People v. Clark
| Decision Date | 17 April 1962 |
| Docket Number | Cr. 35 |
| Citation | 202 Cal.App.2d 513,20 Cal.Rptr. 803 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Lyle CLARK, Defendant and Appellant. |
T. N. Petersen, Merced, for appellant.
Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Raymond Momboisse, Deputy Atty. Gen., Sacramento, for respondent.
The defendant, Lyle Clark, was charged in the information with the crime of 'drunk driving with bodily injury' in violation of section 23101 of the California Vehicle Code, in that on or about the 22nd day of April, 1961, in the County of Merced, he did '* * * wilfully and unlawfully, while under the influence of intoxicating liquor drive a motor vehicle upon a public highway and while driving said vehicle did an act forbidden by law, and neglected a duty imposed by law in driving said vehicle, which act and neglect proximately caused bodily injury to Carolyn Geisbrecht.'
The first trial of the defendant resulted in a jury disagreement. On the second trial, which lasted five days, the jury brought in a verdict of guilty. The defendant thereafter moved for a new trial, which was denied, and the court granted him probation for the term of three years, the first six months to be served in the county jail.
The appeal is '* * * from the judgment on verdict of conviction entered thereon * * * and from the order denying new trial * * *.' Although there is actually no final judgment of conviction in the case, section 1237, subdivision 1, of the Penal Code provides that an order granting probation is deemed to be a final judgment for the purpose of appeal, and we so consider it.
In order to make clear the circumstances applying to the claim of error, it is necessary briefly to review the evidence in the case.
On April 22, 1961, the defendant was driving a 1953 Studebaker automobile at the rate of about 30 miles per hour on Winton Way near Winton, California. He crossed the Santa Fe railroad tracks, made a left turn onto Santa Fe Avenue and drove parallel to the tracks in a general northwesterly direction on that avenue. A 1951 G.M.C. pickup truck was approaching Clark from the opposite direction. It was driven by Larry Mininger, a teenager, who had three other young people riding in his cab, including Carolyn Geisbrecht. The pickup truck was in its righthand lane, going about 30 miles an hour. Defendant's Studebaker crossed over the white line and hit the left front portion of the truck. The impact occurred about three feet from the center line of that road. The tire marks from defendant's car started in his own right lane, swerved into his left lane, and turned back into his right lane. Carolyn Geisbrecht, who was in the pickup, was injured. The defendant himself received a cut on the head and suffered a brain concussion resulting in retrograde amnesia.
After the close of the first trial, defendant claimed that increased memory returned to him and that he could recall a second car approaching him in his own right lane just before the collision. He said that he swerved to his left to miss this third car and came into collision with the Mininger motor vehicle; the defendant did not mention this alleged fact during the first trial. His story was supported at the second trial by a young witness named Sam Barnett, who said he was riding as a passenger in the left back seat of a car traveling on Winton Way which crossed the Santa Fe tracks some distance behind the defendant's car. Barnett testified that when he looked to his left down Santa Fe Avenue he saw the taillights of the Clark car and two sets of headlights approaching the Clark car in an opposite direction along Santa Fe Avenue. He then saw the car with taillights collide with the car whose headlights were in the left or westerly lane. The third car swerved around the taillights and turned off Santa Fe Avenue into Park Avenue, sideswiping a tree at the corner; he said he recognized the latter vehicle as belonging to one Koehn. Sam Barnett was the only witness, besides the defendant, who testified to the presence of a third automobile; however, Mrs. Clark, wife of the defendant, said that the defendant had mentioned something of the sort to her at the hospital shortly after the collision.
The jury evidently did not believe the story about the third car that was vouched for by the defendant, and there are many elements of evidence which run counter to the defendant's contention. For example, Buddy Mancebo, who was driving the automobile in which Barnett rode as a passenger, testified that when his car reached the Santa Fe Railway tracks he could see the flares on the road where the accident had happened and saw no moving cars; in other words, his testimony was to the effect that he reached the scene of the collision a considerable time after it occurred, and if his testimony were believed, obviously Barnett's evidence was untruthful.
The occupants of the pickup truck with which the defendant collided testified that there was no third car at the scene of the accident, and the two Koehns gave evidence that their automobile was not involved and was nowhere near the area when the collision occurred. Furthermore, the witness Barnett had previously stated that he had not witnessed the accident. There was an attempt on the part of defendant to show through the testimony of an expert witness that certain paint removed from his right rear fender months after the accident was left there by the collision with the Koehn automobile. However, the expert testified that there was no lacquer found in these samples of paint removed from the Clark car, and there was evidence that the primer used on the Koehn car contained lacquer as part of its composition. There was testimony that when appellant's automobile was towed into the junk yard immediately after the collision, there were no paint smears or other indications of damage on the right rear fender. It is not surprising therefore that the jury believed that the marks that were on the fender at the time of the trial were not on it immediately after the accident and that the story about the presence of the Koehn car as a causative factor of the collision was not true.
There was also evidence that sometime after the accident appellant met Mr. Mininger and then said that he felt he was to blame for what had occurred, that he was willing to pay for any damage suffered, including all hospital expenses; also, that he was guilty and that he would admit the reckless driving charge, but he did not feel that he was drunk. At that time he made no claim that a third vehicle was involved in the accident.
However, this court does not purport to pass on the evidence as no claim is made by the appellant that it is insufficient to support the verdict.
In order to prove felony drunk driving, the People had the burden of establishing beyond all reasonable doubt the following elements of the...
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