B-807

Brief Bank # B-807 (Re: F 12.85b [Flight From Officer: Definition Of “Distinctively Marked” Motor Vehicle (VC 2800.3)].)

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Excerpt From Appellant’s Opening Brief

THERE WAS INSUFFICIENT EVIDENCE OF

THE ELEMENTS OF VEHICLE CODE SECTION 2800.3.

Appellant was convicted of violating Vehicle Code section 2800.3, wilful flight or attempt to elude a pursuing peace officer in violation of section 2800.1, proximately causing death or bodily injury to any person. This section incorporates the elements of section 2800.1, which requires:

(a) 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.

(b) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary.

(d) The peace officer’s motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform. (Emph. added.)

To prove a violation of Vehicle Code section 2800.3, the prosecution must prove all the elements of section 2800.1, in addition to the elements of section 2800.3. (People v. Brown (1989) 216 Cal.App.3d 596, 599.) In appellant’s case, the evidence was insufficient as a matter of law to establish that the officer’s vehicle was distinctively marked or that he was wearing a distinctive uniform.

The constitutional standard of review for sufficiency of evidence is whether “a review of the record in the light more favorable to the prosecution convinces [the reviewing court] that a rational fact finder could . . . have found the petitioner guilty beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307.) Appellant recognizes that this review does not include a reweighing of the credibility of the witnesses, but it does include an examination to insure that the evidence supporting the verdict is reasonable, inherently credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Barnes (1986) 42 Cal.3d 284, 303.)

The prosecution bears the burden of proving every element beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 359; see also, People v. Montalvo (1971) 4 Cal.3d 328, 333.)

This Court must determine whether the evidence of each element is substantial; “it is not enough for respondent simply to point to `some’ evidence supporting the finding.” (People v. Bassett (1968) 69 Cal.2d 122, 137; see also People v. Holt (1944) 25 Cal.2d 59, 70.) In this connection, courts have consistently warned that evidence that merely raises a suspicion — even a very strong suspicion — is not substantial and therefore is not sufficient. (People v. Hall (1964) 62 Cal.2d 104; People v. Blakeslee (1969) 2 Cal.App.3d 831; People v. Redmond (1969) 71 Cal.2d 745, 755.) Although the reviewing court must presume the existence of every fact the trier of fact could reasonable deduce from the evidence (People v. Lewis (1990) 50 Cal.3d 262, 277), a reasonable inference “`may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’ (citation omitted).” (People v. Morris (1988) 46 Cal.3d 1, 21.)

In appellant’s case, no evidence was presented to prove that the officer’s vehicle was “distinctively marked.” The use of a red light and siren alone do not distinctively mark a police vehicle; if they were sufficient, there would be no reason for the section to require a “distinctively marked” vehicle, in addition to the requirement that a red light and siren be used. (People v. Estrella (1995) 31 Cal.App.3d 716, 723.) In addition, there was no evidence that the officer was wearing a distinctive uniform.

The requirements of section 2800.1 are specific, and failure to present evidence of any one requires reversal. For example, in People v. Brown, supra, 216 Cal.App.3d at pp. 599-600, the officer testified her patrol car could display three possible options: a flashing amber light to the rear, or blue and white lights blinking to the front and rear, or rotating red, blue, and white lights. She testified she “activated [her] overhead signals,” but did not remember whether they were in “the second or the third position.” Witnesses said flashing lights were on, but no testimony established the color of the lights. This was insufficient; although the evidence established the lights were on, the color of the lights was not established, so there was no evidence of “an essential element of the offense.” The conviction was reversed. (Id., at p. 600.)

Here, too, there was no evidence to support the elements of a distinctively marked vehicle and a distinctive uniform. Furthermore, double jeopardy bars retrial where the evidence has been found to be insufficient. (Burks v. United States (1987) 437 U.S. 1, 11 [98 S.Ct. 2141, 2150-2151, 57 L.Ed.2d 1]; People v. Costa (1991) 1 Cal.App.4th 1201, 1208.) Appellant’s conviction for violating section 2800.3 must be reversed.