Filed 12/17/14 P. v. Abalos CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

VLADIMIR ABALOS, 

 Defendant and Appellant. 

 D064449 

 (Super. Ct. No. SCD245873) 

 APPEAL from a judgment of the Superior Court of San Diego County, 

Robert F. O'Neill, Judge. Affirmed. 

 Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal 

and Tami S. Falkenstein-Hennick, Deputy Attorneys General, for Plaintiff and 

Respondent. 
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 A jury convicted Vladimir Abalos of evading a peace officer with reckless 

driving and resisting, delaying or obstructing a peace officer in the performance of 

his duties. He appeals, contending the trial court erred by failing to instruct the 

jury (1) with a unanimity instruction on the charge of evading a peace officer with 

reckless driving, (2) on the lesser included offenses of evasion of a peace officer 

and reckless driving, and (3) on the defense of mistake of fact. We reject these 

arguments and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

 In January 2013, San Diego Police Officer Daniel Stanley observed Abalos 

driving a gold Honda. Abalos jerked the wheel and pulled to the side of the road 

without using his signal. Officer Stanley initiated a traffic stop by activating his 

lights and pulling behind Abalos's vehicle. At that point, Abalos pulled back into 

traffic and sped off. 

 Officer Stanley followed Abalos at a speed of 50 miles per hour in a 15-

mile-per-hour zone. Abalos drove through two red lights as Officer Stanley 

followed him. A police helicopter unit joined the pursuit, allowing Officer Stanley 

to keep his distance. 

 Officers Rodolphe Sainte-Agathe and Mario Perez joined the pursuit in 

their patrol car. Officer Sainte-Agathe saw Abalos commit numerous traffic 

violations. Abalos ran approximately five or six red lights and three to five stop 

signs. Abalos was also speeding, making sharp turns, and failed to use his signal 

before turning. 
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 Just before Abalos entered a cul-de-sac, a front tire of his car exploded and 

Abalos came to a stop. Abalos did not follow officers' commands to show his 

hands. Officer Perez deployed his taser on Abalos and the officers pulled him out 

of the car. Officers also pulled Abalos's passenger, Kaitlin McQuaid, out of the 

car. Officers directed Abalos to stop resisting and restrained him on the ground. 

The pursuit lasted approximately 20 minutes and covered 13 miles. 

 Detective Gary Lawrence interviewed McQuaid on the night of the 

incident. McQuaid told the detective that when she asked Abalos why he was not 

stopping for officers, he stated it was because he was thirsty. Abalos did not tell 

McQuaid that he was fleeing because he was scared. 

 McQuaid testified that she was a passenger in Abalos's car. She noticed a 

police car's lights activated behind them and heard chirping from the car's siren. 

According to McQuaid, the police car approached Abalos's car in a "very 

aggressive manner." Abalos told McQuaid he was scared and thirsty. Abalos 

continued to drive despite being surrounded by police cars and a helicopter 

overhead. During this time, Abalos mentioned to McQuaid that he previously had 

an incident with an officer in the area who made a threatening statement to him. 

 Abalos testified on his own behalf. He stated police had previously 

threatened him and he did not stop for officers on the day at issue in this case 

because he believed his life was in danger. Abalos testified he wanted to get to a 

well-lit area before stopping his vehicle. He also stated that he did not obey traffic 
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signals and signs because he feared for his life. He believed if he stopped his car 

before the helicopter got there, he would have been killed. 

DISCUSSION 

I. Unanimity Instruction 

 Abalos argues the trial court erred by failing to give a unanimity instruction 

on the charge of evading a police officer with reckless driving. Specifically, he 

asserts a unanimity instruction was required because the jury was required to agree 

on which three of multiple traffic violations constituted a willful or wanton 

disregard for the safety of persons or property. We disagree. 

 Vehicle Code section 2800.2, subdivision (a), elevates the offense of 

evasion of a peace officer to a felony where the defendant flees or evades an 

officer by driving a vehicle "in a willful or wanton disregard for the safety of 

persons or property. . . ." (Undesignated statutory references are to the Vehicle 

Code.) Subdivision (b) of section 2800.2 defines willful or wanton disregard as 

including, but 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 Section 12810 occur, or damage to 

property occurs." 

"The unanimity instruction is required where there is a single count 

charged, but the evidence shows the defendant committed multiple crimes that 

could qualify for a conviction under that count. [Citation.] No such instruction is 

required, however, merely because the jury may be divided on the exact way the 
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defendant may be guilty of the charged count. [Citation.]" (People v. Varela

(2011) 193 Cal.App.4th 1216, 1220 (Varela) [finding a unanimity instruction is 

not required in a prosecution for reckless evasion of a peace officer under section 

2800.2 because the jury was not required to agree on the predicate traffic 

violations]; People v. Datt (2010) 185 Cal.App.4th 942, 949-951 (Datt) [finding 

the jury was not required to unanimously agree on which traffic violations 

supported the "willful or wanton" element of evading].) 

 Abalos does not challenge officers' testimony that he committed three or 

more traffic violations. Instead, he asserts that because different officers testified 

as to different observations of the alleged violations, the jury must have 

unanimously agreed on which three violations constituted the predicate offenses 

under section 2800.2, subdivision (b). 

As in Varela and Datt, we conclude a unanimity instruction was not 

required in this case. (Varela, supra, 193 Cal.App.4th at p. 1220; Datt, supra, 185 

Cal.App.4th at pp. 949-951.) "While there was evidence of various factual bases 

for a jury finding that defendant's flight from pursuit was done in 'willful or 

wanton disregard for the safety of persons or property,' jury unanimity is not 

required 'as to the exact way the defendant is guilty of a single discrete crime.'" 

(Datt, at p. 950.) "The different Vehicle Code violations upon which the 'willful 

or wanton' element could have been premised were simply 'alternate ways of 

proving' that element, not separate chargeable offenses of reckless evading." 
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(Ibid.) Accordingly, we reject Abalos's argument that a unanimity instruction was 

required on the charge of reckless evasion of a peace officer. 

II. Lesser Included Offense Instructions

 Abalos argues the trial court erred in failing to instruct the jury on the lesser 

included offenses of evasion of a peace officer (section 2800.1) and reckless 

driving (section 23103). We reject his arguments. 

"Even without a request, a trial court must instruct on general principles of 

law that are closely connected to the facts before the court and that are necessary 

for the jury's understanding of the case. [Citation.] It must instruct sua sponte on 

a lesser included offense where there is evidence that, if believed by the trier of 

fact, would absolve the defendant of the greater offense, but not of the lesser. 

[Citation.] This obligation extends to all theories of a lesser included offense that 

find substantial support in the evidence. [Citation.] However, the court need not 

instruct on a lesser offense when there is no evidence the offense was less than 

that charged." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833; accord, 

People v. Avila (2009) 46 Cal.4th 680, 704-705 (Avila).) On appeal, we 

independently review whether the trial court properly declined to instruct on a 

lesser included offense. (Avila, at p. 705; People v. Cole (2004) 33 Cal.4th 1158, 

1215.) 

A. Evasion of a Peace Officer (Section 2800.1) 

Evasion of a peace officer under section 2800.1 is a lesser included offense 

of felony evasion of a peace officer under section 2800.2. (People v. Springfield 
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(1993) 13 Cal.App.4th 1674, 1680-1681 (Springfield).) "The only distinction 

between the two crimes is that in committing the greater offense the defendant 

drives the pursued vehicle 'in a willful or wanton disregard for the safety of 

persons or property.'" (Id. at p. 1681.) The People concede this point but assert 

that the trial court was not required to instruct on the lesser offense because there 

was no evidence that Abalos's offense was anything less than felony evasion. We 

agree. 

As we previously explained, the "willful or wanton" element of section 

2800.2 is satisfied where the People prove defendant committed three or more 

traffic violations or caused property damage. (Ante, part I.) Multiple officers in 

this case testified that Abalos committed numerous traffic violations, including 

speeding, disregarding traffic signs and running red lights. Further, Abalos did not 

deny committing the traffic violations. Instead, he testified that he did not obey 

traffic signals and signs because he feared for his life. Abalos's counsel also 

conceded the traffic violations in his closing argument. 

Despite this evidence, Abalos asserts the jury could have convicted him of 

the lesser offense under section 2800.1. To support his argument, he relies on 

Springfield, supra, 13 Cal.App.4th at p. 1681, in which the court reversed 

defendant's section 2800.2 conviction because the trial court failed to instruct the 

jury on the lesser offense under section 2800.1. In that case, however, "there was 

conflicting evidence concerning the manner [defendant] drove the pursued vehicle. 

While there was substantial evidence to support a finding, based on the officers' 
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testimony, that [defendant] drove with a willful and wanton disregard for the 

safety of other persons and property, there was also evidence, based largely on 

[defendant's] testimony, that he did not drive in such a manner." (Springfield, at 

pp. 1680-1681.) 

Unlike Springfield, supra, 13 Cal.App.4th at pp. 1681-1682, there was no 

evidence in this case that the offense Abalos committed was less than the offense 

charged. Abalos did not contradict the officers' testimony regarding his traffic 

violations. Instead, he admitted the violations. Where, as here, there is no 

evidence the offense was less than that charged, the trial court was not required to 

provide a lesser included offense instruction. (People v. Szadziewicz, supra, 161 

Cal.App.4th at p. 833; accord, Avila, supra, 46 Cal.4th at pp. 704-705.) 

B. Reckless Driving (Section 23103) 

 The crime of reckless driving occurs when a person "drives a vehicle upon 

a highway in willful or wanton disregard for the safety of persons or property." 

(§ 23103, subd. (a).) For purposes of this crime, the "willful or wanton disregard" 

element requires knowledge one's actions present a substantial and unjustifiable 

risk of harm and intentional ignorance of that risk. (People v. Schumacher (1961) 

194 Cal.App.2d 335, 338-340; People v. McNutt (1940) 40 Cal.App.2d Supp. 835, 

837-838; CALCRIM No. 2200.) Neither negligent nor grossly negligent conduct 

is sufficient to satisfy this requirement. (People v. Allison (1951) 101 Cal.App.2d 

Supp. 932, 935.) Violation of a statutory duty is also not sufficient to satisfy this 

requirement. (People v. Young (1942) 20 Cal.2d 832, 837-838.) 
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In contrast, for purposes of the crime of reckless evading under section 

2800.2, "willful or wanton disregard for the safety of persons or property" may 

include "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 Section 12810 occur, or damage to property occurs." 

(§ 2800.2, subd. (b).) Thus, the willful or wanton disregard element of the crime 

of reckless evading, unlike the crime reckless driving, may be satisfied by 

negligent or grossly negligent conduct, or by violations of a statutory duty. 

Accordingly, a person can commit the crime of reckless evading without 

necessarily committing the crime of reckless driving and the trial court did not err 

in failing to instruct on reckless driving as a lesser included offense. 

III. Mistake of Fact Instruction

 Abalos argues the trial court erred by failing to sua sponte instruct the jury 

on the defense of mistake of fact on the felony evasion of a peace officer charge. 

Specifically, he asserts the trial court should have provided the instruction because 

he had a good faith belief that the officer would physically injure him if he 

stopped. We reject Abalos's argument. 

 A trial court has a sua sponte duty to instruct on a defense if it is supported 

by substantial evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People 

v. Shelmire (2005) 130 Cal.App.4th 1044, 1054.) The duty to instruct does not 

arise if there is any evidence, no matter how weak, to support the defense; rather, 

the evidence must be sufficient to deserve consideration by the jury. (People v. 
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Williams (1992) 4 Cal.4th 354, 361.) The trial court should give the instruction if 

the defendant is relying on the defense or if it is not inconsistent with the 

defendant's theory of the case. (People v. Dominguez (2006) 39 Cal.4th 1141, 

1148; People v. Montoya, at p. 1047.) 

 Here, Abalos did not rely on the defense of mistake of fact. Instead, he 

asserted defenses of duress and necessity to the charge of felony evasion of peace 

officer. Further, defense counsel specifically informed the court that "mistake of 

fact [did] not apply in this particular case" and agreed when the court stated it 

would not instruct the jury with CALCRIM No. 3406 regarding mistake of fact. 

 Moreover, the evidence did not support a mistake of fact defense. The 

officers testified that Abalos drove recklessly while evading them for 20 minutes 

over 13 miles. Although McQuaid testified that Abalos said he was scared, she 

told Detective Lawrence immediately after the incident that Abalos evaded 

officers because he was thirsty. Abalos testified that he did not stop because he 

was scared. This evidence was not sufficient to require a mistake of fact 

instruction. 

"As a general matter . . . a mistake of fact defense is not available unless the 

mistake disproves an element of the offense." (In re Jennings (2004) 34 Cal.4th 

254, 277.) Abalos asserts his mistake was his belief that officers would harm him. 

While this may support a defense of necessity, it does not support a defense of 

mistake of fact because the mistake of fact under which Abalos was allegedly 
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operating did not negate the specific intent to evade officers. Accordingly, the 

trial court did not err by failing to instruct the jury on mistake of fact. 

DISPOSITION 

 The judgment is affirmed. 

 MCINTYRE, J. 

WE CONCUR: 

MCCONNELL, P. J. 

AARON, J.