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People v. Nettles1/26/2004
lude it is apparent from the totality of the circumstances that defendant's stipulation was voluntary and intelligent. (Cf. People v. Allen, supra, 21 Cal.4th at p. 438; see also Tahl, supra, 1 Cal.3d at p. 129 [As a matter of state law, "[i]f an accused has counsel, courts have generally assumed, in the absence of evidence to the contrary, counsel will perform his duty as an advocate and an officer of the court to inform the accused of and take steps to protect the other rights afforded by the law"].)
The California Supreme Court has discussed this strategy in the context of a slow plea procedure, and found no Boykin-Tahl admonitions and waivers are required: " 'Sometimes, a defendant's best defense is weak. He may make a tactical decision to concede guilt as to one or more of several counts as part of an overall defense strategy. A submission under these circumstances is not a slow plea, and the trial court is not constitutionally compelled by Boykin and Tahl to administer the guilty-plea safeguards to assure that the tactical decision is voluntary and intelligent....' [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 29, quoting People v. Wright (1987) 43 Cal.3d 487, 497.)
There was no prejudice to defendant, as the stipulation was voluntary and intelligent under the totality of the circumstances. No reversal on counts two or three is required.
II. The Trial Court Did Not Err in Failing to Instruct the Jury on the Lesser Offense of Driving with Wanton Disregard for Safety
Convicted in count one with attempting to evade a pursuing police vehicle while driving "in a willful or wanton disregard for the safety of persons or property," in violation of section 2800.2, subdivision (a), defendant contends the trial court should have instructed that defendant could be convicted of section 2800.1, which proscribes the lesser included offense of attempting to evade a pursuing police vehicle. [FN5]
FN5. Section 2800.1, subdivision (a) reads:
"(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 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, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform."
Section 2800.2 reads:
"(a) If a person flees or attempts to elude a pursuing peace officer in
violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.
"(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
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