People v. Pinkston

KLEIN, P. J., Dissenting.

I respectfully dissent from that portion of the majority’s opinion that finds Vehicle Code section 2800.2 does not create an unconstitutional mandatory presumption.1

A violation of section 2800.2, subdivision (a), requires proof the defendant was fleeing or attempting to elude a pursuing peace officer in violation of section 2800.1 and that “the pursued vehicle [was] driven in a willful or wanton disregard for the safety of persons or property . . . ,”2

Willful or wanton disregard for the safety of persons or property, a phrase that also appears in the definition of reckless driving in violation of section 23103, subdivision (a), requires more than negligence or even gross negligence. Willful or wanton disregard means “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 the likely resulting injury.” (People v. Allison (1951) 101 Cal.App.2dSupp. 932, 934 [226 P.2d 85]; see also People v. Dellinger (1989) 49 Cal.3d 1212, 1220 [264 Cal.Rptr. 841, 783 P.2d 200]; People v. Dewey (1996) 42 Cal.App.4th 216, 221 [49 Cal.Rptr.2d 537]; People v. Richie (1994) 28 Cal.App.4th 1347 [34 Cal.Rptr.2d 200]; People v. Schumacher (1961) 194 Cal.App.2d 335, 340 [14 Cal.Rptr. 924]; People v. McNutt (1940) 40 Cal.App.2dSupp. 835, 837-838 [105 P.2d 657].)

However, section 2800.2, subdivision (b), added to section 2800.2 in 1996, permits the People to demonstrate willful or wanton disregard for the safety of persons or property based solely on the commission of three Vehicle Code violations or property damage during a pursuit.3

*396I agree with Pinkston’s contention that subdivision (b) of section 2800.2 violates due process by reducing the People’s burden of proof with respect to the element of willful or wanton disregard for the safety of persons or property.

People v. Roder (1983) 33 Cal.3d 491, 498 [189 Cal.Rptr. 501, 658 P.2d 1302], defined a mandatory presumption as one which “tells the trier of fact that it must assume the existence of the ultimate, elemental fact from proof of specific, designated basic facts . ...” A conclusive mandatory presumption “removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption.” (Francis v. Franklin (1985) 471 U.S. 307, 314, fn. 2 [85 L.Ed.2d 344, 105 S.Ct. 1965].) Roder noted a mandatory presumption “limits the jury’s freedom independently to assess all of the prosecution’s evidence in order to determine whether the facts of the particular case establish guilt beyond a reasonable doubt.” (People v. Roder, supra, at p. 498.) Therefore, the prosecution may not rest its case on a mandatory presumption unless “the basic fact proved compels the inference of guilt beyond a reasonable doubt.” (Ibid., fn. 7; In re Ivey (2000) 85 Cal.App.4th 793, 803-804 [102 Cal.Rptr.2d 447]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 142-143 [89 Cal.Rptr.2d 28]; People v. Reyes Martinez (1993) 14 Cal.App.4th 1412, 1416 [18 Cal.Rptr.2d 300].)

People v. Roder, supra, 33 Cal.3d at pages 500-501, struck down as unconstitutional a statutory presumption that a defendant knows property is stolen when he receives it without inquiry under circumstances which should cause a reasonable person to inquire to ascertain the right of the transferor to the property. Carella v. California (1989) 491 U.S. 263, 265 [105 L.Ed.2d 218, 109 S.Ct. 2419] found unconstitutional a presumption that if a rental car was not returned within five days after expiration of the rental agreement, the defendant embezzled the vehicle.

The presumption in issue here is closely analogous to the presumptions addressed in Roder and Carella. The basic facts the prosecution must prove to bring the presumption into play—three Vehicle Code violations or damage to property—do not on their face establish beyond a reasonable doubt that the defendant acted with conscious disregard for the safety of persons or property during the pursuit. 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. Thus, the presumption allowed the People to establish the elemental fact of willful or wanton disregard, a relatively complex mental state, based on three Vehicle Code *397violations or property damage even though the driving may, in fact, not have been reckless and the conduct, viewed in its entirety as it would have been absent the presumption, did not establish recklessness to the jury’s satisfaction.

The majority insists section 2800.2, subdivision (b) merely defines with precision one type of conduct that qualifies as willful or wanton disregard for the safety of persons or property as that phrase is used in Vehicle Code section 2800.2. However, this assessment overlooks the fact that section 2800.2, subdivision (b), permits the People to prove conscious disregard for the safety of persons or property based on the commission of three or more Vehicle Code violations or the occurrence of property damage. This goes beyond mere definition and constitutes a classic example of a “mandatory presumption” because it “tells the trier [of fact] that [it] must find the elemental fact upon proof of the basic fact . . . .” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 99 S.Ct. 2213].)

The majority’s analogy to section 23152, subdivision (b), which prohibits driving with a blood-alcohol content of 0.08 or greater is not persuasive. People v. Bransford (1994) 8 Cal.4th 885 [35 Cal.Rptr.2d 613, 884 P.2d 70], held section 23152, subdivision (b) did “not presume that the driver was intoxicated or ‘under the influence’; instead, it defined the substantive offense of driving with a specified concentration of alcohol in the body. Thus, it did not create an irrebuttable conclusive presumption.” (People v. Bransford, supra, at pp. 892-893.)

As Bransford found, section 23152, subdivision (b) does not direct the jury to presume intoxication upon a finding the defendant had a 0.08 blood-alcohol level. Rather, section 23152, subdivision (b) defines an offense separate from driving under the influence of alcohol or drugs, namely, driving with a blood-alcohol content of 0.08 or greater. Driving under the influence of alcohol or drugs continues to be proscribed by section 23152, subdivision (a). Thus, the two statutes, although related, address different conduct.

Similarly, the Legislature could have defined an aggravated form of evading an officer which required proof the defendant committed three Vehicle Code violations or caused property damage during the pursuit. However, it did not. Instead, it enacted section 2800.2, subdivision (b), which requires the jury to presume the existence of willful or wanton disregard, an element of section 2800.2, subdivision (a), based on proof of the basic fact of three Vehicle Code violations or property damage. This amendment did not define a new crime. Rather, it reduced the quantum of evidence the People are required to produce in order to obtain a conviction of a violation of section 2800.2, subdivision (a). This, as previously noted, constitutes a classic example of a mandatory presumption.

*398The legislative history of subdivision (b) to section 2800.2 does not assist the majority’s position. The Legislative Counsel’s Digest refers to the amendment as merely describing “acts that constitute driving in a willful or wanton disregard for the safety of persons or property.” (Stats. 1996, ch. 420, italics added.) This legislative history was relied on by People v. Sewell (2000) 80 Cal.App.4th 690 [95 Cal.Rptr.2d 600], which concluded that section 2800.2, as amended in 1996 to permit a finding of willful or wanton disregard based on three Vehicle Code violations or property damage, continued to constitute an inherently dangerous felony for purposes of second degree murder.4 Sewell observed: “The [1996] amendment merely described a couple of nonexclusive acts that constitute driving with willful or wanton disregard for the safety, of persons or property.” (People v. Sewell, supra, at pp. 694-695.) Notwithstanding the description of the amendment in its legislative history, the actual effect of the amendment is an unconstitutional reduction in the People’s burden of proving the willful or wanton disregard element of section 2800.2, subdivision (a). Thus, the amendment goes beyond mere definition and, on its face, constitutes an unconstitutional mandatory presumption that lightened the People’s burden of proof.

The question remains whether the unconstitutional conclusive presumption was harmless in this case under the test defined in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], I cannot conclude it was.

Shortly after jury deliberations commenced, the jury asked the trial court if Pinkston’s commission of three Vehicle Code violations satisfied the requirement that the People prove willful or wanton disregard for the safety of persons or property “in and of itself?” Consistent with section 2800.2, subdivision (b), the trial court answered “yes.” Also, as Pinkston repeatedly points out, neither officer testified Pinkston ever came close to striking any other vehicle; he never caused any other vehicle to stop, brake hard or take evasive action to avoid a collision; and the chase lasted only two minutes. Finally, the jury convicted Pinkston only of misdemeanor evading with respect to the pursuit of September 14. Based on all of these factors, it follows that, absent the presumption, the jury might have convicted Pinkston only of a misdemeanor with respect to the pursuit of October 21. Accordingly, I cannot find beyond a reasonable doubt the mandatory presumption contained in section 2800.2, subdivision (b), did not contribute to the verdict of guilt.

I would reverse the felony conviction in count 2.

Appellant’s petition for review by the Supreme Court was denied December 17, 2003.

Subsequent unspecified statutory references are to the Vehicle Code.

Section 2800.1, subdivision (a) provides: “(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor if all of the following conditions exist: [I] (1). The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. QQ (2) . The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [f] (3) . The peace officer’s motor vehicle is distinctively marked, [f] (4). The peace officer’s motor vehicle is operated by a peace officer . . . and that peace officer is wearing a distinctive uniform.”

Section 2800.2, subdivision (b), provides: “(b) For the purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving *396while 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 [Vehicle Code] Section 12810 occur, or damage to property occurs.”

Review has been granted in People v. Howard (S108353), September, 11, 2002, to address, inter alia, the same issue addressed in Sewell, whether a violation of section 2800.2 is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule.