Bailey v. Superior Court

• Decision Date: 18 February 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Joe H. BAILEY, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF VENTURA, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 35503.

Page 436

84 Cal.Rptr. 436

4 Cal.App.3d 513

Joe H. BAILEY, Petitioner, v. SUPERIOR COURT OF the State of California, COUNTY OF VENTURA, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Civ. 35503.

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

Feb. 18, 1970.

Hearing Denied April 15, 1970.

Richard E. Erwin, Public Defender, and Donald G. Griffin, Deputy Public Defender, for petitioner.

Woodruff J. Deem, Dist. Atty., and James R. Moore, Deputy Dist. Atty., for respondent and real party in interest

ALARCON, Associate Justice pro tem. ^*

Petitioner seeks to restrain respondent court from proceeding against him upon an information charging him with violating the 'hit and run' provisions of Vehicle Code, Section 20001. ¹ The accident giving rise to the charges ² occurred on May 19, 1969. Following the preliminary hearing, defendant was held to answer. He entered a plea of not guilty to the information and trial was set for October 14, 1969. On the latter date, on defendant's motion, the court allowed withdrawal of the not guilty plea. Upon the filing of a first amended information on October 14, 1969, defendant, relying upon BYERS V. SUPERIOR COURT, 71 CAL.2D ---, 80 CAL.RPTR. 553, 458 P.2D 465,^A decided on September 16, 1969, filed a demurrer upon grounds that the facts stated therein did not constitute public offenses because the alleged noncompliance by defendant with section 20001 was excused by law, and that as applied to defendant the provisions of section 20001 were unconstitutional as of May 19, 1969, because they violated his privilege against self-incrimination. Upon the demurrer being overruled, defendant moved to set aside the information pursuant to the provisions of Penal Code, section 995. This motion was denied and defendant now seeks a writ of prohibition.

From the evidence received at the preliminary examination, the following facts appear. On May 19, 1969, at approximately 12:00 a.m. the vehicle driven by William Cornelius Swan, in which his wife was riding as a passenger, was travelling east on Los Angeles Avenue, between First and Second Streets, in Simi, California, at about 35 to 40 miles per hour. Mr. Swan testified that 'the pickup truck turned suddenly in front of me, and after the accident I realized that it was a pickup truck. At the moment I couldn't see it, because of headlights, what it was'; that the other vehicle was about 20 feet in front of him when its driver made the turn and that his vehicle collided with the right front of the truck. This is the entire description of the accident, with the exception of a slight clarification upon cross-examination of Mr. Swan when defense counsel asked: 'I gather, Mr. Swan, from what you say, this pickup truck turned to its left in front of you, is that correct?' Mr. Swan answered: 'Yes, he made a left turn in front of me.'

Mr. Swan testified that, after the impact, he got out of his car and looked towards the pickup which was about ten feet away at that time. He saw the defendant standing about halfway between himself and the truck. Mr. Swan then realized that his own foot was broken and sat down in his car. Bystanders arrived and one of them placed some bandages on his forehead which was 'bleeding pretty badly' and made him lie down in the front seat of the car. He testified that his wife was badly injured, suffering various contusions around the face. The two injured parties were subsequently taken to a hospital in an ambulance. There is no indication as to who called the ambulance. Mr. Swan testified that he had 'no conversation with the defendant whatsoever' and that defendant did not in any way assist him.

A highway patrol officer arrived at the scene and observed the two vehicles which had been involved in the accident,--a '59 Ford Pickup and a '61 Chrysler hardtop. He checked the registration on the pickup which indicated that it was registered to a Joe H. Bailey in Simi. He inquired but no such person was present at that time, and people at the scene reported that the driver of the pickup had left. On the afternoon of May 19, an officer of the highway patrol had a conversation with defendant at the latter's home in Simi. At first defendant denied driving the pickup truck and stated that he had just arrived home from Los Angeles approximately fifty minutes before the officer arrived at his home. He later admitted that he was driving the pickup in the early morning hours of May 19, 1969 and that he was in an accident. He told the officer that he had no recollection of leaving the scene of the accident and did not remember how he got home.

The Supreme Court, in BYERS V. SUPERIOR COURT, SUPRA, 71 CAL.2D ---, 80 CAL.RPTR. 553, 458 P.2D 465,^B holds that the privilege against self-incrimination 'is applicable when a driver of a motor vehicle involved in an accident is confronted with a statutory requirement to stop and divulge his identity and reasonably believes that compliance with the statute will result in self-incrimination.' (P. 1091, 80 Cal.Rptr. p. 559, 458 P.2d p. 471.) The court holds, however, that compliance with the statute there in question (Vehicle Code, section 20002, subn. (a)) is not excused by the existence of the privilege since the privilege is satisfied by precluding prosecuting authorities from using information divulged in compliance therewith. The court, in enunciating this use-restriction rule for the first time in California, states that 'we must, in order to fulfill our responsibility to protect the privilege against self-incrimination, hold that where compliance with section 20002 of the Vehicle Code would otherwise be excused by an assertion of the privilege, compliance is, as in other cases, mandatory and state prosecuting authorities are precluded from using the information disclosed as a result of compliance or its fruits in connection with any criminal prosecution related to the accident.' (Pp. 1100--1101, 80 Cal.Rptr. p. 565, 458 P.2d p. 487.)

In the Byers case, defendant was charged not only with violation of Vehicle Code section 20002, but with improper and unsafe passing in violation of section 21750 of the Vehicle Code, and there was a stipulation of counsel that the two alleged violations arose out of the same occurrence. Based upon this record, the Supreme Court held that the trial court correctly concluded that 'at the time of the accident Byers had reasonable ground to apprehend that if he stopped to identify himself as required by section 20002 of the Vehicle Code he would confront a substantial hazard of self-incrimination.' (P. 1101, 80 Cal.Rptr. p. 565, 458 P.2d p. 487.) The court states (p. 1102, 80 Cal.Rptr. p. 566, 458 P.2d p. 488.): 'Byers had a reasonable basis for fearing that compliance with the 'hit-and-run' statute would produce incriminating evidence which could be used against him in a criminal prosecution. At the time of the accident, Byers' claim of privilege was not supported by then-controlling decisions. This court now holds that the privilege against self-incrimination is applicable to such a case, as Byers urges, but we also establish today for the first time restrictions on the use of information disclosed in compliance with the 'hit-and-run' statute, and on the basis of such restrictions, we hold that compliance with the statute is not excused by the existence of the privilege. * * * Byers did not expressly claim the privilege when he left the scene of the accident, but if he had stopped to do so, he would in the light of existing law thereby have rendered nugatory any claim of privilege.' The court concluded that 'it would be unfair to hold that although Byers correctly asserted that the Fifth Amendment privilege was applicable to the question of his compliance with the 'hit-and-run' statute he should have complied because of the use-restrictions which he could only have speculated might exist.' Accordingly, the court affirmed the judgment of the superior court granting a writ of prohibition restraining further proceedings in the justice court on the count charging a violation of section 20002, subdivision (a), of the Vehicle Code.

Petitioner contends that, although the Byers case involved section 20002 of the Vehicle Code, 'the clear import of the decision was that the rationale employed by the court was equally applicable to Vehicle Code section 20001'; that the evidence taken at the preliminary hearing shows that 'petitioner made a sudden turn in front of the complaining witness' automobile, a prima facie violation of Vehicle Code Section 21801(a)', thus presenting a basis for the claim of the privilege against self-incrimination; that petitioner, like the defendant in the Byers case, 'could not have known of the doctrine of 'use-restrictions' announced by the Supreme Court by its decision of September 16, 1969, therefore petitioner, like Byers, cannot be punished for his alleged noncompliance with said statute.'

The People contend that in this case the privilege against self-incrimination should not be a defense to section 20001, urging the theory that the State may condition the enjoyment of a benefit or privilege on the nonassertion of a constitutional right where the utility of imposing such a condition manifestly outweights any resulting impairment of the constitutional right, citing Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 503--507, 55 Cal.Rptr. 401, 421 P.2d 409. It is conceded that a somewhat similar argument made by the People with regard to section 20002 in Byers was rejected by the court 'because there it was found that the purpose of section 20002 of the Vehicle Code could be achieved by a means unoffensive to the privilege against self-incrimination. The court in Byers found that the purpose of 20002 was merely the facilitation of civil recovery between property owners involved in non-injury traffic accidents.' The People contend 'that by virtue of the broader scope and weightier...