Filed 1/26/05
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
B170874
(Los Angeles County
Super. Ct. No. PA 041932)
v.
OSCAR ANTONIO DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Charles L. Peven, Judge. Reversed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and
Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of part 1 of the Discussion.
Appellant Oscar Antonio Diaz was convicted of evasion of a pursuing peace
officer while driving with “willful or wanton disregard for the safety of persons or
property,” in violation of Vehicle Code section 2800.2, subdivision (a) (section
2800.2(a)).1
Section 2800.2, subdivision (b) (section 2800.2(b)) permits the “willful or wanton
disregard” for safety element of section 2800.2(a) to be established by “three or more
violations that are assigned a traffic violation point count under Section 12810 . . . .”
Appellant contends that his conviction must be reversed because (1) CALJIC No. 12.85,
which is derived from section 2800.2(b), contains a presumption which is precluded by
Sandstrom v. Montana (1979) 442 U.S. 510 (Sandstrom); (2) under Apprendi v. New
Jersey (2000) 530 U.S. 466, the jury should have been instructed that it had to find
whether the unsafe operation of a vehicle was involved in the three traffic violations
which were used for the purpose of section 2800.2(b); (3) his trial counsel was ineffective
for not objecting to the instructions; (4) there was insufficient evidence that he drove with
willful or wanton disregard for safety; (5) evidence that the car was hotwired should not
have been admitted, and (6) a mistrial should have been granted after the prosecutor
insinuated that appellant had not legally purchased the car.
At our request, both sides have provided supplemental briefing on the question of
whether one of the three underlying traffic offenses that is used for the purpose of section
2800.2(b) can be section 21806 (failure to yield the right of way for an emergency
vehicle), when it is impossible to evade a police pursuit without also failing to yield the
right of way.
We agree with respondent that section 2800.2(b) does not state a mandatory
presumption, but simply defines one way in which the People may prove the willful or
wanton disregard for safety element of the section 2800.2(a) offense. (People v. Pinkston
(2003) 112 Cal.App.4th 387 (Pinkston).) We reverse on the ground that a violation of
1
All subsequent code references are to the Vehicle Code unless otherwise stated.
2
section 21806 cannot be used as one of the three underlying traffic violations for the
purpose of section 2800.2(b). We therefore do not reach appellant’s other issues.
PROCEDURAL HISTORY
Count 1 of the information charged appellant with a felony, evasion of a pursuing
peace officer with willful disregard for the safety of persons and property. (§ 2800.2(a).)
Count 2 alleged a misdemeanor, driving with a license which was suspended due to a
prior conviction for driving under the influence. (§ 14601.2, subd. (a).) The information
also alleged that appellant had a prior conviction for driving with a suspended license.
(§ 14601.1.) He admitted count 2 and the prior conviction prior to trial. After the jury
found him guilty on count 1, he was sentenced to the midterm of two years in prison on
count 1, with a concurrent sentence on count 2.
FACTS
On June 9, 2003, California Highway Patrol Officer Les Huot and his partner were
working in an area called “The Grapevine,” bordered by Bakersfield on the north and
Newhall on the south. The officers were in uniform in a marked patrol car.
Around 1:20 a.m., Huot observed appellant in the fast lane of southbound traffic
on Interstate Route 5 near Gorman. Appellant’s Lexus was traveling 83 miles per hour.
The speed limit was 65 miles per hour. Traffic was “light” or “light to moderate.”
The officers drove behind appellant’s car, activated their wigwag headlights and
overhead colored lights, and attempted to pull him over. He initially moved across the
four-lane highway to the shoulder and slowed down. He then drove back onto the
freeway and worked his way to the No. 3 lane. The officers turned on their siren and
followed him, continuing to use their flashing and colored lights. A 29-mile chase
ensued. Appellant’s speed varied from 55 to 75 miles per hour. He changed lanes
frequently as he passed other cars. After the first 24 miles, another patrol car took over
the pursuit. Appellant’s car finally came to a stop when its tires were punctured near
Magic Mountain Parkway by a spike strip which a different officer had placed on the
road. Another car which was on the highway also ran over the spike strip.
3
There was no key in the ignition of the Lexus. It had been “hotwired,” meaning
that wires were connected under the steering wheel to start the car. In the car’s center
console was a handwritten piece of paper which indicated that appellant had purchased
the Lexus for $1,500 from another man.
The officers testified that appellant violated two Vehicle Code sections during the
pursuit, section 22349, subdivision (a) (exceeding the speed limit) and section 21806
(failing to yield to the right for an emergency vehicle). It was stipulated that he drove
while his driving privilege was suspended, in violation of section 14601.2.
The officers further testified that high speed pursuits are dangerous because other
cars on the road react unpredictably to the red lights and sirens. An accident could have
resulted if a motorist pulled to the right at the same time that appellant was changing
lanes. If appellant collided with another car, a vehicle might have hit one of the officers’
cars. In general, night pursuits are dangerous due to decreased visibility. Additional risk
factors here were curves, rises and falls in the mountainous road, and slow trucks.
Passing traffic was a special danger for the officer who deployed the remote controlled
spike strip. However, there were no accidents or “near misses” during the pursuit, and
the average speed of traffic at that hour was “in the seventies.”
DISCUSSION
1. Presumption Issue
Appellant maintains that the trial court’s instructions contained a prohibited
mandatory presumption which denied him his Fifth Amendment right to due process and
his Sixth Amendment right to a jury trial. (Sandstrom, supra, 442 U.S. 510; Ulster
County Court v. Allen (1979) 442 U.S. 140, 157.) We disagree, based on the majority
opinion in Pinkston, supra, 112 Cal.App.4th 387.
A. Statutory Background
Section 2800.1, subdivision (a) (section 2800.1(a))2 sets forth a misdemeanor for a
motorist who flees a pursuing peace officer’s motor vehicle with “the intent to evade,”
2
Section 2800.1(a) provides:
4
where the pursuing vehicle exhibits a visible lighted red lamp, sounds its siren, is
distinctively marked, and is operated by a peace officer in a distinctive uniform.
Section 2800.2(a) raises the offense to an alternate misdemeanor or felony “[i]f 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 . . . .” (Italics added.)
Both the section 2800.1(a) and section 2800.2(a) offenses require the specific
intent to evade. The distinction between them is that section 2800.2(a) contains the
additional element of driving with willful or wanton disregard for safety. Therefore,
section 2800.1 is a lesser included offense of section 2800.2. (People v. Springfield
(1993) 13 Cal.App.4th 1674,1679-1680.)
In 1996, the Legislature added section 2800.2(b). (Stats. 1996, ch. 420, § 1.) It
states, “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.”
“(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.”
5
The underlying legislative history shows that the amendment was designed to
provide a greater deterrent by increasing the penalty for behavior which violates section
2800.2. (People v. Sewell (2000) 80 Cal.App.4th 690, 695.) We previously granted
judicial notice of that legislative intent, as did the courts in People v. Sewell, at page 695,
and Pinkston, supra, 112 Cal.App.4th 387, 394.
Section 12810, the section referred to in section 2800.2(b), sets forth the point
count value for a violation of a long list of specified traffic offenses. Some violations
receive two points, some one point, and some do not result in a point count. There is also
a catch-all provision, section 12810, subdivision (e), which assigns one point for “any
other traffic conviction involving the safe operation of a motor vehicle upon the
highway . . . .”3
3
The full text of section 12810 states:
“In determining the violation point count, the following shall apply:
“(a) Any conviction of failure to stop in the event of an accident in violation of
Section 20001 or 20002 shall be given a value of two points.
“(b) Any conviction of a violation of Section 23152 or 23153 shall be given a
value of two points.
“(c) Any conviction of reckless driving shall be given a value of two points.
“(d)(1) Any conviction of a violation of subdivision (c) of Section 192 of the
Penal Code, or of Section 2800.2 or 2800.3, subdivision (b) of Section 21651,
subdivision (b) of Section 22348, subdivision (a) of Section 23109, subdivision (c) of
Section 23109, or Section 31602 of this code, shall be given a value of two points.
“(2) Any conviction of a violation of subdivision (a) or (b) of Section 23140 shall
be given a value of two points.
“(e) Except as provided in subdivision (g), any other traffic conviction involving
the safe operation of a motor vehicle upon the highway shall be given a value of one
point.
“(f) Any traffic accident in which the operator is deemed by the department to be
responsible shall be given a value of one point.
6
The underlying three traffic offenses upon which the People relied for the purpose
of section 2800.2(b) were section 22349 (exceeding the speed limit), section 21806
(failing to yield to the right for an emergency vehicle), and section 14601.2 (driving with
a suspended license).
A violation of section 14601.2 (driving with a suspended license) is specifically
named as a two-point offense by section 12810, subdivision (i). The other two
underlying offenses here, section 22349 (speeding) and section 21806 (failure to yield),
are not specifically mentioned in section 12810. They therefore qualify for section
2800.2(b) only if the catch-all provision of section 12810, subdivision (e) is applicable.
The jury was instructed on the elements of section 2800.2(a) via a modified
version of CALJIC No. 12.85 which stated that willful or wanton disregard for safety
could be established either through the three specified vehicle code violations or, more
generally, by commission of acts performed with conscious disregard for safety.
Specifically, the jury was told, “A willful or wanton disregard for the safety of persons or
property also includes, but is not limited to, driving while fleeing or attempting to elude a
“(g)(1) A violation of paragraph (1), (2), (3), or (5) of subdivision (b) of Section
40001 shall not result in a violation point count being given to the driver if the driver is
not the owner of the vehicle.
“(2) Any conviction of a violation of paragraph (1) or (2) of subdivision (b) of
Section 12814.6, subdivision (a) of Section 21116, Section 21207.5, 21708, 21710,
21716, 23120, 24800, or 26707 shall not be given a violation point count.
“(3) A violation of Section 23136 shall not result in a violation point count.
“(h) A conviction for only one violation arising from one occasion of arrest or
citation shall be counted in determining the violation point count for the purposes of this
section.
“(i) Any conviction of a violation of Section 14601, 14601.1, 14601.2, 14601.3,
or 14601.5 shall be given a value of two points.
“(j) Any conviction of a violation of Section 27360 or 27360.5 shall be given a
value of one point.”
7
p[u]rsuing peace officer during which time the person driving commits three or more
Vehicle Code violations, such as 22349 V.C.[,] 21806 V.C.[, and] 14601.2 V.C. [¶]
‘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.”
B. Constitutionality
Appellant maintains that instructing the jury that willful or wanton disregard for
safety “includes, but is not limited to,” evading a pursuing peace officer while
committing three specified Vehicle Code violations, created an unconstitutional
mandatory presumption. We disagree, based on the majority opinion in Pinkston, supra,
112 Cal.App.4th 387.4
The crux of the issue is the distinction between a presumption and a substantive
rule of law.
A presumption allows “the trier of fact to determine the existence of an element of
the crime -- that is, an ‘ultimate’ or ‘elemental’ fact -- from the existence of one or more
‘evidentiary’ or ‘basic’ facts.” (Ulster County Court v. Allen, supra, 442 U.S. 140, 156.)
The Fourteenth Amendment’s guarantee of due process of law forbids
presumptions which reduce the prosecution’s burden by shifting to the defendant the
burden of disproving an element of the charged crime. (Sandstrom, supra, 442 U.S. 510,
523-524 [due process violated by an instruction that the law presumes a person intends
the ordinary consequences of his voluntary acts]; People v. Roder (1983) 33 Cal.3d 491,
[due process precluded a presumption of knowledge that property was stolen, where a
dealer in secondhand merchandise received property under suspicious circumstances
without inquiring about seller’s legal right to the property]; Carella v. California (1989)
Respondent’s brief cites the Third District’s opinion in People v. Williams
(Mar. 15, 2004, C042763), which agreed with Pinkston. Review was granted in that case
on a different issue on June 9, 2004 (S108353).
4
8
491 U.S. 263, 265 [due process precluded a presumption that a rental car was embezzled
if it was not returned within five days after expiration of the rental agreement].)5
On the other hand, there is no constitutional problem with a statute which does not
create a mandatory presumption, but simply defines the conduct which constitutes a
crime. Creation of a substantive statutory definition does not involve apportionment of
the burden of proof. (People v. Dillon (1983) 34 Cal.3d 441, 474-475 [malice is not an
element of felony murder, because of the substantive statutory definition of the crime];
Burg v. Municipal Court (1983) 35 Cal.3d 257, 265 [statutory prohibition against driving
with a blood-alcohol level of 0.10 percent or more did not create a conclusive
presumption of intoxication or eliminate the prosecutor’s burden of proof, but simply
defined the proscribed conduct]; People v. Bransford (1994) 8 Cal.4th 885, 892-893
[subsequent version of drunk driving statute providing for equivalency between breath
alcohol and blood alcohol did not involve a presumption, but “defined the substantive
offense of driving with a specified concentration of alcohol in the body”].)
Pinkston relied on the latter line of cases. It held that “section 2800.2 does not
state a mandatory presumption. Rather, it sets out the Legislature’s definition of what
qualifies as willful and wanton conduct under subdivision (a). Although Vehicle Code
section 2800.2 uses the phrase ‘willful or wanton disregard for the safety of persons or
property’ to describe an element of reckless evading, the statute defines this element so
that it may be satisfied by proof of property damage or by proof that the defendant
committed three Vehicle Code violations. Thus, section 2800.2, subdivision (b)
establishes a rule of substantive law rather than a presumption apportioning the burden of
persuasion concerning certain propositions or varying the duty of coming forward with
evidence. (See People v. Dillon[, supra,] 34 Cal.3d 441, 474-475.) In other words,
evasive driving during which the defendant commits three or more specified traffic
5
Presiding Justice Klein dissented in Pinkston, supra, 112 Cal.App.4th at pages
395-398, on the ground that the presumption in section 2800.2(b) was “closely analogous
to the presumptions addressed in” People v. Roder, supra, 33 Cal.3d 491, and Carella v.
California, supra, 491 U.S. at page 265.
9
violations is a violation of section 2800.2 ‘because of the substantive statutory definition
of the crime’ rather than because of any presumption. (People v. Dillon, supra, at
p. 475.) Since there is no presumption, due process is not violated. (Id. at p. 476.)”
(Pinkston, supra, 112 Cal.App.4th at pp. 392-393.)
Our Supreme Court recently used similar analysis in People v. McCall (2004) 32
Cal.4th 175 (McCall). McCall concerned a statute providing that possession of red
phosphorus and iodine with intent to manufacture methamphetamine “shall be deemed”
to be possession of hydriodic acid with intent to manufacture methamphetamine. The
court held that no mandatory rebuttable presumption existed, as no ultimate fact was to
be presumed from a basic fact. Rather, the “shall be deemed” language “simply created a
rule of substantive law; to wit, the possession of red phosphorus and iodine with intent to
manufacture methamphetamine was the legal equivalent of possession of hydriodic acid
with intent to manufacture methamphetamine.” (Id. at p. 188.)
As McCall explained, “Substantive due process allows lawmakers broad power to
select the elements of crimes, and to define one thing in terms of another.” (McCall,
supra, 32 Cal.4th at p. 189.) McCall held that the Legislature could elect to extend the
prohibition on possessing hydriodic acid to include possession of the essential chemicals
of hydriodic acid. (Ibid.) Similarly here, the Legislature could elect, through section
2800.2(b), to specify that three violations of the Vehicle Code are one way of establishing
section 2800.2(a)’s element of willful or wanton disregard for the safety of persons or
property. (Pinkston, supra, 112 Cal.App.4th at pp. 392-394.) Therefore, no
unconstitutional mandatory presumption was involved.
2. Use of Section 21806 as an Underlying Offense
A. Introduction
As indicated, section 21806 (failure to yield) was one of the three underlying
traffic violations which was used under section 2800.2(b) to establish willful or wanton
disregard for safety.
Like sections 2800.1(a) (flight from a pursuing peace officer) and 2800.2(a) (flight
from a pursuing peace officer with willful or wanton disregard for safety), section 21806
10
punishes a motorist who fails to respond appropriately to the visible red light and siren of
an authorized emergency vehicle.6
Defense counsel unsuccessfully argued below that section 21806 could not be one
of the three violations, because it was impossible to evade a pursuing police vehicle
without also failing to yield it, which reduced the number of violations the People had to
prove from three to two. The prosecutor maintained that the section could be so utilized
because it qualified for a point count under section 12810. According to him, use of the
section meant “[y]ou always have one [violation], but we have to come up with three.”
The jury was instructed, and the prosecutor argued to the jury, that the element of
willful or wanton disregard for safety could be established through commission of either
(1) the three specified Vehicle Code violations or (2) an act intentionally performed with
conscious disregard for safety.7
The evidence would support a finding that appellant did not yield the right-of-way
for an emergency vehicle, as he drove many miles down the highway, while being
pursued by a highway patrol car which had activated its emergency lights and siren.
However, the fact that a violation of section 21806 occurred would not automatically
mean that section 21806 could be used for the purpose of section 2800.2(b). We are
Section 21806 states, in pertinent part: “Upon the immediate approach of an
authorized emergency vehicle which is sounding a siren and which has at least one
lighted lamp exhibiting red light that is visible, under normal atmospheric conditions,
from a distance of 1,000 feet to the front of the vehicle, the surrounding traffic shall . . .
do the following: [¶] (a)(1) [T]he driver of every other vehicle shall yield the right-ofway and shall immediately drive to the right-hand edge or curb of the highway, clear of
any intersection, and thereupon shall stop and remain stopped until the authorized
emergency vehicle has passed.”
6
7
The prosecutor told the jury that a finding of the three Vehicle Code violations
resulted in “willful or wanton disregard. Period.”~(RT 123)~ He further stated: “The
definition of willful and wanton as I showed you before, includes those three Vehicle
Code violations right there. You are done. As far as willful or wanton disregard goes, it
includes these three violations. You could be done.”~(RT 127)~
11
aware of no previous case so utilizing section 21806. As the issue was raised by trial
counsel below, we requested supplemental briefing on it.
B. Analysis
Appellant argues that use of section 21806 as one of the three underlying
violations to establish the element of willful or wanton disregard for safety violated his
rights under the Fifth, Sixth and Fourteenth Amendments of the United States
Constitution, and article I, section 15, of the California Constitution, by impermissibly
reducing the prosecutor’s burden of proof with respect to the element of willful or wanton
disregard for safety from three violations to two violations.
Respondent maintains that section 21806 could appropriately be used as one of the
three underlying violations because (1) the language of section 2800.2(b) permits use of
“three or more violations that are assigned a traffic violation point count under Section
12810”; and (2) section 21806 met the statutory definition of section 2800.2(b), through
the catch-all provision of section 12810, subdivision (e), as failure to yield to an
approaching emergency vehicle is a crime which involves the safe operation of a motor
vehicle upon the highway. Respondent further argues that nothing in the legislative
history underlying section 2800.2(b) shows an intention to exclude section 21806, and it
would be inappropriate for this court to create such an exclusion.
The parties agree that it is impossible to violate section 2800.2(a) without also
violating section 21806. “[I]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.”
(People v. Lopez (1998) 19 Cal.4th 282, 288; see also People v. Springfield, supra, 13
Cal.App.4th at p. 1679.) Obviously, a motorist cannot flee from a pursuing peace
officer’s vehicle without also failing to pull over to the curb and stop for it.
The prosecution bears the burden of proving all elements of the offense, and must
persuade the fact finder beyond a reasonable doubt of the facts necessary to establish
those elements. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278; In re Winship (1970)
397 U.S. 358, 364.) As the People recognized below, allowing failure to yield to be used
as one of the three violations, when it is necessarily included in the offense of evading
12
pursuit, would mean there is automatically one qualifying violation for the purpose of
section 2800.2(b) whenever the People have proven the offense of evading pursuit. In
other words, the People are given a “freebie,” and their burden is reduced from three
violations to two violations. We do not believe that is what the Legislature intended
when it specified in section 2800.2(b) that “three or more violations that are assigned a
traffic violation point count under Section 12810” can be used to establish the element of
willful or wanton disregard for safety.
The legislative history, though sparse, supports our conclusion. An earlier version
of the bill which enacted section 2800.2(b) specified “three or more moving violations,”
rather than three or more point-count violations under section 12810. (Legis. Counsel’s
Dig., Assem. Bill No. 1999 (1995-1996 Reg. Sess.) 2d reading as amended Apr. 29,
1996.) There was thus a continuous concern that there be at least three underlying
violations in order to establish the element of willful or wanton disregard for safety.
Allowing section 21806 to be used as one of the three violations reduced the
prosecution’s burden from three to two.
We therefore hold that a violation of Vehicle Code section 21806 cannot be
utilized as one of the three traffic violations to establish the element of willful or wanton
disregard for the safety of persons or property under Vehicle Code section 2800.2(b). In
light of our holding, it is not necessary to address appellant’s contentions that use of
section 21806 as one of three offenses to establish willful or wanton disregard for safety
violates his rights under the United States and California Constitutions.
C. Prejudice
On the facts of this case, we cannot find that the error was harmless. (Chapman v.
California, supra, 386 U.S. at p. 36.)
The jurors were instructed by the judge, and told by the prosecutor, that the
element of willful or wanton disregard for safety could be established either through the
three underlying violations or based on the intentional performance of an act with
conscious disregard for safety.
13
“When a legally erroneous theory of conviction is presented to the jury, reversal is
required unless, on the record made at trial, the reviewing court can determine that the
conviction actually, if not solely, rests on a legally proper theory.” (People v. Hansen
(1994) 9 Cal.4th 300, 327-328 (conc. & dis. opn. of Mosk, J.).)
Reversal is required here, as it cannot be determined beyond a reasonable doubt
that appellant’s conviction did not rest upon the erroneous instruction that a violation of
section 21806 could be used as one of the three Vehicle Code violations which establish
the element of willful or wanton disregard for safety. (People v. Swain (1996) 12 Cal.4th
593, 607.)
Respondent maintains that no reasonable jury could have found that appellant
drove safely.
The issue is a close one. There were facts which could support a finding of willful
or wanton disregard for safety. Appellant drove for 29 miles at night along curving
mountainous roads, at speeds between 55 and 75 miles per hour, and changed lanes
frequently as he passed cars and trucks. We recognize the danger to other vehicles on the
road and the additional risks created by the need to use a spike strip to stop appellant’s
car. However, the evidence presented a factual issue on the safety of appellant’s driving.
There were no accidents or “near misses” during the pursuit. He drove around 1:20 a.m.,
in light or light to moderate traffic, at speeds which approximated that of other vehicles
on the road. Indeed, his counsel argued to the jury that, while appellant should have
pulled over for the officers, the way he drove did not establish the element of willful or
wanton disregard for safety.
Appellant’s driving was very different from that of the defendants in the other
section 2800.2(a) cases cited in this opinion. For example, in Pinkston, supra, 112
Cal.App.4th 387, 390-391, the defendant drove 60 miles per hour in a residential zone,
ran through red lights, failed to stop at posted stop signs, passed a vehicle on the right
shoulder, drove with a suspended license, and damaged property when his car struck a
retaining wall. In People v. Sewell, supra, 80 Cal.App.4th 690, 693, the “defendant led a
pursuing police officer on a wild, high-speed chase that encompassed several moving
14
violations and that culminated in the crash of defendant’s car and the death of defendant’s
passenger.” In People v. Springfield, supra, 13 Cal.App.4th 1674, the defendant ran 12
to 15 stop signs while driving through a residential neighborhood.
Because of the instructions, the argument to the jury, and the factual issue
presented by the evidence, erroneous utilization of section21806 as one of the three
underlying felonies for the purpose of section 2800.2(b) constituted reversible error.
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PARTIAL PUBLICATION
FLIER, J.
We concur:
COOPER, P.J.
RUBIN, J.
15