People v. Hudson

44 Cal.Rptr.3d 632

38 Cal.4th 1002

136 P.3d 168

The PEOPLE, Plaintiff and Respondent, v. Gregory Odell HUDSON, Defendant and Appellant.

No. S122816.

Supreme Court of California.

June 19, 2006.

Jeffrey A. Needleman, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee, Jeffrey A. Hoskinson, Donald E. De Nicola, Jaime L. Fuster and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

[136 P.3d 1006]

A conviction of any of the offenses involving fleeing from a pursuing peace officer's motor vehicle requires, among other things, that the officer's vehicle be "distinctively marked." (Veh.Code, §§ 2800.1, subd. (a), 2800.2, subd. (a), 2800.3, subd. (a).) We granted review in this case to address two issues. First, what factors should be considered in determining whether a pursuing peace officer's motor vehicle is "distinctively marked"? Second, must a trial court on its own initiative define that statutory phrase?

We conclude that a peace officer's vehicle is distinctively marked if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the person being pursued that the pursuit is by the police. We further conclude that a trial court must, on its own initiative, instruct the jury that the statutory phrase "distinctively marked" requires that, in addition to the red light and siren, the peace officer's vehicle must have features that distinguish it from vehicles not used for law enforcement, and that here the trial court's failure to so instruct the jury requires reversing the judgment of the Court of Appeal.

I.

On the evening of January 4, 2002, Los Angeles Police Officers Andrew Buesa, who was in uniform, and Richard Ludwig were on patrol in a Ford Crown Victoria car near 54th Street and Wilton Place in Los Angeles. Officer Buesa, the driver, described the car as not a "marked vehicle" but "a plain car with forward-facing interior red light and a blue amber blinking light in the back." The red light was directly under the rearview mirror.

Just before 11:00 p.m., the two officers saw a man standing next to a parked car in which defendant was in the driver's seat. The man handed defendant money in exchange for an item wrapped in cellophane and, after looking towards the officers, ran away.

When defendant drove off, the two officers followed in their car. As defendant accelerated and turned right onto another street, Officer Buesa turned on his car's red light and the siren. When defendant pulled his car over to the side of the road, Buesa got out of his car and ordered defendant at least five times to get out of his car. Defendant, however, drove away. The officers again pursued defendant with the car's red light and siren on. During the pursuit, defendant ran two stop signs and a red light, causing another car to swerve suddenly to avoid a collision; at one point, Officer Buesa saw

[136 P.3d 1007]

defendant put his left arm outside the driver's window and crumble something in his hand. After additional police cars joined the pursuit, defendant turned into a shopping center and stopped.

A search of the car revealed some crumbled off-white solids later determined to be cocaine base; a bottle labeled "hydrochloride" (a "cutting agent" to increase the weight of cocaine); and white residue on an electronic scale, on the electronic buttons for the window and the locks, on the outside of the driver's side door, and on defendant's left hand.

Defendant was charged with transportation of a controlled substance (Health & Saf.Code, § 11352, subd. (a)), possession for sale of cocaine base (id., § 11351.5), and attempting to elude a pursuing peace officer with willful disregard of the safety of persons or property (Veh.Code, § 2800.2, subd. (a)).¹

The trial court gave a modified version of the standard jury instruction for the offenses of fleeing from, or attempting to elude, a pursuing peace officer's vehicle. (See CALJIC No. 12.85 (1999 rev.).) The modified instruction told the jury that the statutory "term `distinctively marked' does not necessarily mean that the police vehicle must be marked with an insignia or logo," and it was for the jury "to determine whether the circumstances, which may include evidence of a siren or red lamp, [were] sufficient to inform any reasonable person that he was being pursued by a law enforcement vehicle."

The jury found defendant guilty as charged. The trial court sentenced him to imprisonment of four years for transporting a controlled substance, four years for possession for sale of cocaine base (the sentence was stayed under Penal Code section 654), and eight months for attempting to elude a police officer.

The Court of Appeal affirmed. We granted defendant's petition for review.

II.

Section 2800.2 makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer's vehicle in "violation of Section 2800.1" and "in a willful or wanton disregard for the safety of persons or property." Under section 2800.1, a person who operates a motor vehicle "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: [¶] (1) The peace officer's motor vehicle is

[136 P.3d 1008]

exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer . . . wearing a distinctive uniform." (Italics added.) Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993, 73 Cal.Rptr.2d 682, 953 P.2d 858 [actual words of a statute cannot be ignored].)

Our Courts of Appeal have reached conflicting holdings on the meaning of the statutory requirement that the peace officer's vehicle be "distinctively marked."

In People v. Estrella (1995) 31 Cal. App.4th 716, 37 Cal.Rptr.2d 383 (Estrella), the Court of Appeal noted that subdivision (a)(3) of section 2800.1, which requires that a pursuing police car be distinctively marked, does not say that the marking must be in the form of any "insignia or logo." (Estrella, at p. 722, 37 Cal.Rptr.2d 383.) The court acknowledged it "may reasonably be concluded that a vehicle is distinctively marked if it bears a symbol or device that identifies it as a peace officer's vehicle." (Ibid.) The court then pointed out that section 2800.1 already requires the vehicle to have a red light (subd. (a)(1)) and a siren (subd. (a)(2)). (Estrella, at pp. 722-723, 37 Cal.Rptr.2d 383.) Thus, the Estrella court said, to determine when a pursuing peace officer's vehicle meets the statutory requirement of being "distinctively marked" one needs to look "at the indicia identified with the pursuit vehicle which are supplemental to a red light and siren, to ascertain whether a person fleeing is on reasonable notice that pursuit is by a peace officer." (Id. at p. 723, 37 Cal.Rptr.2d 383, italics added.) Applying that test to the facts before it, the court concluded that because the pursuing officer's vehicle had a light bar on the windshield on the front passenger side, had warning lights in the rear, and had alternating headlights (called "wigwag" lights), in addition to a siren, the car had sufficient distinctive marks to satisfy the statutory requirement. (Ibid.)

In People v. Mathews (1998) 64 Cal. App.4th 485, 489-490, 75 Cal.Rptr.2d 289, the Court of Appeal followed the approach in Estrella, supra, 31 Cal.App.4th 716, 37 Cal.Rptr.2d 383, concluding that a pursuing officer's vehicle equipped with red lights, siren, and with wigwag headlights was distinctively marked.

Thereafter, in People v. Chicanti (1999) 71 Cal.App.4th 956, 84 Cal.Rptr.2d 1 (Chicanti), the Court of Appeal disagreed with the holding of Estrella, supra, 31 Cal. App.4th at page 723, 37 Cal.Rptr.2d 383, that indicia other than a red light and a siren were necessary to make a pursuing peace officer's vehicle "distinctively

[136 P.3d 1009]

marked" within the meaning of section 2800.1, subdivision (a)(3). (Chicanti, supra, 71 Cal.App.4th at p. 962, 84 Cal. Rptr.2d 1.) In the view of the Chicanti court, the "appropriate test is whether there is substantial evidence in the record from which a reasonable trier of fact could conclude the red light and siren were sufficient `distinctive markings to inform any reasonable person he was being pursued by a law enforcement vehicle.'" (Ibid.) Whether the pursuing police car is distinctively marked, the court said, depends on the totality of the circumstances. (Ibid.) In People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 237, 11 Cal.Rptr.3d 590, the Court of Appeal agreed with that holding, one that the Court of Appeal in this case also followed and that the Attorney General urges us to adopt.

Defendant, on the other hand, contends that a reading of section 2800.1 reveals that the pursuing police vehicle's outward appearance and features should be the basis for determining whether the vehicle meets the statutory requirement of being "distinctively marked."

To resolve the conflict in these two views, we apply basic principles of statutory construction to ascertain the legislative intent in using the phrase "distinctively marked."...