Conviction of evading a police officer proximately causing death under Vehicle Code section 2800.3 is not entitled to relief under section 1172.6

 THE PEOPLE, Plaintiff and Respondent, v. RAFAEL CAMPBELL, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY B. PRICE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. STEPHON ANTHONY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. SAMUEL FLOWERS, Defendant and Appellant. (Cal. Ct. App., June 30, 2023, No. A162472) 2023 WL 4286790, at *22–23

Appellants Price, Campbell and Flowers contend that they were entitled to relief under section 1172.6 from their convictions of evading a police officer proximately causing death under Vehicle Code section 2800.3, subdivision (b). Appellants argued that these convictions were, in effect, murder convictions that were based on the same facts and natural and probable consequences theory as the second degree murder convictions and did not require personal intent to kill.

 1172.6 provides resentencing relief for defendants convicted of murder, attempted murder and manslaughter but not for violations of Vehicle Code section 2800.3, subdivision (b).

The People contend that section 1172.6 provides resentencing relief for defendants convicted of murder, attempted murder and manslaughter but not for violations of Vehicle Code section 2800.3, subdivision (b). Section 1172.6, requires proof that the petitioner could not presently be convicted of murder or attempted murder because of changes to sections 188 or 189, which does not apply because nothing in the amendments to those two statutes changed Vehicle Code section 2800.3.

The Court of Appeal agreed with the People and found Appellants’ arguments meritless. Vehicle Code section 2800.3 is not denominated “murder,” but rather, is entitled “Death or serious bodily injury proximately caused by flight from pursuing peace officer ….” (Veh. Code, § 2800.3.) Nor are its elements the same as the elements of murder. Under the law as amended, murder requires either an intentional killing, with express or implied malice (or acting with reckless indifference to human life and as a major participant, aiding and abetting in the commission of certain felonies that result in death). The elements of the crime of flight from pursuing officer proximately causing death under Vehicle Code section 2800.3 are willful flight or attempt to elude a peace officer proximately causing death. The  jury was instructed in this case to find a defendant guilty of that crime, the People had to prove that a peace officer was pursuing the defendant and the defendant was driving a vehicle,  intended to evade the peace officer, while driving willfully fled from or tried to elude the pursuing officer, and in doing so caused the death of someone else. Further, the jury was instructed it had to find that there was a lighted red lamp visible from the front of the peace officer’s vehicle, the defendant saw or should have seen the lamp, the officer’s vehicle was sounding a siren as reasonably necessary, the officer’s vehicle was distinctively marked and the officer was wearing a distinctive uniform. (See CALCRIM No. 2180.) The punishment for murder and evading a peace officer causing death are not the same. Second degree murder is punishable by “imprisonment in the state prison for a term of 15 years to life” (§ 190, subd. (a)); evading a peace officer causing death is punishable by imprisonment in the state prison for a determinate term of 4, 6 or 10 years. (Veh. Code, § 2800.3, subd. (b).)

Section 1172.6 does not expressly provide relief to persons convicted under Vehicle Code section 2800.3. To be entitled to relief, a petitioner must show three things: (1) a complaint, information or indictment that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted after trial or accepted a plea of murder, attempted murder or manslaughter; and (3) he could not presently be convicted of those crimes because of changes to sections 188 or 189 made effective January 1, 2019, or in 2021 when the Legislature amended section 1172.6.³³ (§ 1172.6, subd.(a)(1)–(3).) Nothing in Senate Bill 1437 or the subsequent amendments to the murder statutes changed the elements of, or the punishment for, a violation of Vehicle Code section 2800.3.

Appellants’ contention that they are entitled to relief from the conviction for Vehicle Code section 2800.3, which is less serious than murder and, unlike murder, does not now and did not ever require a finding of malice aforethought, is not supported by the language or history of Senate Bill 1437. Appellants do not argue or  cite any authority to support the argument that, in eliminating the natural and probable consequences doctrine as a basis for attempted murder or manslaughter liability in 2021, the Legislature intended to eliminate that doctrine or for other crimes involving homicide.Appellants do not contend that the 2021 amendment encompassed Vehicle Code section 2800.3.

The Court rejected Price, Campbell and Flowers’s argument that they were entitled to relief from their section 2800.3 convictions under section 1172.6.

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