People v. Clenney, Cr. 3522

CourtCalifornia Court of Appeals
Citation165 Cal.App.2d 241,331 P.2d 696
Decision Date18 November 1958
Docket NumberCr. 3522
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Richard CLENNEY, Defendant and Appellant.

Conrad B. Reisch, South San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

ST. CLAIR, Justice pro tem.

This is an appeal from a judgment entered on November 13, 1957. The judgment, in its recital, refers to 'the judgment of the above entitled Court on the 18th day of October, 1957, finding defendant guilty of a violation of Section 505(a) of the California Vehicle Code, a lesser included offense within the crime of violation of Section 501 of the said Vehicle Code, as charged in said information.'

Both defendant and plaintiff diligently briefed and earnestly argued the pros and cons of whether or not there was sufficient evidence to sustain a conviction of violation of section 505(a) of the Vehicle Code. In view of our disposition of this appeal, it is not necessary to detail the evidence or to determine the last posed question. Such facts as may be needed from the record will be set forth.

On the October 18th referred to in the judgment from which this appeal was taken, the following was said orally, from the bench, by the learned trial judge: 'The Court: I have read the cases cited by both Counsel. While the District Attorney has presented evidence tending to show intoxication, the scientific and expert evidence show that the blood and breath tests in this case were lower than the standards set by the National Safety Council to determine intoxication.

'There is evidence both ways on this question, and it is my duty as Judge under the law to give the defendant. I feel that doubt to the defendant. I feel that there is reasonable doubt on this question and I also feel that there is reasonable doubt on the question of an unlawful act.

'The fact that the defendant left 47 feet of skid marks shows me he saw the Ochoa car and made an effort to stop, and I think this is relevant evidence he wasn't intoxicated.

'The Ochoa girl has been seriously injured and has a civil action for damages, but this is a criminal action and I must give the defendant the benefit of the doubt.

'I therefore find the defendant not guilty of violation of Section 501 of the Vehicle Code. I do, however, feel that there is evidence showing the defendant was not, at the time of the accident, exercising due care for the safety of other persons on the highway.

'Therefore, I am going to find him guilty of the lesser included offense of reckless driving, namely, 505(a) of the Vehicle Code * * *.'

The rule is well established that oral opinions of the trial judge may be used to interpret, but may not be used to impeach, his order. People v. Hudson, 97 Cal.App.2d 572, 218 P.2d 60.

No mention was made in the order of November 13, 1957, concerning any finding of not guilty of a violation of section 501 of the Vehicle Code. The only order that was made, and the only one before us, is a conviction of section 505(a), as a lesser and included crime to that charged in the information to wit, of section 501 of the Vehicle Code.

The information filed against defendant charged in part as follows: '* * * Violation, Section 501, Vehicle Code, California, in that on or about the 19th day of May, 1957, in the County of San Mateo, State of California, he did drive a vehicle while under the influence of intoxicating liquor and in so doing did an act forbidden by law, which act proximately caused bodily injury to other persons * * *.'

The pertinent portion of said section 501 of the Vehicle Code reads as follows: 'Any person who, while under the influence of intoxicating liquor, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself is guilty of a felony * * *.'

Section 505(a) of the Vehicle Code provides in part: 'Any person who drives any vehicle upon a highway in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving * * *.'

Both defendant and plaintiff argued at length as to whether or not section 505(a) of the Vehicle Code is a lesser and included crime within the crime of violation of section 501 of the Vehicle Code. To this we will advert later, but note should be here made of one important item that was not discussed by either side.

The defendant filed a demurrer to the information upon the following ground, among others: '3. In conformity to the provisions of Section 1005 [Penal Code] the grounds of objection to the accusatory pleading are distinctly specified as follows: That it does not state nor can it be ascertained therefrom what, if any, act forbidden by law was done by the defendant and that the defendant is not informed by said pleading, nor is he put on notice of what he must be prepared to defend against.

'Wherefore, defendant prays that said information be dismissed or that in the alternative this Court make its order requiring the amendment of said information so that it conforms to law.'

The demurrer was overruled. The matter of law raised by the demurrer is properly before this court on this appeal. 3 Cal.Jur.2d, § 89, p. 539.

Is driving an automobile while under the influence of intoxicating liquor per se a wilful and wanton disregard for the safety of persons or property?

The plaintiff's unusual position is that any person who is under the influence of intoxicating liquor and who, while in that condition, operates a motor vehicle is guilty of wilful and wanton disregard for the safety of persons or property and therefore violates section 505(a) per se. To support this contention the People cite the accident record of drivers who have been drinking (California Motor Vehicle Traffic Accidents December and Annual, 1957, Statewide) and state that a person is intoxicated within the purview of this section if intoxicating liquor has 'so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in the manner like that of an ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.' People v. Haeussler, 41 Cal.2d 252, 261, 260 P.2d 8, 13. The full and correct quotation is: 'Objection is made to the definition of 'under the influence of intoxicating liquor' given in instructions to the jury. They were told that it was unnecessary to find that Mrs. Haeussler was 'drunk' or 'intoxicated'; it would be sufficient if it were found that intoxicating liquor had 'so far affected the nervous system, brain or muscles as to impair to an appreciable degree the ability to operate the vehicle in a manner like that of a ordinarily prudent and cautious person in the full possession of his faculties, using reasonable care and under like conditions.' The degree to which a person must be influenced by alcohol to warrant a conviction under section 501 of the Vehicle Code is correctly stated in the instruction.'

In the Haeussler case the Supreme Court went on expressly to disapprove the dicta in Taylor v. Joyce, 4 Cal.App.2d 612, 41 P.2d 967, and People v. Lewis, 4 Cal.App.2d Supp. 775, 37 P.2d 752, that "under the influence of intoxicating liquor" is synonymous with "intoxicated'.' It did hold, however, that the last named two cases are correct insofar as they hold that a person who is intoxicated is under the influence of intoxicating liquor.

In People v. McGrath, 94 Cal.App. 520, 271 P. 549, the information charged a violation of section 502 of the Vehicle Code. The jury requested and after some discussion was given permission to bring in a verdict of reckless driving which they did and judgment was entered accordingly. The appellate court reversed this conviction. They reasoned that since the legal definition of the offense of reckless driving is not embraced in the legal definition of the offense of driving while under the influence of intoxicating liquor, it is not a lesser included offense.

Plaintiff has cited People v. Marshall, 48 Cal.2d 394, 309 [165 Cal.App.2d 247] P.2d 456. That court, in a footnote, comments on the McGrath case, stating: 'The appellate court correctly holds that the offense of which defendant was convicted was not necessarily included in the offense charged, because a person can drive carefully even though he is under the influence of intoxicating liquor. * * *.' 48 Cal.2d at page 398, 309 P.2d at page 458.

In People v. Graybehl, 67 Cal.App.2d 210 at page 216, 153 P.2d 771, at page 774 (cited by respondent) the court said: 'As above noted, in order to constitute the offense of which appellant was convicted under Section 501 of the Vehicle Code, there must be an unlawful act or neglect of legal duty in addition to the unlawful act of driving an automobile while under the influence of intoxicating liquor, and that such additional unlawful act or neglect must be a proximate cause of the bodily injury.'

To the same effect, see Whitlock v. Superior Court, 97 Cal.App.2d 26, where, at pages 29-30, 217 P.2d 158, at page 160, the court said: 'Assuming, but not deciding, that the evidence was sufficient to show that Whitlock was under the influence of intoxicating liquor, there was no affirmative showing that he did anything or neglected to do anything that caused the collision, or which act or neglect proximately caused injury to any person. In the absence of such a showing we conclude that he was held to answer without reasonable or probable cause. * * *'

In People v. Boulware, 41 Cal.App.2d 268, 106 P.2d 436, the court held that, even assuming the defendant was driving while under the influence of intoxicating liquor, he was...

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