Bryd

BACKGROUND

At around midnight on December 7, 2011, Sacramento Police Officer Robert Hamm was dispatched to a residence on Samos Way in response to a report of a shooting. When he arrived at the residence, he observed two vehicles parked in the driveway, one

Further undesignated statutory references are to the Vehicle Code. The jury acquitted defendant of count 2, attempted murder.

2 of which had its engine running. Inside that vehicle was the victim, who had been shot in the neck. On the same night at approximately 12:10 a.m., Sacramento Police Officers Carl Chan and David DeLeon were on patrol in a fully marked traditional black and white police car near Samos Way when they observed a silver sport utility vehicle (SUV) driving without its headlights on. The SUV did a “burn out” and accelerated at a high rate of speed away from the officers. Officer DeLeon activated the patrol car’s emergency overhead red and blue lights and attempted to initiate a traffic stop. The SUV initially slowed and started to yield but then suddenly accelerated and drove off. Officer DeLeon activated the patrol car’s siren and a high-speed pursuit ensued, ending when the driver, later…

—A jury found defendant Dywon Levell Byrd guilty of first degree murder (Pen. Code, § 187, subd. (a); count 1) and driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a); count 3). 1 The jury found true the special allegation that defendant used a firearm in committing first degree murder. (Pen. Code, former § 12022.53, subd. (b).) 2 The trial court sentenced defendant to 25 years to life for first degree murder, a consecutive 25-years-to-life sentence on the firearm allegation, plus a consecutive two-year sentence for driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer.

On appeal, defendant contends the trial court erred in instructing the jury with the last bracketed paragraph of CALCRIM No. 226. He further contends that his conviction for violating section 2800.2 is not supported by substantial evidence because there was no proof that either of the pursuing officers wore a distinctive uniform. As we will explain in the published portion of our opinion, we agree with the latter contention. We will…

Concurring and Dissenting.—I concur in part I of the majority opinion. As to part II, I dissent.

As the majority opinion sets forth, defendant was charged with and found guilty of first degree murder in violation of Penal Code section 187, subdivision (a) and driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer in violation of Vehicle Code section 2800.2. The majority reverses the section 2800.2 conviction due to a lack of evidence that the pursuing police officers in this matter were wearing distinctive uniforms during the pursuit.

Defendant testified at trial and, regarding the police pursuit, said on direct examination:

On cross-examination, defendant testified:

On redirect examination, defendant testified:

And finally, on recross-examination, defendant testified:

*1229 During closing arguments, as to this charge, the People merely invited the jury to review the police car’s dash camera video taken during the chase. Defendant’s attorney did not speak to the charge at all. Curiously, although the jury was properly instructed on all of the elements of the offense and were instructed that there had to be…