CALCRIM No. 2181. Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2181.Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)
The defendant is charged [in Count ] with evading a peace officer
[in violation of Vehicle Code section[s] (2800.1(a)/ [or] 2800.2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. A peace officer driving a motor vehicle was pursuing the
defendant;
2. The defendant, who was also driving a motor vehicle, willfully
fled from, or tried to elude, the officer, intending to evade the
officer;
<Give the appropriate paragraph[s] of element 3 when the defendant is
charged with a violation of Vehicle Code section 2800.2>
[3A. During the pursuit, the defendant drove with willful or wanton
disregard for the safety of persons or property;]
[OR]
[3B. During the pursuit, the defendant caused damage to property
while driving;]
[OR]
[3C. During the pursuit, the defendant committed three or more
violations, each of which would make the defendant eligible for a
traffic violation point;]
AND
[3/4]. 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;
(d). 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 offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
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peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer
if <insert description of facts necessary to make employee a
peace offıcer, e.g., “designated by the director of the agency as a peace
offıcer”>.]
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 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, (2) and he or she intentionally ignores that risk. The person
does not, however, have to intend to cause damage.]
[<insert traffıc violations alleged> are each assigned a traffic
violation point.]
A vehicle is distinctively marked if it has features that are reasonably
noticeable to other drivers, including a red lamp, siren, and at least one
other feature that makes it look different from vehicles that are not used
for law enforcement purposes.
Adistinctive 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.
New January 2006; Revised August 2006, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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 in 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.”
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.
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AUTHORITY
• Elements. Veh. Code, §§ 2800.1(a), 2800.2.
• Willful or Wanton Disregard. People v. Schumacher (1961) 194 Cal.App.2d
335, 339-340 [14 Cal.Rptr. 924].
• Three Violations or Property Damage as Wanton
Disregard - Definitional. People v. Taylor (2018) 19 Cal.App.5th 1195,
1202-1203 [228 Cal.Rptr.3d 575]; People v. Pinkston (2003) 112 Cal.App.4th
387, 392-393 [5 Cal.Rptr.3d 274].
• Distinctively Marked Vehicle. People v. Hudson (2006) 38 Cal.4th 1002,
1010-1011 [44 Cal.Rptr.3d 632, 136 P.3d 168].
• 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 Status as Peace Officer. People v. Flood (1998) 18
Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Red Lamp, Siren, Additional Distinctive Feature of Car, and Distinctive Uniform
Must Be Proved. People v. Hudson (2006) 38 Cal.4th 1002, 1013 [44
Cal.Rptr.3d 632]; 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. 908].
• Defendant Need Not Receive Violation Points for Conduct. People v. Leonard
(2017) 15 Cal.App.5th 275, 281 [222 Cal.Rptr3d 868].
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].
• Failure to Yield. Veh. Code, § 21806; People v. Diaz (2005) 125 Cal.App.4th
1484, 1491 [23 Cal.Rptr.3d 653]. (Lesser included offenses may not be used for
the requisite “three or more violations.”)
RELATED ISSUES
Inherently Dangerous Felony
A violation of Vehicle Code section 2800.2 is not an inherently dangerous felony
supporting a felony murder conviction. (People v. Howard (2005) 34 Cal.4th 1129,
1139 [23 Cal.Rptr.3d 306, 104 P.3d 107].)
See the Related Issues section to CALCRIM No. 2182, Evading Peace Offıcer:
Misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 306.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
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Sentencing, § 91.22[1][a][iv] (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] (Matthew Bender).
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