People v. Mathews

Opinion

A jury convicted defendant Gerald Jay Mathews of unlawfully driving a car without consent of the owner (Veh. Code, § 10851. subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), and evading a police officer while driving recklessly (Veh. Code, § 2800.2). The trial court thereafter found true the allegations defendant had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and that three of those priors were also strikes. (Pen. Code, §§ 667, subds. (b)-(i),' 1170.12.) Defendant was sentenced to a total prison term of 55 years to life, consisting of consecutive terms of 25 years to life for the receiving stolen property and evading arrest convictions, plus 5 one-year enhancements for the prior prison terms, with the term for receiving stolen property stayed pursuant to Penal Code section 654. (Pen. Code, § 667, subd. (b).)

Defendant makes the following contentions: 1) there was insufficient evidence to support the conviction of evading a police officer; 2) the trial court erred in instructing the jury on what constitutes a “distinctively marked” vehicle or a “distinctive” police uniform; 3) defendant was improperly convicted of receiving stolen property he was also convicted of having stolen; and 4) the three strikes law as applied amounts to “cruel and unusual punishment.” We shall reverse the judgment of conviction for evading a police officer (Veh. Code, § 2800.2), and affirm the judgment in all other respects.

Facts

Scott Roper parked his burgundy-colored Mazda outside his apartment one evening, and discovered it missing the next morning. He notified the sheriff’s department the car had been stolen.

That afternoon, Police Officer Keith Jensen saw appellant driving the burgundy car; he was unaware the car had been stolen, but noticed it because the driver was performing unique backing maneuvers. Jensen was driving an unmarked police vehicle equipped with a siren, a red light mounted on the front dashboard, and headlights which flashed in an alternating, “wigwag” pattern. He was dressed in civilian clothes, but was wearing at waist level a police department issued badge, a gun and gun belt.

Defendant also seeks to distinguish Estrella because it involved a larger, three-color light bar permanently affixed near the passenger sun visor, instead of the somewhat smaller red light affixed with “Velcro” to the dashboard. The Estrella court found that a red light and siren alone were not sufficiently distinctive markings, because those items are required by Vehicle Code section 2800.1, subdivision (a)(1) and (2), indicating the distinctive-marking requirement of subdivision (a)(3) means something more. (People v. Estrella, supra, 31 Cal.App.4th at p. 723 and fn. 4 [postulating the additional marking requirement was to protect people from being victimized by someone using a red light and siren to pull cars over].) However, the court found the red light and siren coupled with “wigwag” headlights and flashing blue and clear lights sufficiently marked the vehicle for purposes of the statute. (Id. at p. 723.)

In considering “the indicia identified with the pursuit vehicle which are supplemental to a red light and siren,” the Estrella court adopted a “commonsense” approach to determine “whether a person fleeing is on reasonable. notice that pursuit is by a peace officer. Stated somewhat differently, under section 2800.1, does the person know or reasonably should know that a police vehicle is in pursuit?” (31 Cal.App.4th at p. 723.)

We find the logic of Estrella to be sound. As to defendant’s contention the Legislature intended to require distinctively painted vehicles, legislative history reveals the opposite. Section 2800.1 originally contained a requirement that the officer’s vehicle be “painted a distinctive color,” but that requirement was eliminated one year later. (Stats. 1977, ch. 1104, § 1, p. 3527; Stats. 1978, ch. 504, § 1, p. 1649.) Moreover, there is no express statutory requirement of a logo or insignia, and since pursuits may occur at night or in other low-visibility conditions, light or sound-emitting devices may also serve to identify law enforcement vehicles. Had the Legislature intended to specify logos, insignia, light sizes or other particulars, it could have done so.

We will not insert words which would, in effect, add a provision to the statute. (See People v. Superior Court (Perez) (1995) 38 Cal.App.4th

Defendant next contends that unlike Estrella, there was insufficient evidence Officer Jensen wore a “distinctive uniform.” (Veh. Code § 2800.1, subd. (a)(4).) We agree.

In determining whether a badge constitutes a “uniform,” we should keep in mind that, “ 1 “[W]hen language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. fl[] The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” ’ ” (People v. Garfield (1985) 40 Cal.3d 192 , 200 [ 219 Cal.Rptr. 196 , 707 P.2d 258 ], quoting People v. Davis (1981) 29 Cal.3d 814 , 828 [ 176 Cal.Rptr. 521 , 633 P.2d 186 ].)

The Estrella court noted that a “uniform” is a “dress of a distinctive design or fashion adopted by or prescribed for members of a particular group and serving as a means of identification.” (31 Cal.App.4th at p. 724, citing Webster’s New Intemat. Dict. (3d ed. 1986) p. 2498.) A uniform “is distinctive if it serves to distinguish, or sets something apart from others, or. if it is characteristic of or peculiar to its type.” (31 Cal.App.4th at p. 724, citing Webster’s New Internat. Dict., supra, p. 695.) Thus, a law enforcement officer’s “distinctive uniform” is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.

In Estrella, the officers were in plain clothes, but during the pursuit, one officer put on a gun belt and a bulletproof vest with a covering that bore the word “Police”; another officer had on a police department vest with a cloth badge and a baseball cap with the word “Police” on it in bright lettering. (People v. Estrella, supra, 31 Cal.App.4th at pp. 719, 724.) The Estrella court found the vests and cap “qualified] as parts of police uniforms.” (Id. at p. 724.)