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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruben Corrales ACOSTA, Defendant and Appellant.

Cr. 5306.

Decided: May 09, 1955

Ellery E. Cuff, Public Defender, William H. Sanson, Noel B. Martin, Deputy Public Defenders, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Marvin Gross, Deputy Atty. Gen., for respondent.

Appellant was charged by information in Count I with grand theft of an automobile. Count II with the violation of Section 503 of the Vehicle Code involving a taxicab. Count III with manslaughter and Count IV with manslaughter. A jury found defendant guilty of Counts II, III and IV and not guilty of Count I.

The appeal is from the judgment as to Count II only and in that connection it is contended that,


‘The evidence failed to establish a corpus delicti in this: that the prosecution established, by direct testimony, complete disproof of the union, or joint operation, of act and criminal intent in the series of acts immediately preceding the next following the driver's abandonment of the cab.


‘Appellant's defense was that, having by misadventure found himself the sole occupant of the moving cab, all that followed was the result of accident and misfortune, and without criminal intent. It was, therefore, prejudicial error on the part of the trial court to refuse appellant's requested instruction, CALJIC 71–E.


‘The trial court's failed to instruct the jury sua sponte on the law covering appellant's defense of accident and misfortune is reversible error.’

The issue is somewhat technical. Inasmuch as it is principally a factual question, the evidence in part, as recited in appellant's brief, is as follows:

‘The appellant is a Mexican agricultural worker lawfully in the United States. On April 3, 1954, he was employed at the Kito Ranch situated on the westerly side of Hawthorne Boulevard between the intersection of that street with Sepulveda Boulevard and its intersection with Highway 101. Appellant could not speak English.

‘On the afternoon of April 3, 1954, appellant borrowed $5.00 from friends and, in company with others, left the Kito Ranch and went to the El Toro Cafe in Torrance, California. He remained there approximately five hours, spending practically all of his money buying rounds of drinks and playing the music box. He himself had four or five bottles of beer.

‘On leaving the El Toro Cafe, appellant went with a friend to another cafe, Tony's Place, at 2409 Redondo Beach Boulevard in the extreme northeasterly section of Redondo Beach and a short distance from Hawthorne Boulevard, where music was being played and dancing was in progress. Appellant watched for a time, then began dancing alone, making something of a nuisance of himself. Because his actions were a distraction to the enter-tainment of other patrons, he was expelled from the cafe. He promptly came back through the side door and again began dancing alone, whereupon the police were called and appellant was removed from the cafe. Through the proprietor of Tony's Place, who acted as an interpreter, the police talked to appellant. When the officers asked about dancing by himself, appellant said he just wanted to have a little fun. He had no money to pay for a cab, whereupon the proprietor agreed to pay the charge if appellant were taken home.

‘The proprietor of Tony's Place at first thought he was under the influence of liquor but did not smell alcohol on appellant's breath. He talked clear, walked straight, and there was nothing in his speech indicating intoxication.

‘The cab driver, Frank Griffith, does not speak or understand Spanish. He picked up appellant as a fare at Tony's Place about 10:00 p. m., with instructions to take him to Kito's Ranch.

‘About a year previously a fare of Griffith, who was sitting in the front seat, had attempted to rob him and Griffith on that occasion has escaped by opening the door and rolling out of the cab.

‘Appellant was in the back seat. As the cab was being driven south on Hawthorne Boulevard, traveling thirty to thirty-five miles an hour, when within three or four minutes of the intersection of Hawthorne with Sepulveda Boulevard, appellant began speaking in Spanish to the cab driver. But he, not understanding Spanish, did not know what appellant was saying, and kept on driving. At the Sepulveda Boulevard stop sign the cab came to a halt.

‘But when the cab was about three blocks south of Sepulveda, a certain series of acts began between the cab driver and appellant about which there is substantial divergence in the testimony of the parties involved.

“The cab driver testified appellant then reached across, grabbed his clipboard (a board about fifteen inches long and nine inches wide with a metal clip to hold papers) and struck at him, then made a spring at him, both of which were blocked; the cab driver struck appellant with a flashlight; that appellant struck back with ‘judo or something’, whereupon the cab driver, when the car was going ten to fifteen miles an hour, headed the car into the ditch, opened his door and rolled out.

‘The cab driver, not understanding appellant, thought he was going to be robbed. The car kept on going and the last the cab driver saw of appellant be was in the back seat.

‘On April 3, 1954, about 10:00 p. m., Hugh Douglas Von Delden, with his wife Patricia Gill Von Delden, age twenty-three years, and their child of nine months, was driving his automobile on Highway 101. At the intersection with Hawthorne Boulevard the signal was green. In the intersection his automobile was hit broadside by the cab aforesaid, resulting in the death of his wife and child.’

‘Appellant testified in chief that he believed the cab was being driven in the wrong direction; that he was not being taken back to Kito's Ranch; that he then, and before reaching Sepulveda, asked the cab driver to stop several times but he did not stop; that the only thing he did was to raise his hand and ask the driver to stop; that the driver struck him on the forehead; that after passing an intersection the driver jumped out and he did not see him again; that he did not know the neighborhood; that the car kept in the middle of the street and he stayed in the back seat; that he reached across and took hold of the steering wheel; that the car slowed up a little; that at the time of the accident it was going fast; that he had handled cars very little but had driven on accasion; that he did not crawl over into the front seat; that he was on the left side of the car holding on to the steering wheel with both hands; that he did not intend to take the car from the driver or have him leave the car with him in it or drive it on the highway.

‘Further light is shed on what took place between appellant and the cab driver after the cab stopped at Sepulveda by the witnesses Mora, Korbi and Racine.’

Section 503 of the Vehicle Code provides that ‘Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, * * * shall be punished * * *.’

The incident was somewhat fantastic but the fact remains that the cab driver rolled out and abandoned the car. The evidence in no sense establishes a single element of the offense charged. Appellant did not drive or ‘take’ the car with intent to deprive the owner of possession. The doctrine of reasonable doubt as well as other applicable doctrines are still in full force and effect. The predicament of the defendant obviously was the result of the abandonment of the cab by the driver. Whether the driver was justified in so doing is beside the issue.

The judgment as to Count II is reversed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.