Reckless Driving (§ 23103) is Not a  Lesser Included Offense of Felony Evasion of a Peace Officer

People v. Walker (Cal. Ct. App., May 6, 2021, No. A158423) 2021 WL 1811648, at *1–4

Summary: Walker appealed following his convictions for felony evasion of a peace officer (Veh. Code, § 2800.2)1 and other crimes. In the published portion of the opinion, the Court of Appeal rejected Walker’s contention that reckless driving (§ 23103) is a lesser included offense of felony evasion.

Facts: In June 2019, Walker was charged with felony evasion of a peace officer (§ 2800.2); misdemeanor driving under the influence (§ 23152, subd. (f)); and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

On the morning of May 24, 2019, California Highway Patrol (CHP) officer Larry DePee was in an unmarked vehicle when he received a call about a reckless driver. DePee saw a vehicle matching the description weaving onto the shoulder and over the double yellow lines into the opposing lane of traffic. He drew up behind the vehicle, and activated his lights and siren. Walker sped away from pursuing CHP officers who followed the vehicle for 24 minutes, driving more than 18 miles. During the pursuit, appellant reached speeds of 85 miles per hour in a 55 mile per hour zone; crossed into oncoming lanes of traffic, including through blind curves bordered by concrete barriers; drove in the wrong direction on the highway; and narrowly missed oncoming vehicles.

CHP placed a spike strip and Walker continued to drive more than three miles before stopping. A bag containing more than 11 grams of methamphetamine was found next to the driver’s seat.

Criminalist Kathralynn Cook analyzed a sample of Walker’s blood taken at the jail and found it contained more than 1,000 nanograms of methamphetamine per milliliter. This was the highest level that could be accurately reported but, based on her testing of diluted samples, Cook “guesstimate[d]” the actual concentration was around 3,000 nanograms per milliliter, one of the highest concentrations she had seen in a living person. Methamphetamine can cause poor judgment and risky behavior, and makes it difficult for a person to perform divided-attention tasks like driving. Cook testified that, in certain circumstances, it was possible for someone who was highly impaired on methamphetamine to be unaware of police following them. She also testified high doses of methamphetamine can cause “meth psychosis,” a condition similar to schizophrenia.

The jury found appellant guilty of all three counts. In a bifurcated proceeding, appellant admitted a prior serious felony conviction. The trial court sentenced appellant to prison for an aggregate term of six years.

Duty to Instruct on a Lesser Included Offense

Appellant argues the trial court erred in failing to sua sponte instruct the jury on reckless driving (§ 23103) as a lesser included offense of felony evasion of a peace officer (§ 2800.2).

“A trial court has a sua sponte duty 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.’ [Citation.] …  To determine if an offense is 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 of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 403–404 (Shockley).)

Felony evasion of a peace officer

Felony evasion of a peace officer is committed when “a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.16 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property ….” (§ 2800.2, subd. (a).)

Reckless driving

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 ….” (§ 23103.)

“willful or wanton disregard for the safety of persons or property”

The meaning of the phrase “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 (Taylor) [“the same phrase may appear in two statutes establishing offenses, yet convey different meanings”].)

“As the reckless driving statute has never defined driving with ‘willful or wanton disregard for the safety of persons or property,’ 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 p. 1202; see also People v. Barber (2020) 55 Cal.App.5th 787, 802, 808 [approving CALCRIM No. 2200 reckless driving instruction providing, “ ‘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, and (2) he or she intentionally ignores that risk.’ ”].)

The felony evasion statute defined 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.” (§ 2800.2, subd. (b).) “Violations that are assigned points under section 12810 … include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).” (People v. Howard (2005) 34 Cal.4th 1129, 1137–1138 (Howard).)

This definition, which was added to section 2800.2 in 1996, “greatly expanded the meaning of the quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous.” (Howard, supra, 34 Cal.4th at p. 1138 [holding felony evasion is not an inherently dangerous felony for purposes of the second-degree felony-murder rule].) it includes driving an unregistered vehicle owned by the driver: “There is no reason why an unregistered car cannot be driven safely. [Section 12810] thus contemplates that traffic violations involving the operation of a motor vehicle, including those not related to safety, are worth a point unless otherwise stated.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 643, italics added; see also People v. Pinkston (2003) 112 Cal.App.4th 387, 396 (dis. opn. of Klein, J.) [“Obviously, a defendant may commit three Vehicle Code violations or cause property damage during a pursuit while exercising extreme vigilance for the safety of persons or property.”].)

Courts have concluded that the definition of “willful or wanton disregard” in section 2800.2 is significantly broader than the traditional definition of the phrase as used in the reckless driving statute. The Court agreed that “willful or wanton disregard” as defined in section 2800.2, subdivision(b), is significantly broader than the traditional definition of the phrase used in the reckless driving statute. Because the statutory elements of section 2800.2  do not include all of the statutory elements of reckless driving, reckless driving is not a lesser included offense.