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Name: People v. Diaz
Case #: B170874
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 01/26/2005

Failure to yield cannot be used as one qualifying violation to establish the “willful disregard” element of evading an officer under Vehicle Code section 2800.2. After the defendant led CHP officers on a lengthy car chase, he was charged with evading an officer, and officers testified that he had violated two traffic laws during the pursuit: Vehicle Code section 22349, subdivision (a), exceeding the speed limit, and section 21806, failing to yield to an emergency vehicle. The parties stipulated that he had driven with a suspended license, in violation of Vehicle Code section 14601.2. The jury was instructed that, under section 2800.2(b), the element of willful or wanton disregard could be established through commission of either three specified Vehicle Code violations or an act intentionally performed with conscious disregard for safety. The appellate court reversed the conviction, holding that because failing to yield is a necessarily included offense of evading an officer, it cannot be used as a qualifying violation under section 2800.2. And because the relative safety of defendant’s driving was a close factual issue at trial, the error was not harmless.