 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Nettles1/26/2004
We disagree.
Defendant is correct that "Vehicle Code section 2800.1 is a lesser included offense of Vehicle Code section 2800.2. The only distinction between the two crimes is that in committing the greater offense the defendant drives the pursued vehicle 'in a willful or wanton disregard for the safety of persons or property.' (Veh.Code, § 2800.2.)" (People v. Springfield (1993) 13 Cal.App.4th 1674, 1679-1680.)
*7 At trial, defendant did not specifically request an instruction on attempting to evade a pursuing police vehicle, as distinguished from attempting to evade a pursuing police vehicle while driving in a willful or wanton disregard for the safety of persons or property. Even when requested, an instruction on a lesser included offense must be given only when the evidence warrants such an instruction. To warrant such an instruction, "there must be substantial evidence of the lesser included offense, that is, 'evidence from which a rational trier of fact could find beyond a reasonable doubt' that the defendant committed the lesser offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
When a defendant fails to request an instruction on a lesser included offense, the trial court nonetheless has a duty to instruct sua sponte on the lesser included offense if " 'the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.' " (People v. Bradford (1997) 14 Cal.4th 1005, 1055 (Bradford ).)
Defendant argues on appeal that evidence of "[his] intoxication alone" justified an instruction on the lesser offense of attempting to evade a pursuing police vehicle, because the jury could have concluded he was prevented by his intoxication from forming the intent necessary to driving in "willful or wanton" disregard of safety, thus rendering him guilty of the lesser offense only. He is mistaken.
Generally, in construing statutes descriptive of forbidden driving, the term " ' "[w]antonness includes the elements of consciousness of one's conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences," ' " and the word " ' "willful" ' " refers to an " ' "intentional" ... disregard of safety, etc., not merely to the act done in disregard thereof.' [Citation.]" (People v. Schumacher (1961) 194 Cal.App.2d 335, 340.)
But section 2800.2, subdivision (b) expressly provides that the "willful or wanton disregard" element is satisfied if, while fleeing, "either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." Qualifying violations of section 12810 include driving under the influence of alcohol (§§ 23152, 12810, subd. (b)); [FN6] driving with a suspended license (§§ 14601.1, 12810, subd. (i)); and driving across a center raised road median (§§ 21651, subd. (b), 360, 12810, subd. (d)(1)). Because the evidence established the occurrence of three qualifying violations--that defendant drove across a raised road median, drove while drunk, and drove with a suspended license--his conduct constituted "willful or wanton disregard" as a matter of law, without regard to his intent.
FN6. Section 12810 provides in relevant part:
"In determining the violation point count, the following shall apply:
[ ] ... [ ]
"(b) Any conviction of a violation of Section 23152 or 23153 shall be given a value of two points. [ ] ... [ ]
"(d)(1) Any conviction of a violation of ... subdivision (b) of Section 21651 ... shall be given a value of two points. [ ] ... [ ]
"(i) Any conviction of a violation of Section 14601[or] 14601.1 ... shall be given a value of two points."
Page 1 2 3 4 5 6 7 8 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|