People v. Ryan

• Decision Date: 03 February 1981
• Docket Number: Cr. 20726
• Citation: 116 Cal.App.3d 168,171 Cal.Rptr. 854
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Philip Alan RYAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 854

171 Cal.Rptr. 854

116 Cal.App.3d 168

PEOPLE of the State of California, Plaintiff and Respondent, v. Philip Alan RYAN, Defendant and Appellant.

Cr. 20726.

Court of Appeal, First District, Division 4, California.

Feb. 3, 1981.

Hearing Denied April 1, 1981.

Carl B. Shapiro, Shapiro & Shapiro, San Anselmo, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Stanley M. Helfman, Deputy Attys. Gen., for plaintiff and respondent.

CALDECOTT, Presiding Justice.

Philip Alan Ryan (appellant) was convicted following jury trial of felony drunk driving in violation of Vehicle Code ¹ section 23101, subdivision (b) (count One); failure to stop at the scene of accident (hit and run driving causing injury) in violation of section 20001 (count Two); and reckless driving in violation of section 23103 (count Three).

Appellant had filed motions to set aside the information and to suppress evidence pursuant to Penal Code sections 995 and 1538.5, respectively. The motion to suppress evidence was granted and the motion to set aside the information was denied. After a sentencing hearing the court suspended imposition of sentence and placed appellant on supervised probation for the period of three years on condition that he make restitution to the victims, serve six months in county jail and enter a program of counselling or therapy.

On May 31, 1979, at approximately 8:30 p. m., Helen Gross was driving her car west on Sir Francis Drake Boulevard in Fairfax, Marin County. Her young daughter was in the car with her. In the car behind Helen Gross were Greg Duncan and Debra Sullivan. Traffic on Sir Francis Drake Blvd. was sparse and it was still light.

As Gross approached Pastori Street, she saw a dark blue foreign compact car making a left turn. Gross prepared to pass the car on the right; as she did so, instead of completing the turn, the car cut Gross off and proceeded ahead of her on Sir Francis Drake Blvd. When the car was even with hers, she looked at the driver. She described him as about 40 years old, caucasian, with dark facial hair. As a result of this episode, Gross focused her attention on the blue vehicle. Duncan had witnessed the event, and this brought the blue vehicle, a Datsun, to his attention as well.

A short distance up the road, Gross, Sullivan and Duncan saw a person kneeling or squatting next to a Corvette parked next to the curb; they saw the blue Datsun veer or curve toward the person. Gross and Sullivan saw the right front portion of the blue Datsun hit the person and throw him forward a substantial distance. Gross thought she heard the sound of the impact; the driver of the parked car, to whom the victim had been talking, saw and heard the impact. They saw the Datsun stop or pause, then maneuver around the body, and then take off at a high rate of speed. Gross stopped her car immediately and went to the scene to render aid to the victim, who was lying in the street and bleeding heavily from the head. Duncan and Sullivan pursued close behind the fleeing Datsun. There followed a high speed chase, with the Datsun going through stop signs and a red light. Approximately half a mile from the scene of the impact, Duncan and Sullivan caught up to and came alongside the Datsun; Duncan cut the Datsun off and forced it to stop. Sullivan yelled to the driver, "You just hit someone." At this, appellant, who acted as though he did not know what she was talking about but "looked like he did," made a u-turn and took off at a high speed in the opposite direction. Duncan continued to follow close behind. At one intersection, another car was stopped at the stop sign in front of the Datsun; Duncan drove his car next to the Datsun on the left to box it in, and another car stopped behind the Datsun. Finding himself boxed in, the driver of the Datsun banged his car into the car behind him, then banged the car in front of him into the intersection, maneuvered from between the cars, and took off at a high rate of speed, with Duncan and Sullivan following.

At another intersection controlled by a stop light, the light was red when the Datsun approached. The Datsun ran into the concrete divider in the road, and then continued through the red light. This brought the Datsun to the attention of San Anselmo Police Officers Barnett and Johnston, who were in their patrol car, stopped at the intersection for the red light. The officers had heard a police broadcast about the hit and run by a blue Datsun or Toyota. Sullivan yelled to the officers that the Datsun had been in a hit and run accident. Officer Barnett saw that the right front of the Datsun was dented. The officers turned on their emergency lights and siren and pursued the Datsun. The Datsun driver ignored the officers' commands to pull over and stop, and continued to flee.

The Datsun nearly claimed a second victim, but Kenneth Genetti, who was standing at the back of his truck which was parked at the curb, was quick enough to jump out of the Datsun's path. Genetti wrote down the license number of the Datsun and reported it to the police, along with a description of the Datsun. The Datsun then turned onto Greenfield Street, lost control in a curve, and collided into a parked Honda automobile. The officers pulled their vehicle up against the rear of the Datsun, so as to box it in. The officers then got out and approached the driver of the Datsun.

The driver of the Datsun smelled strongly of alcohol. His eyes were glassy and bloodshot. His speech was slow and slurred. He was unable to stand or walk on his own. He was extremely drunk. He was placed under arrest and taken to the police station. Duncan and Sullivan testified that the person they chased was the person arrested. They testified that appellant appeared drunk. On the way to the police station, appellant repeated such statements, as, "Is he okay? He just jumped out in front of me."

Deputies at the county jail noted that appellant was obviously very drunk when he arrived at the jail.

Gross and Genetti were transported to the Datsun; both positively identified it as the car involved in the incidents.

At trial, appellant was identified by the arresting officers as the very drunk driver taken from the Datsun; witnesses Gross, Duncan and Sullivan identified appellant as the driver of the car that struck Pencovic; appellant's Datsun was identified as the offending vehicle by Gross and by Sullivan and Duncan, who had followed it from the point of impact to the end of appellant's flight. Appellant admitted at trial that he was driving the blue Datsun at the time; that he was driving under the influence of alcohol; that he was speeding and driving recklessly; that he ran stop signs; that he was fleeing apprehension by the police because he was driving under the influence of alcohol; that he had been pursued by Duncan's and Sullivan's Cadillac; that he had nearly run down witness Genetti; that he had banged the cars at one intersection; and finally, that he had crashed into the parked Honda. He denied only that he had hit victim Pencovic and fled. He claimed that someone else, driving recklessly in the same area, at the same time, in a car like his, must have hit Pencovic and fled.

I

Appellant first contends that the trial court erred in failing to instruct the jury sua sponte on circumstantial evidence. The thrust of appellant's argument may be stated as follows: (a) criminal liability under section 20001 (hit and run driving) attached only if he knew that injury occurred (People v. Carter (1966) 243 Cal.App.2d 239, 241, 52 Cal.Rptr. 207); (b) the prosecution relied on circumstantial evidence in this case to prove the element of knowledge; (c) as a consequence, the trial court should have given CALJIC 2.01 by explaining to the jury that appellant could be convicted based upon circumstantial evidence if the facts and circumstances were not only entirely consistent with his guilt, but also irreconcilable with any other rational conclusion. ²

In addressing appellant's argument we initially point out that the fact that the elements of a charged offense include mental elements which must be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given such evidence. The rule rather is that the instruction must be given by the court on its own motion only where the case of the People rests substantially or entirely on circumstantial evidence. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49, 286 P.2d 1; People v. Bender (1945) 27 Cal.2d 164, 163 P.2d 8.) However, the instruction need not be given if the circumstantial evidence is only incidental to, or corroborative of, the direct evidence, or where the circumstantial evidence is not equally consistent with a rational conclusion that the defendant is innocent of the crime charged. (People v. Wiley (1976) 18 Cal.3d 162, 175, 133 Cal.Rptr. 135, 554 [116 Cal.App.3d 178] P.2d 881; see also People v. Malbrough (1961) 55 Cal.2d 249, 10 Cal.Rptr. 632, 359 P.2d 30; People v. Morrisson (1979) 92 Cal.App.3d 787, 155 Cal.Rptr. 152; People v. Blankenship (1959) 171 Cal.App.2d 66, 340 P.2d 282.)

In the case at bench, direct evidence by eye witnesses was introduced showing that appellant's car struck the victim throwing him forward into the street, that after the impact appellant paused or stopped his car, backed up and maneuvered around the victim's body and then fled at a high rate of speed, leaving the seriously injured victim behind.

The significance of the above-stated evidence is at least threefold. One, the commission of the crime here was proven primarily by direct evidence of which the circumstantial evidence was only corroborative. As stated in People v. Wiley, supra, 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881, the instruction is not necessary when the evidence of defendant's guilt is...