2180. Evading Peace Officer: Death or Serious Bodily Injury

The defendant is charged [in Count ______] with evading a peace officer and causing (death/ [or] serious bodily injury).

To prove that the defendant is guilty of this crime, the People must prove that:

1. A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle;

2. The defendant intended to evade the peace officer;

3. While driving, the defendant willfully fled from, or tried to elude, the pursuing peace officer;

4. The defendant's attempt to flee from, or elude, the pursuing peace officer caused (the death of/ [or] serious bodily injury to) someone else;

AND

5. All of the following were true:

(a) There was at least one lighted red lamp visible from the front of the peace officer's vehicle;

(b) The defendant either saw or reasonably should have seen the lamp;

(c) The peace officer's vehicle was sounding a siren as reasonably necessary;

(d) The peace officer's vehicle was distinctively marked; AND (e) The peace officer was wearing a distinctive uniform.

[A person employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]

[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary

to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]

A vehicle is distinctively marked if it has a red lamp and siren. [It may also have additional markings or devices that identify it as a peace officer's vehicle.] The vehicle's appearance must be such that a person would know or reasonably should know that it is a law enforcement vehicle.

A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge, without more, is not enough.

[An act causes (death/ [or] serious bodily injury) if the (death/ [or] injury) is the direct, natural, and probable consequence of the act and the (death/ [or] injury) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.]

[There may be more than one cause of (death/ [or] serious bodily injury). An act causes (death/ [or] injury) only if it is a substantial factor in causing the (death/ [or] injury). A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the (death/ [or] injury).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590- 591 [35 Cal.Rptr. 401].) If the evidence indicates that there was only one cause of death or injury, the court should give the "direct, natural, and probable" language in the first bracketed paragraph on causation. If there is evidence of multiple causes of death or injury, the court should also give the "substantial factor" instruction in the second bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746-747 [243 Cal.Rptr. 54].)

The jury must determine whether a peace officer was pursuing the defendant. (People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].) The court must instruct the jury on the appropriate definition of "peace officer" from the statute. (Ibid.) It is an error for the court to instruct that the witness is a peace officer as a matter of law. (Ibid. [instruction that "Officer Bridgeman and Officer Gurney are peace officers" was error].) If the witness is a police officer, give the bracketed sentence that begins with "A person employed as a police officer." If the witness is another type of peace officer, give the bracketed sentence that begins with "A person employed by."

There is a split in authority over whether a law enforcement vehicle must have something more than a red lamp and siren to be "distinctively marked." (People v. Estrella (1995) 31 Cal.App.4th 716, 722-723 [37 Cal.Rptr.2d 383] [something in addition to red lamp and siren required]; People v. Mathews (1998) 64 Cal.App.4th 485, 490 [75 Cal.Rptr.2d 289] [following Estrella, vehicle sufficiently marked where it had red lamp, siren, and wigwag lights]; People v. Chicanti (1999) 71 Cal.App.4th 956, 962 [84 Cal.Rptr.2d 1] [disagreeing with Estrella, finding that red lamp and siren may be sufficient if, under the circumstances of the case, these markings alone were enough to put the defendant on notice that this was a police vehicle].) This issue is currently pending before the Supreme Court. (People v. Hudson, No. S122816 (Cal.Sup.Ct, rev. granted May 12, 2004) 2004 Cal. LEXIS 4030.) In the definition of "distinctively marked," the court may give the bracketed "in addition to the red lamp and siren" at its discretion, until the Supreme Court has resolved this issue.

On request, the court must give CALCRIM No. 3426, Voluntary Intoxication, if there is sufficient evidence of voluntary intoxication to negate the intent to evade. (People v. Finney (1980) 110 Cal.App.3d 705, 712 [168 Cal.Rptr. 80].)

On request, give CALCRIM No. 2241, Driver and Driving Defined.

Authority

Elements. Veh. Code, §§ 2800.3, 2800.1(a).

Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].

Distinctively Marked Vehicle. People v. Estrella (1995) 31 Cal.App.4th 716, 722-723 [37 Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75 Cal.Rptr.2d 289]; People v. Chicanti (1999) 71 Cal.App.4th 956, 962 [84 Cal.Rptr.2d 1].

Distinctive Uniform. People v. Estrella (1995) 31 Cal.App.4th 716, 724 [37 Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75 Cal.Rptr.2d 289].

Jury Must Determine If Peace Officers. People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].

Red Lamp, Siren, and Distinctive Uniform Must Be Proved. People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 237-238 [11 Cal.Rptr.3d 590]; People v. Acevedo (2003) 105 Cal.App.4th 195, 199 [129 Cal.Rptr.2d 270]; People v. Brown (1989) 216 Cal.App.3d 596, 599- 600 [264 Cal.Rptr. 906].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 260.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 63, Double Jeopardy, § 63.21[2][a] (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, §§ 91.22[1][a][iv], 91.60[2][b][i], [ii], 91.81[1][d], [8] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[2][b][ii][B], 142.02[2][c], [3][c] (Matthew Bender).

Lesser Included Offenses

Misdemeanor Evading a Pursuing Peace Officer. Veh. Code, § 2800.1; People v. Springfield (1993) 13 Cal.App.4th 1674, 1680- 1681 [17 Cal.Rptr.2d 278].

Related Issues

Not Inherently Dangerous Felony

Vehicle Code section 2800.3 is not an inherently dangerous felony and does not support a felony-murder conviction. (People v. Jones (2000) 82 Cal.App.4th 663, 668-669 [98 Cal.Rptr.2d 724]; People v. Sanchez (2001) 86 Cal.App.4th 970, 974 [103 Cal.Rptr.2d 809].)

See the related Issues section to CALCRIM No. 2182, Evading Peace Officer: Misdemeanor.

(New January 2006)