In what circumstances will a court allow a jury to convict a defendant of evading a peace officer?

In Flood , the trial court failed to instruct the jury that to convict the defendant of evading a peace officer, the prosecution was required to prove that the defendant evaded actual peace officers. ( People v. Flood (1998) 18 Cal.4th 470, 505, 76 Cal.Rptr.2d 180, 957 P.2d 869 ( Flood ).) The court found the error harmless under the Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 test for federal constitutional errors because the "[d]efendant never referred to this element of the crime during the trial and did not argue to the jury that the prosecution had failed to prove this element beyond a reasonable doubt; indeed, he did not ask that the issue even be considered by the jury. Furthermore, defendant presented no evidence regarding the peace officer element, and failed to dispute the prosecutions evidence regarding the issue." ( Flood , at p. 505, 76 Cal.Rptr.2d 180, 957 P.2d 869.) These actions were "tantamount to a concession" of the element. ( Ibid . )