Metropolitan News-Enterprise


Tuesday, June 20, 2006


Page 3


Red Light and Siren Didn’t ‘Distinctively’ Mark Police Car—S.C.

High Court Throws Out Conviction for Attempting to Elude Police Officer, Remands to Trial Court


By a MetNews Staff Writer


A jury cannot rely solely on the fact that a police car had a red light and siren in determining whether it was “distinctively marked” so as to support a charge of attempting to evade a police officer, the California Supreme Court ruled yesterday.

Officers testified that on Jan. 4, 2002, at 11 p.m., they spotted Gregory O. Hudson sitting in a parked car near the intersection of 54th Street and Wilton Place in Los Angeles. Hudson, they said, appeared to sell drugs to a man standing outside the car before the man looked toward the officers, then ran. 

Hudson drove off and the officers followed.  When the officers turned on their car’s red light and siren, Hudson pulled to the side of the road and stopped. 

One of the officers got out and ordered Hudson to get out of his vehicle at least five times, according to the testimony.  Hudson drove off.

The officers followed with the red light and siren on. After running two stop signs and red light, and other police vehicles had joined in the chase, Hudson pulled into a shopping center and stopped.

Hudson was  charged with two drug-related crimes and attempting to elude a police officer with willful disregard of the safety of others

Los Angeles Superior Court Judge Anita H. Dymant, using a modified version of CALJIC No. 12.85, told the jury that the  “term ‘distinctively marked’ does not necessarily mean that the police vehicle must be marked with an insignia or logo,” and it was for the jury “to determine whether the circumstances, which may include evidence of a siren or red lamp, [were] sufficient to inform any reasonable person that he was being pursued by a law enforcement vehicle.”

The officers described their car, a Ford Crown Victoria, as not a “marked vehicle” but “a plain car with forward facing interior red light and a blue amber blinking light in the back.” The red light was under the rearview mirror.

The jury convicted Hudson of attempting to elude a police officer, and other charges. Dymant sentenced him to eight months in jail for attempting to elude. Hudson appealed, arguing that the court erred in instructing the jury on the term “distinctively marked,” but this district’s Court of Appeal affirmed the judgment.

The high court reversed in a 5-2 decision. Justice Joyce L. Kennard wrote for the court and was joined by Chief Justice Ronald M. George and  Justices Marvin R. Baxter, Kathryn Mickle Werdegar, and Carol A. Corrigan. Justices Carlos Moreno and Ming W. Chin dissented.

Kennard noted that the eluding a police officer statute “requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform,” and that “preceding the list of the statutory requirements is the statement that ‘all of the following conditions exist.’”

“To conclude that the presence of a red light and a siren would satisfy the statutory requirement that the pursuing police car be ‘distinctively marked’ would be inconsistent with the statutory requirement that all of its conditions be met, and it would render the phrase ‘distinctively marked’ in subdivision (a)(3) of section 2800.1 mere surplusage,” Kennard said.

The Supreme Court held that Dymant  had a duty, sua sponte, to instruct the jury on the meaning of “distinctively marked.”  Kennard wrote: “[T]he statutory phrase ‘distinctively marked’ does carry a particular legal meaning that differs from its nonlegal meaning, in that it requires that the vehicle have a physical feature in addition to a red light and siren, thus requiring the trial court to instruct the jury, without the necessity of a request by either party, to clarify the meaning of the statutory term ‘distinctively marked.’“

The court held that Dymant’s error was prejudicial because the jury  could have found that the car was not distinctively marked.

Moreno argued in dissent:

“In my view the trial court was not required to instruct the jury on the meaning of the term, ‘distinctively marked,’ because that term is in common parlance and was easily understood by the jury, and the jury properly could consider that the police vehicle was equipped with a red light and siren in determining whether it was ‘distinctively marked.’“

Moreno added:

“We never have held, as does the majority in the present case, that the circumstance that the same evidence may, but does not always, establish two separate elements of an offense renders one of those elements surplusage.”

Attorneys arguing in the high court were Jeffrey A. Needleman of San Francisco for the defendant and Deputy Attorney General Zee Rodriguez for the prosecution.

The case is People v. Hudson, 06 S.O.S. 3085.


Copyright 2006, Metropolitan News Company