People v. Johnson

Decision Date07 October 1964
Docket NumberCr. 9541
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. James Phillip JOHNSON, Defendant and Appellant

Joseph Ash, Panorama City, Drake & Ackerman, William A. Drake and Harold J. Ackerman, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., Edwin M. Osborne, Chief Crim. Deputy, and Edwin L. Laing, Deputy Dist. Atty., for plaintiff and respondent.

FILES, Justice.

Defendant was charged by an information alleging a violation of Vehicle Code, section 23101, 1 commonly called felony drunk driving. He pleaded not guilty and waived a jury trial. Counsel then stipulated that the case be submitted to the court upon the police and laboratory reports, the transcript of the testimony taken at the preliminary examination, the transcript of the testimony of Dr. Brown taken in a proceeding to perpetuate testimony, and the testimony of Dr. Ridge. It was further stipulated that the sample of defendant's blood, tested following the accident, contained .17 per cent alcohol. No evidence was offered on behalf of defendant. The court found defendant guilty, then suspended proceedings and granted probation. Defendant is appealing from the order granting probation, which is reviewable as an appeal from the judgment. Defendant has also purported to appeal from the order denying his motion for a new trial, from which no separate appeal is allowed. (Pen.Code, § 1237.)

The record contains evidence of the following circumstances:

Defendant, driving northbound on Harbor Boulevard near the City of Ventura about 5:30 p. m. on February 8, 1963, collided with a southbound vehicle. The driver of the latter vehicle sustained a broken leg and other bodily injuries. Harbor Boulevard is a two-lane road, each lane being 12 feet in width, with a seven-foot improved shoulder on each side. It was raining. Visibility was obscured, but it was not yet dark enough that cars were using headlights. Southbound traffic was heavy.

Deputy Sheriff Miley testified at the preliminary examination that immediately prior to the collision he and his partner were driving the second car ahead of defendant in the northbound lane about 55 miles an hour. Deputy Miley observed in his rear view mirror that defendant was driving about 5 to 10 feet behind the car which was following the sheriff's car. Defendant was 'right on the other car's tail.' Deputy Miley saw defendant make three or four attempts to pass the car ahead. On the final attempt, defendant pulled out to his left and when he was about even with the bumper of the car ahead, he ran head-on into the southbound vehicle. The deputies stopped, turned back, and gave first aid to the occupants of the wrecked vehicles.

Deputy Miley observed defendant's condition and talked with him immediately after the accident. His breath was alcoholic and his face was flushed. The deputy was of the opinion that defendant was under the influence of alcohol. No filed tests for sobriety were attempted.

Dr. David Warren Brown, resident physician at the County Hospital, examined defendant in the emergency room between 8 and 9 p. m. With defendant's consent Dr. Brown took a blood sample which was turned over to a highway patrolman. Dr. Brown conversed with defendant and treated the abrasions and lacerations on defendant's head, neck and body. Defendant said he had been drinking. He had the smell of alcohol on his breath. Dr. Brown testified: 'I felt, according to my examination and the way the patient responded to questioning, and his answers that he gave to questions, and also his general performance doing simple things during the examination, that he was probably under the influence of alcohol.'

The 'Intoxication Report' prepared by the state highway patrol officer who observed defendant at the hospital noted that defendant's speech was 'slurred.'

Dr. Gerald K. Ridge testified that he was a licensed physician exeperienced in forensic chemistry for law enforcement agencies. In the opinion of Dr. Ridge, any person whose blood alcohol is as much as .10 per cent is sufficiently under the influence of alcohol to impair his skills and render him an unsafe operator of a motor vehicle. Dr. Ridge testified: 'So far as I know, there is no essential disagreement with this level among the authorities in this field here in this country. The previous level prior to about two years ago was .150, which was based upon work that had been done up to that time.'

The evidence is sufficient to support the trial court's finding that at the time of the collision defendant was under the influence of intoxicating liquor within the meaning of Vehicle Code, section 23101. Defendant's attack on the evidence is no more than an argument as to the weight of the evidence and as to what inferences should be drawn from the uncontradicted facts. Such an argument is foreclosed by the familiar rule that the appellate court must assume in favor of the judgment every fact which the trial court could reasonably have deduced from the evidence. (People v. Redrick, 55 Cal.2d 282, 289, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Daugherty, 40 Cal.2d 876, 884-885, 256 P.2d 911.) This court cannot say that the trial court could not reasonably have inferred that defendant was under the influence of alcohol at the time of the collision.

Defendant also attacks the conviction upon the ground that the information fails to state a public offense. The information here states: 'The District Attorney of the County of Ventura hereby accuses JAMES PHILLIP JOHNSON of the crime of violation of Section 23101 of the Vehicle Code in that on or about February 8, 1963, in the County of Ventura, State of California, while under the influence of intoxicating liquor, he did drive a vehicle and when so driving did an act forbidden by law in the driving of such vehicle, which act proximately caused bodily injury to Emilliano Reynaldo Leonis.'

Defendant's position is that both the statute itself and the pleading, which is in the words of the statute, are lacking in the specific detail necessary to apprise the defendant of the conduct which is forbidden.

The criticism of section 23101 is that it refers to 'any act forbidden by law * * * in the driving of such vehicle.' Defendant argues that the section is defective in that it fails to specify the acts which are forbidden. The cases upon which defendant relies for authority deal with a problem which is not involved in the application of this statute. In re Peppers, 189 Cal. 682, 209 P. 896, overturned a statute which forbade the shipment of oranges 'when frosted to the extent of endangering the the reputation of the citrus undustry, if shipped.' The court concluded that a shipper could not reasonably be expected to know enough about the reputation of the citrus industry to know which oranges would endanger that reputation.

People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974, involved a statute which made it a crime to be guilty of harsh or unkind treatment of an insane person. The court reviewed the various meanings of the words 'harsh' and 'unkind,' and concluded that those words 'do not provide an ascertainable standard of conduct or a workable standard of guilt.' (49 Cal.2d at p. 416, 317 P.2d at p. 978.)

In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116, declared void that portion of Penal Code, section 647, which declared that 'every common drunkard' is punishable as a vagrant. After examining the various possible meanings of the words of the statute, the court concluded the words 'common drunkard' were unconstitutionally vague, uncertain and incapable of being uniformly enforced.

The language which defendant criticizes in Vehicle Code, section 23101, does not have a variety of meanings in common usage. A statute does not lack precision when it refers to 'any act forbidden by law * * * in the driving of such vehicle.' Every operator of a motor vehicle is required to know what acts are forbidden by law. This standard is not vague or uncertain. This is the standard of conduct imposed upon every driver, whether or not he is under the influence of alcohol.

Defendant points to a dictum in People v. Clenney, 165 Cal.App.2d 241, 253, 331 P.2d 696,...

To continue reading

Request your trial
9 cases
  • People v. Armitage
    • United States
    • California Court of Appeals Court of Appeals
    • August 24, 1987
    ...Cal.App.2d at pp. 252-253, 219 Cal.Rptr. 243.) But as the Court of Appeal for the Second District later noted in People v. Johnson (1964) 230 Cal.App.2d 80, 40 Cal.Rptr. 711, "[t]he language of the statute does indeed contain a limitation: it refers to any act forbidden by law in the drivin......
  • People v. Mary H., F071282
    • United States
    • California Court of Appeals Court of Appeals
    • November 7, 2016
    ...653 [" ‘dangerous' "]; People v. Agnello (1968) 259 Cal.App.2d 785, 790, 66 Cal.Rptr. 571 [" ‘likely’ "]; People v. Johnson (1964) 230 Cal.App.2d 80, 83–84, 40 Cal.Rptr. 711 [" ‘forbidden by law’ "].)10 Mary also claims the evidence did not establish she "was assessed by [a] designated prof......
  • People v. Hathaway
    • United States
    • California Court of Appeals Court of Appeals
    • August 2, 1972
    ...55 Cal.2d 655, 657, 12 Cal.Rptr. 500, 361 P.2d 32; People v. Jordan, 19 Cal.App.3d 362, 369--370, 97 Cal.Rptr. 570; People v. Johnson, 230 Cal.App.2d 80, 86, 40 Cal.Rptr. 711.) The evidence presented to the grand jury relating to the charges against defendant, if uncontradicted, shows that ......
  • Logan v. Warden, 6034
    • United States
    • Nevada Supreme Court
    • June 23, 1970
    ...55 Cal.2d 655, 12 Cal.Rptr. 500, 361 P.2d 32 (1961); People v. Roberts, 40 Cal.2d 483, 254 P.2d 501 (1953); People v. Johnson, 230 Cal.App.2d 80, 40 Cal.Rptr. 711 (1964). The basis for the California rule is that each defendant is entitled to a copy of the preliminary hearing transcript or ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT