People v. Butler, Cr. A

• Decision Date: 09 May 1978
• Docket Number: Cr. A
• Citation: 81 Cal.App.3d Supp. 6,146 Cal.Rptr. 856
• Court: California Superior Court
• Parties: 81 Cal.App.3d Supp. 6 The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Ray BUTLER, Defendant and Appellant. 16049. Appellate Department, Superior Court, Los Angeles County, California

Page 856

146 Cal.Rptr. 856

81 Cal.App.3d Supp. 6

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Ray BUTLER, Defendant and Appellant.

Cr. A. 16049.

Appellate Department, Superior Court, Los Angeles County, California.

May 9, 1978.

Stephen R. Butler, Norwalk, for defendant and appellant.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and respondent.

COLE, Presiding Judge.

Vehicle Code section 21658 ¹ states "Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: P (a) A vehicle shall be driven as nearly as practical entirely within a single land and shall not be moved from the lane until such movement can be made with reasonable safety. . . ." (Emphasis added.)

Appellant was convicted of violating this section. The trial court found that appellant failed to drive within a single lane but also held that there was no showing that any movement of appellant's vehicle was in any way unsafe.

The sole question presented on this appeal is whether the emphasized word "and" is to be read in the conjunctive, with the result that appellant's conduct did not violate the statute, or whether it is to be read disjunctively, as the trial court read it, so that a violation occurs either when a driver straddles a lane or when he changes lanes unsafely. We agree with the trial court and affirm.

Section 21658, subdivision (a) is in that portion of the Vehicle Code defining "rules of the road." Section 40000.1 provides that, with exceptions not relevant here, it is unlawful and constitutes an infraction to violate any provision of the Vehicle Code. It is our view that section 21658, subdivision (a) simply states two affirmative duties placed upon the operator of a motor vehicle. One of these is to drive as nearly as practicable entirely within one lane. A separate duty is not to move from that lane until the movement can be made with reasonable safety.

It has been stated with respect to the predecessor to section 21658 (former section 526) that it "is plainly intended to regulate the use of lanes, and not the making of turns . . . ." (Moore v. Miller (1942) 51 Cal.App.2d 674, 682, 125 P.2d 576, 580.) That purpose is carried out by interpreting the requirements of the statute in the disjunctive. This conclusion is confirmed by Moore itself, where the court said "It is contended that defendant violated this provision both when he swerved to the right and when he turned to the left. Upon the evidence it seems more likely that defendant's swerve to the right brought him into compliance with this provision of the code, for he had previously been straddling the line between two lanes . . . ." (Ibid., emphasis added.)

It is true that the word "and" is often used in the conjunctive. To so interpret it here would mean that motorists were free to ignore lane markings so long as they did not make an unsafe movement. Such an interpretation would have clearly deleterious effects on the ordinary flow of traffic. It is not compelled since, to carry out the legislative intention "and" can be interpreted as meaning "or." (Bianco v. Ind. Acc. Com. (1944) 24 Cal.2d 584, 587, 150 P.2d 806 and cases there cited.) We interpret "and" as used in subdivision (a) of Vehicle Code section 21658 to be read as "or."

The judgment is affirmed.

BIGELOW, J., concurs.

PACHT, Judge, dissenting.

I dissent.

While authority cited by the majority notes that ...