People v. Pollard CA4/1

I. INTRODUCTION

A jury found defendant Marquis Terrell Pollard guilty of felony reckless

evasion of a police officer (Veh. Code,1 § 2800.2, subd. (a)) and the trial court

sentenced him to two years in prison.2 Pollard’s appointed appellate counsel filed an opening brief raising no arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Pollard did not file a supplemental brief on his own behalf. On our independent review of the record, we found this arguable issue on appeal and requested supplemental briefing on it: Whether the trial court prejudicially erred by instructing the jury that a violation of section 21806,

subdivision (a)(1)3 can be used as one of the three underlying traffic violations for purposes of establishing a violation of section 2800.2, subdivision (b). (See People v. Diaz (2005) 125 Cal.App.4th 1484, 1487 (Diaz) [“We reverse on the ground that a violation of section 21806 cannot be used as one of the three underlying traffic violations for the purpose of section 2800.2[, subdivision ](b), where the defendant fails to yield to the pursuing peace officer whom the defendant is fleeing or attempting to…