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Is VC 23103 a Lesser Included Offense of VC 2800.2?
As most criminal defense attorneys know, a judge has a duty to act on its own (“sua sponte”) to “instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.” People v. Shockley (2013) 58 Cal.4th 400, 403 – 404.
“To determine if an offense is a lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. Under the elements test, if the statutory elements of the greater offense include all the statutory elements of the lesser offense the latter is necessarily included in the former.” Id.
Brief Synopsis: Reckless driving is not a lesser included offense of felony evading arrest because the term “willful and wanton disregard” is defined differently under each code section for each crime.
On the morning of May 24, 2019, in Del Norte County, California Highway Patrol officer Larry DePee was in an unmarked vehicle when he received a call about a reckless driver. DePee then saw a vehicle matching the description weaving onto the shoulder of the road and over the double yellow lines into opposing traffic. DePee pulled up behind the vehicle and activated his siren and flashing lights.
The driver of the suspect vehicle, James Walker, responded by sticking his hand out of the window, which DePee interpreted as acknowledgement that Walker saw DePee.
However, Walker did not stop. DePee then called for help and another CHP officer, this one in a marked black and white car, took DePee’s position directly behind Walker and turned on his siren and overhead flashing lights. Walker, however, still did not stop and continued driving onto the shoulder. He then accelerated and “began to speed away.”
Officers followed Walker for 24 more minutes, during which time Walker reached speeds of 85 miles per hour, crossed into oncoming lanes of traffic, narrowly missing oncoming traffic, including through blind curves.
Court of Appeal First Appellate District San FranciscoThe CHP finally deployed a spike strip and Walker drove over it. Although all four of his tires deflated, Walker drove another three miles before stopping.
Walker then complied with officers’ demands, but appeared confused and unable to respond to others, stumbling out of the vehicle and laying down on the ground face-down before being handcuffed.
A bag containing 11 grams of methamphetamine was found next to the driver’s seat. Officers testified they had never seen someone so high on drugs.
When he arrived at the jail, officers took a blood sample. It contained 1,000 nanograms of methamphetamine per milliliter, which is the highest level that could be accurately reported. Methamphetamine can make it extremely hard for a person to perform divided-attention tasks while driving.
An expert for Walker testified at trial that it was possible for someone who was highly impaired by methamphetamine to be unaware of police following them.
A jury found Walker guilty of felony evasion of a police officer (Vehicle Code § 2800.2), misdemeanor driving under the influence (Vehicle Code § 23152(f)) and misdemeanor possession of methamphetamine (Health & Safety Code § 11377(a)).
The trial court sentenced Walker to an aggregated term of six years in state prison.
Walker appealed his conviction, arguing to the First Appellate District that the judge erred by not instructing the jury sua sponte that reckless driving (Vehicle Code § 23103) is a lesser-included offense of evading a police officer and if so instructed, the jury would not have convicted him of felony evasion, but may have instead convicted him of only misdemeanor reckless driving, which certainly would have resulted in a shorter sentence.
The First Appellate District acknowledged that at first glance, the argument seems to have merit. After all, felony evasion of a peace officer is committed when “a person flees or attempts to elude a pursuing peace officer in violation of 2800.1 and the pursued vehicle is driven in a manner showing willful or wanton disregard for the safety of persons or property . . .” Reckless driving is committed when a “person . . . drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property . . . “
However, the appellate court noted, the meaning of “willful or wanton disregard for the safety of persons or property” is materially different for the two statutes. See People v. Taylor (2018) 19 Cal. App. 5th 1195, 1202 (“the same phrase may appear in two statutes establishing offenses, yet convey different meanings”).
In reckless driving, courts have determined that it targets driving manifesting a particular state of mind, namely, ‘consciousness of the results with intent to omit or do an act, realizing the probable injury to another; or acting in reckless disregard of the consequences or conduct exhibiting reckless indifference as to the probable consequences with knowledge of likely resulting injury.” Taylor, supra, 19 Cal. App. 5th at 1202; see also People v. Barber (2020) 55 Cal. App. 5th 787, 802, 808.
Felony evasion, in contrast, sets forth a specific definition of the term: “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.” “People v. Howard (2005) 34 Cal. 4th 1129, 1137-1138. “Violations that are assigned points under section 12810 . . . include driving an unregistered vehicle owned by the driver (§§ 40001, 12810(e), 12810(g)(1)), driving with a suspended license (§§ 14601, 12810(j)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349(a), 12810(e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810(e)) and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810(e)).” Id.
In other words, the definition of “willful and wanton disregard” in section 2800.2 is significantly broader that the phrase used in the definition of the same phrase used in the reckless driving statute. Moreover, the statutory elements of 2800.2 do not contain all the statutory elements of reckless driving, so reckless driving is not a lesser included offense of evading arrest under 2800.2.
We present this article to our readers because this Walker’s argument on his appeal is s common argument, but incorrect and this particular ruling by the First Appellate District explains so quite well.
The citation for the First Appellate District Court ruling discussed above is People v. James Walker (1st App. Dist., 2021) 64 Cal. App. 5th 27, 278 Cal. Rptr. 3d 445.
For more information about evading arrest, please click on the following articles:
