BY: RAY HILL, PROFESSOR EMERITUS, SANTA ROSA JUNIOR COLLEGE

Fleeing by Car and Fleeing by Foot Are Two Separate Crime (Peo. v. Fuentes, 2022 4DCA #E075745 2022 Cal. App. Lexis 408 - 5/12/22)

A Hemet Police detective and his partner ran a “rolling plate check” on a vehicle model commonly known to be the subject of auto theft. Sure enough, the vehicle was stolen. A traffic stop was initiated. Defendant pulled over, was ordered from the vehicle, he opened the car door, took one step out, then reentered the vehicle, and sped off. A vehicle pursuit ensued wherein the defendant drove at high speed, ran a stop sign, crossed over into the opposing traffic lanes, and finally crashed into a brick wall. He fled the vehicle with the detectives in foot pursuit (they were 3-4 car lengths behind the suspect at the time of the crash). A taser attempt was unsuccessful when the dart failed to penetrate the defendant’s clothing Finally, one detective caught up and took the defendant to the ground and he was arrested.

In addition to auto theft and possession of a controlled substance, defendant was charged with 2800.2 V.C. (his driving consisted of damaging property and committing at least three traffic “point” violations constituting willful and wanton disregard for property or persons) and 148(a)(1) P.C. (willful resistance or delaying a public officer in the performance of duty). He was convicted at jury trial and received a sentence for both crimes (Note: Defendant had four prior felony convictions including a “strike conviction”!).

Defendant appealed the 2800.2 V.C. and 148(a)(1) P.C. convictions arguing that resisting an officer in the performance of duty was a lesser and included offense of the vehicle fleeing Both were part of an indivisible course of conduct.

4DCA ruled the flight by vehicle and flight by foot were not part of the same criminal transaction and the defendant was properly convicted and punished for both crimes. Though it was obvious the defendant was continuing his escape, the second flight by foot presented an additional safety risk to officers.

It is not uncommon to have this continuous course of conduct in a suspect escape. Document the circumstances and corpus for both offenses, book the suspect for both charges, and request the District Attorney to file a criminal complaint for both 2800.2 V.C. and 148(a)(1) P.C.

Stay Safe,

RH