People v. Eagles, Cr. 10641

• Decision Date: 30 June 1982
• Docket Number: Cr. 10641
• Citation: 133 Cal.App.3d 330,183 Cal.Rptr. 784
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Raymond EAGLES, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 784

183 Cal.Rptr. 784

133 Cal.App.3d 330

PEOPLE of the State of California, Plaintiff and Respondent, v. John Raymond EAGLES, Jr., Defendant and Appellant.

Cr. 10641.

Court of Appeal, Third District, California.

June 30, 1982.

As Modified July 19, 1982.

Hearing Denied Aug. 25, 1982.

Quin Denvir, State Public Defender, and Roy M. Dahlberg, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., and Robert D. Marshall and Susan Rankin Bunting, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Acting Presiding Justice.

Defendant John Raymond Eagles, Jr., appeals from a judgment of conviction of three counts of vehicular manslaughter with gross negligence, in violation of Penal Code section 192, subdivision 3, ¹ and from the sentence of three consecutive terms of imprisonment. He was acquitted of three counts of second degree murder. We affirm the judgment.

FACTS

Shortly before midnight on February 11, 1979, an automobile driven by defendant entered the intersection of Watt and El Camino Avenues in Sacramento at a high rate of speed and against a red light and struck another automobile, killing two of its occupants and one of the passengers in defendant's car and injuring nine other persons. ² There were numerous witnesses to the collision and to defendant's driving conduct immediately prior thereto.

Frederick Roloff testified that as he completed a left turn from Auburn Boulevard onto Watt Avenue, defendant's car passed him at a speed of about 80 miles per hour. Recovering from his "initial shock," Roloff accelerated to about 60 miles per hour, but defendant continued to pull away at a speed Roloff estimated as 90 to 100 miles per hour, ³ during which defendant "went through" a red light. From a parking lot off Watt Avenue James Byrd saw defendant's automobile "streak" by at a speed he estimated as "going faster than eighty," perhaps "over a hundred miles an hour."

As Kathleen Hicks approached the intersection of Watt and El Camino, traveling southbound on Watt, she observed defendant's car as it came up behind her "very rapidly," passed her "really flying ... going a good 70 or 75" and proceeded into the intersection against a red light, without braking. Michael Bard was stopped in a northbound lane on Watt waiting for the light to change. He estimated defendant's car was traveling "[p]robably between 60 and 70 miles an hour." James Giannelli, also stopped in a northbound lane on Watt, thought defendant's car was going "about 75." Edward Burger, similarly situated, estimated its speed at 60 to 65 miles per hour. The posted speed limit was 35 miles per hour.

A Highway Patrol Multidisciplinary Accident Investigation team reconstructed the accident on the basis of skid marks, scratches and gouges in the pavement and on the damage to the vehicles and where they came to rest. Dewey Brown, a California Department of Transportation traffic engineer assigned to the team, thereupon calculated the speeds of the vehicles upon impact, concluding that defendant's Camaro was traveling 62.46 miles per hour and the Pinto he struck was traveling 36.77 miles per hour, "plus or minus two miles an hour." Another member of the investigatory team, Aelred Sauer, a Highway Patrol safety inspector and mechanic with special expertise regarding motor vehicle brakes, testified that in his opinion the brakes and brake lights on defendant's car were operable at the time of the collision. A highway patrolman testified that the absence of skid marks before the point of impact indicated defendant's brakes were not applied.

Defendant testified and admitted exceeding the posted speed limit on Watt Avenue, but insisted that "[e]verybody travels that fast at that time of night." He denied driving through a red light at the intersection of Watt Avenue and Auburn Boulevard and estimated that he was traveling between 55 and 60 miles per hour when he passed Roloff. He also denied that the light was red at Watt and Whitney when he drove through it. He admitted accelerating at one point to "about 70" in response to a comment that his car was "gutless," but said he had slowed to about 55 or 60 miles per hour as he approached El Camino Avenue, where he noticed traffic was stopped for a red light. At that moment one of his passengers asked him to change a tape and he looked down "to see which tape to put in." When he looked up, the stopped cars were "close." As he braked, his automobile "jerked" to the left and he swerved around the cars and into the intersection at a speed of about 50 miles per hour.

William Rennert, a passenger in defendant's car, estimated defendant was driving 40 to 45 miles per hour along Watt Avenue, but that he "kicked up the speed a little bit" to 55 or 60 in response to the derogatory comment on his car's performance and they approached El Camino Avenue at a speed of about 55 miles per hour. From his position in the back seat he could not see the traffic lights, but no one made any comment regarding them. He did not feel any braking or deceleration as they entered the intersection of Watt and El Camino.

In an effort to corroborate his denial that he passed through red lights at Auburn Boulevard and Whitney Avenue, defendant produced an accident investigator who testified, on the basis of signal "timing sheets" and experiments he conducted retracing Roloff's progress onto and along Watt Avenue, that the signals were timed so that the lights must have been green for defendant. ⁴ The investigator also questioned the accuracy of Roloff's estimate of the speed of a passing car at night. He did the same in regard to witness Byrd's estimate of defendant's speed as he passed the parking lot in which Byrd was standing; he performed an experiment purporting to show that defendant's speed must have been about 60 miles per hour if Byrd was able to walk out of the parking lot to the sidewalk and observe the car for as long as he said he did.

Defendant also produced an expert witness, William R. Neuman, a professor of civil engineering at California State University, Sacramento, who calculated, based on estimates of the weight of the cars and the manner in which they skidded, that defendant's car was traveling 54.47 miles per hour and the Pinto 37.16.

DISCUSSION

I

Defendant was found guilty of three counts of vehicle manslaughter, which the jury was told was the killing of a human being proximately caused in the driving of a vehicle by the commission of an unlawful act, a violation of the basic speed law, with gross negligence. ⁵ It was instructed on the basic speed law (Veh.Code, § 22350) and traffic control law (Veh.Code, § 21453) and that a violation of each is inherently dangerous to human life or safety.

Defendant makes no claim on appeal that his driving conduct was not unlawful or inherently dangerous to human life or safety. Rather, he contends that the trial court erred in preventing him from presenting evidence of the average speed of traffic observed on Watt Avenue on a night sometime after the accident to establish the "standard of care" required for gross negligence. ⁶

Defendant argues for the first time on appeal that "the question whether or not [his] driving was marked by a gross 'failure to exercise care' was one of fact for the jury alone and ... the actions of other similarly situated drivers was absolutely relevant to that factual determination." He now agrees with the trial court that the conduct of other drivers is not the measure of negligence.

Defendant's argument comes too late. "It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal. [Citations.]" (People v. Welch (1972) 8 Cal.3d 106, 114-115, 104 Cal.Rptr. 217, 501 P.2d 225; see also People v. Richards (1976) 17 Cal.3d 614, 618, fn. 1, 131 Cal.Rptr. 537, 552 P.2d 97; People v. Privitera (1979) 23 Cal.3d 697, 710, 153 Cal.Rptr. 431, 591 P.2d 919.) Defendant tendered the issue on an improper theory resulting in a ruling predicated upon the theory. He cannot switch horses on appeal. Assuming a correct theory could have been tendered, the court nonetheless could have excluded the evidence. ⁷

In any event, defendant was not prejudiced by the exclusion of the evidence. He was permitted to testify, over and over, that, in his experience (he had driven the same route "[a] lot of times"), "[e]verybody travels that fast at that time of night." He said he noticed several other cars traveling at the same speed, 55 to 60 miles per hour, on the night of the accident. He considered it safe to drive at that speed on Watt and always did so, in keeping with the flow of traffic. Moreover, on cross-examination, prosecution witness Roloff stated that in his opinion it was safe, for him at least, given his experience and his Porsche, to drive 60 miles per hour on Watt Avenue. And another prosecution witness testified that "cars do whiz by on Watt Avenue, ... all the time" and that he had seen cars exceeding the speed limit there before. He estimated that the other cars he observed that night were traveling between 40 and 50 miles per hour.

Finally, the overwhelming nature of the evidence against defendant renders it highly improbable that he was prejudiced by the error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) A number of eyewitnesses saw defendant traveling at speeds far in excess of the posted speed limit on Watt Avenue. One of them tried to catch up with defendant, but defendant's car continued to pull away from him rapidly, though the witness reached a speed of 60 miles per hour. Even the evidence most favorable to defendant indicates that his car entered the intersection of Watt and El Camino Avenues against a red light and at a...