Opinion
C094459
10-12-2022
THE PEOPLE, Plaintiff and Respondent, v. ROY LEE GEORGE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE020465)
Duarte, J.
A jury found defendant Roy Lee George guilty of felony reckless evasion of a peace officer (reckless evasion) (Veh. Code, § 2800.2) and defendant admitted to a prior strike offense. The trial court sentenced defendant to an aggregate term of four years in state prison.
Further undesignated statutory references are to the Vehicle Code.
Defendant timely appealed; after multiple continuances for record preparation and completion of briefing, the case was fully briefed on June 30, 2022, and assigned to this panel shortly thereafter. Defendant requested argument and the case was heard and submitted on September 26, 2022.
On appeal, defendant contends the trial court failed to instruct the jury on all the elements of reckless evasion, and there was insufficient evidence to sustain the verdict. Disagreeing, we affirm the judgment.
DISCUSSION
Defendant first claims the trial court erred by failing to instruct the jury on the technical meaning of "willful or wanton disregard for the safety of persons or property." He argues that" 'willful or wanton disregard' must be established by proof of three Vehicle Code 'points' violations and not in any other manner." We disagree.
Proof of a violation of section 2800.2 requires willful flight from a pursuing peace officer where the pursued vehicle is driven "in a willful or wanton disregard for the safety of persons or property." (§ 2800.2, subd. (a).) Section 2800.2, subdivision (b) provides that "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." (Italics added.)
Thus, by its very terms, section 2800.2, subdivision (b) "permits the prosecution to show the requisite driving with 'willful and wanton disregard' by establishing three or more traffic violations, as an alternative to showing that the defendant drove in a manner manifesting the mental state required for the reckless driving offense." (People v. Taylor (2018) 19 Cal.App.5th 1195, 1203, italics added; see also People v. Walker (2021) 64 Cal.App.5th 27, 34.) The prosecution is not required to establish three or more traffic violations to prove its case. (Taylor, at p. 1203; see also CALCRIM No. 2181.)
Pattern instruction CALCRIM No. 2181 is written with these requirements in mind. Here, the trial court worked with this pattern instruction, which informs the jury of the requisite elements of the crime including the element at issue here--the requirement that defendant either drive "with a willful or wanton disregard for the safety of persons or property," or that defendant cause property damage, or that defendant establish three or more traffic violations assigning points. The court instructed the jury with the first of these three options for the third element of the section 2800.2 allegation--the requirement that defendant drive with a willful and wanton disregard--pursuant to the instruction's direction to "[g]ive the appropriate paragraph[s] of element 3 when the defendant is charged with a violation of Vehicle Code section 2800.2." The court also read the pattern instruction's definitions of "willfully" and "wanton disregard for safety" to the jury. (CALCRIM No. 2181.) No objection was lodged, and no further instruction on this crime was requested. Because no further instruction was required, we see no error.
Defendant argues our Supreme Court's decision in People v. Howard (2005) 34 Ca..4th 1129 is "instructive" in that it observed many Vehicle Code violations to which points are assigned may be committed without endangering human life (id. at pp. 1138-1139). Defendant also notes the Howard majority responded to a different point made by the dissent in a manner that suggests "there are not two flavors of section 2800.2 violations." He adds that these observations by the Howard court signal that proof of three violations is a required element of all section 2800.2 charges. However, as we have explained above, the language of the statute and the cases interpreting it, as well as the language of the pattern instruction, which defendant does not itself challenge in this appeal--indeed, he does not even mention CALCRIM No. 2181 in his briefing--all read to the contrary. The Howard court was not faced with this issue and did not reach it. "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
Defendant also claims there is insufficient evidence to support his conviction for felony reckless evasion because there is no evidence he committed three qualifying Vehicle Code violations while attempting to evade a peace officer. As we discussed ante, the People were not required to prove defendant committed three qualifying Vehicle Code violations in order to prove that he drove with willful or wanton disregard for the safety of persons or property. Although this type of proof would have been an option for proving the charge, it was not a necessary component thereof. Consequently, this claim fails as well.
DISPOSITION
The judgment is affirmed.
We concur: Mauro, Acting P. J., Hoch, J.