People v. Austin CA1/5 ( 2023 )

Filed 12/14/23 P. v. Austin CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166352
v.
ADRIAN DION AUSTIN, (Solano County Super. Ct. No.
Defendant and Appellant. FCR360151)
Adrian Dion Austin appeals from an order of probation
entered after a jury convicted him of felony evasion of an officer
with willful disregard for safety (Veh. Code, § 2800.2, subd. (a);
count one),1 misdemeanor driving under the influence of alcohol
(§ 23152, subd. (a); count two), and misdemeanor driving with a
blood-alcohol content at or above 0.08 percent (§ 23152, subd. (b);
count three). Austin challenges the sufficiency of the evidence
supporting his conviction on count one and maintains the trial
court erred by declining to give a jury instruction on a purported
lesser included offense. We affirm.
BACKGROUND
A.
Late on July 31, 2021, California Highway Patrol Officer
Sage Birdseye observed the car Austin was driving traveling
1 Undesignated statutory references are to the Vehicle
Code.
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more than 90 miles per hour on Interstate 80. Birdseye, who was
in uniform and a marked patrol car, activated his emergency
lights to conduct a traffic stop. Austin’s car initially slowed.
Although Birdseye’s partner gave commands (via the public
address system) to take the next exit, Austin did not exit the
freeway. Instead, he accelerated away from the patrol car.
Birdseye pursued Austin with the patrol vehicle’s lights
and siren activated. But Austin continued driving on the freeway
at speeds more than 100 miles per hour. In doing so, he cut off
one car—forcing it to brake to avoid a collision. And, as Austin
weaved in and out of traffic during the high-speed pursuit, he
nearly struck additional cars.
Austin exited onto Highway 12, where he continued to
drive over 100 miles per hour away from the patrol car. As he
approached two cars traveling side by side on the two-lane
highway, he had to slow significantly to avoid a collision. Austin
then followed one of those cars very closely until it pulled
partially onto the shoulder. Austin then passed both cars—by
straddling the middle-lane line—and accelerated back to around
100 miles per hour.
Austin eventually stopped, in a left turn lane, at a red light.
Birdseye exited his patrol car, attempting to conduct a “high-risk
stop.” But Austin ran the red light, turning left from Highway 12
onto Marina Boulevard. Birdseye returned to his patrol car and
continued the pursuit.
After running the red light, Austin reduced his speed
significantly to “around the speed limit,” but continued to ignore
the patrol car’s lights and siren, as well as repeated commands to
“pull over.” During this portion of the pursuit, Austin continued
to commit traffic violations, including running a stop sign.
Eventually, after the pursuit had persisted for more than 10
minutes, Austin ran over at least one spike strip (placed by the
Fairfield Police Department), which deflated one of his tires.
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As Austin approached the Solano County jail, Birdseye’s
partner ordered, via the public address system, “[p]ull over into
the jail” and “[m]ake a left turn.” A few minutes later, the
pursuit ended when Austin drove into the jail’s parking lot and
parked his car in a parking spot. The entire pursuit lasted more
than 15 minutes and was captured on the patrol vehicle’s dash
camera. The video, which was played for the jury, corroborates
Birdseye’s testimony.
On detaining Austin, Birdseye joked that there was no need
to transport Austin to the jail since they were already there.
Austin responded, “That was the whole purpose.”
After Austin was read (and waived) his Miranda v. Arizona
(1966) 384 U.S. 436 rights, he was asked why he did not pull
over. Austin explained, “when I seen the lights I just kept on
going because basically I already knew I was going to jail,” in
part because he had a suspended driver’s license. He “wanted to
stop” but thought, “fuck it. I’m just going to be going to jail
anyway.” Austin also said that he wanted to finish his cigarettes
before going to jail. He also suggested that the car he was
driving, which belonged to his mother, would have been towed or
impounded had he pulled over immediately.
When asked how his car was working, Austin said, “Drives
ok. I got away from you guys for a minute.” Austin asked
Birdseye, “Did you know that I was running from you?” Birdseye
said, “Yes. Did you know you were running from me? Cops with
lights and sirens?” Austin replied, “I seen the lights.”
During his conversation with Austin, Birdseye observed
objective signs and symptoms of alcohol intoxication, including
red and watery eyes, slurred speech, and the strong odor of
alcohol. Chemical breath testing later revealed that Austin’s
blood-alcohol content was approximately 0.28 percent.
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B.
Defense counsel relied on Austin’s post-pursuit statements
to argue that the prosecution failed to meet its burden of proving,
beyond a reasonable doubt, that Austin fled with the specific
intent to evade the officers.
The jury convicted Austin on all three counts and found
true an allegation, as to counts two and three, that Austin’s
blood-alcohol content was at or above 0.15 percent (§ 23578).
After finding true an allegation that Austin suffered a prior
driving under the influence conviction within 10 years (§§ 23540,
23546), the trial court suspended imposition of sentence and
placed Austin on formal probation for a term of three years.
DISCUSSION
A.
Austin argues that his conviction for felony evasion must be
reversed because there is no substantial evidence that he fled
with the requisite specific intent. We disagree.
1.
When faced with a substantial evidence challenge, “the
court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence - - that is, evidence which is reasonable, credible, and of
solid value - - such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson
(1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443
U.S. 307, 318-319.) We do not reweigh the evidence, resolve
conflicts in the evidence, or reevaluate witness credibility.
(People v. Jones (1990) 51 Cal.3d 294, 314.) The standard of
review is the same when the prosecution relies on circumstantial
evidence. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
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Section 2800.2, subdivision (a), makes it unlawful for a
driver to “flee[] or attempt[] to elude a pursuing peace officer in
violation of Section 2800.1 [if] the pursued vehicle is driven in a
willful or wanton disregard for the safety of persons or property.”
In turn, section 2800.1 provides (in relevant part): “(a) 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 of a misdemeanor
punishable by imprisonment in a county jail for not more than
one year 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.” (§ 2800.1, subd. (a), italics added.)
Thus, misdemeanor and felony evasion (§§ 2800.1, 2800.2)
both require proof of specific intent to evade. The two offenses
are distinguished only by the fact that section 2800.2 requires the
pursued car be driven with “willful or wanton disregard for the
safety of persons or property.” (§§ 2800.1, 2800.2; People v.
Weddington (2016) 246 Cal.App.4th 468, 489.)
2.
In maintaining that no substantial evidence supports the
jury’s implicit finding that he fled with the intent to evade
Birdseye, Austin cites the undisputed evidence that the pursuit
ended at the Solano County jail. He also relies on his responses
to Birdseye’s questions, which suggest that he fled, in part,
because he knew he was going to jail but wanted to finish his
cigarettes and avoid his mother’s car being towed. Austin asserts
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that the only reasonable inference from this evidence is that the
jail was his intended destination all along.
That is far from the only inference that can be drawn from
the evidence. After all, Austin did not pull into the jail parking
lot until the pursuit had been ongoing for over 15 minutes and at
least one of his car tires had deflated—making further attempts
to evade the officers futile. In fact, Austin’s statements
themselves establish that he fled with the intent to evade
Birdseye—at least until he smoked his cigarettes and arrived at a
safe location for his mother’s car. Austin’s argument appears
premised on the assumption that, to be convicted of felony
evasion, he had to intend to evade officers permanently or during
every moment of the pursuit. He cites no authority for this
proposition.
The video evidence of the chase—especially the high-speed
portion, which shows Austin slowing and then driving away from
Birdseye (while weaving in and out of traffic) at speeds exceeding
100 miles per hour—and Austin’s admissions that he saw the
patrol car’s lights, had been “running,” and had “got away from
[Birdseye] for a minute”, constitute substantial evidence that
Austin fled with the specific intent of evading Birdseye. (See
People v. Brown (1984) 150 Cal.App.3d 968, 970 [“[W]hen two or
more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for
those of the jury. It is of no consequence that the jury believing
other evidence, or drawing different inferences, might have
reached a contrary conclusion.”].)
B.
Next, Austin contends that the trial court erred by failing
to instruct sua sponte on the offense of failing to comply with the
lawful order of a peace officer (§ 2800), which he claims is a lesser
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included offense.2 After reviewing the instructional question de
novo (People v. Licas (2007) 41 Cal.4th 362, 366), we conclude he
is wrong.
1.
A trial court is required to instruct on lesser included
offenses, even without a request, if substantial evidence raises a
question as to whether all the elements of the charged offense are
present. (People v. Huggins (2006) 38 Cal.4th 175, 215.) Our
Supreme Court has established two tests for determining
whether a crime is a lesser included offense: the elements test
and the accusatory pleading test. (People v. Gonzalez (2018) 5
Cal.5th 186, 197.) “Under the elements test, one offense is
another’s ‘lesser included’ counterpart if all the elements of the
lesser offense are also elements of the greater offense. [Citation.]
Under the accusatory pleading test, a crime is another’s ‘lesser
included’ offense if all of the elements of the lesser offense are
also found in the facts alleged to support the greater offense in
the accusatory pleading.” (Ibid.)
2.
Here, because Austin agrees that the charging allegations
for count one generally track the statutory language of section
2800.2, subdivision (a), we apply the elements test. (See People v.
Licas, supra, 41 Cal.4th at p. 366.)
The crime of failing to comply with the lawful order of a
peace officer is not a lesser included offense of evading an officer
with willful disregard for safety because only the former offense
requires the existence of a lawful order. (See §§ 2800, subd. (a),
2800.2, subd. (a); cf. People v. Fuentes (2022) 78 Cal.App.5th 670,
678 [“[n]othing expressed in . . . section 2800.1 or 2800.2 . . .
The jury was instructed on the lesser included offense of
2
misdemeanor evading a peace officer. (§ 2800.1, subd. (a);
CALCRIM No. 2182.)
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requires a lawful order”]; id. at pp. 679–680.)3 The Legislature’s
distinction makes sense. When a driver attempts to evade a
pursuing officer’s car, under the conditions provided by either
section 2800.1 or section 2800.2, the potential for injury to
persons and damage to property is high regardless of the
lawfulness of the traffic stop.
In his reply brief, Austin concedes: “When a law
enforcement officer initiates an illegal traffic stop, the driver may
– without running afoul of the law – stop their vehicle, comply
with the officer’s commands, and then successfully argue in court
that the traffic stop was not supported by reasonable suspicion.
They may not, however, refuse to stop entirely. This is true
because the text of section 2800.1 does not require that the law
enforcement officer initiating the traffic stop was doing so for a
lawful purpose.” (Italics added.) In other words, the charged
offense can be committed without necessarily violating section
2800. (Cf. People v. Reed (2006) 38 Cal.4th 1224, 1227 [“ ‘[I]f a
crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the
former’ ”].) The charging allegations in count one of the
information also make no mention of a lawful order, signal, or
direction.
Accordingly, we conclude that the crime of failing to comply
with the lawful order of a peace officer (§ 2800, subd. (a)) is not a
lesser included offense of evading a peace officer with willful
disregard for safety (§ 2800.2, subd. (a)). The trial court did not
3 Section 2800, subdivision (a), provides: “It is unlawful to
willfully fail or refuse to comply with a lawful order, signal, or
direction of a peace officer . . . when that peace officer is in
uniform and is performing duties pursuant to any of the
provisions of this code, or to refuse to submit to a lawful
inspection pursuant to this code.” (Italics added.)
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err in failing to instruct the jury sua sponte on the former
offense.
DISPOSITION
The judgment is affirmed.
BURNS, J.
WE CONCUR:
SIMONS, ACTING P.J.
CHOU, J.
People v. Austin (A166352)
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