People v. Schoonover

• Decision Date: 05 March 1970
• Docket Number: Cr. 3678
• Citation: 5 Cal.App.3d 101,85 Cal.Rptr. 69
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Dick SCHOONOVER, Defendant and Appellant.

Page 69

85 Cal.Rptr. 69

5 Cal.App.3d 101

PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Dick SCHOONOVER, Defendant and Appellant.

Cr. 3678.

Court of Appeal, Fourth District, Division 2, California.

March 5, 1970.

[5 Cal.App.3d 103] Richard J. Weller, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert F. Katz, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

GARDNER, Associate Justice.

This is an appeal by the defendant after his conviction by a jury of two counts of violations of Vehicle Code, § 23101.

At approximately 6 p.m. on March 30, 1968, a Mr. and Mrs. Lenz were driving east on Foothill Boulevard in San Bernardino. The defendant, coming from the opposite direction, crossed the double line and hit the Lenz car headon, causing serious injuries to mr. and Mrs. Lenz. The defendant was incoherent, and his breath was strongly alcoholic. He had trouble maintaining his balance and his speech was slurred. Because the defendant had received a blow on the head, he was not given the usual roadside test, but a sample of his blood was taken which showed that he and a blood alcohol content of .20 per cent. An expert testified that a person with such a blood alcohol content would be under the influence of alcohol and could not operate a motor vehicle as safely as would a normal, sober person. The defendant testified that he had two or three glasses of beer, did not remember the accident, only that he opened the window windwing vent or air vent, dirt got in his eye, and he woke up in the hospital.

Defendant does not challenge the sufficiency of the evidence to sustain the verdict of the jury.

His contentions are as follows:

I.

THAT THE INFORMATION WAS NOT SUFFICIENT TO CHARGE THE COMMISSION OF A PUBLIC OFFENSE, AND THE GENERAL VERDICTS BASED ON THE DEFECTIVE INFORMATION MUST BE REVERSED.

The essence of this complaint appears to be that the information, although phrased in the language of the applicable statute, does not provide adequate forewarning of any possible acts forbidden by law which he was charged with committing.

The information in each count charged the defendant with violation of section 23101 of the Vehicle Code, in that 'He did unlawfully drive a vehicle, while under the influence of intoxicating liquor and in an unlawful manner, proximately causing bodily injury to * * * a human being.'

This contention is answered squarely by the case of People v. Johnson, 230 Cal.App.2d 80, 83, 40 Cal.Rptr. 711, 713, in which an information was sustained that charged:

"* * * while under the influence of intoxicating liquor, he (the defendant) did drive a vehicle and when so driving did an act forbidden by law * * * which act proximately caused bodily injury to (the victim)."

There, too, the defendant attacked the pleading as lacking in sufficient detail to apprise him of the nature of the forbidden conduct of which he was accused. However, at page 84, 40 Cal.Rptr. at page 713, the court held:

'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.'

In holding that the information met the due process requirement that a defendant receive adequate notice, the curt in the Johnson case noted that the defendant had access to the transcript of the preliminary hearing which contained testimony that the defendant tried to pass another vehicle without sufficient clearance, thus apprising him at the trial of the unlawful act with which he was charged.

In the instant case the act forbidden by law was shown to have been sharply crossing the center line of the highway. From all indications in the record, testimony to this effect was presented at the preliminary hearing, the transcript of which was in possession of defense counsel at the trial.

Under any circumstances, if the defendant, in fact, felt prior to trial that no adequate notice was given as to the 'act forbidden by law' which was charged against him, he could have filed a special demurrer.

'If the defendant does not demur, the pleading in the terms of the statute would be sufficient under section 952 of the Penal Code.' (People v. Clenney, 165 Cal.App.2d 241, 254, 331 P.2d 696, 704; accord People v. Johnson, Supra, 230 Cal.App.2d 80, 86, 40 Cal.Rptr. 711.)

II.

THAT THE TRIAL COURT PREJUDICIALLY ERRED IN GIVING THE JURY AN INSTRUCTION CONCERNING THE ELEMENTS OF FELONY DRUNK DRIVING IN THAT THE INSTRUCTION DID NOT ADEQUATELY STATE THE DEGREE OF IMPAIRMENT NECESSARY TO CONSTITUTE THE OFFENSE.

The jury was given the following instruction taken from CALJIC 971 (revised) which, in pertinent part, provides:

'A person is under the influence of intoxicating liquor when as a result of drinking such liquor his physical or mental abilities are impaired so that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.'

Defendant asserts that terms such as 'sober person' and 'ordinary prudence' are so lacking in precise meaning as to allow the jury possibly to believe that Any consumption of alcoholic beverages would be sufficient. Defendant contends that a proper instruction would have to include the requirement that the defendant be so affected by intoxicants as 'to impair to an appreciable degree' his ability to operate a motor vehicle.

Before its revision, CALJIC 971 used an established and traditional instruction defining the degree to which a person must be influenced by alcohol to warrant a conviction under the law. This concept was first promulgated in 1922 in the case of People v. Dingle, 56 Cal.App. 445, 449, 205 P. 705, 706, in which the court held:

'* * * with respect to the meaning of the phrase 'under the influence of intoxicating liquor,' as used in this statute, we think we are well within the bounds of accuracy in saying that if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is 'under the influence of intoxicating liquor' within the meaning of the statute.'

This standard has been applied in many cases, including People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8; People v. Ekstromer, 71 Cal.App. 239, 235 P. 69.

However in 1967, the authors of CALJIC, apparently feeling that a more meaningful understandable and considerably less verbose instruction would be helpful to a jury, adopted CALJIC 971 (revised). While it would have been...