P. v. Roberts

Filed 3/27/06 P. v. Roberts CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Following a court trial, appellant Patrick D. Roberts was convicted of proximately causing bodily injury to another while driving under the influence of alcohol and with a blood alcohol level of .08 percent or higher. (Veh. Code, § 23152, subds. (a) & (b).) The court also found that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd.(a)), and sentenced him to prison for an aggregate term of five years. He contends the evidence was insufficient to prove that he committed an unlawful or negligent act while driving, as is required for the offenses of which he was convicted. We affirm.

FACTS

Okeni Moe was driving southbound on the 710 freeway at about 1:40 a.m. when another car cut him off and caused him to roll his Jeep. The Jeep came to rest between the number one lane (the fast lane) and the number two lane. A semi-truck stopped in the number three or four lane after the car that caused the accident almost hit the truck. The truck left the scene within a few minutes.

Other motorists stopped to assist Moe, including Roy Harper and Bruce Toloski, the victim in this case. Harper stood to the north of the Jeep and used a flashlight to wave motorists away. Thirty to fifty vehicles drove by during an approximately 15-minute period. Those vehicles were able to move over from the fast lane without hitting the Jeep. Toloski and Moe went to Toloski's car, which was parked to the south of the Jeep near the median strip. Toloski retrieved something and they began walking back toward Harper.

Appellant was driving his Buick in the fast lane. Harper saw appellant's car approaching the area of the overturned Jeep and noticed it was not slowing down or making any effort to change lanes. He did not see a vehicle in front of the Buick and did not see any traffic in the fast lane or the number two lane that would interfere with the Buick. He yelled out to the others to warn them that something was coming and tried to climb over the median strip for his own protection. The Buick streaked past Harper and struck the hood of the Jeep, pushing it completely into the fast lane and causing debris to fly. Toloski was hit by some debris and was seriously injured as a result.

Police arrived at the scene and interviewed appellant, who told them he had been driving the Buick. He said he had been driving about 70 miles per hour and had consumed alcohol and marijuana earlier in the evening. Appellant failed a field sobriety test, and a breath sample taken at 4:42 a.m. (about three hours after the accident) showed that his blood alcohol level was .14 percent. This would have meant that his blood alcohol level was between .23 and .27 percent at the time of the accident. Most people are under the influence of alcohol at a level of .10 percent. Marijuana metabolites were also detected in appellant's blood.

An investigator with the California Highway Patrol examined the scene of the accident the following morning and could find no skid marks or evidence that appellant had attempted to brake before hitting the Jeep. However, the investigator acknowledged that the absence of skid marks is not dispositive in telling whether the driver was trying to stop.

According to Steve Bagley, who was a passenger in appellant's car at the time of the accident, appellant seemed unimpaired before the collision. A van or SUV was driving in front of them and interfered with their ability to see the overturned Jeep. As they were driving along in the fast lane, the van swerved suddenly to avoid the Jeep and they saw it for the first time. Bagley yelled at appellant to look out and appellant tried to turn, but they only had one or two seconds to avoid a collision by the time the van swerved out of the fast lane. Daniel Hunkin was a passenger in a van with tinted windows that was traveling in the fast lane and had to quickly move into the number two and three lanes to avoid hitting the Jeep. Hunkin looked behind them when they were in the number three lane and saw a car that was about three to five car lengths behind them strike the Jeep.

Toxicologist Darrell Clardy testified for the defense and explained that the normal reaction time in a surprise situation is 1.8 to 2.5 seconds. He believed that in a driver with appellant's blood alcohol level, reaction time would increase by 100 milliseconds. If appellant was traveling at a rate of 60 miles per hour, this slight increase in reaction time would not have prevented the accident. The problem with alcohol consumption is not so much that it significantly increases reaction time, but that it divides a person's attention and makes him likely to overlook or misinterpret situations that require a reaction. If a person tried to avoid a surprise situation, this would suggest that he was alert notwithstanding his blood alcohol level.

Mortimer Moore has a doctorate in physics and is an expert in the area of accident reconstruction. Having reviewed the police reports and preliminary hearing testimony of the various witnesses, he was of the opinion that appellant's collision with the Jeep was an unavoidable accident. He explained that a flashlight (such as that held by Harper to guide traffic) can be washed out by headlights and would have been difficult to see. Although a number of cars avoided hitting the Jeep, the semi truck that was initially stopped on the freeway in the number three or four lanes would have had running lights, and once it left, the visibility situation would have worsened.

Based on the angle of the Buick's impact and testimony by Daniel Hunkins about seeing the collision after the van in which he was riding passed the Jeep, Moore concluded that the Buick was about 11 car lengths (157 to 168 feet) behind the van. This is a safe following distance at freeway speeds.

Moore explained that the driver of the van in front of appellant's Buick would have first seen the overturned Jeep from between 250 to 277 feet away because of the background light from oncoming traffic. Moore estimated that appellant would have seen the Jeep from a distance of 220 to 234 feet, and would have had about a half second less time to react after seeing the Jeep than did the driver of the van, because the van would have blocked the background light and interfered with appellant's ability to see. Moore's opinion was based on the assumption that the van had only moved to the number two lane when Hunkins turned and saw the collision; he conceded that if Hunkins saw the crash from the number three lane, this would indicated that the Buick was following the van at a greater distance.

DISCUSSION

Vehicle Code section 23153 punishes the act of causing bodily harm to another while driving under the influence or with a blood alcohol level of more than .08 percent. In addition to driving a vehicle under the influence or with a prohibited blood alcohol content, the defendant must also "concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle," to be convicted under the statute. (Id., subds. (a) & (b); see People v. Weems (1997) 54 Cal.App.4th 854, 858.) Appellant contends the judgment must be reversed because there is no substantial evidence that he did an unlawful or negligent act in addition to driving under the influence.

Our standard of review is well-established. We view the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible and of solid value, such that a rational trier of fact could find the essential elements of the charge to be true beyond a reasonable doubt. (People v. Lewis (2001) 25 Cal.4th 610, 642.) "That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial." (People v. Holt (1997) 15 Cal.4th 619, 669.) Reversal is unwarranted unless it appears "'that upon no hypothesis whatsoever is there sufficient evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

The prosecution was required to show that Toloski's injuries were caused by an unlawful or negligent act by appellant. It was unnecessary to prove a specific Vehicle Code violation; ordinary negligence is sufficient. (People v. Weems, supra, 54 Cal.App.4th at p. 858.) A driver is negligent when he breaches his duty "to exercise ordinary care at all times to avoid placing himself or others in danger; [and] to use like care to avoid and accident, . . . [and] [to maintain a proper control of his vehicle].'" (People v. Oyaas (1985) 173 Cal.App.3d 663, 669.)

The trial court concluded that appellant failed to exercise ordinary care because he failed to avoid the Jeep, noting that the evidence showed several drivers were able to do so without any problem. Appellant argues that this conclusion was erroneous because the van in front of him obstructed his view of the Jeep, he was not tailgating the van at the time, and his reaction time was not significantly impaired by alcohol. He relies heavily on the opinion offered by his accident reconstruction expert, Dr. Mortimer Moore, who concluded that the collision was unavoidable.

The evidence supports the trial court's verdict. Moore's opinion depended on the underlying fact that a van in front of appellant's car made it impossible for appellant to see the overturned Jeep in time to avoid it. But Roy Harper, a witness to the collision, testified that he did not see another vehicle in the fast lane that would have interfered with appellant's car. Daniel Hunkin's testimony shows that the van in which he was riding was somewhere in front of appellant's car as they approached the Jeep, but that it had moved to the number three lane by the time the accident occurred. In calculating the various distances, Moore had assumed the van was in the number two lane when appellant collided with the Jeep. He acknowledged that if it was actually in the number three lane when Hunkin looked back and saw the accident, the distance between the van and appellant's car would have been considerably greater than the distance that Moore had assumed in support of his opinion that the van obstructed appellant's view. The trial court found that appellant's passenger, Steve Bagley, was not a credible witness because he did not tell the truth about appellant's drinking on the day of the collision. Based on this assessment, it was entitled to similarly disregard Bagley's testimony that the van had interfered with appellant's ability to see the Jeep. The court could reasonably conclude that the collision was not caused by appellant's obstructed view of the overturned Jeep, but by inattentiveness caused by his high blood alcohol level. The failure to observe a hazard that an ordinarily cautious driver would have observed is negligent conduct supporting a conviction under Vehicle Code section 23153.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Raul A. Sahagun, Judge

Superior Court County of Los Angeles

______________________________

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.

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