Filed 1/30/18
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION FOUR

THE PEOPLE,                            B280781
                                       (Los Angeles County
       Plaintiff and Respondent,       Super. Ct. No. MA069074)

       v.

MONTRELL LAMONTE
TAYLOR,

       Defendant and Appellant.

      APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
     Robert Booher, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General and Michael C. Keller, Deputy
Attorney General, for Plaintiff and Respondent.
       In the underlying action, appellant Montrell Lamonte
Taylor was convicted of evading a pursuing police officer
while driving with a disregard for safety, as defined in
Vehicle Code section 2800.2.1 Subdivision (a) of that statute
provides that a motorist engages in a crime when he or she
flees from, or attempts to elude, a police officer’s vehicle, and
drives “in a willful or wanton disregard for the safety of
persons or property.” Subdivision (b) of section 2800.2
further states that “[f]or purposes of this section,” such
disregard “includes, but is not limited to,” driving in a
manner involving the commission of three or more traffic
violations assigned a point under section 12810.
       Appellant contends subdivision (b) of section 2800.2
establishes an improper mandatory presumption regarding
the existence of the “willful or wanton disregard” required
for the offense; he further contends the jury was improperly
instructed with CALCRIM No. 2181 because it incorporates
that purported presumption. We conclude that section
2800.2 contains no such presumption, and that there was no
prejudicial instructional error. Accordingly, we affirm.

      RELEVANT PROCEDURAL AND FACTUAL
                     BACKGROUND
     In August 2016, an information was filed, charging
appellant with evading a police officer while driving

1    All further statutory citations are to the Vehicle Code,
unless otherwise indicated.




                                 2
recklessly (Veh. Code, §2800.2). Accompanying the charges
were allegations that appellant had suffered a strike under
the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and four prior felony convictions for
which he had served a prison term (Pen. Code, § 667.5, subd.
(b)). Appellant pleaded not guilty and denied the special
allegations.
      After a jury found appellant guilty as charged, the trial
court found the prior conviction to be true, denied appellant’s
motion to strike his strike (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497), and imposed a sentence of
10 years in prison. This appeal followed.

                             FACTS
      At trial, appellant stipulated that on June 24, 2016,
while driving a vehicle, he willfully fled from, or tried to
elude, a police officer with the intention of evading the
officer. The sole witness at trial was Los Angeles County
Sheriff’s Department Sergeant Michael Bryerton.
      According to Sergeant Bryerton, on June 24, at
approximately 1:00 a.m., he was on patrol in Lancaster in a
marked police vehicle. After receiving a call that a black
male adult suspected of attempted rape was driving a white
SUV with “disabled” license plates, he saw appellant drive
past him. Because appellant and his vehicle appeared to fit
the description provided in the call, Bryerton followed
appellant. In an effort to pull appellant over, Bryerton
activated his sirens and flashing lights. Instead of stopping,




                                3
appellant accelerated and drove through residential
neighborhoods, exceeding the posted speed limits and failing
to halt at stop signs. Appellant then accelerated to 75 miles
per hour along a street with open businesses and a posted
speed limit of 35 miles per hour. The pursuit ended when
appellant drove into a motel parking lot, stopped, and ran
into a motel room, where he was detained. Bryerton
testified that in the course of the pursuit, appellant
committed eight traffic violations assigned at least one point
under the traffic violation point system.

                        DISCUSSION
       Appellant asserts interrelated contentions regarding
section 2800.2 and the corresponding jury instruction,
CALCRIM No. 2181. He maintains that section 2800.2
establishes a mandatory presumption that contravenes
principles of due process. He further maintains that the
trial court engaged in prejudicial error by instructing the
jury with CALCRIM No. 2181 because it reflects the
improper presumption. For the reasons discussed below, we
reject his contentions.

      A. Governing Principles
      The key issues concern whether section 2800.2 sets
forth an improper mandatory presumption regarding an
element of the offense established by that statute. As our
Supreme Court has explained, presumptions are not
inherently impermissible in criminal proceedings; rather,




                               4
they are a “‘staple of our adversary system of factfinding’”
because “‘[it] is often necessary for the trier of fact to
determine the existence of an element of the crime -- that is,
an “ultimate” or “elemental” fact -- from the existence of one
or more “evidentiary” or “basic” facts.’” (People v. McCall
(2004) 32 Cal.4th 175, 182 (McCall), quoting Ulster County
Court v. Allen (1979) 442 U.S. 140, 156.) Nonetheless, issues
of due process may attend so-called “mandatory”
presumptions. (McCall, supra, at p. 183.) Generally, a
mandatory presumption “‘tells the trier of fact that he or
they must find the elemental fact upon proof of the basic
fact, at least until the defendant has come forward with
some evidence to rebut the presumed connection between the
two facts . . . .’” (Ibid., quoting Ulster County, supra, at
p. 157.)2 In the context of criminal proceedings, such a
presumption contravenes due process -- and thus is improper
-- when it relieves the prosecution of its burden of proving
the elements of a crime beyond a reasonable doubt. (McCall,
supra, at pp. 183-184.)
       Here, our focus is the offense set forth in section
2800.2, which is defined in part by reference to the related


2    So understood, a mandatory presumption is necessarily
rebuttable, rather than conclusive. (McCall, supra, 32
Cal.4th at pp. 185-186.) Ordinarily, statutes containing the
phrase “‘shall be conclusively presumed’” are understood to
establish rules of substantive law, rather than
presumptions. (Id. at p. 186.)




                               5
offenses established in section 2800.1. Section 2800.1
provides that when, with the intent to evade, the driver of a
motor vehicle willfully flees or attempts to elude a pursuing
peace officer’s motor vehicle or bicycle under specified
circumstances, the driver is guilty of a misdemeanor.3
Subdivision (a) of section 2800.2 provides that when a person
contravenes section 2800.1 and “the pursued vehicle is
driven in a willful or wanton disregard for the safety of
persons or property,” the person is subject to prosecution for
a misdemeanor or a felony. Subdivision (b) of section 2800.2
further states: “For purposes of this section, a willful or
wanton disregard for the safety of persons or property


3      Pertinent here is subdivision (a) of section 2800.1,
which states: “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 punishable by
imprisonment in a county jail for not more than one year 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. [¶] (4) The peace officer’s
motor vehicle is operated by a peace officer, as defined in
Chapter 4.5 (commencing with Section 830) of Title 3 of Part
2 of the Penal Code, and that peace officer is wearing a
distinctive uniform.”




                                 6
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 [Vehicle Code s]ection
12810 occur, or damage to property occurs.”

      B. No Improper Mandatory Presumption
      Appellant contends subdivision (b) of section 2800.2
creates an improper mandatory presumption involving three
or more significant traffic violations as the evidentiary or
basic fact, and the existence of “a willful or wanton disregard
for the safety of persons or property” as the ultimate or
elemental fact. The crux of his argument is that the
subdivision “directed the jury to find that appellant had a
particular intent -- a willful or wanton disregard for the
safety of people and property -- based on his having sped or
run a stop sign.” Appellant acknowledges that three
appellate decisions have rejected similar contentions (People
v. Pinkston (2003) 112 Cal.App.4th 387, 390-394 (Pinkston);
People v. Williams (2005) 130 Cal.App.4th 1440, 1445
(Williams); People v. Laughlin (2006) 137 Cal.App.4th 1020,
1025 (Laughlin)), but he maintains that they were wrongly
decided for the reasons set forth in a dissenting opinion by
Presiding Justice Klein in Pinkston, supra, at pages 395-398.
As explained below, we agree with the majority opinion in
Pinkston and the courts in Williams and Laughlin.
      In maintaining that subdivision (b) of section 2800.2
established an improper mandatory presumption, Justice




                                7
Klein viewed the phrase “‘willful or wanton disregard for the
safety of persons or property’” as carrying the precise
meaning attributed to the same phrase in section 23103,
subdivision (a), which establishes the offense of reckless
driving. (Pinkston, supra, 112 Cal.App.4th at p. 395, dis.
opn. of Klein, J.) Originally enacted in 1923 (Stats. 1923, ch.
266, § 121, p. 557), the reckless driving statute was amended
in 1929 to proscribe driving with a “wil[l]ful or a wanton
disregard of the safety of persons or property” (Stats 1929,
ch. 253, § 121, p. 540). Subdivision (a) of section 23103, in
its current version, provides: “A person who drives a vehicle
upon a highway in willful or wanton disregard for the safety
of persons or property is guilty of reckless driving.”
       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 (People v.
Smith (1939) 36 Cal.App.2d Supp. 748, 750-751), 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” (People v. Allison (1951) 101
Cal.App.2d Supp. 932, 934). That characterization of the
mental state defining reckless driving is traceable to People
v. McNutt (1940) 40 Cal.App.2d Supp. 835, 837-838, and
reflects the common or ordinary meaning of the terms
“‘willful’” and “‘wanton’” (see People v. Richie (1994) 28




                                8
Cal.App.4th 1347, 1360-1362 (Richie)).
      Justice Klein’s dissenting opinion in Pinkston regarded
the mental state defining the conduct proscribed by section
23103, subdivision (a), as also defining the conduct
proscribed by section 2800.2. (Pinkston, supra, 112
Cal.App.4th at pp. 394-395.) Justice Klein thus maintained
that subdivision (b) of section 2800.2 creates an improper
mandatory presumption, reasoning that it authorized the
prosecution to establish the “relatively complex mental
state” required by section 2800.2 merely by demonstrating
three qualifying traffic violations. (Pinkston, supra, at
pp. 396-397, dis. opn. of Klein, J.)
      We decline to accept Justice Klein’s rationale, as we
conclude that the mental state required for the reckless
driving offense established in section 23103, subdivision (a),
is not required for the section 2800.2 offense. As explained
below, an examination of section 2800.2 and its legislative
history shows that a driver may violate section 2800.2
without manifesting the mental state necessary for the
offense of reckless driving.
      Our inquiry reflects established principles. Generally,
the Legislature is empowered to select the elements of
crimes (McCall, supra, 32 Cal.4th at p. 189) and modify the
mental elements included in the statutory definition of a
crime (People v. Saille (1991) 54 Cal.3d 1103, 1116; People v.
Lynn (1984) 159 Cal.App.3d 715, 732-733). Furthermore,
the meaning of a statutory term is determined by the
Legislature’s intent, as reflected by the statute’s language,




                               9
context, and legislative history. (People v. Verduzco (2012)
210 Cal.App.4th 1406, 1414.) In view of that principle, a
phrase in a statute may have a technical meaning differing
from its ordinary meaning. (Id. at p. 1419.) Accordingly, the
same phrase may appear in two statutes establishing
offenses, yet convey different meanings. (See, e.g., People v.
Enriquez (1996) 42 Cal.App.4th 661, 665 [the term “‘under
the influence’” in Vehicle Code section 23152, subdivision (a),
differs in meaning from the same term in Health and Safety
Code section 11550].)
      As originally enacted in 1988, section 2800.2 contained
only the provision now found in subdivision (a), which states
that the offense is committed when a person violates section
2800.1 while driving in “a willful or wanton disregard for the
safety of persons or property . . . .” (Stats. 1988, ch. 504, § 3,
p. 1919.) Because the statute then lacked any provision
defining the requisite driving with “willful or wanton
disregard,” courts construed the offense to involve or require
two distinct mental states, namely, (1) the “‘intent to evade’”
required for the section 2800.1 offense (People v. Dewey
(1996) 42 Cal.App.4th 216, 222), and (2) the mental state
required for the reckless driving offense specified in section
23103 (id. at pp. 221-222; Richie, supra, 28 Cal.App.4th at
pp.1360-1362).
      The absence of a statutory definition of the requisite
driving with “willful or wanton disregard” was rectified in
1996, when the Legislature amended section 2800.2 to add
subdivision (b), which provides: “For purposes of this section,




                                 10
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 [qualifying traffic] violations . . .
occur . . . .” (Stats. 1996, ch. 420, § 1, p. 2696, italics added.)
By its plain language, subdivision (b) of section 2800.2
discloses the Legislature’s intent to impose a technical
meaning on the phrase “driv[ing] in a willful or wanton
disregard for the safety of persons or property,” as found in
subdivision (a) of section 2800.2. (Ibid.) That conclusion
finds additional support in the 1996 amendment’s legislative
history, which shows that subdivision (b) of section 2800.2
was intended to “‘describe acts that constitute driving in a
willful or wanton disregard for the safety of persons or
property.”’ (Laughlin, supra, 137 Cal.App.4th at p. 1028
quoting Legis. Counsel’s Dig., Assem. Bill No. 1999 (1995-
1996 Reg. Sess.) 8 Stats 1996, Summary Dig. p. 2231.)
      In our view, subdivision (b) of section 2800.2 expanded
the types of driving proscribed under the statute in a
manner that modified --- but did not entirely eliminate -- the
mental state requirements for the section 2800.2 offense.
Because subdivision (b) did not alter the requirement for a
violation of section 2800.1, the section 2800.2 offense still
requires the “intent to evade” set forth in section 2800.1.
However, subdivision (b) of section 2800.2 permits the
prosecution to show the requisite driving with “willful or
wanton disregard” by establishing three or more traffic
violations, as an alternative to showing that the defendant




                                  11
drove in a manner manifesting the mental state required for
the reckless driving offense. For that reason, the mental
state relating to the reckless driving offense is no longer an
essential element or component of the section 2800.2 offense.
      Subdivision (b) of section 2800.2 thus creates no
improper mandatory presumption permitting the
prosecution to establish an “elemental” fact -- that is, the
mental state required for the section 2800.2 offense -- merely
by showing a simple evidentiary fact -- that is, the existence
of three or more qualifying traffic violations. Rather,
subdivision (b) reflects an exercise of the Legislature’s
authority to modify the statutory elements of the section
2800.2 offense. We therefore agree with the majority opinion
in Pinkston and the courts in Williams and Laughlin, which
concluded that subdivision (b) of section 2800.2 constitutes
only a substantive rule of law properly within the
Legislature’s power to enact. (Pinkston, supra, 112
Cal.App.4th at 392; Williams, supra, 130 Cal.App.4th at
p. 1440; McLaughlin, supra, 137 Cal.App.4th at pp. 1027-
1028.)
      Carella v. California (1989) 491 U.S. 263 (Carella) and
People v. Forrester (1994) 30 Cal.App.4th 1697 (Forrester),
upon which appellant relies, are distinguishable. In Carella,
the defendant was charged with grand theft for failure to
return a rented car. (Carella, supra, at pp. 264-265.)
Applying statutory presumptions, the trial court instructed
the jury that in the case of rented vehicles, a person “‘shall
be presumed to have embezzled the vehicle,’” and that




                               12
“intent to commit theft by fraud is presumed,” if the person
failed to return the vehicle within specified time periods.
(Id. at p. 264.) The United States Supreme Court concluded
that the instructions improperly “foreclosed independent
jury consideration of whether the facts proved established
certain elements of the [charged] offenses” and “relieved the
State of its burden of proof . . . .” (Id. at p. 266.)
      Forrester presented a similar set of circumstances.
There, the defendant was charged with the offense of failing
to appear for trial after being released on his own
recognizance. (Forrester, supra, 30 Cal.App.4th at pp. 1699-
1700.) On the basis of a statutory presumption, the trial
court instructed the jury that “‘it should . . . be presumed’”
that the defendant’s failure to appear for trial within a
specified period established his intent to evade trial. (Id. at
pp. 1700-1701.) Relying on Carella, the appellate court
concluded that the instruction improperly relieved the
prosecution of its burden of proving the intent element of the
charged offense. (Id. at p. 1702.)
      Unlike Carella and Forrester, subdivision (b) of section
2800.2 establishes no presumption relating an evidentiary
fact to the elements of the section 2800.2 offense. On the
contrary, as explained above, subdivision (b) must be
regarded as defining those elements, that is, as setting forth
a substantive rule of law regarding the nature of the offense.
Furthermore, for the reasons discussed further below (see pt.
C. of the Discussion, post), we conclude that CALCRIM No.
2181 did not direct the jury to apply any improper




                                13
presumption. We therefore reject appellant’s contention that
section 2800.2 contains an improper mandatory
presumption.4


4     The other decisions to which appellant directs our
attention are distinguishable for similar reasons. In each
case, the reviewing court concluded that a jury instruction,
statute, or trial court ruling reflected an improper
presumption that the defendant’s intent (or other mental
state) was established by an evidentiary fact. (Francis v.
Franklin (1985) 471 U.S. 307, 317-318 [in action in which
the defendant was charged with murder, it was error to
instruct the jury regarding rebuttable presumptions that the
acts of a person of sound mind and discretion are the product
of their will, and that such a person intends the natural and
probable consequences of his acts]; Sandstrom v. Montana
(1979) 442 U.S. 510, 512, 524 [in action in which the
defendant was charged with murder, it was error to instruct
the jury to presume that a person intends the ordinary
consequences of his voluntary acts]; United States v. United
States Gypsum Co. (1978) 438 U.S. 422, 446, 443-448 [in
criminal antitrust action, it was error to instruct the jury to
presume that the defendants intended to engage in price-
fixing if their conduct had the effect of raising and
stabilizing prices]; Morissette v. United States (1952) 342
U.S. 246, 249, 274 [in action in which the defendant was
charged with criminal conversion of government property, it
was error for the trial court to remove from the jury the
issue of the defendant’s intent to steal, and to rule that
intent was established by the defendant’s act of taking what
he regarded as abandoned property]; People v. Roder (1983)
33 Cal.3d 491, 494, 503 [in action in which the defendant
(Fn. is continued on the next page.)




                                       14
      C. No Reversible Instructional Error
      Appellant contends that CALCRIM No. 2181 is
erroneous, arguing that it directed the jury to find the intent
necessary for the section 2800.2 offense on the basis of three
or more qualifying traffic violations. As explained below, the
instruction contains no defect prejudicial to appellant.
      Generally, the adequacy of any instruction given must
be judged in the context of all the instructions. (5 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial,
§ 747, pp. 1164-1166.) Thus, an instruction is not assessed
in isolation, but must be viewed in the context of the overall
charge. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
When an instruction is potentially ambiguous or misleading,
the instruction is not error unless there is a reasonable
likelihood that the jurors misunderstood or misapplied the
pertinent instruction. (Ibid.; People v. Avena (1996) 13
Cal.4th 394, 416-417.)
      As provided to the jury, CALCRIM No. 2181 described
the elements of the offenses defined in sections 2800.1 and


was charged with receiving stolen goods, it was error to
instruct the jury to presume the defendant’s “guilty
knowledge” from his status as a secondhand dealer,
possession of the stolen goods, and reasonable opportunity to
confirm whether the goods were stolen, unless the jury
otherwise had a reasonable doubt regarding that
knowledge].) As explained above, subdivision (b) of section
2800.2 contains no presumption regarding the mental state
required for the section 2800.2 offense.




                                15
2800.2, including the requirements that the defendant
“intend[ed] to evade” a pursuing officer and “drove with
willful or wanton disregard for the safety of persons or
property.”5 Following that description, the instruction

5     CALCRIM No. 2181 stated: “The defendant is charged
in Count 1 with evading a peace officer with wanton
disregard for safety in violation of . . . sections 2800.1[,
subdivision] (a) and 2800.2. [¶] To prove that the defendant
is guilty of this crime, the People must prove that:
1.   A peace officer driving a motor vehicle was pursuing
the defendant;
2.    The defendant, who was also driving a motor vehicle,
willfully fled from, or tried to elude, the officer, intending to
evade the officer;
3.  During the pursuit, the defendant drove with willful or
wanton disregard for the safety of persons or property;
AND
4.    All of the following were true:
(a) There was at least one lighted red lamp visible from
the front of the peace officer’s vehicle;
(b) The defendant either saw or reasonably should have
seen the lamp;
(c) The peace officer’s vehicle was sounding a siren as
reasonably necessary;
(d)   The peace officer’s vehicle was distinctively marked;
AND
(e)   The peace officer was wearing a distinctive uniform.”




                                 16
explained: “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, (2) and he or she
intentionally ignores that risk. The person does not,
however, have to intend to cause damage. [¶] Driving with
willful or wanton disregard for the safety of persons or
property includes, but is not limited to, causing damage to
property while driving or committing three or more
violations that are each assigned a traffic violation point.”
(Italics added.)
       In our view, these statements are potentially
misleading regarding the requirements of the section 2800.2
offense. Although the final explanatory statement
accurately summarizes subdivision (b) of section 2800.2, it is
juxtaposed with the italicized statement, which reflects the
mental state required for the reckless driving offense defined
in section 23103, subdivision (a). As explained above (see
pt.C. of the Discussion, ante), driving that manifests that
mental state is not the only type of driving proscribed by
subdivision (b) of section 2800.2, which expressly
encompasses other deficient driving, including the
commission of three qualifying traffic violations. Because
CALCRIM No. 2181 fails to clarify that driving that
manifests the “reckless driving” mental state is not
necessary for the section 2800.2 offense, it incorrectly
suggests that the “reckless driving” mental state is an
essential element or component of the section 2800.2 offense.




                               17
       That defect, however, could not have prejudiced
appellant. As noted, appellant stipulated to having willfully
fled from the pursuing officer. In closing argument, the
prosecutor informed the jury -- correctly -- that in order to
demonstrate that appellant drove with willful or wanton
disregard for the safety of persons or property, the
prosecution needed only to demonstrate the existence of
three or more qualifying traffic violations. As there was
undisputed evidence of eight qualifying violations, the
prosecution made that showing. To the extent the
instruction may have conveyed an excessively demanding
understanding of the elements of the section 2800.2 offense,
that feature of the instruction cannot reasonably be regarded
as prejudicial to appellant, as it only enhanced the quantum
of proof required of the prosecution to establish his guilt. In
sum, appellant has shown no reversible instructional error.




                                18
                     DISPOSITION
     The judgment is affirmed.
     CERTIFIED FOR PUBLICATION


                              MANELLA, J.


We concur:




WILLHITE, Acting P. J.




COLLINS, J.




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