Filed 4/22/14 P. v. Sandoval CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058197

v.                                                                       (Super.Ct.No. RIF1200719)

AMADOR JUNIOR SANDOVAL,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed.

         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Amador Sandoval is serving seven years and four months in prison as a

second striker for leading police on a car chase in a stolen vehicle and then resisting

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arrest. Defendant argues the trial court erred when it failed to instruct the jury that it

could convict him of misdemeanor evading an officer rather than felony evading an

officer. Defendant also asks this court to independently examine the sealed transcript of

the in camera hearing on his motion under Pitchess v. Superior Court (1974) 11 Cal.3d

531. As discussed below, we find no basis for the court to have instructed the jury on

misdemeanor evading an officer. In addition, we have examined the sealed transcript of

the trial court’s examination of the arresting deputies’ personnel records and find nothing

discoverable.

                                  FACTS AND PROCEDURE

       On March 6, 2012, Sheriff’s Deputy Schmidt was driving a Dodge Magnum

“stealth police vehicle” in Moreno Valley, along with his partner, Deputy Moline. The

vehicle was unmarked, but was equipped with about 20 flashing red and blue lights and a

siren. At the instruction of another deputy, who had been surveilling defendant for a few

days as part of a Narcotics Enforcement Team, Deputy Schmidt began to follow a black

Acura being driven by defendant.

       Deputy Schmidt followed the Acura down a major street, Cottonwood Avenue,

and into a residential area at high speeds.1 The Acura made several turns without

signaling or stopping at stop signs. After Deputy Schmidt activated his siren and lights,

defendant continued to speed, made two left turns without signaling, ran a stop sign, and


       1  Defendant’s request for judicial notice of a Google street map depicting the area
of the car chase, filed June 21, 2013, is granted.



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then finally ran up a curb and hit a signpost. The Acura was disabled. Defendant and a

passenger both left the car and ran in different directions. Defendant was eventually

found hiding underneath a truck in the neighborhood and was apprehended with the help

of a K-9 unit. The black Acura had been reported stolen six weeks previously.

       Prior to trial, defendant filed a Pitchess motion seeking evidence or complaints of

excessive force against, and/or false statements made by Sheriff’s Deputies Schmidt and

Moline, along with those of another deputy. The trial court granted the motion as to

evidence regarding the honesty and credibility of Deputies Schmidt and Moline because

these two had identified defendant as the driver of the Acura, whereas defendant claimed

he was only a passenger. After conducting an in camera review of the deputies’

personnel files, the court stated it found nothing discoverable.

       On January 14, 2013, a jury convicted defendant of receiving a stolen vehicle

(Pen. Code, § 496d, subd. (a)), felony evading a peace officer (Veh. Code, § 2800.2) and

misdemeanor resisting or delaying a peace officer (Pen Code, § 148, subd. (a)(1)).2 The

jury acquitted defendant of possessing and transporting methamphetamine. (Health &

Saf. Code, §§ 11377, subd. (a) & 11379, subd. (a).) Defendant admitted to having a prior

strike conviction (§§ 667, subd. (c), (e)(1) & 1170.12, subd. (c)(1)) and to having served

two prior prison terms (§ 667.5, subd. (b)).

       On March 1, 2013, the trial court sentenced defendant to a total of seven years and

four months in prison as follows: the middle term of two years, doubled to four as a


       2   All section references are to the Penal Code unless otherwise indicated.


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second strike for receiving a stolen vehicle, plus one year and four months for felony

evading a peace officer, plus two one-year terms for the prison priors. The term for the

misdemeanor resisting a peace officer was stayed.

       This appeal followed.

                                         DISCUSSION

       1. There Was No Instructional Error

       Defendant contends the trial court erred when it failed to instruct the jury on

misdemeanor evasion of a peace officer as a lesser-included offense of felony evasion of

a peace officer.

       “A court must instruct sua sponte on general principles of law that are closely and

openly connected with the facts presented at trial. [Citations.] This sua sponte obligation

extends to lesser included offenses if the evidence ‘raises a question as to whether all of

the elements of the charged offense are present and there is evidence that would justify a

conviction of such a lesser offense. [Citations.]’ [Citations.] . . . ‘A criminal defendant

is entitled to an instruction on a lesser included offense only if [citation] “there is

evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt

of the greater offense” [citation] but not the lesser. [Citations.]’ [Citation.]” (People v.

Lopez (1998) 19 Cal.4th 282, 287-288.)

       The elements of Vehicle Code section 2800.2, felony evading a police officer, are

identical to Vehicle Code section 2800.1, misdemeanor evading a police officer, making

the latter a necessarily lesser included offense of the former (People v. Springfield (1993)

13 Cal.App.4th 1674, 1679-1680), except that Vehicle Code section 2800.2 adds one


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additional element: “the pursed vehicle is driven in a willful or wanton disregard for the

safety of persons or property . . . .” (Veh. Code, § 2800.2, subd. (a).) Subdivision (b) of

Vehicle Code section 2800.2 defines willful or wanton disregard as including, but not

limited to, “driving while fleeing or attempting to elude a pursuing officer during which

time either three or more violations that are assigned a traffic violation point count under

Section 12810 occur, or damage to property occurs.”

       So, the question here is whether the record contains evidence which, if accepted

by the jury, would allow the jury to find that defendant fled from the officers, but did so

while committing fewer than three traffic violations and damaging no property.

       In his opening brief, defendant does not point to any evidence whatsoever that

would show he committed the evasion crime but without driving recklessly, and we have

not found any. For example, the jury did not hear any evidence that defendant was

driving the fleeing car but did not violate three or more traffic laws, or that he did not

cause any property damage. Rather, the crux of the defense case was that defendant was

not driving the car at all. Neither did the defense cross-examination of the police officers

reveal any evidence that defendant was driving the fleeing vehicle but did not drive

recklessly.

       To the contrary, the only evidence the jury heard as to whether defendant drove

recklessly is the following: After Officer Schmidt activated the police car’s siren and

lights, defendant drove about 60 miles per hour through a residential neighborhood (first

traffic violation), ran a stop sign (second traffic violation), turned left without using a turn

signal (third traffic violation), turned left again without using a turn signal (fourth traffic


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violation), crashed into a curb and hit a sign post, causing property damage to both the

vehicle he was driving and the sign post. Defendant did not present any evidence to

counteract the evidence regarding his reckless driving. For this reason, the jury would

have had no evidentiary basis upon which to convict defendant of misdemeanor evading

a peace officer, and so there was not error in not instructing the jury on the misdemeanor

offense.

       2. Pitchess Motion

       Defendant requests that we review independently the sealed transcript of the

Pitchess examination to determine whether the trial court abused its discretion in ruling

that there were no discoverable materials to be produced to the defense.

       A criminal defendant has a limited right to discovery of peace officer personnel

records based on the fundamental proposition that a defendant is entitled to a fair trial and

an intelligent defense in light of all relevant and reasonably accessible information. (City

of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1141.) An accused may

compel discovery by demonstrating that the requested information will facilitate the

ascertainment of facts and a fair trial. (Ibid.)

       In order to obtain discovery of the personnel records of a peace officer, the

moving party must submit affidavits showing good cause for such discovery and setting

out the materiality of the information requested. (Evid. Code, § 1043, subd. (b).) Under

Pitchess, a defendant demonstrates good cause for discovery when the defendant shows

the information requested is (1) relevant to a defense, (2) necessary in that the defendant

could not readily obtain the information through his own efforts, and (3) described with


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adequate specificity to preclude the possibility that the defendant was engaging in a

fishing expedition. (Pitchess, supra, 11 Cal.3d at pp. 537-538.) Evidence Code section

1045 provides that if production is warranted, the trial court must examine the personnel

files in camera to determine whether they contain any relevant information.

       Defendant filed his Pitchess motion on October 4, 2012, and on November 2,

2012, the trial court granted the motion and conducted an in camera review of the

materials pertaining to Deputies Schmidt and Moline. The court found no discoverable

material and ordered the records sealed. Because defendant was not present at the

records review hearing, he requests this court to conduct an independent review of the

sealed transcript of the hearing to determine whether any error occurred. The People do

not oppose this request.

       We have reviewed the sealed reporter’s transcript of the in camera Pitchess

motion proceeding. We conclude the trial court properly exercised its discretion in

excluding from disclosure the deputies’ personnel records. (People v. Samayoa (1997)

15 Cal.4th 795, 827.)




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 RAMIREZ
                                                           P. J.


We concur:

McKINSTER
                         J.

KING
                         J.




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