SERIES 2100 VEHICLE OFFENSES
F 2181 Evading Peace Officer: Reckless Driving (VC 2800.2, 2800.1(a))
TABLE OF CONTENTS
F 2181.1 Titles And Identification Of Parties
F 2181.1 Inst 1 Evading Peace Officer: Reckless Driving—Title
F 2181.1 Inst 2 Identification Of Prosecution And Defendant
F 2181.2 Evading Peace Officer: Reckless Driving—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2181.3 Evading Peace Officer: Reckless Driving—Language That Is Argumentative, Confusing, Etc.
F 2181.3 Inst 1 Willfully: Argumentative
F 2181.3 Inst 2 Delete Argumentative Language: Uniform Does Not Have To Be Complete
F 2181.4 Evading Peace Officer: Reckless Driving—Burden Of Proof Issues
F 2181.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2181.5 Evading Peace Officer: Reckless Driving—Elements And Definitions
F 2181.5 Inst 1 Incorporation Of Willful Or Wanton Disregard In Enumerated Elements
F 2181.5 Inst 2 Duties To Be Performed At Scene Of Accident
F 2181.6 Evading Peace Officer: Reckless Driving—Defense Theories
F 2181.6 Inst 1 Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid
F 2181.6 Inst 2 Juror Consideration Of Fact That Officer’s Uniform Was Not Complete
F 2181.7 Evading Peace Officer: Reckless Driving—Preliminary Fact Issues [Reserved]
F 2181.8 Evading Peace Officer: Reckless Driving—Unanimity/Duplicity/Multiplicity [Reserved]
F 2181.9 Evading Peace Officer: Reckless Driving—Lesser Offense Issues [Reserved]
F 2181 Notes
F 2181 Note 1 Evading Peace Officer: Reckless Driving—CALCRIM Cross-References And Research Notes
F 2181 Note 2 Flight From Officer (VC 2800.2) Is Not An Inherently Dangerous Felony
F 2181 Note 3 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase
F 2181 Note 4 Flight From Officer: Equating Willful Or Wanton Disregard With Three Vehicle Code Violations Does Not Create A Mandatory Presumption
F 2181 Note 5 Due Process Challenge To VC 2800.2 As Unconstitutional Mandatory Presumption
F 2181 Note 6 Flight From Officer (VC 2800.2): Sufficiency Of Evidence Regarding Activation of Red Light
F 2181 Note 7 Definition of “Willful”
Return to Series 2100 Table of Contents.
F 2181.1 Titles And Identification Of Parties
F 2181.1 Inst 1 Evading Peace Officer: Reckless Driving—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2181.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2181.2Evading Peace Officer: Reckless Driving—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2181.3 Evading Peace Officer: Reckless Driving—Language That Is Argumentative, Confusing, Etc.
F 2181.3 Inst 1Willfully: Argumentative
See FORECITE F 2150.3 Inst 1.
F 2181.3 Inst 2 Delete Argumentative Language: Uniform Does Not Have To Be Complete
*Delete CC 2181, paragraph 10, sentence 2, which provides:
The uniform does not have to be complete or of any particular level of formality. However, a badge, without more, is not enough.
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2181.6 Inst 2.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 2181.4 Evading Peace Officer: Reckless Driving—Burden Of Proof Issues
F 2181.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2181.5 Evading Peace Officer: Reckless Driving—Elements And Definitions
F 2181.5 Inst 1 Incorporation Of Willful Or Wanton Disregard In Enumerated Elements
Alternative a [Incorporation of Definition]:
*Replace CC 2181, Element 3, with the following:
3. The defendant drove with wanton disregard for the safety of persons or property. This requires the prosecution to prove beyond a reasonable doubt that:
During the pursuit:
A. The defendant was aware that (his/her) actions presented a substantial and unjustifiable risk of harm to persons or property;
AND
B. The defendant intentionally ignored that risk.
Alternative b [No Incorporation of Definition]:
*Modify CC 2181, paragraph 6 as follows:
A person acts with wanton disregard for safety when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of harm to persons or property, and (2) he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definitions—See FORECITE F 417.5 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE—Alternative b may be used if it is preferred to leave the term “wanton disregard” undefined in the enumerated elements.
F 2181.5 Inst 2Duties To Be Performed At Scene Of Accident
See FORECITE F 2150.5 Inst 1.
F 2181.6 Evading Peace Officer: Reckless Driving—Defense Theories
F 2181.6 Inst 1Hit And Run: Unconsciousness As Complete Defense To Duty To Render Aid
See FORECITE F 2150.6 Inst 3.
F 2181.6 Inst 2 Juror Consideration Of Fact That Officer’s Uniform Was Not Complete
*Add after CC 2181, paragraph 10, sentence 2:
Alternative a [fact not disputed]:
However, the fact that _______________’s <name of officer> uniform was incomplete is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_______________ <insert specific element to which the evidence relates>.
Alternative b [fact disputed]:
However, whether or not _______________’s <name of officer> uniform was incomplete is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [______________ <insert specific element to which the evidence relates>.
Alternative c [fact disputed]:
However, in attempting to determine whether or not the defendant willfully tried to evade a public officer, consider whether _______________’s <name of officer> uniform was incomplete.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2181.7 Evading Peace Officer: Reckless Driving—Preliminary Fact Issues[Reserved]
F 2181.8 Evading Peace Officer: Reckless Driving—Unanimity/Duplicity/Multiplicity[Reserved]
F 2181.9 Evading Peace Officer: Reckless Driving—Lesser Offense Issues [Reserved]
F 2181 NOTES
F 2181 Note 1 Evading Peace Officer: Reckless Driving—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2180 [Evading Peace Officer: Death Or Serious Bodily Injury]
Research Notes:
See CLARAWEB Forum, Vehicle Offenses—Series 2100.
F 2181 Note 2 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.
CALJIC NOTE: See FORECITE F 12.85 n5.
F 2181 Note 3 Evading A Peace Officer: Multiple Counts Improperly Based On Multiple Police Cars In The Chase
In People v. Garcia (2003) 107 CA4th 1159, 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.
CALJIC NOTE: See FORECITE F 12.85 n6.
F 2181 Note 4 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.
CALJIC NOTE: See FORECITE F 12.85 n7.
F 2181 Note 5 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.
CALJIC NOTE: See FORECITE F 12.85 n8.
F 2181 Note 6 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 (1989) 216 CA3d 596; see also generally People v. Hudson (2006) 38 C4th 1002.)
CALJIC NOTE: See FORECITE F 12.85 n9.
F 2181 Note 7 Definition of “Willful”
In People v. Richie (1994) 28 CA4th 1347, 1361, 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 820.5 Inst 1.) Hence, it is not sufficient to merely define “willful” as “intentional.”
CALJIC NOTE: See FORECITE F 12.85 n4.
