Filed 11/20/13 P. v. Wallace CA2/6
                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 SIX


THE PEOPLE,                                                                    2d Crim. No. B238946
                                                                             (Super. Ct. No. KA094768)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

JAMES FLOYD WALLACE,

     Defendant and Appellant.



                   James Floyd Wallace appeals from the judgment following his
conviction by jury of misdemeanor assault on a peace officer (Pen. Code, § 241,
subd. (c));1 felony evasion of an officer (Veh. Code, § 2800.2, subd. (a)); driving
under the influence of alcohol (Veh. Code, § 23152, subd. (a)); driving with a
revoked license (Veh. Code, § 14601.1, subd. (a)); misdemeanor hit-and-run driving
(Veh. Code, § 20002, subd. (a)); and resisting an executive officer (Pen. Code, § 69).
In a bifurcated proceeding, the trial court found true the allegations that appellant had
two prior serious felony convictions or juvenile adjudications (§ 667, subd. (a)(1));
two prior serious or violent felonies within the meaning of the three strikes law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and had served seven prior
prison terms (§ 667.5, subd. (b)). The court sentenced him to a 15-year 8-month


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             All statutory references are to the Penal Code unless otherwise stated.
prison term. Appellant challenges the sufficiency of the evidence to support the
felony officer evasion. He further claims he was improperly convicted of
misdemeanor assault on a peace officer because it is a lesser included offense of the
charge of resisting an officer of which he was charged and convicted. We affirm.
                              FACTUAL BACKGROUND
              On July 2, 2011, at approximately 9:00 p.m., appellant was driving his
Lincoln town car on Holt Avenue in Pomona. He offered Elizabeth Bartlett a ride.
She accepted and sat in the front passenger seat. Bartlett thought appellant was
drunk. He nearly hit several cars as he drove; he had difficulty speaking; and his
breath smelled like liquor.
              Appellant continued driving west on Holt toward a police-operated
checkpoint lane for driving under the influence and driving without a license.
Appellant turned from that lane into a well-lit gas station, parked near a gas pump,
and stayed inside the Lincoln. Uniformed Pomona Police Department Officer Glenn
Sugiki approached the Lincoln and asked appellant for his driver's license. Appellant
failed to produce a license. His eyes were bloodshot. Thinking that appellant might
be intoxicated, Sugiki repeatedly told him to surrender the car keys, which were in
the ignition. Appellant refused to do so, and told Sugiki, "You must be out of your
fucking mind." Appellant stayed in the driver's seat, with his door open.
              Sugiki stood in the space between appellant and the open driver's door,
leaned into the car, and tried to remove the keys from the ignition. Appellant still
refused to surrender the keys. Sugiki struggled with him, and tried to prevent his
driving away. Appellant pushed the accelerator and the Lincoln's wheels started
spinning while Sugiki's head was inside the car. Sugiki tried to grab the steering
wheel but appellant kept driving. The car lurched forward. Its door hit Sugiki and
knocked him off balance. His glasses fell off. Sugiki moved quickly so the Lincoln
would not run over his legs, and appellant sped away.
              Bartlett, who was still in the Lincoln, feared for her life. Appellant was
driving at high speeds, after dark, with the lights off, and the Lincoln was "bouncing

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off the curb." Bartlett begged appellant to let her get out. Appellant stopped the car,
pushed her out, and sped away.
                 Several police officers pursued appellant in marked patrol vehicles and
recorded the chase. They caught up with him at Holt and Fairplex Drive, before he
entered the 71 Freeway. During the chase, appellant illegally straddled the driving
lanes; made an illegal left turn through a red light; and hit several parked cars. He
damaged at least one car, a Honda, but did not stop to leave identifying information
for its owner.
                 Appellant finally parked the Lincoln at a police station and got out.
Officers administered field sobriety tests, which appellant failed. His blood alcohol
content was .18, above the .08 legal limit. Appellant's driver's license had been
revoked since 1978.
                                       DISCUSSION
                                Sufficiency of the Evidence
                 Appellant contends there is not sufficient evidence to support his
conviction of felony officer evasion because there is no evidence of his wanton
disregard for safety. We disagree.
                 In assessing a sufficiency of the evidence claim, we consider the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence, that is, "'". . . evidence that is reasonable, credible, and of solid
value, from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt."'" (People v. Burney (2009) 47 Cal.4th 203, 253.) We presume all
facts in support of the judgment which reasonably could be deduced from the
evidence, accord the judgment all reasonable inferences from the evidence, and do
not reweigh the evidence or assess credibility. (People v. Wilson (2008) 44 Cal.4th
758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reversal is not
warranted simply because the evidence might also reasonably be reconciled with a
different verdict. (People v. Albillar (2010) 51 Cal.4th 47, 59-60; People v. Bolin
(1998) 18 Cal.4th 297, 331.)

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               Vehicle Code section 2800.2, subdivision (a), makes it a crime "[i]f a
person flees or attempts to elude a pursuing peace officer in violation of Section
2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the
safety of persons or property . . . ." However, a violation of section 2800.1 occurs
only if the person being pursued, "with the intent to evade, willfully flees or
otherwise attempts to elude" a pursuing peace officer. (Veh. Code, § 2800.1, subd.
(a).)
               In claiming there is no evidence of his wanton disregard for others,
appellant stresses that the pursuit occurred at night when there was little traffic. He
further argues that "Officer Vandenberg was unable to specify any specific events in
the driving that put other parties at a risk other than the self-evident statement that all
traffic violations are unsafe." The record contains substantial evidence that he drove
the Lincoln with wanton disregard for the safety of persons or property as he evaded
the police. As the police pursued him, appellant drove the Lincoln in the dark, with
its lights off; he turned left against a red light; he hit at least one parked car; and he
sometimes drove at a high rate of speed. Moreover, he did so while under the
influence of alcohol, and without a valid driver's license. By their nature, several of
his traffic violations reflect appellant's wanton disregard for the safety of others. For
example, his driving in the dark, without lights, increased his risk of hitting another
person. The jury could reasonably infer from the evidence that appellant acted with
"wanton disregard for the safety of persons or property" while evading the police.
                                 Lesser Included Offense
               The jury convicted appellant of misdemeanor assault on a police officer
(§ 241, subd. (c)),2 as a lesser included offense of the charged felony assault on a

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         Throughout the proceedings below, in referring to the lesser included offense
of misdemeanor assault on a peace officer, which is defined in subdivision (c) of
section 241, the trial court and counsel mistakenly cited subdivision (b) of that
section. (Appellant and respondent also cite subdivision (b) throughout their briefs.)
(Subdivision (b) defines an assault on a parking control officer.) Despite the
typographical references to subdivision (b), the jury was instructed regarding the
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police officer with a deadly weapon or by means of force likely to produce great
bodily injury (§ 245, subd. (c)). He contends that his section 241, subdivision (c)
misdemeanor assault on a police officer conviction must be reversed because the
crime is a lesser included offense of resisting an officer in violation of section 69.
We disagree.
               "'In general, a person may be convicted of, although not punished for,
more than one crime arising out of the same act or course of conduct.' [Citation.] 'A
judicially created exception to the general rule permitting multiple convictions
"prohibits multiple convictions based on necessarily included offenses." [Citation.]
"[I]f a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former. [Citation.]'" (People
v. Leal (2009) 180 Cal.App.4th 782, 792-793 (Leal ).)
               "Our Supreme Court has 'applied two tests in determining whether an
uncharged offense is necessarily included within a charged offense: the "elements"
test and the "accusatory pleading" test. Under the elements test, if the statutory
elements of the greater offense include all of the statutory elements of the lesser


correct elements of misdemeanor assault on a police officer. We use subdivision (c)
of section 241 in this discussion. We will direct the trial court to amend minutes and
the abstract of judgment on remand to cite subdivision (c) rather than subdivision (b)
of section 241. The relevant provisions of section 241 follow:
         "(a) An assault is punishable by a fine not exceeding . . . $1,000, or by
imprisonment in the county jail not exceeding six months, or by both the fine and
imprisonment. [¶] (b) When an assault is committed against the person of a parking
control officer engaged in the performance of his or her duties, and the person
committing the offense knows or reasonably should know that the victim is a parking
control officer, the assault is punishable by a fine not exceeding . . . $2,000 or by
imprisonment in the county jail not exceeding six months, or by both the fine and
imprisonment. [¶] (c) When an assault is committed against the person of a peace
officer . . . , and the person committing the offense knows or reasonably should know
that the victim is a peace officer, . . . engaged in the performance of his or her duties,
. . . the assault is punishable by a fine not exceeding . . . $2,000, or by imprisonment
in the county jail not exceeding one year, or by both the fine and imprisonment."
(Italics added.)
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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.
[Citation.]' The Court has explained that 'it is logically consistent to apply the
accusatory pleading test when it is logical to do so (to ensure adequate notice) but not
when it is illogical to do so (when doing so merely defeats the legislative policy
permitting multiple convictions). Our conclusion results in a straightforward overall
rule: Courts should consider the statutory elements and the accusatory pleading in
deciding whether a defendant received notice, and therefore may be convicted, of an
uncharged crime, but only the statutory elements in deciding whether a defendant
may be convicted of multiple charged crimes.' [Citation.]" (Leal, supra, 180
Cal.App.4th at 793.)
              Here, the issue is whether appellant may be convicted of multiple
charged crimes. Accordingly, we apply the statutory elements test to determine
whether the elements of the claimed greater offense (resisting an officer in violation
of section 69) include all the elements of the claimed lesser offense (misdemeanor
assault on an officer in violation of section 241, subdivision (c) such that the greater
offense cannot be committed without also committing the lesser offense. (Leal,
supra, 180 Cal.App.4th at 793.)
              Appellant cites People v. Lacefield (2007) 157 Cal.App.4th 249 in
arguing that section 241, subdivision (c) is a lesser included offense of section 69.
Our Supreme Court recently "disapprove[d] Lacefield to the extent it held that
section 148 [subdivision] (a)(1) is a necessarily lesser included offense of section 69
based upon the statutory elements of those offenses," in People v. Smith (2013) 57
Cal.4th 232, 242. In reaching its holding, the Supreme Court explained that "section
69 'sets forth two separate ways in which an offense can be committed. The first is
attempting by threats or violence to deter or prevent an officer from performing a
duty imposed by law; the second is resisting by force or violence an officer in the
performance of his or her duty.'" (Id. at p. 240.) The Court further explained that "it

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is possible to violate section 69 in the first way—by attempting, through threat or
violence, to deter or prevent an executive officer from performing a duty—without
also violating section 148(a)(1). A person who threatens an executive officer in an
attempt to deter the officer from performing a duty 'at some time in the future'
[citation] does not necessarily willfully resist that officer in the discharge or attempt
to discharge of his or her duty under section 148(a)(1). Accordingly, section
148(a)(1) is not a lesser included offense of section 69 based on the statutory
elements of each offense." (Id. at p. 241.)
                  Appellant reasons that because the force referenced in the section 69
resisting offenses is indistinguishable from the force referenced in the assault
component of the section 241, subdivision (c) misdemeanor assault on a police
officer, the latter crime is a lesser included offense of section 69. Appellant is wrong.
As he recognizes, the section 241, subdivision (c) offense necessarily occurs when a
peace officer is performing his duties. However, as the Supreme Court recognized in
Smith, a person can violate section 69 by threatening "an executive officer in an
attempt to deter the officer from performing a duty 'at some time in the future.'"
(People v. Smith, supra, 47 Cal.4th at p. 241, italics added.) Therefore, a person can
violate section 69 without violating section 241, subdivision (c) by assaulting a peace
officer during the commission of his duties. Section 241, subdivision (c) "is not a
lesser included offense of section 69 based on the statutory elements of each
offense." (Smith, at p. 241.)
                  The parties dispute whether section 241, subdivision (c) is a lesser
included offense of section 69 under the accusatory pleading test. Because that test
has no application to the issue before us (Leal, supra, 180 Cal.App.4th at 793), we do
not discuss it.
                                       DISPOSITION
                  We direct the superior court to amend the minutes and the abstract of
judgment to cite section 241, subdivision (c) in each reference to appellant's



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conviction of misdemeanor assault on a police officer. In all other respects, the
judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          PERREN, J.


We concur:



              GILBERT, P.J.



              YEGAN, J.




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                                  Tia Fisher, Judge

                       Superior Court County of Los Angeles

                        ______________________________


             Jeffrey J. Douglas, under appointment by the Court of Appeal, for
Defendant and Appellant

             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney
General, for Plaintiff and Respondent.




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