The felony evading statute (Veh. Code, § 2800.2) does not establish an improper mandatory presumption regarding the “willful and wanton disregard for safety” element of the offense. Taylor was convicted of recklessly evading a police officer. Prior serious felonies and prison terms were found true. On appeal he argued that Vehicle Code section 2800.2, subdivision (b) (which provides that “willful and wanton disregard for the safety of persons and property” includes, but is not limited to, driving in a manner involving the commission of three or more qualifying traffic violations) creates an improper mandatory presumption regarding the intent element of the offense. Held: Affirmed. A mandatory presumption tells the trier of fact he must find the elemental fact (i.e., the intent required for the offense) upon proof of a basic fact (i.e., commission of three qualifying traffic violations), unless the defendant rebuts the presumed connection between the two facts. Such a presumption denies due process when it lightens the prosecution’s burden of proving the elements of the offense beyond a reasonable doubt. When a person flees a pursuing officer (Veh. Code, § 2800.1), and does so with willful and wanton disregard for the safety of persons or property (Veh. Code, § 2800.2), the offense is a felony. Section 2800.2, subdivision (b) provides that the intent includes, but is not limited to, the commission of three qualifying traffic violations. By its language, subdivision (b) reflects the Legislature’s intent to impose a technical meaning regarding the “wanton disregard” intent required and thereby defines the elements. It expanded the types of driving proscribed by the statute in a manner that modified, but did not eliminate, the mental state required for the offense. Thus, subdivision (b) does not create an improper mandatory presumption. Rather, it reflects the Legislature’s authority to modify the statutory elements of an offense.

Although CALCRIM No. 2181 is potentially misleading regarding the requirements for a Vehicle Code section 2800.2 offense, it does not prejudicially direct the jury to apply an improper mandatory presumption. Taylor argued the instruction defining felony evading improperly directed the jury to apply an improper mandatory presumption; that is, to presume the mental state required for the crime from his commission of three qualifying traffic offenses. CALCRIM No. 2181 describes the elements of the offenses in Vehicle Code sections 2800.1 and 2800.2: (1) the intent to evade a pursuing police officer, and (2) driving with willful or wanton disregard for the safety of persons or property. The instruction states that a person exhibits “wanton disregard for safety” when he is aware that his actions pose a substantial risk of harm but intentionally ignores that risk. It then states that a “wanton disregard for the safety of persons and property” includes, but is not limited to, causing damage to property while driving or committing three qualifying traffic violations. By failing to clarify that driving that manifests the “reckless driving” mental state is not necessary for the offense, the instruction incorrectly suggests that “reckless driving” is an essential element of the crime. However, this defect could not have prejudiced Taylor because it actually increased the prosecution’s burden of proof to establish guilt.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B280781.PDF