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District Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee HOLFORD, Defendant and Appellant.

Cr. 9883.

Decided: December 17, 1964

Levy, DeRoy, Geffner, Koszdin & Glow, Los Angeles, Richard J. Cantrell, Long Beach, for appellant. Thomas C. Lynch and Stanley Mosk, Attys. Gen., William E. James, Asst. Atty. Gen., H. Warren Siegel, Deputy Atty. Gen., for respondent.

Following a jury trial appellant was convicted of violating section 20001 of the Vehicle Code, a felony (the driver of a vehicle involved in an accident resulting in injury to another person failing to stop and comply with the requirements of section 20003, Vehicle Code). Upon denial of a motion for a new trial appellant was sentenced to a period of imprisonment in the county jail with probation granted subject to conditions. Appeal from the judgment, from the order denying motion for new trial and from the order granting probation followed.

Frank A. Rink testified that, at about 4:30 p. m. on November 25, 1963, he was driving his white two-door sedan in the center east lane on Rosecrans Boulevard. A light blue Dodge car was just ahead of him in the curb east lane. The blue Dodge suddenly moved into the center lane, striking and caving in the whole of Rink's right front fender, causing Rink to be thrown across and against the passenger's side of his car, and causing his car to cross the double line where it collided head-on with a pickup truck. Rink was seriously injured. No person identified himself at the scene of the accident as the driver of the blue Dodge.

John Posey, a witness, was driving east behind Rink. He saw the accident as above described. He said that a two-tone Dodge or Plymouth contained three males, and did not stop at the scene, but continued on Rosecrans to Paramount, where it turned. Posey followed the automobile and obtained the license plate number. The same license number was also given to the police officers by another person. When the Rink car and the automobile collided, there was a noise, and immediately thereafter, when the headon collision with the truck occurred, there was a loud noise. The Dodge was registered to the appellant and its color was light blue.

Floyd Hathcock, a rider in the rear seat of appellant's car, testified that he looked back after the Rink car and appellant had collided, and he saw a vehicle swerve. He said that appellant wanted to stop because he thought that someone was hurt, but Hathcock advised appellant not to stop because they had been drinking.

Appellant was arrested in a bar later that evening. White paint was found on the left rear bumper of his blue Dodge. At the station appellant had two conversations with the police. At first he denied being on Rosecrans at any time but later he admitted being on Rosecrans; he stated that he was weaving in and out to make time. When he moved into the center lane, he stated that he felt a slight jar and scraping noise. He stated that Hathcock had turned around and told him that the other car ‘went out of control and took another car head-on.’

Paramount was the next intersecting street with Rosecrans following the accident. Appellant turned right on Paramount to Compton Boulevard, then east parallel with Rosecrans some five miles to Lakewood. He then turned left to Rosecrans where he and his passengers stopped in another bar. There was no particular reason why they first left Rosecrans as they were in no hurry and were just driving around.

It is the contention of appellant that the evidence herein is insufficient to show or infer knowledge on his part of injury to any person or persons; that such knowledge was an essential element of the corpus delicti; that it could not be established by the extra-judicial admissions of appellant; that proof of knowledge by independent evidence was necessary in order to lay a foundation for his admissions; that such proof was lacking and he stands convicted without competent evidence of one of the necessary elements of the crime charged.

Knowledge of injury to another person is an essential element of the crime prescribed by section 20001 of the Vehicle Code. (People v. Rallo, 119 Cal.App. 393, 398, 6 P.2d 516; People v. Kuhn, 139 Cal.App.2d 109, 112, 292 P.2d 964.) However, knowledge of injury may, and, as said by the court in Kuhn, supra, (p. 112, 292 P.2d p. 966) ‘* * * must usually be proved by showing the surrounding facts and circumstances which indicate such a knowledge. * * *’

Although appellant herein disclaimed the knowledge of any accident or injury, there is sufficient evidence present, independent of any admissions by appellant, or testimony of alleged accomplices, from which knowledge may be inferred.

The evidence shows that the accident occurred at about 4:30 p. m. on the afternoon of November 25, 1963. It was daylight. Appellant testified that he felt his car bumper get clipped. According to an eyewitness, the injured party's car, when clipped, went immediately over the double line, hit head-on with a pickup truck, and made a very loud noise on impact. Even when the Rink car and appellant's car collided before the major impact, there was a noise audible to an eyewitness in a car behind appellant's. When appellant's car met the Rink car, appellant's car swerved back into the curb lane. This movement could be construed as knowledge that there was a collision.

These facts, together with the evidence showing that loud noises occurring on impact were audible to others in vehicles farther from the point of impact than the appellant, that he did not stop on hearing the noises, that his automobile swerved back to the curb lane and turned to the right at the next intersection, turned left for some miles and then returned to Rosecrans, the street of original travel, are facts, apart from any admissions of appellant or his passengers, from which the jury were reasonably justified in finding that appellant had knowledge his car had been involved in an accident resulting in personal injury. This evidence, from which guilty knowledge may properly be inferred, is sufficient to establish the corpus delicti under section 20001 of the Vehicle Code. (People v. Roche, 49 Cal.App.2d 459, 461–462, 121 P.2d 865; People v. Dallas, 42 Cal.App.2d 596, 601–602, 109 P.2d 409; People v. Graves, 74 Cal.App. 415, 418–420, 240 P. 1019.)

The corpus delicti having been established, evidence of appellant's extrajudicial admissions to the police was admissible. (People v. Roche, supra, 49 Cal.App.2d 459, 461–462, 121 P.2d 865; People v. Bollinger, 196 Cal. 191, 199–200, 237 P. 25.)

Appellant told the police that he was weaving in and out on Rosecrans to make time. When he moved to the center lane, he felt a slight jar of his car, and a scraping noise. He turned around but didn't see what happened. Hathcock, a passenger in the rear seat of his car, told him that the other vehicle went out of control and hit another vehicle head-on. Appellant said he wanted to stop, but was encouraged to leave the scene by his passengers because someone may have been hurt and they had been drinking. Appellant at first denied being on Rosecrans, but later admitted to the police that he had been in the vicinity of the accident.

On the witness stand, appellant admitted that when first questioned by the police he denied that he knew anything about any accident, and admitted that he later told the police he had been ‘clipped’ on Rosecrans. All the above is evidence from which guilty knowledge is shown, or inferred, and is sufficient to uphold the conviction.

Appellant next claims that Hathcock, who was a passenger in the rear seat of appellant's car and who advised appellant of the head-on collision and to leave the scene of the accident, was an accomplice; that as such a conviction may not be had unless the testimony of Hathcock connecting appellant with the crime charged is corroborated.

Section 20003 of the Vehicle Code provides that the ‘driver’ of any vehicle involved in an accident resulting in injury to or death of any person shall, in addition to stopping his vehicle at the scene, perform the other duties prescribed. Section 305 of the Vehicle Code defines a ‘driver’ as a person who drives or is in actual physical control of a vehicle. As said in People v. Green, 96 Cal.App.2d 283, 289, 215 P.2d 127, 131:

‘There are cases which hold that persons other than the actual driver of an automobile may be found guilty of the offense herein charged where it was shown that someone other than the person behind the wheel had control over the operation of the car and committed some act at the time of the accident to aid, abet or encourage the actual driver to leave the scene of the accident in violation of the statute.’ (See People v. Steele, 100 Cal.App. 639, 280 P. 999; People v. Odom, 19 Cal.App.2d 641, 66 P.2d 206; People v. Rallo, 119 Cal.App. 393, 6 P.2d 516; People v. Graves, 74 Cal.App. 415, 240 P. 1019.)

Hathcock was not the driver of the car, or its owner, or in any position with relation to the automobile to entitle him to exercise any control over its operation. Appellant contends, however, that even though Hathcock was a mere passenger in the rear seat, his advice to appellant not to stop because they had been drinking was an act to aid, abet and encourage the driver to leave the scene of the accident, making him liable for the identical offense as the driver (§ 31, Penal Code) and therefore an accomplice. However, a determination of this question is unnecessary since it is manifest 45 Cal.2d 218, 223 et seq., 288 P.2d corroborated that its admission was proper in any event. (People v. Lyons, 50 Cal.2d 245, 257, 324 P.2d 556; People v. MacEwing, 45 cal.2d 218, 223 et seq., 288 P.2d 257.) In fact, appellant concedes that the trial court instructed the jury that Hathcock was an accomplice. The propriety of this instruction is not challenged.

The final point made by appellant is that the trial judge failed to specifically instruct the jury as to knowledge being an essential element of the crime charged. The record discloses, however, that the instructions given by the court fully and adequately covered this subject. By giving CALJIC 974 Rev. the jury was told that in order to convict the defendant they must find that he was knowingly involved in an accident resulting in injury to a person other than himself; that it is a willful failure of the driver involved in an accident resulting in injury to stop and perform the duties enumerated which result in a criminal violation of section 20001. The court also instructed that ‘knowingly’ means knowledge of the facts in question, and that knowledge as an element of the crime could be shown through circumstantial evidence. CALJIC 28; 76.

At the close of oral argument on this appeal counsel, for the first time, raises the question that the admissions of appellant made to the police officers concerning his participation in and knowledge of the accident in question were inadmissible at the trial because he had not first been advised of his right of counsel and to remain silent. He relies on People v. Dorado, 61 A.C. 892, 40 Cal.Rptr. 264, 394 P.2d 952, as to which re-hearing has been granted, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

No factual similarity is here shown with either of the cited cases. The record discloses that the admissions of appellant were voluntarily made soon after his arrest without compulsion or promises; that no request was made by appellant for the presence of or advice of counsel or for any delay in making a statement until counsel could be consulted. No objections on these grounds were advanced by appellant at the trial as to the admissibility of such admissions in evidence through testimony of the police officers. The written briefs on appeal fail to mention the subject.

Considering all of the evidence herein, even exclusive of the testimony as to the admissions of appellant to the arresting officers, the guilt of appellant is abundantly shown, and the receiving of the admissions of appellant did not result in a miscarriage of justice. (People v. Abbott, 47 Cal.2d 362, 374, 303 P.2d 730; People v. McKibben, 136 Cal.App.2d 479, 485, 288 P.2d 633; Cal.Const. Art. VI, § 4 1/2.)

The judgment is affirmed. The appeal from the order denying motion for new trial and from the order granting probation is dismissed.

KINCAID, Justice pro tem.

HERNDON, Acting P. J., and FLEMING, J., concur. Hearing granted; MOSK, J., not participating.

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