 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Jacko1/23/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Michael Jacko was found guilty by a jury of evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a), and driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (b). He admitted prior convictions for drunk driving and possession of a controlled substance. Sentenced to prison for a term of three years and to county jail for a one-year consecutive sentence, appellant contends the judgment must be reversed due to instructional error. For reasons explained in this opinion, we reject this contention and affirm the judgment.
FACTUAL SUMMARY
On July 13, 2001, police attempted to stop a speeding car driven by appellant. As they pursued, appellant drove through city streets at speeds up to 90 miles per hour, running red lights, passing other cars on the right, and crossing lanes of traffic. The chase ended when appellant collided with another car. Police saw a half empty beer can in appellant's car and observed appellant to exhibit symptoms of intoxication. Appellant's performance on field sobriety tests caused the officer administering the tests to conclude that appellant could not safely operate a car. An investigating officer testified that an unspecified blood alcohol test was "attempted."
DISCUSSION
I.
The trial court instructed the jury in the words of CALJIC 2.52 as follows: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
Appellant argues this instruction undermined his defense to the evading charge, which was that his intoxication prevented him from forming the specific intent essential to proof of the crime of willfully evading an officer. He reasons that although there was no evidence of flight when the chase ended with a traffic collision, the challenged instruction allowed the jury to infer an essential element of the crime, i.e., the specific intent to evade the pursuing peace officer, from another element of the crime, i.e., the flight itself, thereby "sabotag " his defense.
The record reveals that appellant's trial counsel conceded, in both his opening statement and his closing argument, that the evidence would prove "drunk driving." Yet counsel did not remind the court of this concession when he objected to CALJIC No. 2.52. Instead, he argued that "the crime" ended with the collision and that there was no evidence of "flight after crime." The court overruled the objection, explaining: " his defendant here is charged with two crimes, not only evading. We're talking about evading, and I think perhaps you might have a good argument, but he's also committing the crime of driving under the influence of alcohol, and I think the reasonable inference is that he was trying to keep from having the police officers smell the alcohol on his breath and that sort of thing, so it does show, I think, . . . consciousness of guilt."
Following this ruling the jury was instructed on principles relevant to both of the charged crimes. And, despite defense counse
Page 1 2 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|