Diaz

Appellant Oscar Antonio Diaz was convicted of evasion of a pursuing peace officer while driving with “willful or wanton disregard for the safety of persons or property,” in violation of Vehicle Code section 2800.2, subdivision (a) (section 2800.2(a)).

Section 2800.2, subdivision (b) (section 2800.2(b)) permits the “willful or wanton disregard” for safety element of section 2800.2(a) to be established by “three or more violations that are assigned a traffic violation point count under Section 12810 . . . .” Appellant contends that his conviction must be reversed because (1) CALJIC No. 12.85, which is derived from section 2800.2(b), contains a presumption which is precluded by Sandstrom v. Montana (1979) 442 U.S. 510 [ 61 L.Ed.2d 39 , 99 S.Ct. 2450 ]; (2) under Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ], the jury should have been instructed that it had to find whether the unsafe operation of a vehicle was involved in the three traffic violations which were used for the purpose of section 2800.2(b); (3) his trial counsel was ineffective for not objecting to the instructions; (4) there was insufficient evidence that he drove with willful…