Filed 7/29/16
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,                                                          C077269

                  Plaintiff and Respondent,                 (Super. Ct. No. 11F08251)

        v.

DYWON LEVELL BYRD,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County,
Michael P. Kenny, Judge. Reversed in part and affirmed in part.

      Steven Schorr, under appointment by the Court of Appeal, for Defendant and
Appellant.




* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Part I.

                                               1
      Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez, Marcia A. Fay, Deputy Attorney General, for Plaintiff and
Respondent.

        A jury found defendant Dywon Levell Byrd guilty of first degree murder (Pen.
Code, § 187, subd. (a); count 1) and driving in willful or wanton disregard for the safety
of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2,
subd. (a); count 3).1 The jury found true the special allegation that defendant used a
firearm in committing first degree murder. (Pen. Code, § 12022.53, subd. (b).)2 The trial
court sentenced defendant to 25 years to life for first degree murder, a consecutive 25
years to life on the firearm allegation, plus a consecutive two-year sentence for driving in
willful or wanton disregard for the safety of persons or property while fleeing from a
pursuing police officer.
        On appeal, defendant contends the trial court erred in instructing the jury with the
last bracketed paragraph of CALCRIM No. 226. He further contends that his conviction
for violating section 2800.2 is not supported by substantial evidence because there was no
proof that either of the pursuing officers wore a distinctive uniform. As we will explain
in the published portion of our opinion, we agree with the latter contention. We will
reverse count 3 (§ 2800.2, subd. (a)) and order it dismissed. We affirm the judgment in
all other respects.
                                     BACKGROUND
        At around midnight on December 7, 2011, Sacramento Police Officer Robert
Hamm was dispatched to a residence on Samos Way in response to a report of a shooting.
When he arrived at the residence, he observed two vehicles parked in the driveway, one




1   Further undesignated statutory references are to the Vehicle Code.
2   The jury acquitted defendant of count 2, attempted murder.

                                              2
of which had its engine running. Inside that vehicle was the victim, who had been shot in
the neck.
       On the same night at approximately 12:10 a.m., Sacramento Police Officers Carl
Chan and David DeLeon were on patrol in a fully marked traditional black and white
police car near Samos Way when they observed a silver sport utility vehicle (SUV)
driving without its headlights on. The SUV did a “burn out” and accelerated at a high
rate of speed away from the officers. Officer DeLeon activated the patrol car’s
emergency overhead red and blue lights and attempted to initiate a traffic stop. The SUV
initially slowed and started to yield but then suddenly accelerated and drove off. Officer
DeLeon activated the patrol car’s siren and a high-speed pursuit ensued, ending when the
driver, later determined to be defendant, stopped his vehicle and fled on foot. A
perimeter was established by law enforcement officers, and defendant was apprehended
and arrested several hours later. We will supply the relevant details of the evading
conviction in Part II of the Discussion, post.
                                      DISCUSSION
                                                 I
                                    CALCRIM No. 226
       Defendant first contends the trial court erred by instructing the jury with the last
bracketed paragraph of CALCRIM No. 226. That paragraph states: “If you decide that a
witness deliberately lied about something significant in this case, you should consider not
believing anything that witness says. Or, if you think the witness lied about some things,
but told the truth about others, you may simply accept the part that you think is true and
ignore the rest.” Defendant argues that this paragraph should not be given in a case
where, as here, the defendant testifies. He reasons as follows: “The instruction’s last
paragraph encouraged the jury to consider rejecting the entirety of a witness’s testimony
if it decided he lied about an important fact, thereby creating a permissive inference of
discarding the evidence as a complete falsehood based on a single prevarication. Because

                                                 3
persons accused of crimes are uniquely vulnerable to arguments positing they have a
motive to lie to avoid conviction and therefore are very likely lying, such an inference is
inherently more burdensome to defendants in criminal cases than to other witnesses.”
According to defendant, “applying the . . . [permissive] inference to testifying defendants
undermines the presumption of innocence and denies them due process and a fair trial.”
He asserts that the trial court’s error in instructing the jury with the last bracketed
paragraph of CALCRIM No. 226 affected his “substantial rights to due process of law,
jury trial and an accurate determination of guilt under the United States and California
Constitutions.”
       The People first assert that defendant forfeited his right to challenge CALCRIM
No. 226 by failing to object to the instruction in the trial court. We will review the issue
on the merits because defendant’s failure to object to the instruction does not preclude
review for constitutional error. “The appellate court may . . . review any instruction
given, . . . even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.” (§ 1259; People v. Guerra
(2006) 37 Cal.4th 1067, 1138.) Instructional errors resulting in a miscarriage of justice
violate the substantial rights of a defendant. (People v. Arredondo (1975) 52 Cal.App.3d
973, 978.) Thus, we proceed to examine the instruction to assess whether the trial court
erred in giving CALCRIM No. 226.
       We find no instructional error. Defendant acknowledges that our Supreme Court
has rejected similar arguments against the predecessor instruction, CALJIC No. 2.21.2,3
but argues that CALCRIM No. 226 “provides stronger encouragement” to the jury to



3 CALJIC No. 2.21.2 provides: “A witness, who is willfully false in one material part of
his or her testimony, is to be distrusted in others. You may reject the whole testimony of
a witness who willfully has testified falsely as to a material point, unless, from all the
evidence, you believe the probability of truth favors his or her testimony in other
particulars.”

                                               4
reject the entirety of a defendant’s testimony “based upon a single material falsehood.”
Defendant also acknowledges that his arguments were rejected in People v. Warner
(2008) 166 Cal.App.4th 653. In Warner, the Fifth Appellate District concluded that
CALCRIM No. 226 and CALJIC No. 2.21.2 are both “facially neutral instructions that
apply to all witnesses who testify at trial and that focus no more on the defendant’s
testimony than on that of any other witness.” (Warner, at p. 658.) Moreover, since the
“semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are [not]
even material, let alone prejudicial,” the Warner court rejected the defendant’s “challenge
to the former by deferring to a long line of California Supreme Court cases rebuffing
analogous challenges to the latter.” (Warner, at p. 659.)
       We conclude that Warner’s analysis is persuasive and dispositive of defendant’s
arguments regarding the trial court’s use of CALCRIM No. 226. Contrary to defendant’s
contention, CALCRIM No. 226 does not “create[] a permissive inference by telling jurors
they ‘should’ disbelieve everything a witness coming with the scope of the instruction
has said.” The instruction merely directed the jurors to consider not believing anything a
witness says if they decide the witness deliberately lied about something significant; it
does not state that the jury should not believe anything that witness says if they decide the
witness deliberately lied about something significant. (See People v. Warner, supra,
166 Cal.App.4th at p. 658.)
                                                  II
                                    Sufficiency of the Evidence
       Defendant contends that his conviction for violating section 2800.2 is not
supported by substantial evidence because there was no proof that either of the pursuing
officers wore a distinctive uniform. We agree, because no evidence was presented, by
either party, to support this essential element of the offense.




                                              5
       A. Applicable Law
       A person violates section 2800.2 if he “flees or attempts to elude a pursuing peace
officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or
wanton disregard for the safety of persons or property.” (§ 2800.2, subd. (a).)
Section 2800.1 provides that a person operating a motor vehicle is guilty of fleeing or
attempting to elude a pursuing peace officer’s motor vehicle if all of the following
conditions exist: (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; (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; and (4) the peace
officer’s motor vehicle is operated by a peace officer, and that peace officer is wearing a
distinctive uniform. (§ 2800.1, subd. (a), 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.” (People v.
Hudson (2006) 38 Cal.4th 1002, 1008 (Hudson).) The prosecution must prove each
element beyond a reasonable doubt. (People v. Acevedo (2003) 105 Cal.App.4th 195,
197-198.)
       For purposes of section 2800.2, “a law enforcement officer’s ‘distinctive uniform’
is the clothing prescribed for or adopted by a law enforcement agency which serves to
identify or distinguish members of its force.” (People v. Mathews (1998) 64 Cal.App.4th
485, 490.) “The statute does not require that the uniform be of any particular level of
formality or that it be complete.” (People v. Estrella (1995) 31 Cal.App.4th 716, 724.)
Nor does the statute require that the person eluding capture actually see that the police
officer is wearing a distinctive uniform. (Ibid.)
       To assess the sufficiency of the evidence, we review the whole record to determine
whether it discloses substantial evidence to support the verdict--i.e., evidence that is
reasonable, credible, and of solid value--such that a reasonable trier of fact could find the

                                              6
defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342,
396.) “The standard is the same, regardless of whether the prosecution relies mainly on
direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009)
178 Cal.App.4th 347, 352.) In applying the standard, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. (People v.
Boyer (2006) 38 Cal.4th 412, 480.) “ ‘[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh
evidence or reevaluate a witness’s credibility. [Citation.]” (People v. Guerra, supra,
37 Cal.4th at p. 1129.)
       The officers testified that they were assigned to the patrol unit of the Sacramento
Police Department, which involved basic patrol duties such as responding to calls for
service and performing proactive policing. The officers were on patrol in a fully marked
traditional black and white police car, and the car’s siren and emergency overhead red
and blue lights were activated during the pursuit of defendant. At trial, defendant
admitted that he saw the patrol car behind him with its lights on, and that he made a
conscious decision to flee from the police. However, no direct evidence was presented at
trial demonstrating that either officer was wearing a distinctive uniform. None of the
witnesses at trial testified as to the officers’ attire, nor is there any other evidence in the
record about the officers’ attire.
       The People cursorily argue only that the jury could have reasonably inferred that
the officers wore a distinctive uniform because they were assigned to the patrol unit and
were on patrol in a marked police vehicle at the time of the pursuit, and because
defendant admitted to knowing the police were chasing him. However, they point to no
actual evidence that either officer wore a distinctive uniform within the meaning of



                                                7
section 2800.1. We see no such evidence in the record. Nor do they cite any authority
for the argument that such an inference is even potentially proper.
          The fact that the officers were assigned to the patrol unit and were in a patrol car
at the time of the pursuit is not sufficient to prove that either officer was wearing a police
uniform or other distinctive police attire. To infer evidence of a distinctive uniform
rather than plainclothes or another less than distinctive outfit from the evidence in the
record before us would be pure speculation. (See People v. Shakhvaladyan (2004)
117 Cal.App.4th 232, 238 [reversing conviction under section 2800.2 because the record
“did not include any reference to the fact that . . . [the officer] wore a distinctive
uniform”], disapproved on other grounds by Hudson, supra, 38 Cal.4th at pp. 1009-1011,
fn. 3.)
          The People do not provide any authority in support of their brief argument that we
should look to proof introduced to satisfy the other elements (that these were peace
officers on patrol in a marked car) as a substitute for proof satisfying the distinctive
uniform requirement, and we are aware of none. In Hudson, our Supreme Court
concluded that, in order for a peace officer’s vehicle to be distinctively marked within the
meaning of section 2800.1, its outward appearance during the pursuit must include, in
addition to the separate statutory requirements of 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 notice to the person being pursued that the pursuit
is by the police. (Hudson, supra, 38 Cal.4th at pp. 1010-1011.) In so concluding,
Hudson disapproved People v. Chicanti (1999) 71 Cal.App.4th 956, and People v.
Shakhvaladyan, supra, 117 Cal.App.4th 232, both of which held that a red light and a
siren could be considered along with the totality of the circumstances in determining
whether a pursuing police vehicle is distinctively marked. (Hudson, at pp. 1009-1011, fn.
3.) The court explained, “[I]n determining whether the pursuing police vehicle is
distinctively marked, a jury may consider only the distinguishing features of the vehicle

                                                 8
itself that are reasonably visible to other drivers and serve to distinguish the vehicle from
vehicles not used in law enforcement.” (Id. at p. 1014.)
       Similarly, in the instant case--like the cases disapproved by Hudson--the People
ask us to conclude that the proof supporting the unrelated elements of evading was
sufficient to support the element requiring them to prove at least one of the officers wore
a distinctive uniform. This we cannot do. Nor may we conclude, as does our dissenting
colleague, that defendant admitted to evading the police as defined by sections 2800.1
and 2800.2 from his testimony on the witness stand that he knew the police were
following him. The statute does not require that either defendant actually knew of the
police officers’ presence in pursuit or that the pursuit met the requirements listed in
section 2800.1. Rather, “[t]he 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.” (Hudson, supra, 38 Cal.4th at p. 1008, italics added.)
Whether we consider it reasonable or not, if the pursuing officers were for any reason
wearing plainclothes and belt badges, defendant would not be in violation of section
2800.2 regardless of his admissions on the witness stand. (See People v. Matthews,
supra, 64 Cal.App.4th at p. 491 [plainclothes officer wearing badge not in a distinctive
uniform as required by section 2800.1; section 2800.2 conviction accordingly reversed].)
Here, we simply do not know what the police officers were wearing.
       We thus are compelled to conclude that despite defendant’s admission under oath
of actual knowledge as to the identity of his pursuers as law enforcement officers,
because the prosecutor neglected to ask a single, simple question to elicit evidence of the
officers’ attire and there is no evidence otherwise in the record that the officers were
wearing distinctive uniforms, defendant’s conviction cannot stand. Although our
conclusion may seem bewildering to some, any remedy lies “ ‘on the other side of Tenth
Street, in the halls of the Legislature.’ ” (Siskiyou County Farm Bureau v. Department of
Fish and Wildlife (2014) 237 Cal.App.4th 411, 420-421.)

                                              9
       Given the complete lack of evidence regarding the officers’ attire during the
pursuit or even at any point during the relevant time period, we conclude that the
prosecution failed to meet its burden of proof on the distinctive uniform element.4
                                     DISPOSITION
       The judgment of conviction for count 3 (§ 2800.2) is reversed and count 3 is
ordered dismissed. The judgment is affirmed in all other respects. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified copy
thereof to the Department of Corrections and Rehabilitation.




                                                       /s/
                                                 Duarte, J.



I concur:



     /s/
Nicholson, Acting P. J.




4  Although we disagree with the dissent’s conclusion that defense counsel effectively
conceded that his client was guilty of evading, certainly to the degree that would permit
the People to secure defendant’s conviction despite having failed to prove an essential
element of the crime they themselves chose to charge, we cannot help but agree that
many balls were dropped here, by both the prosecutor and defense counsel. Both appear
to have completely forgotten about the evading charge at trial. This lack of care at earlier
stages of this case has resulted in the expenditure of time and resources on appeal that
would not have been necessary had the parties paid more attention to all aspects of this
case at trial.

                                            10
Hull, J.
       I concur in Part I of the majority opinion. As to Part II, I dissent.
       As the majority opinion sets forth, defendant was charged with and found guilty of
first degree murder in violation of Penal Code section 187, subdivision (a) and driving in
willful or wanton disregard for the safety of persons or property while fleeing from a
pursuing police officer in violation of Vehicle Code section 2800.2. The majority
reverses the section 2800.2 conviction due to a lack of evidence that the pursuing police
officers in this matter were wearing distinctive uniforms during the pursuit.
       Defendant testified at trial and, regarding the police pursuit, said on direct
examination:
       “Q.     And what do you do at that intersection of Brookefield and Bluebrook?

       “A.     I stopped and made a right turn.

       “Q.     What happens next?

       “A.     Police got behind me.

       “Q.     What were you doing at that point?

       “A.     I was smoking. I was smoking and I looked in the rear view mirror police
was behind me with their lights on. So I told KB police behind us put that down. He said
drive.” (Emphasis added.)

       On cross examination, defendant testified:

       “Q.     But then Mr. Northam asked you what you were doing as the police were
coming on to you, you said you were smoking?

       “A.     I was. And I looked up in my rear view mirror and I saw the police behind
me with their lights on.”



                                              1
       “Q.    Now when you came up to Brookfield you had your headlight out; right?

       “A.    No, I had them on.

       “Q.    But the police were going to pull you over; right?

       “A.    Yeah. They had their lights on me.

       “Q.    Now, how is it - - or why is it that you - - you didn’t pull over and just stop
for the police?

       “A.    Because I had crack and the pipe in the car.” (Emphasis added.)

       “Q.    Okay, when you start driving the speed that you were driving on that chase
- -?

       “A.    Uh-huh.

       “Q.    - - do you think you’re going to go to jail for that?

       “A.    Yes, that’s why I ran.

       “Q.    So when you were going you knew [that] it was the police behind you that
entire time; right?

       “A.    Uh-huh.

       “Q.    Is that yes?

       “A.    Yes.” (Emphasis added.)

       On redirect examination, defendant testified:

       “Q.    Now, Mr. Smith asked you about your thought process for the pursuit. Do
you know what you were thinking when you were fleeing from the cops?

       “A.    No.

       “Q.    Were you having - -



                                              2
       “A.    Just to get away.

       “Q.    Now you testified on cross-exam that cops are assholes?

       “A.    Yes.

       “Q.    And in your experience, in your life have you had positive interactions with
law enforcement?

       “A.    Getting slammed against the car, getting beat up, yes.

       “Q.    So when you say, quote, ‘I don’t fuck with the police’ end quote, what does
that mean?

       “A.    That means I don’t fuck with the police, they’re assholes.

       “Q.    So you don’t mess with them?

       “A.    No, I do not.” (Emphasis added.)

       And finally, on recross examination, defendant testified:

       “Q.    So what crime did KB commit in your mind?

       “A.    Running from the police, like I was.

       “Q.    So the only crime that KB did was run from the police?

       “A.    Yes.

       “Q.    But he’s a passenger in your car you were driving, right?

       “A.    Yes.” (Emphasis added.)

       During closing arguments, as to this charge, the People merely invited the jury to
review the police car’s dash camera video taken during the chase. The defendant’s
attorney did not speak to the charge at all. Curiously, although the jury was properly
instructed on all of the elements of the offense and were instructed that there had to be
proof beyond a reasonable doubt that the pursuing officers were in distinctive uniforms,

                                             3
the jury found the defendant guilty of violating Vehicle Code section 2800.2 as charged.
It is apparent the judge, jury and counsel were focused on the far more serious charge of
murder and paid little attention to the evading charge especially given the video and
defendant’s admissions that he knew he was fleeing from the police.
       The majority finds defendant’s numerous admissions that he knew he was fleeing
from the police insufficient to prove the Vehicle Code section 2800.2 charge because
defendant did not specifically admit the pursuing officers were wearing distinctive
uniforms.
       The majority and I have different views of the crime that was committed here.
The majority sees the crime as flight from a pursuing police officer who is in a distinctive
uniform and who is in a distinctively marked motor vehicle exhibiting at least one lighted
red lamp visible from the front and who is sounding the motor vehicle’s siren as
reasonably necessary. But the essence of the crime and the dangerous conduct the
Legislature sought to prevent by enacting this statute is knowingly fleeing from a police
officer.
       I recognize that the statute specifically states the conditions necessary to the crime
and that People v. Hudson (2006) 38 Cal.4th 1002, 1008 (Hudson) holds that there are
“four distinct elements” to the crime, a red light, a siren, a distinctively marked vehicle
and a peace officer in a distinctive uniform. The Legislature set forth these conditions no
doubt so that a person being pursued by another vehicle is reasonably put on notice that
the pursuit is by a law enforcement officer and not by someone who is merely posing as
one. Parenthetically, I note that defendant, as he was being pursued here by a police
vehicle at night that was behind him with its headlights on could not have seen, in any
event, whether the officer or officers pursuing him were in a distinctive uniform. But that
is of no moment under Vehicle Code section 2800.1. The statute says what it says.
       I have no quarrel with Hudson or with the many cases that are consistent with its
holding. But they should not be dispositive here because, neither in Hudson nor in any of

                                              4
the other cases that I have found that are consistent with its holding, did the defendant
testify that he knew he was fleeing from and attempting to evade law enforcement
officers.
       In People v. Peters (1950) 96 Cal.App.2d 671 (Peters), the defendant was charged
with manslaughter. On appeal, he claimed there was insufficient evidence of the corpus
delicti because there was no evidence that the decedent died from the knife wound
inflicted by the defendant. But his claim at trial was that he acted in self-defense or that
the killing was an accident. The only evidence presented at trial regarding the cause of
decedent’s death was that the decedent died sometime between the assault and the filing
of the information nearly a month later. No evidence was presented that the deceased
met his death at the hands of the defendant, i.e. that the defendant’s acts were the cause of
the decedent’s death, a necessary element of any homicide.
       As to this lack of evidence of this element of the crime the court said:
       “It is elementary that in a homicide case the fact that the deceased met his death
through the act or agency of the defendant must be proved. It may, of course, be proved
by circumstantial evidence. (People v. Spencer, 58 Cal.App. 197 [208 P. 380].)
Obviously, here, the cause of death was not proved by evidence. However, the cause of
death is a fact, which, like every other fact, need not be proved, even in a criminal case, if
admitted or conceded by defendant. While there was no direct proof of the cause of
death, the conduct and attitude of defendant at the trial, as disclosed by the record,
constituted at least an indirect concession of the fact.
       “The situation in this case is unique and probably will never occur in another case.
It is not a matter of failure of proof (in spite of the fact that the district attorney offered no
evidence of the cause or time of death), but of assumption by all concerned in the trial, --
judge, jury, prosecution and defense, -- that deceased died from the knife wound inflicted
by defendant, and that so far as the cause of death was concerned, it really was not an
issue in the case. The only issue was whether defendant could be excused from the

                                                5
stabbing of his friend, under the claim of self-defense, or under the claim of accident.
The claim of self-defense to a charge of manslaughter necessarily is an admission that the
victim died because of an act of the defendant. If he had not so died, the act could not be
manslaughter and hence there would be no necessity to show that the act was justified.
However, in the usual case the mere use by the defendant of such a claim does not relieve
the prosecution of its burden of proving that the death was so caused, as the defendant
may sit back and require the prosecution to prove its case and then, and only then, be
required to set up his defense, which may be (1) that defendant’s act did not cause death,
or (2) that if it did, defendant was justifiably acting in self-defense, or (3) that the
defendant’s act was accidental. Defendant may avail himself of any or all of these
defenses. But here, defendant did not avail himself of the fact that when the prosecution
closed its case, it had not proved the cause of death, nor did the defendant avail himself
of the defense numbered (1) above. By his conduct he conceded that the death resulted
from the knife wound and relied solely and wholly on his claims of self-defense and
accident.
       “In a criminal case a defendant is not called upon to make explanation, to deny
issues expressly (his plea of not guilty does that for him), nor is he required to point out
to the prosecution its failure to make a case against him or to prove any link in the
required chain of guilt. On the other hand, he cannot mislead the court and jury by
seeming to take a position as to the issues in the case and then on appeal attempt to
repudiate that position. A reading of the proceedings at the trial, including defendant’s
statement at the opening of his case and his argument to the jury at the end of the case,
clearly shows that at no time was he questioning either that the knife wound caused
Cole’s death, or that that fact had not been established or was an issue to be resolved by
the jury. It also shows that defendant was conceding the cause of death.
       “As evidence of the assumption by all at the trial of the cause of death, appears the
following: Defendant, on cross-examination, was asked to show how he was holding the

                                                6
knife and how with knife in hand he pushed Cole. At the end of several questions and
answers on this subject and about four demonstrations, defendant said, ‘I pushed him like
that. (Demonstrating) I meant to push him with my hand.’ Thereupon the district
attorney said, ‘And you stuck this rather dull knife into him, sufficiently deep to kill him.’
No objection was made by defendant to this statement. [¶] . . . [¶]
        “It is well settled that ‘An admission of a fact made at the trial in open Court by
the prisoner or his counsel may be properly considered by the jury.’ (People v. Garcia,
25 Cal. 531, 534.) In People v. Hammond, 26 Cal.App.2d 145 [78 P.2d 1172],
defendant’s counsel in open court admitted the details of the crime. It was held: ‘A
defendant is bound by the admission of his counsel made in open court.’ (P. 150.)
        “In State v. Whiteaker, 118 Ore. 656 [247 P. 1077], defendant was convicted of
violating Oregon’s ‘Blue Sky Law’ in that he sold certain securities without having
obtained the necessary permit. On appeal, defendant contended that his lack of permit
was not proved. After considering certain testimony on the subject, the court said (p.
1080 [247 P.]): ‘Furthermore, defendants never contended that any license or permit had
been issued to them. In the opening statement to the jury counsel for appellant, in
response to the inquiry from the court, “Do you claim to have had a permit from the
Corporation department to sell these (referring to ‘securities’)”? answered, “No; your
Honor, I claim this, that I drew up a receipt which, according to my notions, conformed
with the Blue Sky Law, did not conflict with it.” It was not necessary for the prosecution
to prove that which was admitted in open court. 16 C.J. 891. Such admissions are
conclusive . . . .’ [¶] . . . [¶]
        “It would be a miscarriage of justice to set aside a verdict found by the jury on all
issues which defendant at the trial believed necessary to be submitted to the jury. After
all, a criminal case or court proceeding is not a game in which participants may be
misled by a defendant’s attitude and conduct at the trial, and then the verdict be set aside



                                               7
on appeal, because defendant contends there was no proof of a fact which he had
conceded, not by express word, but by conduct.
       “In the instructions which defendant requested, no hint is given that he was not
conceding the cause of death. He offered several instructions on homicide, using the
words ‘homicide’ and ‘killing,’ some of which the court gave, and he offered no
instruction even remotely indicating that the cause of death was an issue. In defendant’s
instruction 13, given by the court, defendant used the words ‘that at the time the knife
was wielded which resulted in the death of’ Cole. In his instruction 15 he used the
language, ‘The mere fact that an unfortunate and fatal accident happened . . .’ (Emphasis
added.) Defendant closed his argument to the jury in this language: ‘. . . it is only justice,
both for the State and for this defendant, that he be freed, because Mr. Peters’ actions,
although resulting in disaster to his friend as we have all admitted, were in defense of his
life and that of his friend.’ (Emphasis added.) [¶] . . . [¶]
       “A defendant in a criminal case, of course, is entitled to the benefit of every
reasonable doubt, but the record shows that by the conduct of defendant and all other
participants at the trial, no doubt was raised that defendant was conceding the cause of
death.” (People v. Peters, supra, 96 Cal.App.2d at pages 675-678; emphasis added.)
       Peters is still good law, no doubt because it makes eminent good sense. The
court’s holding in Peters should show us the way here.
       I recognize that defendant here did not expressly admit that the pursuing officers
were wearing distinctive uniforms. But he did admit that he knew he was fleeing from
law enforcement officers whatever they were wearing. The defendant in Peters did not,
after all, specifically admit that he was the cause of his victim’s death but was deemed to
have admitted that fact by his conduct at trial.
       I also recognize that a defendant has an absolute right to depend on the
prosecution’s failure to present sufficient evidence to support each element of the offense
with which he is charged. But, in my view, he does not have a right to repeatedly admit

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his guilt of the crime with which he is charged and then claim on appeal his admissions
do not count because the prosecution failed to produce evidence of one of the elements of
the crime.
      While admittedly there was no evidence presented at trial that the pursuing law
enforcement officers wore a distinctive uniform, even though that is an element of the
offense, not holding the defendant to his plain, unambiguous and repeated admissions
that he knew he was fleeing from police officers and leading them on a dangerous chase
distorts the criminal justice system. I would affirm the judgment.




                                                       /s/
                                                Hull, J.




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