PEOPLE v. BROWN

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Court of Appeal, First District, Division 3, California.

 The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Edward BROWN, Defendant and Appellant.

No. A043084.

Decided: December 13, 1989

 Rodger Paul Curnow, under appointment by the Court of Appeal, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

I.

Frank Edward Brown appeals from the judgment of conviction after a jury found him guilty of vehicular manslaughter (Pen.Code, § 192, subd. (c)(1)), and of causing injury or death while attempting to elude police pursuit (former Veh.Code, § 2800.2 [now § 2800.3] ).1  He claims that the trial court erroneously denied his Wheeler 2 motion, and that his conviction under former section 2800.2 (now § 2800.3) is not supported by substantial evidence.   We find that the Vehicle Code conviction is not supported by the evidence and must be reversed and dismissed.   We reject appellant's claim of Wheeler error, and affirm the remainder of the judgment.

II. Facts

At about 1:35 p.m. on June 12, 1987, while stopped at an intersection in a marked patrol car, Officer Eva Wilson of the Richmond Police Department saw a white and blue Cadillac approaching the intersection, closely followed by a green coupe.   The two cars were going faster than Officer Wilson thought safe, and when they reached the intersection, they made an illegal left turn.   Officer Wilson turned on her overhead signal lights and followed the two cars.   When Officer Wilson next saw the cars, the green car was still close behind the Cadillac, and both cars were speeding.   Officer Wilson estimated their speed at 45 miles per hour, although the posted speed limit was 25 miles per hour.   As Officer Wilson continued to follow the two cars, the green coupe turned away from the Cadillac at high speed and went down a side street.   Upon observing the speed of the green car's turn, Officer Wilson decided to follow it rather than the Cadillac, and gave chase.   As she caught up with the green car, she saw it had hit another car.   She drove up and ordered the driver of the green car, who proved to be appellant, to get out.   The car which appellant had hit was on its side, and two people appeared to be trapped in the wreckage.   Later investigation revealed that appellant had run through a stop sign and hit the other car broadside, severely injuring the driver and flipping the car onto a sidewalk, where it crushed and killed a passing pedestrian.   After telling a police officer that he had “ ‘tried to leave’ ” after he saw Officer Wilson “ ‘turn her lights on,’ ” appellant was arrested.

III.**

IV. Sufficiency of the Evidence

Appellant next claims that his conviction of causing injury while evading police pursuit (former § 2800.2 [now § 2800.3] ) must be reversed and dismissed for lack of evidence of an essential element of the offense.   Respondent concedes the point, and we agree.

To prove violation of former section 2800.2 (now § 2800.3), the People must prove all the elements of section 2800.1, and in addition that the violation of section 2800.1 proximately caused death or personal injury to any person.5  To prove violation of section 2800.1, the People must show (in addition to other elements) that the pursuing police vehicle “exhibit [ed] at least one lighted red lamp visible from the front․”  (§ 2800.1, subd. (a).)  Appellant contends this element went unproven.   He is correct.   Officer Wilson testified that her police car was equipped to display three possible signal light options:  one, a flashing amber light to the rear;  two, blue and white lights blinking to the front and rear;  and three, rotating red, blue, and white lights.   Officer Wilson “activated [her] overhead signals,” but did not remember whether they were in “the second or the third position.”   Freddie  Johnson, a bystander at the scene of the accident, testified that when he saw the police car, its lights were on.   Layre Allen, another bystander, testified that the police car was displaying flashing lights.   There was no testimony that established the color of the lights.

“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt.  [Citations.]  In making this determination, the appellate court ‘ “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”   [Citations.]  ․ “[O]ur task ․ is two-fold.   First, we must resolve the issue in the light of the whole record․  Second, we must judge whether the evidence of each of the essential elements ․ is substantial․” ’  [Citation.]”  (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110, quoting People v. Johnson (1980) 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738, with original emphasis.)   However, where the proven facts give equal support to two inconsistent inferences, neither is established.  (People v. Allen (1985) 165 Cal.App.3d 616, 626, 211 Cal.Rptr. 837.)   Here, the evidence established that Officer Wilson's lights were on, but not whether any of them were red.6  Accordingly, we conclude that there was no evidence of an essential element of the offense, and reverse.

The judgment of conviction of violation of former Vehicle Code section 2800.2 is reversed and dismissed.   As modified, the judgment is affirmed.   The trial court shall correct the sentence and abstract of judgment accordingly.

FOOTNOTES

1.   All further statutory references are to the Vehicle Code unless otherwise noted.Former sections 2800.1 and 2800.2 were amended effective August 22, 1988, after appellant was sentenced;  section 2800.1 was not changed, and former section 2800.2 was renumbered and amended.  (See Stats.1988, ch. 504, §§ 1 and 2, No. 3 Deering's Adv. Legis. Service, pp. 1754–1755.)   None of the changes affect the case at bench.

2.   People v. Wheeler (1978) 22 Cal.3d 258, 276–277, 282, 148 Cal.Rptr. 890, 583 P.2d 748 (where prosecutor employs peremptory challenges systematically to exclude members of identifiable group, jury must be dismissed and new jury selected).

FOOTNOTE.   See footnote *, ante.

 BARRY–DEAL, Associate Justice.

WHITE, P.J., and STRANKMAN, J., concur.