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District Court of Appeal, Third District, California.


Cr. 2347.

Decided: August 04, 1952

Smith & Zeller, Stockton, for appellant. Gail A. Strader, Dep. Atty. Gen., for respondent.

This is an appeal from a conviction of the crime of manslaughter following a trial before the court sitting without a jury.

A detailed summary of the evidence shows that during the early morning hours of Sunday, October 14, 1951 the defendant Costa, accompanied by three other young men, drove from Lodi to Stockton for the purpose of attending a party, and on the way Costa stopped and purchased a half case of beer. Shortly after the purchase of the beer and approximately a half hour before the accident Costa was stopped for speeding by a highway patrolman at a point more than 12 miles from the scene of the accident. Defendant was not given a citation. The officer stated that at the time he noticed that Costa had a probationary license; that he didn't want to give defendant a citation without being definite as to his speed; that he reprimanded Costa and warned him that if he got a citation he would lose his license. The officer further testified that he pursued Costa for approximately 4 miles and that his speed on the Stockton-Lodi Freeway was as high as 70 miles per hour, but that on the side road where he was stopped it was 55. The officer further testified that he noticed that Costa had been drinking from the odor on his breath, but not enough to cause him to be examined. Costa, being unable to find the house where the party was held and after being so stopped, continued on his way back to Lodi. All of this testimony was objected to by defendant, but his objections, as well as his motion to strike, were denied by the court. Just prior to the fatal accident he passed another highway patrol car at a speed estimated by the officers as between 80 and 90 miles per hour. The patrol car was parked approximately 100 to 150 feet west of the freeway. The officers immediately gave chase and testified that they had reached a point approximately a quarter of a mile or more to the rear of the Costa car when the accident occurred. They both testified that from the point where they first saw Costa to the scene of the accident he passed three or four cars, each time driving from the right-hand lane to the passing lane, and again returning to the right-hand lane after passing the cars; that they were driving in the passing lane at all times, their top speed during this time was 92 miles per hour.

Officer Sked, the driver of the police car, did not testify at the trial. However the record of the preliminary hearing was introduced in evidence and hence was before the court. His testimony was that when he first saw defendant's car approximately 2 miles from the accident it was going 80 to 85 miles per hour; that he immediately gave chase from a point from where their patrol car was parked 100 to 150 feet west of the freeway, a four-line divided highway; that they crossed the same and then turned north; that the police car reached a top speed of 90 to 92 miles per hour; that as he neared the Costa car he saw two sets of tail lights—one set in the right lane and those of Costa in the passing lane; that he was too far away to see the relative positions of the two cars ahead; that when they were approximately one-quarter of a mile behind the Costa car he saw one set of tail lights suddenly veer to the left; that he didn't see where the lights came from; that after he arrived at the scene of the accident he talked to Costa who stated he had consumed a couple of cans of beer and that he guessed he was going too fast.

The testimony of Officer Marshall, who was riding with Sked, was substantially the same. However the likened the view of the cars ahead of them to a ‘triangle of three tail lights', one being in the right-hand lane, one in the passing lane and those of Costa immediately behind; that a car then moved, blotting out one set of tail lights and the next instant a set of tail lights went off the road in a sharp curve; that he couldn't identify the lights of the jeep; that at that time they were slowly gaining on Costa; that he and several bystanders helped right the jeep; that Marino, the driver of the jeep and victim of the accident, was unconscious, as were the three passengers; that about 5 or 10 minutes later Marino regained consciousness, said he was the driver and when the officer asked, ‘What happened?’ he replied ‘The man hit us in the rear.’

One of the passengers in Costa's car was asleep when the accident occurred and had no knowledge of any of the facts.

A second passenger was not called.

The testimony of the third passenger, a member of the armed forces, appears by way of deposition. He testified that he was 5 feet 4 1/212 inches in height; that he was sitting in back, on the right-hand side; that he observed the speedometer most of the time and that it showed a speed of 90 miles per hour; that he first saw the jeep when it was about 40 yards away and directly in front of the Cadillac; that the jeep was not going very fast; that it was passing the car on the right; that he could only see the top of the jeep; that it was directly in front of Costa; and that the jeep did not change its position in the lane from the time he first saw it until the accident. On cross-examination, when he was asked if following the accident he had discussed ‘the accident with the Highway Patrolmen, either Officer Stone or any other officer?’, he replied, ‘No, sir’. After further cross-examination he said that he believed he did talk with an officer who was in the court room and to some of the men in his company at Fort Ord. Later in his examination he admitted talking to some one from the district attorney's office; and also stated that he had talked with highway partolmen after the accident.

Costa, who testified in his own behalf, concurred with much of the other testimony. However he placed the speed of his car at about 70 to 75 miles per hour. Regarding the actual happening of the accident, his testimony was that as he approached a cross street known as Armstrong Road he looked to the right and left for cross traffic; that he then proceeded to pass the car on his right; that he looked at the car on his right; that when he again looked to the front he saw the jeep for the first time; that the jeep was then proceeding on an angle across the passing lane; and the left front portion of his car hit the left rear portion of the jeep. A statement of Costa's given to highway patrol officers about an hour after the accident was substantially the same as that which he gave at the trial.

None of the three passengers in the jeep were called nor were any of the occupants of the third car. Although nothing appears in the record concerning the persons in the jeep, the officers stated that the other car drove away before its occupants could be questioned or the car identified.

Two main contentions are made by defendant. However, since it appears the judgment must be reversed because of prejudicial errror in the admission of certain evidence over defendant's timely objections thereto, it becomes unnecessary to discuss his remaining arguments.

It is his contention that the testimony of Officer Nicol should have been excluded as being ‘incompetent, irrelevant and immaterial and remote’, that its admission was highly prejudicial to appellant's cause in that it could have no other effect than to create a feeling that appellant was a person who habitually drove fast and often while drinking.

Specifically, Officer Nicol testified that ‘I had just had another violator stopped when I first observed him.’ His testimony continued: ‘I asked him why he was speeding and he couldn't give me any reason just stated that he realized he was wrong and that he shouldn't have been doing that and I asked him for his driver's license which he showed me and I noticed that it was a probationary license and I didn't want to prosecute the man unfairly by issuing him a citation without being definite as to his speed so I reprimanded him for driving like that and warned him that he had a probationary license and that if he got a citation or was in violation of the law that he would lose his license and he assured me that he would drive more carefully in the future, and I released him on that basis.’ He concluded his testimony with the observation that Costa had been drinking lightly, but ‘not enough for me to cause him to be examined or anything.’

Defendant also contends that the evidence as to his probationary license, particularly that elicited from himself upon cross-examination, should have been excluded. This testimony was to the effect that at the time of the accident he had what he termed a ‘conditional license’, the condition being that he not drive while drinking. The condition imposed thereon, however, had expired on August 8, 1950, over a year prior to the accident. Appellant, merely by directing a letter to the Department of Motor Vehicles, requesting issuance of a regular license, could have discontinued using this license marked ‘Probationary’. This however he had not yet done.

In reply to such contention respondent argues that such prior acts were relevant for the purpose of showing the ‘state of mind’ of appellant at the time of the collision, ‘to wit, his gross negligence and disregard of the welfare and safety of others on the highway.’

It is axiomatic that any evidence in order to be admissible must be relevant to the issues to be determined.

In People v. Coltrin, 5 Cal.2d 649, 656, 55 P.2d 1161, 1164, the court in discussing the admission into evidence of prior criminal acts said:

‘* * * where an offense is of such a nature that proof of the act with which the defendant is charged is not in itself proof of the required criminal intent and where additional proof of such intent is necessary to prove the crime charged, evidence of other offenses of a similar nature committed by the defendant is admissible for the purpose of proving intent.’ See also People v. Clapp. 67 Cal.App.2d 197, 153 P.2d 758 (murder); People v. Coilins, 80 Cal.App.2d 526, 182 P.2d 585 (abortion and murder); People v. Jackson, 36 Cal.2d 281, 223 P.2d 236 (murder); People v. Thompson, 85 Cal.App.2d 261, 192 P.2d 802 (embezzlement).

Therefore, since the intent to kill is not an element of the crime of involuntary manslaughter, Penal Code, Sec. 192, subd. 3(a); People v. Barnett, 77 Cal.App.2d 299, 175 P.2d 237; People v. Miller, 114 Cal.App. 293, 299 P. 742, the admission of such evidence in the present case had no basis whatsoever.

Gross negligence like ordinary negligence is not absolute but always relates to some circumstance of time, place or person and likewise is determined by the trier of fact from a consideration of those factors. Malone v. Clemow, 111 Cal.App. 13, 18, 295 P. 70.

We are unable to see how the evidence as to appellant's having been speeding at a remote prior time and place (on the facts here it must be said to be remote) and of his having a probationary driver's license, the limitation of which had expired, is relevant to a determination of whether his conduct at the time and place of the accident was grossly negligent.

While it is true a conviction will not be reversed merely because of error in the admission of evidence, but ‘Even convincing proof of a defendant's guilt does not necessarily mean, under all circumstances, that there has been no miscarriage of justice.’ People v. Gilliland, 39 Cal.App.2d 250, 265, 103 P.2d 179, 187. In that case the court, in discussing what constitutes a ‘miscarriage of justice’ as used in Article VI, Section 4 1/212, of the Constitution, said:

‘We do not understand section 4 1/212 of article VI of the Constitution as intended to mean that merely because the evidence may legally be able to stand up under the weight of the judgment, that is sufficient reason in all cases for refusing to set aside the judgment. [Citation] The phrase ‘miscarriage of justice’ as used in the constitutional provision has no hard or fast definition, and as was said in People v. Wilson, 23 Cal.App. 513, 138 P. 971, 975, ‘does not simply mean that a guilty man has escaped, or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. * * *

‘* * * While deviation from the prescribed rules of law governing trials may result in justice for the particular defendant who is before the bar, it is dangerous to the community and its citizens.. As was said by Chief Justice Hughes of the United States Supreme Court not so long ago, ‘In our system, the individual finds security in his rights because he is entitled to the protection of tribunals that represent the capacity of the community for impartial judgment as free as possible from the passion of the moment and the demands of interest or privilege.’ When, as here, we are unable to say ‘whether appellants would or would not have been convicted but for the errors of the court,’ we must direct a reversal. [Citation] We do not regard the evidence in this case as sufficient to put into operation the saving grace of section 4 1/212 of article VI of the Constitution. Even convincing proof of a defendant's guilt does not necessarily mean, under all circumstances, that there has been no miscarriage of justice.'

In People v. Newson, 37 Cal.2d 34, 45, 230 P.2d 618, 624, the court said:

‘If it cannot be said that, in the absence of the error complained of, a different verdict would have been improbable, the erroneous ruling constitutes a miscarriage of justice, within the meaning of the constitutional provision.’ (Emphasis added.)

In People v. Reese, 65 Cal.App.2d 329, 337, 150 P.2d 571, 576, this court said:

“In a close case where the evidence is sharply conflicting, substantial and serious errors vital to defendant that may have resulted in a miscarriage of justice must be regarded as prejudicial and grounds for reversal.”

Even though we assume that the evidence properly introduced would be sufficient in the present case to support the judgment, yet here, as in People v. Burness, 53 Cal.App.2d 214, 222, 127 P.2d 623, 626, ‘we are unable to conclude that defendant would have been convicted had the error not occurred.’ It can not be denied that the case is close and hence the evidence improperly admitted may have been the determining factor in swinging the scales against appellant.

We do not overlook the fact that here the court was the trier of fact rather than a jury. However, in the absence of anything to the contrary in the record, the admission over objection of the evidence here under attack shows that the court, at least to a degree, considered it material to the issues presented. Such being the case, the judgment must be reversed. Grace v. Carpenter, 42 Cal.App.2d 301, 108 P.2d 701. To hold otherwise would be to sanction one rule of evidence for those who would demand a jury trial and to sanction an entirely different rule to the prejudice of all who would prefer to have their cause heard before the court.

The judgment is reversed.

PEEK, Justice.

VAN DYKE, J., and SCHOTTKY, J. pro tem., concur.