People v. Johnson CA4/1

I. INTRODUCTION

A jury found defendant Angelo Johnson guilty of felony reckless

evasion of a police officer (Veh. Code,1 § 2800.2) and the trial court placed him on formal probation for two years. On appeal, Johnson contends insufficient evidence supports his conviction because the pursuing police officers’ trial testimony conflicted with other evidence. He also argues the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of misdemeanor simple evasion (§ 2800.1). Under the highly deferential substantial evidence review standard, we conclude the conflicting trial evidence nonetheless supports Johnson’s conviction. We also conclude, however, that these evidentiary conflicts were sufficient to raise a substantial question about whether all the elements of reckless evasion were present, warranting an instruction on the lesser included offense of simple evasion. We conclude failure to give this instruction was prejudicial error. Accordingly, we reverse the judgment with the direction that if the People do not timely elect to retry Johnson for reckless evasion, then the judgment shall be modified to reflect a conviction for simple evasion and…