Return to CALJIC Part 9-12 – Contents
F 12.85 n1 Flight From Officers: Reckless Driving.
In its Jan. 1994 pocket part, CALJIC adopted an instruction for violation of VC 2800.1 and VC 2800.2 with a specific provision for finding that VC 2800.1 is a lesser included offense. (See People v. Springfield (93) 13 CA4th 1674, 1679-80 [17 CR2d 278].) However, neither CJ 12.85 nor CJ 17.12 convey to the jury the fundamental principle that if they have a reasonable doubt as to whether the greater or lesser offense was committed, they must return a verdict as the lesser offense. (See FORECITE F 17.10a.)
F 12.85 n2 Fleeing From Police Officer (VC 2800.2): Suspect May Be Convicted Of Recklessly Fleeing “Marked” Police Car Even If Car Was Not Marked With Insignia Or Logo.
People v. Estrella (95) 31 CA4th 716, 721-23 [37 CR2d 383].
F 12.85 n3 Reckless Vehicular Evasion Of Peace Officer: Failure To Instruct On All Elements As Reversible Error.
VC 2800.2 requires: (1) intent to evade; and (2) that the pursuing car be driven by an officer in a distinctive uniform. The failure to instruct sua sponte on these elements was held to be reversible error per se in People v. Garcia UNPUBLISHED (1995, C017387). [A copy of the Garcia opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-191.]
F 12.85 n4 Definition of “Willful”.
In People v. Richie (94) 28 CA4th 1347, 1361 [34 CR2d 200], the court held that the terms “willful” and “wanton” as used in VC 2800.2 are not technical terms and do not require sua sponte definition. However, Richie failed to consider that to be “willful”, an act must be committed with knowledge of the nature and consequences of the act. (See FORECITE F 1.20a.) Hence, it is not sufficient to merely define “willful” as “intentional.”
F 12.85 n5 Flight From Officer (VC 2800.2) Is Not An Inherently Dangerous Felony.
People v. Howard (2005) 34 C4th 1129 held that evading a peace officer while driving with wanton disregard for the safety of others is not inherently dangerous since the underlying violations triggering the statute (VC 2800.2) include non-dangerous traffic violations such as turning without signaling and driving with a suspended license.
F 12.85 n6 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase.
In People v. Garcia (2003) 107 CA4th 1159 [132 CR2d 694], the defendant led three police cars on a high-speed chase. The prosecutor charged and obtained conviction on three counts of felony evading a police officer. (VC 2800.2(a).) The Court of Appeal reversed, holding that since this was a single event, only one conviction was proper.
F 12.85 n7 Flight From Officer: Equating Willful Or Wanton Disregard With Three Vehicle Code Violations Does Not Create A Mandatory Presumption.
In People v. Pinkston (2003) 112 CA4th 387 the trial court had instructed the jury, based on VC 2800.2(b), that a willful or wanton disregard for the safety of persons or property included committing three or more Vehicle Code violations while fleeing or eluding an officer. The defendant argued that VC 2800.2 created an unconstitutional mandatory presumption and that the instruction reduced the prosecution’s burden of proof. The court disagreed that VC 2800.2(b) constituted a mandatory presumption. Rather, it set out the Legislature’s definition of what qualified as willful and wanton conduct under VC 2800.2(a). Section 2800.2(b) established a rule of substantive law rather than a presumption apportioning the burden of persuasion. Since there was no presumption, due process was not violated.
F 12.85 n8 Due Process Challenge To VC 2800.2 As Unconstitutional Mandatory Presumption.
Notwithstanding People v. Pinkston (2003) 112 CA4th 387, it may be appropriate to preserve the due process challenges to VC 2800.2 which have yet to be resolved by the California Supreme Court or in federal court. This is especially so in light of the dissent in Pinkston which argued that the statute does violate due process. (See Pinkston, 112 CA4th 396.) See Brief Bank # B-972 for briefing on this issue.
F 12.85 n9 Flight From Officer (VC 2800.2): Sufficiency Of Evidence Regarding Activation of Red Light.
(See People v. Acevedo (2003) 105 CA4th 195; People v. Brown (89) 216 CA3d 596; see also generally People v. Hudson (2006) 38 C4th 1002.)
F 12.85a
Fleeing From Officers:Definition Of Willful And Wanton.
* Modify CJ 12.85 by replacing definition of “willful or wanton” with the following:
The word “willful”, as used in this instruction, means an intentional disregard for the safety of others. It is not necessary to establish an intent to injure some person or property. The word “wanton”, as used in this instruction, includes the elements of consciousness of conduct, intent to do or omit the act in question, realization of the probable injury to another person or to property, and reckless disregard of the consequences.
Points and Authorities
This definition is taken from CJ 16.840 with a modification to include realization of probable injury to property. There appears to be no reason to use a different definition for CJ 12.85 as the CALJIC committee has done. Additionally, the knowledge elements of willfulness (see FORECITE F 12.85 n4) and the definition of wanton to include extreme indifference to human life (see FORECITE F 16.840a) should be considered as supplements to the above instruction.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 12.85b
Flight From Officer: Definition Of
“Distinctively Marked” Motor Vehicle.
*Add to CJ 12.85:
Alternative a:
A pursuing peace officer’s vehicle is “distinctively marked” if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the fleeing motorist that the pursuit is by the police.
In considering whether the prosecution has proven that the vehicle was “distinctively marked,” you may not consider any circumstances other than the physical features of the vehicle.
[Source: People v. Hudson (2006) 38 C4th 1002, 1010-11.]
Alternative b:
A peace officer’s motor vehicle is distinctively marked when it bears a symbol or device that identifies it as a peace officer’s car. Such a symbol, however, is not required. You may also find that the motor vehicle was distinctively marked if in addition to the use of a red light and siren, other identifying factors such as a distinctive paint color, “wig-wag” headlights or flashing lights of various colors. The test is whether the person knows or reasonably should know that a police vehicle is in pursuit under the circumstances.
Points and Authorities
VC 2800.2 prohibits fleeing or attempting to elude “a pursuing peace officer in violation of Section 2800.1” where the pursuit vehicle is driven recklessly. (VC 2800.2(a).) VC 2800.2 thus incorporates VC 2800.1 which, in addition to the requisite intent to evade, requires that 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.
The requirement that the motor vehicle be “distinctively marked” requires identifying indicia beyond just a red light and siren. (People v. Hudson (2006) 38 C4th 1002, 1010-11; People v. Estrella (95) 31 CA4th 716, 722-23 [37 CR2d 383]; see also People v. Mathews (98) 64 CA4th 485, 489 [75 CR2d 289]; People v. Shakhvaladyan (2004) 117 CA4th 232 [VC 2800.2 requires that the officer to exhibit a red light, sound a siren, and have a distinctively marked vehicle; that the vehicle be operated by a peace officer; and that the peace officer be wearing a distinctive uniform]; but see People v. Chicanti (99) 71 CA4th 956, 962 [84 CR2d 1] [declining to follow Estrella and concluding that “distinctively marked” requirement is not “mere surplusage” in cases where the defendant admitted that he knew he was being pursued by a police officer].) This requirement was apparently intended by the legislature to protect people from being victimized by someone using a red light and siren to pull cars over. (Estrella, 31 CA4th at 723 and fn. 4.) Accordingly, CJ 12.85 should be supplemented to include a definition of “distinctively marked” so the jury understands the requisite showing which must be made. (The above instruction was adapted from an instruction given in Mathews and approved by the Court of Appeal in that case.) [See Brief Bank # B-807 for additional briefing on this issue.]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, §15 and §16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 12.85c
Flight From Peace Officer:
Definition Of “Distinctive Uniform.”
*Add to CJ 12.85:
A “distinctive uniform” is the clothing prescribed or adopted by a law enforcement agency which serves to identify or distinguish members of its force. A badge is not an article of clothing and may not be considered in determining whether the peace officer wore a “distinctive uniform.”
Points and Authorities
VC 2800.2 requires that the peace officer’s motor vehicle be operated by a peace officer wearing a “distinctive uniform.” The determination of whether the officer was wearing a distinctive uniform must be based upon the clothing worn by the officer. “[A] law enforcement officer’s ‘distinctive uniform’ is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.” [Emphasis added.] (People v. Mathews (98) 64 CA4th 485, 490 [75 CR2d 289].) While the statute does not specify that a uniform must be of any degree of formality or completeness, a badge is not an article of clothing and, while it may help distinguish a law enforcement officer, it does not constitute a “distinctive uniform.” (Ibid.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 12.85d
Flight From Officer (VC 2800.2):
Requirement Of Conscious Disregard For The
Safety Of Persons Or Property.
*Add to CJ 12.85 as follows:
“Willful or wanton” means an act or acts intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure.
Points and Authorities
PC 2800.2(b) provides, in relevant part, that “willful or wanton disregard” is shown by the commission of “three or more violations that are assigned a traffic violation point count under Section 12810 . . . .” In turn, VC 12810 includes any “traffic conviction involving the safe operation of a motor vehicle . . . .” (VC 12810(e).)
Reading the foregoing statutes together, VC 2800.2 provides that the requisite three traffic violations must involve acts which impact on “the safe operation” of a vehicle. This element of the statute is missing from the standard CALJIC instruction (CJ 12.85).
This issue was neither raised nor resolved in People v. Pinkston (2003) 112 CA4th 387 which rejected a defense argument that VC 2800.2 unconstitutionally creates a mandatory presumption and lessens the prosecution’s burden of proof.
NOTE: The above instruction was given in People v. Pinkston (2003) 112 CA4th 387.