Supreme Court of California Justia
Docket No. S122816

People v. Hudson


Filed 6/19/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S122816
v.
Ct.App. 2/3 B162812
GREGORY ODELL HUDSON,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA226321

A conviction of any of the offenses involving fleeing from a pursuing peace
officer’s motor vehicle requires, among other things, that the officer’s vehicle be
“distinctively marked.” (Veh. Code, §§ 2800.1, subd. (a), 2800.2, subd. (a),
2800.3, subd. (a).) We granted review in this case to address two issues. First,
what factors should be considered in determining whether a pursuing peace
officer’s motor vehicle is “distinctively marked”? Second, must a trial court on its
own initiative define that statutory phrase?
We conclude that a peace officer’s vehicle is distinctively marked if its
outward appearance during the pursuit exhibits, in addition to 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 reasonable
notice to the person being pursued that the pursuit is by the police. We further
conclude that a trial court must, on its own initiative, instruct the jury that the
statutory phrase “distinctively marked” requires that, in addition to the red light
and siren, the peace officer’s vehicle must have features that distinguish it from
1



vehicles not used for law enforcement, and that here the trial court’s failure to so
instruct the jury requires reversing the judgment of the Court of Appeal.
I.
On the evening of January 4, 2002, Los Angeles Police Officers Andrew
Buesa, who was in uniform, and Richard Ludwig were on patrol in a Ford Crown
Victoria car near 54th Street and Wilton Place in Los Angeles. Officer Buesa, the
driver, described the car as not a “marked vehicle” but “a plain car with forward-
facing interior red light and a blue amber blinking light in the back.” The red light
was directly under the rearview mirror.
Just before 11:00 p.m., the two officers saw a man standing next to a
parked car in which defendant was in the driver’s seat. The man handed defendant
money in exchange for an item wrapped in cellophane and, after looking towards
the officers, ran away.
When defendant drove off, the two officers followed in their car. As
defendant accelerated and turned right onto another street, Officer Buesa turned on
his car’s red light and the siren. When defendant pulled his car over to the side of
the road, Buesa got out of his car and ordered defendant at least five times to get
out of his car. Defendant, however, drove away. The officers again pursued
defendant with the car’s red light and siren on. During the pursuit, defendant ran
two stop signs and a red light, causing another car to swerve suddenly to avoid a
collision; at one point, Officer Buesa saw defendant put his left arm outside the
driver’s window and crumble something in his hand. After additional police cars
joined the pursuit, defendant turned into a shopping center and stopped.
A search of the car revealed some crumbled off-white solids later
determined to be cocaine base; a bottle labeled “hydrochloride” (a “cutting agent”
to increase the weight of cocaine); and white residue on an electronic scale, on the
electronic buttons for the window and the locks, on the outside of the driver’s side
door, and on defendant’s left hand.
2

Defendant was charged with transportation of a controlled substance
(Health & Saf. Code, § 11352, subd. (a)), possession for sale of cocaine base (id.,
§ 11351.5), and attempting to elude a pursuing peace officer with willful disregard
of the safety of persons or property (Veh. Code, § 2800.2, subd. (a)).1
The trial court gave a modified version of the standard jury instruction for
the offenses of fleeing from, or attempting to elude, a pursuing peace officer’s
vehicle. (See CALJIC No. 12.85 (1999 rev.).) The modified instruction told the
jury that the statutory “term ‘distinctively marked’ does not necessarily mean that
the police vehicle must be marked with an insignia or logo,” and it was for the jury
“to determine whether the circumstances, which may include evidence of a siren
or red lamp, [were] sufficient to inform any reasonable person that he was being
pursued by a law enforcement vehicle.”
The jury found defendant guilty as charged. The trial court sentenced him
to imprisonment of four years for transporting a controlled substance, four years
for possession for sale of cocaine base (the sentence was stayed under Penal Code
section 654), and eight months for attempting to elude a police officer.
The Court of Appeal affirmed. We granted defendant’s petition for review.
II.
Section 2800.2 makes it a crime for a motorist to flee from, or attempt to
elude, a pursuing peace officer’s vehicle in “violation of Section 2800.1” and “in a
willful or wanton disregard for the safety of persons or property.” Under section
2800.1, a person who operates a motor vehicle “with the intent to evade, willfully
flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is
guilty of a misdemeanor . . . if all of the following conditions exist: [¶] (1) The
peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible

1
All further statutory references are to the Vehicle Code unless otherwise
indicated.
3



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 . . . wearing a
distinctive uniform.” (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.
(Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993 [actual words
of a statute cannot be ignored].)
Our Courts of Appeal have reached conflicting holdings on the meaning of
the statutory requirement that the peace officer’s vehicle be “distinctively
marked.”
In
People v. Estrella (1995) 31 Cal.App.4th 716 (Estrella), the Court of
Appeal noted that subdivision (a)(3) of section 2800.1, which requires that a
pursuing police car be distinctively marked, does not say that the marking must be
in the form of any “insignia or logo.” (Estrella, at p. 722.) The court
acknowledged it “may reasonably be concluded that a vehicle is distinctively
marked if it bears a symbol or device that identifies it as a peace officer’s vehicle.”
(Ibid.) The court then pointed out that section 2800.1 already requires the vehicle
to have a red light (subd. (a)(1)) and a siren (subd. (a)(2)). (Estrella, at pp. 722-
723.) Thus, the Estrella court said, to determine when a pursuing peace officer’s
vehicle meets the statutory requirement of being “distinctively marked” one needs
to look “at the indicia identified with the pursuit vehicle which are supplemental to
a red light and siren, to ascertain whether a person fleeing is on reasonable notice
that pursuit is by a peace officer.” (Id. at p. 723, italics added.) Applying that test
to the facts before it, the court concluded that because the pursuing officer’s
vehicle had a light bar on the windshield on the front passenger side, had warning
lights in the rear, and had alternating headlights (called “wigwag” lights), in
4

addition to a siren, the car had sufficient distinctive marks to satisfy the statutory
requirement. (Ibid.)
In
People v. Mathews (1998) 64 Cal.App.4th 485, 489-490, the Court of
Appeal followed the approach in Estrella, supra, 31 Cal.App.4th 716, concluding
that a pursuing officer’s vehicle equipped with red lights, siren, and with wigwag
headlights was distinctively marked.
Thereafter,
in
People v. Chicanti (1999) 71 Cal.App.4th 956 (Chicanti), the
Court of Appeal disagreed with the holding of Estrella, supra, 31 Cal.App.4th at
page 723, that indicia other than a red light and a siren were necessary to make a
pursuing peace officer’s vehicle “distinctively marked” within the meaning of
section 2800.1, subdivision (a)(3). (Chicanti, supra, 71 Cal.App.4th at p. 962.) In
the view of the Chicanti court, the “appropriate test is whether there is substantial
evidence in the record from which a reasonable trier of fact could conclude the red
light and siren were sufficient ‘distinctive markings to inform any reasonable
person he was being pursued by a law enforcement vehicle.’ ” (Ibid.) Whether
the pursuing police car is distinctively marked, the court said, depends on the
totality of the circumstances. (Ibid.) In People v. Shakhvaladyan (2004) 117
Cal.App.4th 232, 237, the Court of Appeal agreed with that holding, one that the
Court of Appeal in this case also followed and that the Attorney General urges us
to adopt.
Defendant, on the other hand, contends that a reading of section 2800.1
reveals that the pursuing police vehicle’s outward appearance and features should
be the basis for determining whether the vehicle meets the statutory requirement of
being “distinctively marked.”
To resolve the conflict in these two views, we apply basic principles of
statutory construction to ascertain the legislative intent in using the phrase
“distinctively marked.” Because the language of a statute is generally the most
reliable indicator of the Legislature’s intent, we look first to the words of the
5

statute, giving them their ordinary meaning and construing them in context. If the
language is unambiguous, we presume the Legislature meant what it said, and the
plain meaning of the statute controls. (Fitch v. Select Products Co. (2005) 36
Cal.4th 812, 818; People v. Braxton (2004) 34 Cal.4th 798, 810.)
The statute at issue requires “[t]he peace officer’s motor vehicle” to be
“distinctively marked.” (§ 2800.1, subd. (a)(3), italics added.) As the statute
unambiguously refers only to the vehicle itself, it cannot be construed as
encompassing consideration of circumstances that have no relationship
whatsoever to the vehicle’s appearance. Yet, that is what the Court of Appeal here
did. After noting the pursuing vehicle’s particular features, such as a red light, a
siren, blue and amber blinking lights, and pointing out that the vehicle was a
Crown Victoria, “the same model used for black-and-white police cars,” the Court
of Appeal relied on the following circumstances of defendant’s attempt to elude a
pursuing police officer’s vehicle: (1) defendant had reason to believe the police
were chasing him because he had just committed the felonies of transporting a
controlled substance and possessing cocaine base for sale; (2) defendant initially
stopped after Officer Buesa activated the red light and siren; (3) Officer Buesa was
wearing a police uniform; (4) defendant’s consciousness of guilt as shown by his
committing traffic violations and driving evasively during the pursuit; (5) the
lengthy duration of the pursuit; and (6) defendant’s status of being a twice-
convicted felon established his lack of credibility in insisting he did not know he
was being pursued by a police car. The Court of Appeal then stated: “Even if we
focused, not on the totality of the circumstances (upon which our holding rests),
but on what Buesa’s vehicle itself revealed (apart from its lengthy operation in
pursuit of [defendant]), there was evidence that Buesa’s vehicle (1) exhibited a
lighted red lamp; (2) sounded a siren; (3) had a blue amber blinking light in the
back; and (4) was a Crown Victoria, the same model used for black-and-white
police cars.” (Fn. omitted.)
6

Because the presence of a red light and a siren on a car are generally
associated with police cars, not cars driven by ordinary citizens, one might
conclude that these two distinguishing features by themselves would make the car
displaying them “distinctively marked.” Section 2800.1, however, requires the
pursuing police vehicle not only to have a red light and a siren but also to be
“distinctively marked.” As we have noted earlier, preceding the list of the
statutory requirements is the statement that “all of the following conditions exist.”
(§ 2800.1, subd (a), italics added.) The stated conditions include a red light
(§ 2800.1, subd. (a)(1)), a siren (§ 2800.1, subd. (a)(2)), and a “distinctively
marked” vehicle (§ 2800.1, subd. (a)(3)). To conclude that the presence of a red
light and a siren would satisfy the statutory requirement that the pursuing police
car be “distinctively marked” would be inconsistent with the statutory requirement
that all of its conditions be met, and it would render the phrase “distinctively
marked” in subdivision (a)(3) of section 2800.1 mere surplusage. As we have
stressed in the past, interpretations that render statutory terms meaningless as
surplusage are to be avoided. (Agnew v. State Bd. of Equalization (1999) 21
Cal.4th 310, 330; People v. Loeun (1997) 17 Cal.4th 1, 9.)2
Thus, for purposes of section 2800.1, a pursuing peace officer’s vehicle is
“distinctively marked” if its outward appearance during the pursuit exhibits, in

2
The Legislature may have had a very good reason for requiring that the
police vehicle be “distinctively marked” in addition to having a red light and a
siren. As the Court of Appeal in Estrella, supra, 31 Cal.App.4th at page 723,
footnote 4, pointed out: “Although the legislative history of section 2800.1 does
not reflect the reason for the statute’s requirement the vehicle be distinctively
marked, it is not mere speculation to assume that the purpose is to protect the
public at large and women in particular from being required to stop for anyone at
night flashing a red light and sounding a siren. Indeed, in People v. Chessman
(1959) 52 Cal.2d 467, defendant Chessman, who became known as the ‘red-light
bandit,’ would flash a red spotlight on a car, and when the vehicle would yield,
Chessman would rob and/or rape the driver.”
7



addition to 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 reasonable notice to the fleeing motorist that the pursuit is by the police.3
III.
As noted at the outset, defendant was charged with, among other things,
violating section 2800.2, subdivision (a), attempting to elude a pursuing peace
officer with willful disregard of the safety of persons or property. That statute
incorporates by reference section 2800.1, subdivision (a), which requires the
pursuing police car to be “distinctively marked.” At trial, the prosecution
proposed this instruction: “The term ‘distinctively marked’ does not require that
the police vehicle be marked with some kind of insignia or logo. Rather, the test
is whether a red light and siren are sufficient distinctive markings to inform any
reasonable person he was being pursued by a law enforcement vehicle.”
The trial court modified the proposed instruction as follows: “The term
‘distinctively marked’ does not necessarily mean that the police vehicle must be
marked with an insignia or logo. The jury is to determine whether the circumstances,
which may include evidence of a siren and red lamp, are sufficient to inform any
reasonable person that he was being pursued by a law enforcement vehicle.” The
court then incorporated that modified definition of “distinctively marked” into the
standard jury instruction defining the offense of attempting to elude a pursuing peace
officer with willful disregard of the safety of persons or property. (See CALJIC No.
12.85 (1999 rev.).) Defense counsel objected to the modified part of the instruction
on the ground that it left out the statutory requirement that the police vehicle be
distinctively marked, but he did not offer an alternative instruction.

3
We disapprove People v. Chicanti, supra, 71 Cal.App.4th 956 and People
v. Shakhvaladyan, supra, 117 Cal.App.4th 232, to the extent they are inconsistent
with the views expressed here.
8



The Court of Appeal concluded that the statutory phrase “distinctively
marked” was not a technical term peculiar to the law, and that defendant had
forfeited his right to challenge the jury instruction at issue by failing to request
clarification or amplification of the instruction. Defendant contends that the rule
of forfeiture invoked by the Court of Appeal is inapplicable when the trial court
has given a legally incorrect instruction. Defendant further argues that because the
statutory phrase “distinctively marked” does have a technical meaning unique to
the law at issue, the trial court had a duty to give, on its own initiative, a legally
correct instruction. There is merit to both contentions.
Defendant’s failure to request clarification or amplification of the
instruction at issue does not result in a forfeiture of his challenge. “Generally, a
party may not complain on appeal that an instruction correct in law and responsive
to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49
Cal.3d 200, 218.) But that rule does not apply when, as here, the trial court gives
an instruction that is an incorrect statement of the law. (People v. Smithey (1999)
20 Cal.4th 936, 976, fn. 7; People v. Frazer (2003) 106 Cal.App.4th 1105, 116, fn.
5.) The challenged instruction was wrong in two respects. It allowed the jury to
determine that the police car was distinctively marked based only on the car
having a red light and siren. It also embodied the view that the jury could consider
circumstances other than the physical features of the pursuing police vehicle in
determining whether the vehicle met the statutory requirement of being
“distinctively marked.” Subdivision (a) of section 2800.1, however, requires
physical features in addition to a red light and siren, and the statute limits the
determination of whether a police vehicle is “distinctively marked” to the
vehicle’s outward appearance, without consideration of the totality of
circumstances surrounding the defendant’s criminal conduct that led to the police
9

chase. Because the instruction given was wrong, the rule of forfeiture does not
apply.
We now consider defendant’s contention that the trial court had a duty, on
its own initiative, to give a legally correct instruction.
“The rules governing a trial court’s obligation to give jury instructions
without request by either party are well established. ‘Even in the absence of a
request, a trial court must instruct on general principles of law that are . . .
necessary to the jury’s understanding of the case.’ [Citations.] That obligation
comes into play when a statutory term ‘does not have a plain, unambiguous
meaning,’ has a ‘particular and restricted meaning’ [citation], or has a technical
meaning peculiar to the law or an area of law [citation].” (People v. Roberge
(2003) 29 Cal.4th 979, 988.) “A word or phrase having a technical, legal meaning
requiring clarification by the court is one that has a definition that differs from its
nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574; accord,
People v. Roberge, supra, 29 Cal.4th at p. 988.)
In common parlance, the phrase “distinctively marked,” when used to
describe a police car, could include such distinguishing features as a red light or a
siren. (See Webster’s 3d New Internat. Dict. (2002) p. 659, col. 1; id., p. 1382,
col. 3.) Sections 2800.1, 2800.2, and 2800.3, however, require markings in
addition to the presence of a red light and a siren, because, as we explained earlier,
section 2800.1 expressly requires the peace officer’s vehicle to have a red light
(subd. (a)(1)), a siren (subd. (a)(2)), and to be distinctively marked (subd. (a)(3)).
In the statutory context at issue, therefore, the statutory phrase “distinctively
marked” does carry a particular legal meaning that differs from its nonlegal
meaning, in that it requires that the vehicle have a physical feature in addition to a
red light and siren, thus requiring the trial court to instruct the jury, without the
necessity of a request by either party, to clarify the meaning of the statutory term
“distinctively marked.” (See People v. Enriquez (1996) 42 Cal.App.4th 661, 665-
10

666 [term “under the influence” has particular legal meaning as used in section
23125, subdivision (a)]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [the word
“force,” as used in Penal Code section 288, subdivision (b), has specialized
meaning].)
Accordingly, a trial court must tell the jury that in determining whether the
statutory requirement that the pursuing police officer’s vehicle be distinctively
marked is met, it should consider the physical features, apart from the red light and
siren, of the vehicle itself that distinguish it from vehicles not used for law
enforcement. A trial court, however, need not instruct the jury that any particular
form or specific type of mark is necessary. (See People v. Estrella, supra, 31
Cal.App.4th at p. 722 [section 2800.1 does not require distinctive mark to be in
form of insignia or logo].)
Because the trial court here gave the jury an incorrect instruction defining
the statutory term “distinctively marked,” we next consider whether the error
requires a reversal of the judgment.
IV.
The statutory requirement that the pursuing peace officer’s vehicle be
distinctively marked is an element of the offense of evading a pursuing peace
officer’s vehicle. (§§ 2800.1, subd. (a), 2800.2, subd. (a), 2800.3.) In deciding
whether a trial court’s misinstruction on an element of an offense is prejudicial to
the defendant, we ask whether it appears “ ‘ “beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” ’ ” (People v.
Hagen (1998) 19 Cal.4th 652, 671.) “ ‘To say that an error did not contribute to
the verdict is . . . to find that error unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record.’ ” (People v.
Harris (1994) 9 Cal.4th 407, 426.)
Here, we cannot conclude that, beyond a reasonable doubt, the instructional
error did not contribute to the jury’s verdict. The instruction was wrong in two
11

respects, both of which were prejudicial to defendant. First, the court’s instruction
by advising the jury that the circumstances it could consider “may include
evidence of a siren and red lamp” allowed the jury to determine that the pursuing
police car was distinctively marked based only on its red light and siren. As we
have explained, however, to meet the statutory requirement of being distinctively
marked a pursuing police vehicle must have distinguishing features in addition to
a red light and siren. Second, the instruction was wrong because it allowed the
jury, in determining whether the pursuing police car was distinctively marked, to
consider any combination of circumstances that might be “sufficient to inform any
reasonable person that he was being pursued by a law enforcement vehicle.” But
as we have explained, in determining whether the pursuing police vehicle is
distinctively marked, a jury may consider only the distinguishing features of the
vehicle itself that are reasonably visible to other drivers and serve to distinguish
the vehicle from vehicles not used in law enforcement.
The instructional error prejudiced defendant because the jury could have
found that the police vehicle here was not distinctively marked. The model of the
car does not qualify as a distinctive mark because even if, as Officer Buesa
testified, black-and-white police cars commonly are Ford Crown Victorias, there
was no evidence at trial that this model was used exclusively by the police and not
by other motorists. The blue amber lights might be a distinctive mark, but under
the circumstances a jury could have determined that this feature was not
reasonably visible to other drivers.
Defendant contends the record contains insufficient evidence that the
pursuing police car was “distinctively marked” to support his conviction for
violating subdivision (a) of section 2800.2, and that we should therefore bar the
prosecution from retrying him for that offense. We disagree. Based on Officer
Buesa’s testimony, a properly instructed jury could reasonably have found that the
car’s “blue amber blinking lights” were reasonably visible to other drivers and
12

distinguished the car from vehicles not used for law enforcement, and thus that the
car was distinctively marked.
DISPOSITION
We reverse judgment of the Court of Appeal insofar as it affirms
defendant’s conviction of violating Vehicle Code section 2800.2 and remand the
matter to that court for further proceedings consistent with the views expressed
here.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
13

DISSENTING OPINION BY MORENO, J.

The majority reverses defendant’s conviction for evading a police officer
because the trial court failed to instruct the jury, sua sponte, that it could not
consider that the police vehicle was equipped with a red light and siren in
determining whether the vehicle was “distinctively marked” as required by
Vehicle Code section 2800.2, subdivision (a).1 I do not agree that the trial court
erred. In my view the trial court was not required to instruct the jury on the
meaning of the term, “distinctively marked,” because that term is in common
parlance and was easily understood by the jury, and the jury properly could
consider that the police vehicle was equipped with a red light and siren in
determining whether it was “distinctively marked.”
On the night of January 4, 2002, Los Angeles Police Officers Andrew
Buesa and Richard Ludwig were on patrol in a gray Ford Crown Victoria “dual
purpose” police vehicle equipped with a forward facing red light under the interior
rear view mirror, a “blue amber blinking light in the back,” and a siren. Ford
Crown Victorias are the same make and model of automobile used for some black-
and-white police cruisers. The officers turned a corner and saw defendant, who
was seated in his vehicle, appear to sell drugs to a man standing next to the

1
All undesignated statutory references are to the Vehicle Code.
1



vehicle. The man standing outside defendant’s vehicle noticed the officers’
vehicle and immediately fled between some houses. The officers turned on the
vehicle’s emergency lights and defendant’s vehicle sped away, accelerating so
rapidly that its tires lost traction.
The officers pursued defendant’s vehicle, turning on their siren, and
defendant pulled his vehicle to the curb. Officer Buesa, who was in uniform, left
his patrol vehicle and repeatedly ordered defendant to get out of his vehicle.
Defendant ignored these orders and again drove away, accelerating rapidly.
Defendant finally was apprehended after a high speed chase involving several
police vehicles, during which defendant almost collided with another vehicle and
failed to stop for two stop signs and a red traffic signal. The officers found
cocaine base and drug paraphernalia in defendant’s vehicle.
In addition to drug offenses, defendant was charged with a felony violation
of section 2800.2, subdivision (a), which prohibits fleeing or attempting to elude a
peace officer in violation of section 2800.1 by driving a vehicle “in a willful or
wanton disregard for the safety of persons or property.” Section 2800.1 prohibits
fleeing or attempting to elude a peace officer’s vehicle if the vehicle (1) “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) “is sounding a siren as may be
reasonably necessary,” (3) “is distinctively marked,” and (4) “is operated by a
peace officer . . . wearing a distinctive uniform.” (§ 2800.1, subd. (a); see
§ 2800.2, subd. (a).)
The trial court instructed the jury that a person violates section 2800.2,
subdivision (a), only if he or she flees or attempts to evade a uniformed officer
whose vehicle (1) “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) “is
sounding a siren as may be reasonably necessary,” and (3) “is distinctively
2

marked.” The court further instructed the jury: “The term ‘distinctively marked’
does not necessarily mean that the police vehicle must be marked with an insignia
or logo. The jury is to determine whether the circumstances, which may include
evidence of a siren and red lamp, are sufficient to inform any reasonable person
that he was being pursued by a law enforcement vehicle.”
The jury convicted defendant of violating section 2800.2, subdivision (a),
and the Court of Appeal affirmed the resulting judgment in an unpublished
decision, but the majority reverses the judgment on the ground that the jury
instructions were inadequate. The majority holds that the trial court had a sua
sponte duty to instruct the jury “that in determining whether the statutory
requirement that the pursuing police officer’s vehicle be distinctively marked is
met, it should consider the physical features, apart from the red light and siren, of
the vehicle itself that distinguish it from vehicles not used for law enforcement.”
(Maj. opn., ante, at pp. 10-11, italics added.) I disagree.
The trial court did not have a sua sponte duty to define the statutory term
“distinctively marked,” because that term has a plain and unambiguous meaning
that the jury could understand without further instructions. (People v. Roberge
(2003) 29 Cal.4th 979, 988.) The majority disagrees because it concludes that the
term “distinctively marked” has a technical, legal meaning that differs from its
common meaning, because “a peace officer’s vehicle is distinctively marked if its
outward appearance during the pursuit exhibits, in addition to 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 reasonable
notice to the person being pursued that the pursuit is by the police.” (Maj. opn.,
ante, at p. 1.)
The majority reasons that the circumstances that a police vehicle has a red
light and siren must be disregarded in determining whether it is “distinctively
3

marked” within the meaning of section 2800.1, subdivision (a)(3), because
subdivision (a)(1) already requires the pursuing vehicle to exhibit a “lighted red
lamp” and subdivision (a)(2) requires the police vehicle to sound a siren “as may
be reasonably necessary.” The majority reasons that permitting a jury to consider
the use of a red light and siren in determining whether a police vehicle is
distinctively marked would render “mere surplusage” the requirement that the
vehicle is distinctively marked. (Maj. opn., ante, at p. 7.) I disagree.
It is well established that “whenever possible, significance must be given to
every word in pursuing the legislative purpose, and the court should avoid a
construction that makes some words surplusage. [Citations.]” (Agnew v. State Bd.
of Equalization (1999) 21 Cal.4th 310, 330.) “Surplusage” is defined as
“excessive or nonessential matter.” (Webster’s 9th New Collegiate Dict. (1990) p.
1188.) In Agnew v. State Bd. of Equalization, supra, 21 Cal.4th 310, 330, for
example, we determined that the term “tax” does not include “interest,” because
such a construction would “render surplusage the word ‘interest’ in many of the
statutes in which the Legislature has referred both to interest and tax.”
Similarly, in People v. Johnson (2002) 28 Cal.4th 240, 247, we interpreted
Penal Code section 288.5, which defines the crime of continuous sexual abuse of a
child and expressly provides that “[n]o other felony sex offense involving the
same victim may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time period charged
under this section or the other offense is charged in the alternative.” We rejected
the People’s argument that multiple convictions of Penal Code section 288.5 and
underlying specific sexual offenses occurring during the same period were
permitted under Penal Code section 954, which permits a defendant to be
convicted of “two or more different offenses connected together in their
commission,” because “[i]f section 954 permits multiple charges and convictions
4

in the present circumstances, then the alternative charging language of subdivision
(c) of section 288.5 is essentially rendered meaningless.” (People v. Johnson,
supra, at p. 247.)
We never have held, as does the majority in the present case, that the
circumstance that the same evidence may, but does not always, establish two
separate elements of an offense renders one of those elements surplusage.
In the present case, the requirement that a police vehicle must be
distinctively marked can be satisfied, in part, by the same evidence used to
establish the additional requirements that the vehicle exhibit a red lamp that is
visible from the front and that the suspect reasonably should have seen, and sound
a siren as reasonably necessary. This does not render any of these three separate
requirements excessive or nonessential. If the requirement that the vehicle be
distinctively marked was removed from the statute, a jury would automatically
find that a defendant evaded a police officer if the vehicle exhibited a red light and
sounded a siren as necessary. The addition of the requirement that the vehicle be
distinctively marked means that the jury will find that the defendant evaded a
police officer only if the jury determines, from the totality of the circumstances,
including the red light and siren, that the vehicle was distinctively marked. Thus,
the requirement that the vehicle be distinctively marked is not surplusage or
rendered meaningless because it permits the jury to find that the statute was not
violated even if the vehicle exhibited a red light and sounded a siren.
This conclusion is supported by the decision in People v. Chicanti (1999)
71 Cal.App.4th 956, in which the Court of Appeal considered and rejected the
contrary reasoning in People v. Estrella (1995) 31 Cal.App.4th 716, upon which
the majority relies: “We respectfully disagree with the Estrella concern that the
‘distinctively marked’ requirement would be rendered ‘mere surplusage’ if the red
lamp and siren could be used as the basis for a finding the vehicle was
5

distinctively marked. The requirements are separate elements, and a reasonable
trier of fact which found the red lamp was lighted and siren was on may or may
not also conclude under the circumstances of a particular case that the red lamp
and siren satisfy the distinctive marking element.” (People v. Chicante, supra, 71
Cal.App.4th at p. 962; see People v. Shakhvaladyan (2004) 117 Cal.App.4th 232,
237.)
I might reach a different conclusion if multiple elements of an offense
invariably were satisfied by the same evidence, but that is not the situation here.
For example, a jury applying the statute in the present case might reasonably
determine that a red sports car used as an undercover police vehicle that exhibited
a red light and was equipped with a siren that it did not use was not distinctively
marked within the meaning of the statute. Even if this hypothetical undercover
red sports car sounded its siren in addition to exhibiting a red light, a jury still
reasonably could find that the vehicle was not distinctively marked within the
meaning of the statute. The court’s jury instruction in the present case, after all,
did not require the jury to find that the vehicle was distinctively marked if it
exhibited a red light and sounded a siren as necessary; the instruction merely
permitted the jury to consider these facts in determining “whether the
circumstances . . . are sufficient to inform any reasonable person that he was being
pursued by a law enforcement vehicle.” I see nothing wrong with this instruction.
The jury in this case was instructed “to determine whether the
circumstances, which may include evidence of a siren or red lamp,” established
that the vehicle was distinctively marked. The term “distinctively marked” is
common parlance, and a jury easily can understand the term without the need for
special instructions. The fact that the jury was permitted, but not required, to
conclude, depending upon all of the circumstances, that a vehicle exhibiting a red
6

light and sounding a siren is distinctively marked, does not render any of those
three requirements surplusage. In my view, the trial court’s instruction was proper
and defendant’s conviction for evading a peace officer should be affirmed.
MORENO, J.
I CONCUR: CHIN, J.
7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hudson
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 1/15/04 – 2d Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S122816
Date Filed: June 19, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Anita H. Dymant

__________________________________________________________________________________

Attorneys for Appellant:

Jeffrey A. Needleman, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Joseph P. Lee, Jeffrey A. Hoskinson, Donald E. De Nicola, Jaime
L. Fuster and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.


1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey A. Needleman
P.O. Box 471146
San Francisco, CA 94147-1146
(415) 749-1244

Zee Rodriguez
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 576-1342

2


Opinion Information
Date:Docket Number:
Mon, 06/19/2006S122816

Parties
1Hudson, Gregory Odell (Defendant and Appellant)
Represented by Jeffrey Allen Needelman
Attorney at Law
P.O. Box 471146
San Francisco, CA

2Hudson, Gregory Odell (Defendant and Appellant)
Represented by California Appellate Project - La
520 South Grand Avenue, Suite 400
520 South Grand Avenue, Suite 400
Los Angeles, CA

3The People (Plaintiff and Respondent)
Represented by Zee Rodriguez
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA

4California Police Chiefs Association (Amicus curiae)
Represented by Elizabeth R. Feffer
Jones & Mayer
3777 North Harbor Boulevard
Fullerton, CA


Disposition
Jun 19 2006Opinion: Reversed

Dockets
Feb 23 2004Petition for review filed
  by counsel for defendant and appellant (Gregory Odell Hudson)
Feb 23 2004Record requested
 
Apr 19 2004Time extended to grant or deny review
  to May 21,2004.
May 12 2004Petition for review granted; issues limited (criminal case)
  The issues to be briefed and argued are limted to the following: (1) What circumstances properly should be considered in determining whether a peace officer's motor vehicle is distinctively marked within the meaning of section 2800.1, subdivision (a)(3) of the Vehicle Code? (2) Does the trial court have a sua sponte duty to instruct the jury regarding the meaning of the term "distinctively marked" as used in Vehicle Code section 2800.1, subdivision (a)(3), and if so, how should that term be defined? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
May 13 2004Received Court of Appeal record
 
Jul 15 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Jeffrey Needelman is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Aug 10 2004Request for extension of time filed
  Appellants requesting to Sept. 13, 2004 to file opening brief on the merits.
Aug 13 2004Extension of time granted
  to and including Sept. 13, 2004 for appellant to file opening brief on the merits.
Sep 10 2004Request for extension of time filed
  appellant requesting to Sept. 23, 2004 to file opening brief on the merits.
Sep 13 2004Extension of time granted
  to and including Sept. 23, 2004 for appellant to file opening brief on the merits.
Sep 13 2004Opening brief on the merits filed
  by counsel for appellant (Gregory Odell Hudson).
Oct 8 2004Request for extension of time filed
  by counsel for respondent requesting to Nov. 12, 2004 to file answer brief on the merits. (filed in LA) **granted - order being prepared**
Oct 14 2004Extension of time granted
  to and including Nov. 12, 2004 for respondent to file answer brief on the merits.
Oct 20 2004Compensation awarded counsel
  Atty Needelman
Nov 12 2004Answer brief on the merits filed
  respondent People
Nov 29 2004Request for extension of time filed
  Appellant requesting to Dec. 22, 2004 to file reply brief on the merits.
Nov 30 2004Extension of time granted
  to and including Dec. 22, 2004 for appellant to file reply brief on the merits.
Dec 22 2004Reply brief filed (case fully briefed)
  By counsel for appellant {Gregory Odell Hudson}.
Mar 8 2006Case ordered on calendar
  Tuesday, April 4, 2006, at 1:30 p.m., in Los Angeles
Mar 28 2006Filed letter from:
  Respondent People re: Jury Instruction
Mar 30 2006Request for judicial notice granted
  The request of the Attorney General for judicial notice, filed in this court on November 12, 2004, is granted.
Apr 4 2006Cause argued and submitted
 
Jun 19 2006Opinion filed: Judgment reversed
  insofar as it affirms defendant's conviction of violating Vehicle Code section 2800.2 and remand the matter to that court for further proceedings consistent with the views expressed here. Majority Opinion by Kennard, J. -- joined by George C.J., Baxter, Werdegar & Corrigan, JJJ. Dissent by Moreno, J., and joined by Chin, J.
Jul 3 2006Rehearing petition filed
  respondent People Deputy Attorney General Zee Rodriguez
Jul 6 2006Time extended to consider modification or rehearing
  to and including September 15, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 13 2006Received:
  letter dated July 6, 2006, regarding petition for rehearing California Police Chiefs' Association, amicus curiae Elizabeth R. Feffer, counsel
Jul 26 2006Compensation awarded counsel
  Atty Needelman
Aug 23 2006Rehearing denied
  Opinion modified. Chin and Moreno, JJ., are of the opinion the petition should be granted. Corrigan, J., was absent and did not participate.
Aug 23 2006Opinion modified - no change in judgment
 
Aug 23 2006Remittitur issued (criminal case)
 
Aug 30 2006Received:
  receipt for remittitur CA 2/3.

Briefs
Sep 13 2004Opening brief on the merits filed
 
Nov 12 2004Answer brief on the merits filed
 
Dec 22 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website