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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

People v. Pollard CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D085280

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.7K)

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Combined Opinion

Filed 2/27/26 P. v. Pollard CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085280

Plaintiff and Respondent,

v. (Super. Ct. No. SCD302964)

MARQUIS TERRELL POLLARD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, and Laura Baggett, Deputy Attorney
General, for Plaintiff and Respondent.
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 , where the defendant fails to yield to the
pursuing peace officer whom the defendant is fleeing or attempting to
elude.”].)

1 Further unspecified statutory references are to the Vehicle Code.
2 The jury found Pollard not guilty of unrelated charges for attempted
robbery and vandalism. We do not discuss those charges here.
3 Section 21806, subdivision (a), states in relevant part: “Upon the
immediate approach of an authorized emergency vehicle which is sounding a
siren and which has at least one lighted lamp exhibiting red light that is
visible . . . the surrounding traffic shall[:] . . . ¶ . . . yield the right-of-way
and shall immediately drive to the right-hand edge or curb of the highway,
clear of any intersection, and thereupon shall stop and remain stopped until
the authorized emergency vehicle has passed.”
2
In their supplemental briefs, the parties agree the trial court’s jury
instruction was erroneous under Diaz but disagree about whether the error
was prejudicial under the “beyond a reasonable doubt” standard announced
in Chapman v. California (1967) 386 U.S. 18. Pollard contends the error was
prejudicial; the People maintain it was not.
Based on our review of the entire record, we conclude the trial court
erred, but that the error was harmless. Accordingly, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Around 7:00 a.m. on April 4, 2024, police responded to a call of a person
(identified at trial as Pollard) acting strangely in the employee parking lot of
a Mercedes-Benz dealership in Kearny Mesa. San Diego Police Department
Officer David Kuhl responded as the primary officer and Officer Elspeth
Peterson responded as Officer Kuhl’s backup. Both officers were wearing
distinctive uniforms and driving marked patrol cars.
When the officers arrived, the reporting party pointed out Pollard in a
Black Infiniti G35. Pollard began driving away from the dealership. The
officers testified they did not yet have grounds to detain Pollard, so they
started to leave the area and just “happened to be going the same direction”
as Pollard. At a nearby intersection, Pollard made a U-turn against the red
traffic signal. Officer Kuhl immediately activated his patrol car’s overhead
lights and “intermittent siren” while about six feet behind Pollard. The
officer followed Pollard. Officer Peterson followed Officer Kuhl.
Pollard pulled into the parking lot of a Maserati dealership and slowly
drove through it. Officer Kuhl followed with his lights and intermittent siren
activated. Pollard exited the parking lot, entered the street, and then
entered the parking lot of the Mercedes-Benz dealership. In addition to using
3
his lights and intermittent siren, Officer Kuhl addressed Pollard through the
patrol car’s PA system, identifying himself as a police officer and instructing
Pollard to stop. At trial, Officer Kuhl identified Pollard’s failure to stop as a
violation of section 21806.
As Pollard drove slowly over a speedbump in the parking lot, Officer
Kuhl maneuvered around and stopped in front of Pollard. Officer Kuhl got
out of his car, identified himself as a police officer, and ordered Pollard to
turn off his car. Pollard drove around the parked patrol car. Pollard then
made an unsafe left-hand turn out of the parking lot, causing at least one
vehicle to slam on its brakes to avoid a collision. At this point, Officer Kuhl
activated his constant siren.
Pollard ran “a red left-turn arrow” on the traffic signal at the
intersection to the southbound onramp to highway 163. Officer Kuhl testified
this was a traffic violation. Freeway traffic was “light, but getting heavier.”
Pollard accelerated away at about 80 miles per hour. Officer Kuhl testified
this was both a traffic violation and “concerning behavior” because “there’s
increased opportunity for a collision and less reaction time if something
happens.” Officer Peterson “was a significant distance” behind Officer Kuhl
at this point and testified that she “only saw very short glimpses of the
[Infiniti],” “eventually lost sight of” it, and could not “really recall exactly
what movements [it] was making” or whether Officer Kuhl’s siren was on.
Officer Peterson clarified that she “couldn’t personally see how the Infiniti
was driving on [highway] 163” and her “eyes [were] really on what Officer
Kuhl was doing.”
Pollard transitioned to southbound Interstate 805 and accelerated to
about 125 miles per hour. Officer Kuhl testified this was an additional traffic

4
violation.4 Pollard’s driving was concerning to Officer Kuhl because Pollard
“was having to go around traffic and weave around traffic.” Officer Kuhl
testified Pollard changed lanes “from the Number 1 lane all the way across to
the Number 4 lane” without using a turn indicator, and “was passing on the
right shoulder and pulling away from [Officer Kuhl] still.” Officer Kuhl
characterized Pollard’s driving as “inherently dangerous.” Officer Peterson
testified she did not “notice any kind of driving onto the shoulder” and could
not recall “any kind of weaving in and out of traffic.”
“At this point in the pursuit,” Officer Kuhl “weighed the public
safety . . . and decided to terminate the pursuit.” He testified Pollard’s
numerous traffic violations and manner of driving “was inherently
dangerous, and it was a threat to the public.”
Throughout the pursuit, Officer Kuhl had been announcing over his
radio what was happening. About 30 or 40 minutes after the pursuit ended,
another police officer in the Mid-City Division detained Pollard and radioed
to Officer Kuhl. Officer Kuhl responded to the area and saw Pollard and his
car. Pollard was taken into custody without incident.
The pursuit was recorded on Officer Peterson’s body-worn camera and

the footage was played at trial.5
The defense presented no evidence.

4 Officer Peterson testified there are separate traffic violations for
driving faster than 65 miles per hour and driving faster than 100 miles per
hour.
5 We have reviewed the footage, which primarily shows the interior of
Officer Peterson’s patrol car. Officer Kuhl’s patrol car and Pollard’s Infiniti
are generally not visible during the pursuit footage.
5
B. Procedural Background

As relevant here, the People charged Pollard with one count of felony
reckless evasion (§ 2800.2, subd. (a)). The jury found him guilty. The trial
court sentenced Pollard to prison for the middle term of two years.

III. DISCUSSION

As noted, Pollard’s appointed appellate counsel initially filed a brief
under Wende and Anders raising no arguable issues. However, based on our
independent review of the record we requested supplemental briefing on an
arguable issue of instructional error. Having received and reviewed the
parties’ supplemental briefing, we conclude the trial court erred but that the
error was harmless.
A. Relevant Legal Principles

Generally speaking, a person commits misdemeanor simple evasion of a
peace officer under section 2800.1, subdivision (a) if he or she willfully drives
with the intent to evade a uniformed peace officer who is driving a marked
vehicle that is exhibiting a visible front-facing red lamp and sounding a siren

as may be reasonably necessary. (§ 2800.1, subd. (a)(1)–(4).)6 A person
commits felony reckless evasion under section 2800.2 when her or she
commits the lesser included offense of simple evasion under section 2800.1

6 Section 2800.1, subdivision (a), provides in full: “Any person who,
while operating a motor vehicle and with the intent to evade, willfully flees or
otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty
of a misdemeanor . . . if all of the following conditions exist: ¶ The peace
officer’s motor vehicle is exhibiting at least one lighted red lamp visible from
the front and the person either sees or reasonably should have seen the lamp.
¶ The peace officer’s motor vehicle is sounding a siren as may be
reasonably necessary. ¶ The peace officer’s motor vehicle is distinctively
marked. ¶ The peace officer’s motor vehicle is operated by a peace
officer . . . and that peace officer is wearing a distinctive uniform.”
6
while “driv[ing] in a willful or wanton disregard for the safety of persons or
property.” (§ 2800.2, subd. (a); see People v. Hudson (2006) 38 Cal.4th
1002, 1007; People v. Springfield (1993) 13 Cal.App.4th 1674, 1679–1680.)
The “willful or wanton disregard” element of felony reckless evasion is
the primary element at issue here. (§ 2800.1, subd. (a).) It can be established
in several ways. First, the element can be satisfied by reference to the
definitions of the words “willful” and “wanton,” which include consciousness
of one’s conduct, intent to do the act in question, realization of probable
injury to another, and reckless disregard of those consequences. (See People
v. Weddington (2016) 246 Cal.App.4th 468, 486; CALCRIM No. 2181.) We
will refer to this as the “definitional theory.”
Alternatively, section 2800.2, subdivision (b) defines two circumstances
that “automatically constitute[] willful or wanton disregard for the safety of
persons or property.” (People v. Fuentes (2022) 78 Cal.App.5th 670, 676.)
These circumstances are (1) “committing at least three traffic ‘point’
violations while the driving occurs,” (hereafter, the violation-based theory),

and (2) “[d]amaging property.” (Ibid.; see § 2800.2, subd. (b).)7
In Diaz, supra, 125 Cal.App.4th 1484, the court held in connection with
the violation-based theory that “a violation of . . . section 21806 [i.e., failing to
yield to an emergency vehicle] cannot be utilized as one of the three traffic
violations to establish the element of willful or wanton disregard for the
safety of persons or property under . . . section 2800.2, subdivision .”
(Id. at p. 1491.) The court reasoned that because “it is impossible” (id. at

7 Section 2800.2, subdivision (b) states: “For purposes of this section, a
willful or wanton disregard for the safety of persons or property includes, but
is not limited to, driving while fleeing or attempting to elude a pursuing
peace officer during which time either three or more violations that are
assigned a traffic violation point count under Section 12810 occur, or damage
to property occurs.”
7
p. 1490) to commit reckless evasion without also failing to yield to an
emergency vehicle, “allowing failure to yield to be used as one of the three
violations . . . would mean there is automatically one qualifying violation . . .
whenever the People have proven the offense of evading pursuit. In other
words, the People are given a ‘freebie,’ and their burden is reduced from three
violations to two violations” (id. at p. 1491).
B. Background

The trial court instructed the jury regarding the charged offense of
felony reckless evasion and the lesser included offense of misdemeanor
simple evasion. As to the greater offense, the trial court instructed the jury
regarding two of the three possible ways of establishing recklessness.
As to the definitional theory, the court instructed the jury:

To prove that the defendant is guilty of this crime,
the People must prove that:

[¶] . . . [¶]

During the pursuit, the defendant drove with willful
or wanton disregard for the safety of persons of
property.

[¶] . . . [¶]

Someone commits an act willfully when he does it
willingly or on purpose. It is not required that he
intend to break the law, hurt someone else, or gain
any advantage.

A person acts with wanton disregard for safety when
(1) he is aware that his actions present a substantial
and unjustifiable risk of harm, and (2) he
intentionally ignores that risk. The person does not,
however, have to intend to cause damage.

Regarding the violation-based theory, the court instructed the jury:

8
To prove that the defendant is guilty of this crime,
the People must prove that:

[¶] . . . [¶]

During the pursuit, the defendant committed three or
more violations, each of which would make the
defendant eligible for a traffic violation point[.]

[¶] . . . [¶]

[S]ection 21453, subdivision [i.e., running a “red
arrow signal”], . . . section 21806, subdivision (l)
[i.e., failing to yield to an emergency vehicle], . . .
section 22349, subdivision [i.e., driving “at a
speed greater than 100 miles per hour”], . . . section
22348, subdivision [i.e., driving “at a speed
greater than 65 miles per hour], and . . . section
21658 [i.e., unsafe lane change] are each assigned a
traffic violation point.

During closing argument, the prosecutor argued Pollard met both the
definitional and violation-based theories. As to the definitional theory, the
prosecutor argued:

Defendant knew everything he was doing. He was
disregarding the public safety when he made that U-
turn on the red light, when he refused to pull over,
when he was driving erratically, almost hitting the
pedestrian car [sic], when he drove 80 miles per hour
on the 163, now going almost over 120 miles per hour
on the 805 during commute time.

He drove on the right shoulder. He drove in and out
of lanes. The defendant disregarded all public safety,
and he did that intentionally. He was the one behind
the wheel, making all of these moves. He was the
one behind the wheel, making all of these decisions.
Instead of just pulling over after a U-turn, a minor
traffic violation, he decided to put every person on the
road that morning in risk.

9
The prosecutor also addressed the violation-based theory: “Now, he
violated multiple traffic violations. The illegal U-turn, the failing to stop, the
driving over 100, the driving over 65 miles per hour. There was more than
just three.”
Defense counsel made two arguments in closing regarding the reckless
evasion count. First, counsel challenged Officer Kuhl’s credibility:

[Y]ou have to rely on the testimony mainly of Officer
Kuhl; right? Because he’s the one that supposedly
saw the weaving, the speeding, the reckless driving,
all of that. You have to believe everything he says.

[¶] . . . [¶]

But if you don’t completely believe him, then you
have reasonable doubt as to everything of what
Officer Kuhl said, including the driving on the
shoulder, the speeding. And you heard from Officer
Peterson. She didn’t see any of that.

Second, Pollard’s lawyer invited the jury to convict only on the lesser
included offense of simple evasion:

Let’s say you did find that somehow Mr. Pollard
evaded somehow. You do have a lesser-included
offense. . . . [T]he difference is that . . . the greater
offense, is that you need wanton and willful disregard
for public safety and property or three violations. In
the lesser-included offense, you don’t have that
requirement. That’s the difference. So maybe you
don’t find him guilty on the greater offense. Maybe
Mr. Pollard just simply didn’t stop, and that would be
the lesser offense.

In rebuttal, the prosecutor urged the jury to “think about the greater
offense” because “[t]here was wanton disregard for . . . public safety” and
“[t]here w[ere] also three traffic violations.”

10
C. Analysis

The parties agree — as do we — that the trial court erred by
instructing the jury that a violation of section 21806 could be used as one
of the three traffic violations to establish willful and wanton disregard
for safety under section 2800.2, subdivision (b). (See Diaz, supra,
125 Cal.App.4th at p. 1491.) The issue, then, is whether this instructional
error was prejudicial. We conclude it was not.
We review the instructional error at issue here under the Chapman
“beyond a reasonable doubt” standard. (Diaz, supra, 125 Cal.App.4th at
pp. 1491–1492; see People v. Jasso (2025) 17 Cal.5th 646, 689 (Jasso) [“The
standard of prejudice applicable to alternative-theory error is the same
[Chapman] beyond a reasonable doubt standard that generally applies to
misdescriptions of the elements of an offense.”]; In re Lopez (2023) 14 Cal.5th
562, 585 (Lopez).) “ ‘Under this standard, a conviction must be reversed
unless a reviewing court, “after examining the entire cause, including the
evidence, and considering all relevant circumstances, . . . determines the
error was harmless beyond a reasonable doubt.” ’ ” (Jasso, at p. 689.)
Applying this standard, the Diaz court found the same instructional
error at issue here to be prejudicial under the evidence and circumstances of
that case. (Diaz, supra, 125 Cal.App.4th at pp. 1491–1492.) The prosecution
in Diaz relied on three alleged traffic violations — the minimum allowed — to
satisfy the violation-based theory of reckless evasion. (Id. at p. 1488.) After
the Diaz court held that one of those predicate violations — failing to yield in
violation of section 21806 — “cannot be utilized as one of the three traffic
violations to establish the element of willful or wanton disregard for . . .
safety . . . under . . . section 2800.2, subdivision ” (id. at p. 1491), the
People argued the error was harmless because, under the definitional theory,

11
“no reasonable jury could have found that [the defendant] drove safely” (id. at
p. 1492).
Finding the question to be “a close one,” the Diaz court concluded the
error was prejudicial. (Diaz, supra, 125 Cal.App.4th at p. 1492.) In favor of
finding the error harmless, the Diaz court acknowledged that the defendant
“drove for 29 miles at night along curving mountainous roads, at speeds
between 55 and 75 miles per hour”; “changed lanes frequently as he passed
cars and trucks”; and created a “danger to other vehicles” and to law
enforcement who deployed “a spike strip to stop [the defendant]’s car.” (Ibid.)
On the other hand, the Diaz court found that “the evidence presented a
factual issue on the safety of [the defendant]’s driving” because “[t]here were
no accidents or ‘near misses’ during the pursuit”; the defendant “drove
around 1:20 a.m., in light or light to moderate traffic, at speeds which
approximated that of other vehicles on the road”; and defense counsel
“argued to the jury that, while [the defendant] should have pulled over for the
officers, the way he drove did not establish the element of willful or wanton
disregard for safety.” (Ibid.)
In contrast to Diaz, here the “ ‘ “the evidence . . . and . . . all relevant
circumstances” ’ ” (Jasso, supra, 17 Cal.5th at p. 689) do not present a close
call on the question of prejudice. First, whereas the prosecution in Diaz
relied on only three traffic violations to satisfy the violation-based theory
(Diaz, supra, 125 Cal.App.4th at p. 1488), the prosecution here relied on
five traffic violations. Therefore, even after disregarding the invalid
section 21806 predicate, there were still four valid violations to support the
violation-based theory. Notably, Pollard offered the jury no principled basis
on which to find that he violated some Vehicle Code provisions and not
others. Instead, he gave the jury the all-or-nothing choice of either believing

12
or disbelieving Officer Kuhl’s uncontradicted testimony that Pollard
committed all the qualifying traffic violations. (Cf. People v. Kraft (2000)
23 Cal.4th 978, 1063 [the “unexplainable rejection of the prosecution’s
evidence” does not constitute substantial evidence for purposes of requiring
an instruction on a lesser included offense (italics added)].)
By convicting Pollard, the jury necessarily believed Officer Kuhl’s
testimony. And without a principled basis for distinguishing between
predicate traffic violations, we are satisfied beyond a reasonable doubt that
even if the jury relied on the invalid section 21806 predicate, the jury also
relied on four additional valid predicates. (See Lopez, supra, 14 Cal.5th at
p. 582 [“the fact that the prosecutor argued, or the jury considered, an invalid
alternate theory is not dispositive when conducting a harmless error
analysis”].)
Second, unlike the defense attorney in Diaz, Pollard’s trial counsel did
not argue the driving that Officer Kuhl described did not reflect willful and
wanton disregard for safety under the definitional approach. (See Diaz,
supra, 125 Cal.App.4th at p. 1492.) Instead, as noted, Pollard merely argued
that the driving Officer Kuhl described did not happen. In doing so, Pollard
effectively conceded that if the jury believed Officer Kuhl, then the driving he
described satisfied the definitional theory of willful and wanton disregard.
“One situation in which instructional error [misdescribing or] removing an
element of the crime from the jury’s consideration has been deemed harmless
is where the defendant concedes or admits that element” — even if the
defendant does “not affirmatively admit” the issue but only “effectively
concede[s]” it. (People v. Flood (1998) 18 Cal.4th 470, 504, italics added; see
People v. Oyler (2025) 17 Cal.5th 756, 841 [where the key issue at trial was
who started a fire that killed five firefighters, the causation question of

13
whether the arsonist “was the ‘actual killer’ who personally and directly
caused the victims’ deaths” for purposes of felony-murder liability “was
effectively uncontested” for purposes of finding omitted-element error
harmless under Chapman (italics added)].) A defendant effectively concedes
an issue by, for example, “never refer[ing] to th[e] element of the crime
during the trial,” “not argu[ing] to the jury that the prosecution had failed to
prove th[e] element beyond a reasonable doubt,” “not ask[ing] that the issue
even be considered by the jury,” “present[ing] no evidence regarding the . . .
element,” “fail[ing] to dispute the prosecution’s evidence regarding the issue,”
or by requesting a jury instruction that addresses the element. (Flood, at
pp. 504–505.) Considering these factors, Pollard effectively conceded that if
the jury believed Officer Kuhl, then the definitional theory was satisfied.
Finally, Pollard’s driving here — as established by Officer Kuhl’s
uncontradicted testimony — was significantly more dangerous than
the driving that presented a close question in Diaz. (See Diaz, supra,
125 Cal.App.4th at p. 1492.) After the pursuit began, Pollard had a near-
miss with another vehicle when he made an unsafe turn out of a parking lot.
(Cf. ibid. [“There were no accidents or ‘near misses’ ”].) Pollard then ran a
red traffic signal at the intersection to the onramp to highway 163. (Cf. ibid.
[distinguishing cases finding harmless error where drivers, among other
things, ran red traffic signals and stop signs].) He initially accelerated to
about 80 miles per hour — which Officer Kuhl testified was “concerning
behavior” because of the “increased opportunity for a collision” — before
further accelerating to 125 miles per hour and “weav[ing] around traffic,”
crossing four traffic lanes, and “passing on the right shoulder.” (Cf. ibid.
[noting the defendant drove mostly “at speeds between 55 and 75 miles per

14
hour, at speeds which approximated that of other vehicles on the road”].) All
of this led Officer Kuhl to terminate the pursuit to protect “public safety.”
On this record, we conclude the trial court’s instructional error was
harmless beyond a reasonable doubt.

IV. DISPOSITION

The judgment is affirmed.

RUBIN, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.

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