followed the Honda in his police vehicle. Appellant did not come to a
stop until Officer Wisniewski, who was standing in the road facing the Honda, fired a
low shot at the car’s radiator after commanding it to stop.
       Defense Case
       On the day of the incident, appellant attended a series of football games with her
toddler son and other family members. They went to Shakey’s after the games. A
chaotic fight broke out. Everyone was scared, yelling and running toward their cars.
Appellant went outside and found her son. She got into the Honda that belonged to her
father’s girlfriend. Appellant was at the wheel and her sister was in the backseat holding
appellant’s son, who was crying continuously.
       A friend of the victim ran up to appellant’s group with his hand under his shirt
near his waist, as if holding something. Appellant’s boyfriend, joined by the father of her
son, ran toward the man. Appellant was scared. Then her boyfriend ran back toward her
and got in the car.
       When appellant turned onto Atlantic Boulevard, her tires did not squeal.
Appellant did not hear any sirens and did not know the police were behind her; she never
looked in her rearview mirror.
       A few seconds later, an officer in a dark uniform ran out of the parking lot with a
shotgun. Without pausing in the street, the officer fired the shotgun at appellant’s car.
Appellant stopped abruptly. When the man yelled, “Put your hands up,” she realized he
was a police officer. She never saw police officers at various points around the parking
lot.



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                                        DISCUSSION
I. Pitchess Motion
        Prior to trial, appellant moved for discovery of the police personnel records of
Officers Sanchez, Wisniewski, and Contreras. Appellant sought “discovery related to
said officers’ truthfulness, veracity, history of prior false reports, lying, perjury, and acts
of moral turpitude, and prior instances of complaints of excessive use of force in order to
effectively impeach the officers.” The trial court granted the motion on the “issues of
truth, veracity, fabrication, for the five-year period.”
        On February 11, 2014, the trial court conducted an in camera review. Following
the review, the court stated, “There’s no discoverable information other than this
particular incident in question, so it would be [appellant]’s information.”
        A second in camera hearing took place on April 30, 2014, after which the trial
court gave two documents to defense counsel.
        Appellant now asks this court to independently review the sealed reporter’s
transcripts of the in camera hearings to determine whether any relevant police personnel
records were withheld. The People have no objection. (See People v. Mooc (2001) 26
Cal.4th 1216, 1229–1232 [defendant has a right to appellate review of the trial court’s
determination of whether all relevant police personnel records were disclosed in response
to a Pitchess motion].) “Trial courts are granted wide discretion when ruling on motions
to discover police officer personnel records.” (People v. Samayoa (1997) 15 Cal.4th 795,
827.)
        We have reviewed the sealed transcripts of the in camera hearings on appellant’s
Pitchess motion. We find no abuse of discretion by the trial court.
II. Substantial Evidence
        Initially, we note that to prevail on a sufficiency of the evidence argument,
appellant must present her case to us consistent with the substantial evidence standard of
review. This means she must set forth in her opening brief all of the material evidence on
the disputed elements of the crime in the light most favorable to the People, and then
must persuade us that this evidence cannot reasonably support the jury’s verdict. (See

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People v. Dougherty (1982) 138 Cal.App.3d 278, 282; People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574.) Appellant has failed to meet her required burden on appeal.
Her rendition of the facts is incomplete and wholly one-sided in her favor. Indeed, in
setting forth the prosecution’s case, she fails to even mention that she was driving the
Honda. We are sorely tempted to find that appellant has forfeited her substantial
evidence challenge. We nevertheless address the merits because we agree with appellant
that the prosecution failed to prove all of the elements of count 3.
       Count 3 charged appellant with violating Vehicle Code section 2800.2, which
makes it a crime to flee from or attempt to elude a peace officer, as described in Vehicle
Code section 2800.1, while driving in a willful or wanton disregard for the safety of
persons or property. Vehicle section 2800.1, subdivision (a) provides: “Any person who,
while operating a motor vehicle and with the intent to evade, willfully flees or otherwise
attempts to elude a pursuing peace officer’s motor vehicle, is guilty . . . if all of the
following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least
one lighted red lamp visible from the front and the person either sees or reasonably
should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren
as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is
distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace
officer, . . . and that peace officer is wearing a distinctive uniform.” (Italics added.)
       Here, there was no evidence that Officer Contreras’s pursuing vehicle had a
lighted red lamp visible from the front. The testimony presented was simply that he
activated his “emergency lights and siren.” The People argue that “when Officer
Contreras testified that he activated his lights and siren, it was inferable as a matter of the
juror’s common experience that the lights included a red, forward-facing lamp.” The
People do not tell us, however, that this argument was made in People v. Oliver (2006)
124 Cal.App.4th 624, 631, and that our Supreme Court specifically rejected it by ordering
People v. Oliver depublished and then dismissing the appeal in light of People v. Hudson
(2006) 38 Cal.4th 1002.) The Hudson court found that because Vehicle Code section
2800.2 states that “if all of the following conditions exist,” the statute therefore “requires

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four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a
distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.” (People v.
Hudson, supra, at pp. 1007–1008.) Indeed, prior cases specifically found that the
evidence must establish the color of the lights. (See People v. Acevedo (2003) 105
Cal.App.4th 195, 198–200; People v. Brown (1989) 216 Cal.App.3d 596, 599–600.)
       Because the prosecutor failed to prove the required element that the activated
lights were red, the conviction on Vehicle Code section 2800.2 cannot stand.
                                      DISPOSITION
       The judgment of conviction on count 3 for violating Vehicle Code section 2800.2
is reversed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                           __________________________, J.
                                                 ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           CHAVEZ




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