Constitutional error occurs when the court removes a requisite element of a crime by its response to a question posed during jury deliberations. Appellant was involved in a traffic collision with another vehicle in Long Beach. When the driver of the second vehicle contacted her for insurance information, he noticed that she appeared disoriented and agitated. Appellant then drove away from the scene, striking the vehicle a second time, and continued down a beach access road and onto a bicycle path. Despite the attempts by an employee of the Long Beach Fire Department at the lifeguard headquarters to stop her, appellant continued down the path and struck a jogger. Appellant was charged with assault with a deadly weapon, evading a peace officer, and other related offenses. As to the assault, the jury was instructed with CALJIC No. 9.00, which included an element as to knowledge. During deliberations, the jury asked if it was necessary for the person to be aware and the court incorrectly responded that there was no awareness element. This response permitted the jury to find appellant guilty of assault without considering whether she had the requisite awareness. The error was prejudicial because it could not be concluded that there was no reasonable probability that the outcome would have been different had the trial court correctly instructed the jury.
The definition of peace officer for the purpose of Vehicle Code section 2800.3 (evading a peace officer and causing serious bodily injury) depends on whether his primary duty is law enforcement. For the purpose of section 2800.3, the definition of peace officer is found in Penal Code section 830.33, subdivision (b), which contains the qualification that the officer’s primary duty be the enforcement of law. Here, on the basis of the fire department employee’s testimony, the jury could not conclude that he was primarily engaged in the enforcement of law. Because an appellate finding that the evidence was insufficient is equivalent to an acquittal, retrial on this count was barred.