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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. U–Akbar Sharrieff BISMILLAH, Defendant and Appellant.

No. A058207.

Decided: January 20, 1994

Norton Tooby, Oakland, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., René A. Chacón, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

U–Akbar Sharrieff Bismillah (appellant) appeals from his conviction, following a jury trial, of (a) felony driving under the influence of alcohol or drugs, causing injury to another (former Veh.Code,1 § 23153, subd. (a))—with an enhancement under section 23182 for causing injury to more than one person—San Francisco Police Officers David Smith and Albert Pardini;  (b) felony flight from a police officer, causing injury to another (former § 2800.2);  and (c) misdemeanor battery on a peace officer—San Francisco Police Officer Alan McCann (Pen.Code, § 243, subd. (b)).  Appellant advances a plethora of arguments why his felony convictions should be overturned—one of which is meritorious.   He also advances one argument pertaining to both the felony convictions and the misdemeanor conviction which is not meritorious.   Accordingly, we reverse the felony convictions and affirm the misdemeanor conviction.

I. Factual Background

In People v. Bismillah (1989) 208 Cal.App.3d 80, 256 Cal.Rptr. 25 (Bismillah I ), this court determined that the dismissal of charges against appellant by the San Francisco Superior Court was improper.   Following our decision, an amended information was filed, adding several counts to the charges against appellant.   Just prior to trial, two of the counts of the amended information were dismissed, and the case proceeded to trial on five counts—the three of which appellant was convicted and two counts of felony assault with a deadly weapon.   Appellant was found not guilty of the latter charges, assaulting Officers Smith and Pardini by ramming their police car with the vehicle he was driving.

The evidence introduced by the prosecution was substantially identical to the facts recited in Bismillah I.   On July 9, 1987, at approximately 7:30 p.m., Officer McCann stopped a vehicle driven by appellant for making an illegal left turn at the corner of Broadway and Columbus.   There were two passengers in the car.   Officer McCann determined that appellant did not have a driver's license with him;  a call to the police communications department informed Officer McCann that appellant's license had been suspended.   Officer McCann also concluded that appellant was under the influence of alcohol.   When Officer McCann told appellant that he was going to administer a field coordination test, appellant ran back to his car and jumped in;  when Officer McCann tried to grab the ignition key, appellant pushed him away and drove off.

Officer Pardini testified that he and Officer Smith received a radio call at roughly 7:50 p.m. regarding the vehicle which had been driven away from Officer McCann.   They responded by getting on the Bay Bridge, heading east.   As soon as they were on the bridge, they saw appellant's car with a police motorcycle following it.   Officer Pardini pulled in behind appellant's car at which point appellant accelerated and pulled to the right.   Officer Pardini then activated his lights and siren.   Appellant's vehicle continued across the bridge at approximately 70 miles per hour, swerving from lane to lane.

When appellant reached the flats on the Oakland side of the bridge, Officer Pardini closed the gap between his car and appellant's.   Appellant's car suddenly slowed down and Officer Pardini's car hit appellant's car three times before he could back off far enough to avoid further collisions.   Appellant's car then headed east on Interstate 80 and immediately took the Powell Street offramp in Emeryville.   Officer Pardini passed appellant's car on the offramp and pulled in front of it.   When Officer Pardini tried to slow down to force appellant's car to stop, appellant moved to the left, a move matched by Officer Pardini.   At that point appellant's car struck Officer Pardini's.   After that contact, Officer Pardini moved his vehicle farther ahead but was struck once more by appellant's car.   Officer Pardini then braked, and both cars came to a stop.   Officers Pardini and Smith got out of their vehicle and eventually arrested appellant.   Both officers Pardini and Smith sustained back injuries as a result of the collision(s) between their vehicle and appellant's.

The defense presented evidence from several witnesses, including appellant.   Appellant testified that after he was stopped by Officer McCann for making an illegal left turn, he was told that his car had to be towed because he was driving with a suspended license.   Appellant was extremely upset because he needed to return the car to his wife who needed it to get to her night job.   However, the officer would not let him move it.   Appellant believed he was being treated unfairly;  so he returned to his car and drove eastward on the Bay Bridge.   He saw a sign informing him that he was in Oakland and heard a siren.   Although he turned on his emergency flashers to let the officers know that he saw them, he was unable to stop due to his phobias of bridges and water.

Appellant also testified that he was followed by several police cars, one of which sped up and rammed the back of his car two or three times.   Appellant sped away to protect himself.   He pulled over at the first exit (the Powell Street exit) after getting off the bridge.   Once he exited, he pulled all the way over to the right hand lane and began to slow to a stop.   One officer sped past him, put his car in reverse, and came back to appellant's car.   Stephen Allums, appellant's younger brother, was with appellant during the entire incident which led to his arrest (the incident).   His version of the incident was essentially the same as his brother's.

Appellant also presented testimony from Tony Sabatasso, a forensic psychologist.   Sabatasso confirmed that appellant suffered from fear of heights (including crossing bridges) and water.   He also reviewed appellant's medical records and determined that appellant's phobias existed for some time before the incident.

II. The Trial Court's Failure to Define “Proximate Cause” Requires Reversal

Former section 23153, subdivision (a), read in pertinent part as follows:  “It is unlawful for any person, while under the influence of an alcoholic beverage or any drug ․ to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”  (Emphasis added.)

Former section 2800.2 read, in pertinent part, as follows:  “Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or bodily injury to any person, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison․”  (Emphasis added.)

The trial court gave detailed instructions which set forth the individual elements the prosecution was required to prove beyond a reasonable doubt in order to convict appellant of violating each section.   The court instructed the jury that, in order to prove a violation of former section 23153, subdivision (a), the prosecution had to demonstrate that someone was injured “[a]s a proximate result” of appellant's violation of some law or failure to perform some duty while under the influence of alcohol, drugs or both.   The court instructed the jury that, in order to establish a violation of former section 2800.2, the prosecution had to prove the “willful flight or attempt to elude or evade a pursuing peace officer proximately caused death or bodily injury to a person.”   However, the trial court was not asked to instruct nor did it instruct the jury on the definition of “proximate result” or “proximate cause.”   Appellant argues that such instructions were required, sua sponte, and that the failure so to instruct constitutes reversible error.

“A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are ‘commonly understood by those familiar with the English language’;  it does have such a duty where the terms have a ‘technical meaning peculiar to the law.’  [Citations.]”  (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816, italics in original.)   Here, there is no question that the term “proximate cause” is a term of art, having a “technical meaning peculiar to the law.”   The California Supreme Court recently wrestled with the concept in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872.   In Mitchell the Supreme Court quoted from Dean Prosser, in noting that it is “ ‘․ a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried․’ ”  (Id., at p. 1048, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   Moreover, the Use Note for CALJIC No. 3.40 (proximate cause) indicates that the instruction should be given sua sponte if the jury must determine whether or not a defendant's act was the proximate cause of the result of the crime.

Respondent does not seriously contest the fact that an instruction on proximate cause should have been given.   Instead, respondent argues that no prejudice flowed from the failure to give it under the facts of this case.   We disagree.

The jury acquitted appellant on the charges of assaulting Officers Smith and Pardini.   That acquittal indicates that the jury either disbelieved certain aspects of respondent's version of the incident or at least had a reasonable doubt as to some aspects of it.

It is possible that the jury determined that the contact between appellant's vehicle and the officers' vehicle was completely accidental or was caused by the officers' independent, intervening actions and still convicted appellant of violating sections 23153, subdivision (a), and 2800.2 under the instructions given.   While such contact was the actual or direct cause of the injuries, it does not necessarily flow that appellant's (a) violation of the law or breach of some duty, while driving intoxicated or under the influence of drugs, or (b) evasion of the officers was the proximate cause of the injuries.   It was the jury's province to determine that issue—something they were unable to do without an instruction on proximate cause.   Thus, we cannot conclude that the failure to instruct on proximate cause was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 21, 87 S.Ct. 824, 826–27, 17 L.Ed.2d 705.)

III. No Errors Were Made in the Jury Selection Process ***

IV. Conclusion

Appellant's convictions of violating sections 23153, subdivision (a) and 2800.2 are reversed.   Appellant's conviction of misdemeanor battery on a peace officer is affirmed.2


1.   Unless otherwise noted, all further statutory references are to the Vehicle Code.

FOOTNOTE.   See footnote *, ante.

2.   Pursuant to this court's miscellaneous order No. 93–1 filed on November 1, 1993, appellant is deemed to have challenged the constitutionality of CALJIC No. 2.90 (reasonable doubt instruction) based on Sandoval v. California, certiorari granted September 28, 1993, 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789, and that challenge is rejected for the reasons stated in People v. Jennings (1991) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009.

ANDERSON, Presiding Justice.

POCHÉ and PERLEY, JJ., concur.

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