Filed 12/17/14 P. v. Abalos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 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 Su perior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. Patrick J. Hennessey, Jr., under appoi ntment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, Arlene A. Sevidal and Tami S. Falkenstein-Hennick, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted Vladimir Abalos of evading a peace officer with reckless driving and resisting, dela ying or obstructing a peace offi cer in the performance of his duties. He appeals, contending the tr ial court erred by failing to instruct the jury (1) with a unanim ity instruction on the charge of evading a peace officer with reckless driving, (2) on the le sser included offenses of evasion of a peace officer and reckless driving, and (3) on the defens e of mistake of fact. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND In January 2013, San Diego Police O fficer Daniel Stanley observed Abalos driving a gold Honda. Abal os jerked the wheel and pulle d to the side of the road without using his signal. Officer Stanle y 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 thro ugh two red lights as Officer Stanley followed him. A police helicopter unit join ed 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-Aga the 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.3 Just before Abalos entered a cul-de-s ac, a front tire of his car exploded and Abalos came to a stop. Ab alos did not follow office rs' commands to show his hands. Officer Perez deployed his taser on Abalos and the offi cers pulled him out of the car. Officers also pulled Abalos 's passenger, Kaitlin McQuaid, out of the car. Officers directed Abalos to stop resi sting and restrained him on the ground. The pursuit lasted approximately 20 minutes and covered 13 miles. Detective Gary Lawrence intervie wed 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 becau se he was thirsty. Abalos did not tell McQuaid that he was fleeing because he was scared. McQuaid testified that she was a passe nger in Abalos's car. She noticed a police car's lights activated behind them a nd heard chirping from the car's siren. According to McQuaid, the police car approached Abalos's car in a "very aggressive manner." Abalos told McQuai d he was scared and thirsty. Abalos continued to drive despite being surro unded by police cars and a helicopter overhead. During this time, Abalos mentio ned to McQuaid that he previously had an incident with an officer in the area who made a th reatening 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 wa s in danger. Abalos testifie d he wanted to get to a well-lit area before stopping his vehicle. He also stated that he did not obey traffic4 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 po lice officer with reckless dr iving. Specifically, he asserts a unanimity instruction was require d because the jury was required to agree on which three of multiple traffic viola tions constituted a willful or wanton disregard for the safety of persons or property. We disagree. Vehicle Code section 2800.2, subdi vision (a), elevates the offense of evasion of a peace officer to a felony where the defend ant flees or evades an officer by driving a vehicle "in a willful or wanton disregard for the safety of persons or property. . . ." (Undesignate d statutory references are to the Vehicle Code.) Subdivision (b) of se ction 2800.2 defines willful or wanton disregard as including, but not limited to, "driving wh ile fleeing or attempting to elude a pursuing peace officer dur ing which time either three or more violations that are assigned a traffic violation point count und er Section 12810 occur, or damage to property occurs." "The unanimity instruction is requi red where there is a single count charged, but the evidence shows the de fendant committed multip le crimes that could qualify for a conviction under that coun t. [Citation.] No such instruction is required, however, merely b ecause the jury may be di vided on the exact way the5 defendant may be guilty of the ch arged 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 wa nton" element of evading].) Abalos does not challenge officers' testimony that he committed three or more traffic violations. Instead, he assert s that because different officers testified as to different observations of the a lleged violations, the jury must have unanimously agreed on whic h 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 ther e was evidence of various factual bases for a jury finding that defendant's fli ght 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 ha ve been premised were si mply 'alternate ways of proving' that element, not separate char geable offenses of reckless evading."6 ( Ibid .) Accordingly, we reject Abalos's ar gument that a unanimity instruction was required on the charge of reckle ss evasion of a peace officer.
II. Lesser Included Offense Instructions Abalos argues the trial court erred in fa iling to instruct the jury on the lesser included offenses of evasion of a peac e officer (section 2 800.1) and reckless driving (section 23103). We reject his arguments. "Even without a request, a trial court mu st instruct on general principles of law that are closely connected to the fact s 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 ex tends 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 th e offense was less than that charged." ( People v. Szadziewicz (2008) 161 Cal.App.4t h 823, 833; accord, People v. Avila (2009) 46 Cal.4t h 680, 704-705 ( Avila ).) On appeal, we independently review whether the trial c ourt 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 O fficer (Section 2800.1) Evasion of a peace officer under section 2800.1 is a lesser included offense of felony evasion of a peace o fficer under section 2800.2. ( People v. Springfield7 (1993) 13 Cal.App.4th 1674, 1680-1681 ( Springfield ).) "The only distinction between the two crimes is that in co mmitting 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 co ncede 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 th an felony evasion. We
agree. As we previously explained, the "w illful or wanton" element of section 2800.2 is satisfied where the People pr ove defendant committed three or more traffic violations or caused property damage. ( Ante , part I.) Multiple officers in this case testified that Ab alos committed numerous traffic violations, including speeding, disregarding traffic signs and ru nning red lights. Further, Abalos did not deny committing the traffic violations. Inst ead, he testified that he did not obey traffic signals and signs because he feared for his life. Abalos's counsel also conceded the traffic violati ons 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 becaus e the trial court failed to instruct the jury on the lesser offense unde r section 2800.1. In that case, however, "there was conflicting evidence concerning the manner [d efendant] drove the pursued vehicle. While there was substantial evidence to support a finding, based on the officers'8 testimony, that [defendant] drove with a willful and wanton disregard for the safety of other persons and property, th ere was also evidence, based largely on [defendant's] testimony, that he di d 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 re garding his traffic violations. Instead, he admitted the viol ations. Where, as here, there is no evidence the offense was less than that charged, the tria l 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 want on disregard for the safety of persons or property." (§ 23103, subd. (a).) For purpos es of this crime, the "willful or wanton disregard" element requires knowledge one's actions present a subs tantial 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.Ap p.2d Supp. 835, 837-838; CALCRIM No. 2200.) Neither ne gligent 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 no t sufficient to satisfy this requirement. ( People v. Young (1942) 20 Cal.2d 832, 837-838.)9 In contrast, for purposes of the crim e of reckless evading under section 2800.2, "willful or wanton disregard for the safety of persons or property" may include "driving while fleeing or attemp ting 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, unlik e 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 crim e of reckless driving and the trial court did not err in failing to instruct on reckless dr iving 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 fe lony evasion of a peace officer charge. Specifically, he asserts the tr ial court should have provid ed 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.4t h 1044, 1054.) The duty to instruct does not arise if there is any eviden ce, no matter how weak, to su pport the defense; rather, the evidence must be suffi cient to deserve consid eration by the jury. ( People v.10 Williams (1992) 4 Cal.4th 354, 361.) The tria l 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 defe nse 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 suppor t a mistake of fact defense. The officers testified that Abalos drove reck lessly while evading them for 20 minutes over 13 miles. Although McQu aid testified that Abalos said he was scared, she told Detective Lawrence immediately af ter 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 su fficient 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 hi s 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 th e mistake of fact under wh ich Abalos was allegedly11 operating did not negate the specific intent to evade officers. Accordingly, the trial court did not err by failing to in struct the jury on mistake of fact.
DISPOSITION The judgment is affirmed.

M C INTYRE, J. WE CONCUR:
M C CONNELL, P. J. AARON, J.