Filed 5/6/13 P. v. Miller CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B238815

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA359230)
         v.

ALBERT MILLER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Leslie A. Swain, Judge. Affirmed.
         Barbara A. Smith, 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, James William
Bilderback II, Joseph P. Lee and Tita Nguyen, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                 _______________
       Defendant and appellant Albert Miller appeals his conviction, by jury trial, of
evading an officer with willful disregard, a felony (Veh. Code, § 2800.2, subd. (a)),
evading an officer against traffic, a felony (Veh. Code, § 2800.4), and driving with a
suspended or revoked license, a misdemeanor (Veh. Code, § 14601.2, subd. (a)).
Appellant maintains that a multiplicity of errors in the trial court cumulatively denied him
a fair trial. We find no error, and so affirm the judgment.


                   FACTUAL AND PROCEDURAL BACKGROUND
       Around 12:30 p.m. on July 8, 2009, Los Angeles Police Officers Minnick and
Chavez, who were in a marked police cruiser patrolling the neighborhood around 68th
Street and Hoover Street, observed a motorcycle cross their path in a residential area at a
speed well in excess of the speed limit. The officers pursued the motorcycle as it drove
through the neighborhood, ignoring stop signs and weaving through traffic on narrow
streets. The motorcycle did not respond to the cruiser's overhead lights and siren. After
following the cyclist on a circuitous route with multiple turns, the officers lost sight of the
motorcycle near 59th Place and Hoover.
       While they were pursing the motorcycle, the officers radioed their activities to the
77th Street station. Supervisors at the station advised the officers to cease pursuing the
vehicle if it was only engaged in reckless driving, and called in a helicopter to take over
the pursuit.
       A second patrol vehicle driven by Officer Delgado, heard the radio dispatch,
spotted the speeding motorcycle, and followed it after it turned from Hoover, going east
on Slauson Avenue toward the 110 Freeway. Officer Delgado's unit followed the vehicle
as it sped onto the 110 ramp going north.
       Additional LAPD units pursued the motorcycle on the freeway with their lights
and sirens activated. The motorcycle was weaving through traffic, causing vehicles to
brake or swerve to avoid collisions. The motorcycle ended up in the far left lane,
traveling at 75 to 80 miles per hour, while the flow of traffic was at 25 miles per hour.



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Around the Martin Luther King, Jr. Boulevard exit, Officer Delgado radioed that he had
lost sight of the motorcycle.
       Sergeant Ramirez, listening to the police radio regarding the pursuit, parked on the
Vernon Avenue onramp of the northbound 110, approximately one mile south of Martin
Luther King, Jr. Boulevard. After less than three minutes, he observed the cyclist driving
the wrong way (south) on the collector road to the east of the 110 freeway between the
Martin Luther King, Jr. exit and the Vernon Avenue exit.
       The motorcycle proceeded the wrong way down the onramp; it stopped when it
met Sergeant Ramirez's vehicle. The cyclist laid down the cycle within feet of the patrol
car. Sergeant Ramirez unholstered his service revolver, and the cyclist ran up the ramp,
across the northbound freeway to the median, south down the median, across the
southbound freeway, and ended up in bushes on an embankment on the southbound side
of the 110 freeway, near the 49th Street overpass, where appellant was apprehended by
another police officer.
       Appellant was charged with felony evading an officer with willful disregard,
felony evading an officer against traffic, and driving with a suspended license.
       Appellant's defense was one of mistaken identity. He testified that he was not the
cyclist observed by Officers Minnick and Chavez to be speeding on Hoover Street and
observed by Officer Delgado to speed onto the northbound Slauson Avenue onramp, nor
did he travel against the traffic on either the freeway or the collector road. Rather, he got
on the freeway at 51st Street and was following all traffic laws when a helicopter ordered
him to pull over. Appellant further explained that he ran from Sergeant Ramirez because
he had been shot in the head the prior year, and "freaked out" when the sergeant pulled
his gun. The freeway traffic was at a standstill, so he crossed the freeway to surrender
himself to officers he saw on the other side.
       Appellant's first trial ended in a hung jury on the two felony counts; he was
convicted of driving with a suspended license. On retrial, appellant was convicted of
felony evading an officer with willful disregard and felony evading an officer against



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traffic. After the jury returned its verdicts, the prior strike and prior prison term
allegations were tried to the court, which found all prior conviction allegations to be true.
       The court denied the defense request to dismiss certain prior strike convictions,
but did limit the sentence to a term doubled for one of the strikes. Consequently, the
court imposed a total term of four years (the two-year midterm, doubled) on the first
count of felony evading, and stayed punishment on all other counts and enhancements.
       Appellant timely filed a notice of appeal.


                                      CONTENTIONS
       Appellant claims that "several significant errors distorted the jury's consideration
of his guilt on the two felony counts of conviction." He cites three such "significant
errors:" (1) The trial court's refusal to permit evidence regarding LAPD's policy
regarding car chases; (2) the lack of instructions regarding eyewitness identifications;
(3) and the lack of a unanimity instruction. Appellant concludes that the judgment must
be reversed because "this cumulation of errors denied appellant due process and a fair
trial, in a manner which meets both state and federal standards of prejudice." We
consider each alleged error separately below.


                                        DISCUSSION
       1.     Evidence of LAPD's policy on police pursuits of vehicles
       Appellant contends that the trial court deprived him of his constitutional right to
confrontation when it improperly denied him the opportunity to impeach Officer Minnick
with the LAPD policy against high-speed chases.
       To put the argument in context, Officer Minnick's supervisors at the 77th Street
Station radioed that she was to discontinue the pursuit of the speeding motorcycle if the
only offense she observed was reckless driving. Officer Minnick testified that she had
already lost sight of the fleeing cyclist when the supervisor radioed the instruction to
discontinue the pursuit. She further testified that LAPD policy allowed her to pursue a
reckless driver, and that her conduct was in compliance with the Department's policy.

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She stated that officers are "allowed to go on a pursuit of a reckless driver. I believe that
watch commander didn't know those facts. The only facts he knew was when he heard
the first radio broadcast on Vermont. So he didn't know what had occurred previously."
The defense wished to impeach this testimony with the following statement from the
LAPD Police Manual published on the LAPD website: "Officers shall not initiate a
pursuit based on an infraction, misdemeanor evading, including failure to yield or
reckless driving in response to enforcement action taken by department personnel." The
prosecution objected, arguing that the LAPD policy was irrelevant, it had little bearing on
the officer's credibility, and it would likely confuse the jury regarding the material issues
in the case. The trial court excluded the evidence pursuant to Evidence Code section 352,
ruling that it involved impeachment on an immaterial issue that would be unduly
confusing and time consuming.
       We find no error in this ruling. No element of the charged offenses required the
prosecution to prove that Officer Minnick or the other officers were acting within the
proper discharge of their duties during the pursuit. This made the LAPD policy regarding
when officers may or may not pursue a driver irrelevant.
       Moreover, the policy which appellant sought to introduce into evidence is subject
to multiple interpretations. For instance, it appears to concern only the commencement of
a pursuit ("Officers shall not initiate a pursuit . . ."), not whether or not a pursuit must be
abandoned. Appellant does not contend that Officer Minnick acted contrary to LAPD
policy when she followed the speeding motorcycle onto Hoover Street, but that she failed
to abandon the pursuit in accordance with LAPD policy. If this interpretation of the
policy were accepted, the policy would not impeach Officer Minnick's testimony.
Similarly, it could be argued that the proffered policy concerns only a very specific
factual circumstance: when an "enforcement action taken by department personnel"
(presumably, activating lights and siren, for example) elicits a response from the targeted
driver which response constitutes an infraction, misdemeanor evading, or reckless
driving. In the absence of this specific factual situation, the policy would not apply. The
factual predicates to application of this policy are not present in this case. That is to say,

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appellant did not speed in response to Officer Minnick's enforcement action, he sped
prior to her activation of the lights and siren.1
         On the other hand, appellant's interpretation of the policy could be the correct one.
The point is that introducing a one-sentence summary of the LAPD's policy on police
pursuits in a case in which the policy has no relevance to the issues to be litigated creates
a red herring which has the clear potential to consume undue time and confuse the jury on
an immaterial issue. (See, e.g., People v. Morrison (2011) 199 Cal.App.4th 158, 164
["admissibility of collateral impeachment evidence is subject 'to the trial court's
"substantial discretion" under [Evidence Code] section 352 to exclude prejudicial and
time-consuming evidence.'"].) The trial court properly excluded the evidence.


         2.     Eyewitness identification instructions
         Appellant contends that the trial court erred by failing to instruct the jury with
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CALCRIM No. 315, the eyewitness identification instruction. The argument lacks
merit.


         1
        And what is a "pursuit?" Is it a violation of the policy to follow a driver who has
committed one of the specified acts but, while not speeding or driving recklessly, simply
waves to the officer and proceeds on his or her way?
         2
        CALCRIM No. 315 Eyewitness Identification reads as follows: "You have heard
eyewitness testimony identifying the defendant. As with any other witness, you must
decide whether an eyewitness gave truthful and accurate testimony.

         "In evaluating identification testimony, consider the following questions:

         "Did the witness know or have contact with the defendant before the event?

         "How well could the witness see the perpetrator?

       "What were the circumstances affecting the witness's ability to observe, such as
lighting, weather conditions, obstructions, distance, [and] duration of observation[, and
<insert any other relevant circumstances>]?


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       Sergeant Ramirez testified for the first time at appellant's second trial that he saw
appellant in profile fleeing on foot, and could consequently "facially identify" him.
Appellant argues: "[Sergeant Ramirez] explained how no one asked the right question in
the 28 months since the incident, to elicit an identification of the traditional sort. This



(continued)

       "How closely was the witness paying attention?

       "Was the witness under stress when he or she made the observation?

      "Did the witness give a description and how does that description compare to the
defendant?

        "How much time passed between the event and the time when the witness
identified the defendant?

       "Was the witness asked to pick the perpetrator out of a group?

       "Did the witness ever fail to identify the defendant?

       "Did the witness ever change his or her mind about the identification?

       "How certain was the witness when he or she made an identification?

       "Are the witness and the defendant of different races?

       "[Was the witness able to identify other participants in the crime?]

       "[Was the witness able to identify the defendant in a photographic or physical
lineup?]

       "[<insert other relevant factors raised by the evidence>.]

       "Were there any other circumstances affecting the witness's ability to make an
accurate identification?

       "The People have the burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime. If the People have not met this burden, you must
find the defendant not guilty."

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certainly seemed odd, and it would have been useful for the defense to have eyewitness
identification instructions, which would ask the jury to consider factors almost all
militating against giving Sergeant Ramirez's late identification much credence."
       Because appellant acknowledges that "he was the cyclist who ran from Sergeant
Ramirez," his purpose in seeking the identification instruction was not to challenge
whether appellant was actually the person Ramirez saw – he admitted he was – but to
challenge Ramirez's truthfulness in belatedly identifying appellant. And appellant did not
need CALCRIM No. 315 to suggest that Ramirez's late identification of him was suspect.
Appellant was free to argue to the jury, as he argues in his appellate brief, that "[i]t strains
credulity to suppose than an officer with 21 years experience would not think to mention
he could make a facial identification of a suspect, whose face was mostly obscured
during salient portions of the events in question." In sum, the trial court did not err in
failing to instruct the jury with CALCRIM No. 315.


       3.     Unanimity Instruction
       Appellant contends that the trial court had a duty to instruct the jury that it was
required to unanimously agree on the factual basis for the findings that defendant evaded
officers with willful and wanton disregard, and evaded against traffic.
       As our Supreme Court has explained, "The key to deciding whether to give the
unanimity instruction lies in considering its purpose. The jury must agree on a 'particular
crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of
one crime and other jurors believed [him] guilty of another. But unanimity as to exactly
how the crime was committed is not required. Thus, the unanimity instruction is
appropriate 'when conviction on a single count could be based on two or more discrete
criminal events,' but not 'where multiple theories or acts may form the basis of a guilty
verdict on one discrete criminal event.' [Citation.] In deciding whether to give the
instruction, the trial court must ask whether (1) there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime, or (2) the evidence merely presents
the possibility the jury may divide, or be uncertain, as to the exact way the defendant is

                                               8
guilty of a single discrete crime. In the first situation, but not the second, it should give
the unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1134–1135.)
       Appellant contends that, because the prosecution introduced evidence of more
than one act on the part of the appellant which could constitute the offense charged in
count 1 (for instance, evidence that appellant perceived and ignored the attempts of two
pursuing officers in two separate patrol cars to stop his progress) and count 2 (evidence
that appellant drove against traffic both on the freeway and on the connector road) a
unanimity instruction was required. We do not agree.
       Appellant's flight from pursuit was charged as two separate criminal offenses,
covering two discrete time periods: Count 1 focused on appellant's conduct from the
time he was first observed to be speeding on Hoover Street by Officer Minnick until
Officer Delgado lost sight of him on the freeway. Count 2 pertained to appellant's
conduct when he was observed travelling against traffic, near the end of the pursuit.
       While there was evidence of various factual bases for a jury finding that appellant
was evading an officer (Minnick, Delgado) in willful disregard for safety (speeding,
running stop signs), "jury unanimity is not required 'as to the exact way the defendant is
guilty of a single discrete crime.'" (People v. Datt (2010) 185 Cal.App.4th 942, 950.)
Moreover, "[t]here also is no need for a unanimity instruction if the defendant offers the
same defense or defenses to the various acts constituting the charged crime." (People v.
Jennings (2010) 50 Cal.4th 616, 679.) Here, appellant's defense to both count 1 and
count 2 was that he did not commit the acts testified to by the officers. Because there
was no reasonable basis for the jury to believe that appellant evaded Officer Delgado but
not Officer Minnick with willful disregard for safety, or drove the wrong way on the
connector road but not on the freeway, a unanimity instruction was not required.
       In sum, appellant's argument that the cumulative effect of the trial court's errors
deprived him of a fair trial fails, as it is based on the false premise that there were errors.
As explained above, none of the assignments of error identified by appellant were in fact
errors on the part of the trial court; thus, there was nothing to cumulate.



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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                          ARMSTRONG, J.


We concur:



             TURNER, P. J.



             MOSK, J.




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