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Resisting a police officer is not a lesser included offense of wanton disregard while fleeing

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO FUENTES, JR., Defendant and Appellant. (Cal. Ct. App., May 12, 2022, No. E075745) 2022 WL 1498334, at *1

Summary:Fuentes was convicted of both : (1) fleeing a police officer while driving with a willful or wanton disregard for the safety of persons or property (wanton disregard while fleeing) pursuant to Vehicle Code section 2800.2; and (2) resisting a police officer pursuant to Penal Code section 148, subdivision (a)(1).
On appeal, He raised an issue of first impression, contending that resisting a police officer is a lesser included offense of wanton disregard while fleeing. The court of appeal held that resisting a police officer is not a lesser included offense of wanton disregard while fleeing.

Lesser Included Offense
Fuentes contends that resisting a police officer (§ 148, subd. (a)(1)), is a lesser included offense of wanton disregard while fleeing (Veh. Code, § 2800.2, subd. (a)).

Single act can result in multiple convictions but not punishments
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” ’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).)
“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (Reed, supra, 38 Cal.4th at p. 1227.) The exception exists because “[t]o permit conviction of both the greater and the lesser offense ‘ “ ‘would be to convict twice of the lesser.” ’ ” ’ (People v. Ortega (1998) 19 Cal.4th 686, 705.)
The elements test
Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.

Wanton disregard while fleeing (Vehicle Code Section 2800.2) is defined as a greater offense of evading a police officer in a vehicle (Vehicle Code Section 2800.). Evading a police officer in a vehicle occurs when a person flees or otherwise eludes an officer’s vehicle, if the officer’s vehicle “is distinctively marked,” “is sounding a siren as may be reasonably necessary,” “is operated by a peace officer … [who] is wearing a distinctive uniform,” and “is exhibiting at least one lighted red lamp visible from the front” (and “the person either sees or reasonably should have seen the lamp”). (Veh. Code, § 2800.1, subd. (a).) Wanton disregard while fleeing occurs when “a person flees or attempts to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a).) Damaging property or committing at least three traffic “point” violations while the driving occurs automatically constitutes willful or wanton disregard for the safety of persons or property.
Resisting a police officer occurs when a person “willfully resists, delays, or obstructs any public officer … in the discharge or attempt to discharge any duty of his or her office or employment.” (§ 148, subd. (a)(1).)

“ ‘[T]he lawfulness of the officer’s conduct is an essential element of the offense’ ” of resisting a police officer. (People v. Williams (2018) 26 Cal.App.5th 71, 82.) “ ‘The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful.’ ” (People v. Simons (1996) 42 Cal.App.4th 1100, 1109.)

Resisting a police officer is not a lesser included offense of wanton disregard while fleeing because it is not the case that “all legal elements of the lesser offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th 740, 748.) Resisting a police officer requires that the officer be performing a lawful duty, but wanton disregard while fleeing does not include that element. It merely requires that the officer wear a “distinctive uniform” and that her vehicle do certain things, such as be “distinctively marked” and show a “lighted red lamp.” (Veh. Code, § 2800.1, cited in Veh. Code, § 2800.2, subd. (a).)

If an “arrest is unlawful,” the defendant “may not be convicted of violating … section 148” by resisting the officer. (People v. Southard (2021) 62 Cal.App.5th 424, 435; People v. Gerberding (2020) 50 Cal.App.5th Supp. 1, 4 [reversing section 148 conviction for resisting an unlawful arrest made due to an unreasonable mistake of law].) Fleeing from an officer seeking an unlawful arrest might not violate section 148, but it could still violate Vehicle Code section 2800.2, because the lawfulness of the officer’s actions does not matter.

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