Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Cynthia Rayvis, Judge. Petition granted. Los Angeles County Super. Ct. No. SA059639
Law Offices of Mark J. Werksman, Mark J. Werksman and Kelly C. Quinn for Petitioner.
No appearance for Respondent.
Steve Cooley, District Attorney, Brentford J. Ferreira and Phyllis C. Asayama, Deputy District Attorneys for Real Party in Interest.
MANELLA, J.
By petition for writ of prohibition in this court, petitioner Reynaldo Cruz challenges the denial of his motion to dismiss the charge of leaving the scene of an accident alleged against him under Vehicle Code section 20001, subdivision (a). We grant the relief requested with respect to this offense.
RELEVANT PROCEDURAL BACKGROUND
On August 9, 2006, an amended information was filed against petitioner and Laura Veronica Samayoa, charging them in count 1 with leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), in count 2 with vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), and in count 3 with the murder of Carrie Elaine Phillips (Pen. Code, § 187, subd. (a)). Following the preliminary hearing on September 18, 2006, petitioner and Samayoa were held to answer the counts alleged in the amended information. On January 23, 2007, the trial court denied petitioner’s motion to dismiss the amended complaint (Pen. Code, § 995), which contended with respect to count 1 that no evidence had been presented at the preliminary hearing that he was a driver of the vehicle involved in the accident.
On February 6, 2007, petitioner filed his petition for writ of prohibition or mandamus. On April 12, 2007, this court issued an alternative writ directing the trial court to dismiss count 1 against petitioner or show cause, and ordered a stay of the commencement of trial.
DISCUSSION
Petitioner contends the trial court improperly held him to answer the charge that he illegally left the scene of an accident. We agree.
A. Governing Principles
Subdivision (a) of Vehicle Code section 20001 requires “[t]he driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person” to “immediately stop the vehicle at the scene of the accident,” render reasonable aid to the injured person, and furnish identification. (People v. Braz (1998) 65 Cal.App.4th 425, 427.) “Although a violation of section 20001 is popularly denominated ‘hit-and-run,’ the act made criminal thereunder is not the ‘hitting’ but the ‘running.’” (People v. Corners (1985) 176 Cal.App.3d 139, 148.) As Witkin and Epstein explain, section 20001 encompasses every accident in which a driver is “connected in any natural or logical manner,” and requires the driver to stop even if “the accident was unavoidable and . . . he or she was in no way at fault.” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 248-249, pp. 801-802.)
All further statutory citations are to the Vehicle Code.
The key issue presented here is whether there was sufficient evidence at the preliminary hearing that petitioner was the driver of the vehicle involved in the underlying accident, within the meaning of section 20001, subdivision (a). Section 305 defines “driver” as “a person who drives or is in actual physical
control of a vehicle.” In interpreting section 20001 and its predecessors, courts have understood this term “to include one who has control of or possesses the right to exercise control of the automobile.” (People v. Holford (1965) 63 Cal.2d 74, 82; fn. 4; see Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763 [section 305 applies to a person who operates or is in actual physical control of a vehicle].) Thus, the term “driver,” as found in section 20001, encompasses a person who actually drove the vehicle, as well as “[t]he owner of [the] vehicle or other possessor, riding in the vehicle and having control over its operation, . . . even though not actually seated at the wheel.” (2 Witkin & Epstein, supra, Crimes Against Public Peace and Welfare, § 247, at pp. 800-801.) In addition, “[e]ven an ordinary passenger may be guilty of the offense by aiding and abetting if, knowing that someone has been injured, he or she urges the driver not to stop or to leave the scene of the accident.” (Id. at p. 801.)
In reviewing the ruling on petitioner’s motion to dismiss, we independently examine the evidence to determine whether it was sufficient to hold petitioner to answer the amended information. (People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127; People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 864.) “[O]ur function is to determine whether a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that the defendant committed the crime charged.” (People v. Superior Court (Smart), supra, 179 Cal.App.3d at pp. 864-865.)
As our Supreme Court explained in Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147-1148: “‘An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.] ¶ A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.]’ [Citation.] Finally, although there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. [Citation.]”
B. Evidence at the Preliminary Hearing
The key witnesses at the preliminary hearing concerning petitioner’s role in the accident were Shan Stewart, Tennyson Collins, and Culver City Police Officer Aubrey Kellum. Stewart testified that at approximately 2:30 or 2:45 p.m. on March 15, 2006, he was standing on a raised grassy area near the intersection of National Boulevard and Hayden Avenue in Culver City. He saw a group of 11 children, accompanied by a female adult, walking on the sidewalk on National, moving toward Hayden. To his right, he noticed a small car traveling between 50 and 55 miles per hour on National.
Inside the front area of the car was a “disturbance” or “commotion.” The male passenger reached toward the driver, with his arms parallel to his shoulders and his palms facing the car’s windshield. According to Stewart, the passenger extended his arms beyond the parking brake between the driver and passenger, “grabbing towards the driver or the steering wheel,” or alternatively, “making some movement towards the driver.” Stewart was nonetheless uncertain that the passenger was “grabbing for any particular destination.” He did not see the completion of the movement, and never saw the passenger grab the steering wheel or make contact with the driver. The passenger’s hands “were still up” in an encroaching motion at least “until the time” the car veered across the traffic lanes, struck the curb, and hit the adult and children.
Collins testified that he was leaving a building on National Boulevard near Hayden Avenue when he heard the sound of screeching tires. He looked up and saw a car on the sidewalk strike a group of people. He did not see who was in control of the car. Samayoa -- who was in the driver’s seat -- and a male passenger left the car by the sunroof or the window on the driver’s door, and stepped over a body against the driver’s door. Collins asked a bystander to keep an eye on the male, and ran after Samayoa, who jogged and walked down the street. As Collins approached her, he asserted that she was in the accident. Samayoa first denied any involvement, and then said, “I wasn’t the driver,” or “I wasn’t driving.” Samayoa was reluctant to return to the scene of the accident, and said, “My boyfriend was doing funny things.” She did not explain the “funny things.” A police car soon arrived, and two officers detained her.
Officer Kellum testified that he and his partner were driving in a patrol car when they received a radio call about the incident. They saw Samayoa standing near Tennyson, who waved at them to stop. When they asked Samayoa whether she was the car’s driver, she answered, “‘Yes.’” Samayoa told the officers that petitioner, who was the father of her child, had been in the car with her. On direct examination, Kellum testified as follows:
“Q. Okay. Did she -- she told you that they were arguing while they were driving -- while she was driving?
“A. Yes.
“Q. Did she say anything about the passenger hitting her?
“A. Yes.
“Q. What did she say?
“A. She said that he had been punching her and that she had told him to stop because she was going to have an accident.
“Q. And this was while she was driving?
“A. Yes.
“Q. And did she tell you what happened just prior to the accident?
“A. She said that he did something that made her -- or made the car go out of control that caused the accident.”
On cross-examination, Kellum further testified that Samayoa said that petitioner hit her arms and face while she was trying to drive.
C. Analysis
Because no evidence was admitted at the preliminary hearing that petitioner owned the car or urged Samayoa to flee, the focus of our inquiry is the existence of evidence that petitioner exercised “actual physical control” of the car (People v. Holford, supra, 63 Cal.2d at p. 82, fn. 4; § 305). No reported case has addressed this issue on the facts presented here.
Courts have determined that a person who shares the operation and control of a vehicle with another person may be a “driver” under section 305. In In re Queen T. (1993) 14 Cal.App.4th 1143, 1144 (Queen T.), a man agreed to provide a ride home to a minor female. Because the man did not know where the minor lived, the minor sat on the man’s lap and steered the car while he operated its accelerator and brakes. (Id. at pp. 1144-1145.) As they headed to the minor’s home, she executed a left turn and struck two men on a motorcycle. (Id. at p. 1145.) Following the accident, the minor was found to have violated section 23153, subdivision (a), which prohibits driving while under the influence of alcohol. (Queen T., at p. 1144.) The court in Queen T. rejected the minor’s contention that she was not driving the car, reasoning that her act of steering the car rendered her a driver under section 305. (Queen T., at p. 1145.)
In Lumbermen’s Mut. Casualty Co. v. McIver (S.D. Cal. 1939) 27 F.Supp. 702, 703-705 (McIver), a man agreed to provide a minor female with driving lessons in a car owned by another person. The minor drove the car, with the man seated next to her. (Ibid.) As the car approached an intersection, its brakes failed, and the man leaned over, grabbed the steering wheel and pulled on the emergency brake. (Id. at pp. 704-705.) The car nonetheless struck a pedestrian. (Ibid.) After the car owner’s insurer refused to provide coverage on the ground that the minor was an unlicensed driver, the court in McIver concluded that the man had actual physical control of the car at the time of the accident, and was then its driver. (Id. at pp. 703, 705.)
In contrast, a person’s presence as a passenger seated next to the driver does not constitute actual physical control of the car. In People v. Green (1950) 96 Cal.App.2d 283, 284-287 (Green), a married couple accepted a ride in a station wagon from its owner, who was drunk. They placed the owner in the rear of the vehicle, which the husband then drove, with his wife seated immediately beside him. (Ibid.) When the owner fell out of the vehicle, they failed to stop, and were convicted of leaving the scene of an accident. (Ibid.) The court in Green concluded that the jury’s determination that the wife had been a driver failed because there was no evidence she had exercised actual control over the vehicle or urged her husband to drive on after the accident. (Id. at p. 290.)
In our view, the case before us more closely resembles Green than Queen T. and McIver. Unlike the latter cases, there is no evidence that petitioner and Samayoa agreed in any manner to share control of the car. On the contrary, the testimony at the preliminary hearing establishes that they were arguing before the accident, and that petitioner was hitting and striking Samayoa. Moreover, unlike the latter cases, there is no evidence that petitioner controlled or even touched the car’s steering wheel, brakes, or other operating systems. According to Stewart, petitioner made a grabbing motion toward Samayoa, but his hands “were still up” in an “encroaching motion” when the car began to veer across the street. Nor does Samayoa’s denial to Collins that she was the driver raise a reasonable inference that petitioner had control of the car. Samayoa told Collins only that petitioner “was doing funny things,” and later said to Officer Kellum that petitioner “did something that made her -- or made the car go out of control that caused the accident.” (Italics added.)
Citing out-of-state authority, real party in interest contends that petitioner’s conduct in reaching for Samayoa or the steering wheel constituted actual control of the car. We are not persuaded. In the cited cases, there was evidence that the person determined to be a driver seized control of the car’s steering wheel. (People v. Yamat (Mich. 2006) 475 Mich. 49, 51-58 [714 N.W.2d 335, 336-340] [passenger fights with driver, then grabs steering wheel and turns it, causing vehicle to veer off the road]; Dugger v. Com. (Va. Ct. App. 2003) 40 Va.App. 586, 590-594 [580 S.E.2d 477, 479-481] [passenger fights with driver, grabs steering wheel, and steers vehicle off the road]; Com., Dept. of Transp. v. Hoover (Pa.Cmwlth. 1994) 161 Pa.Cmwlth. 517, 520-522 [637 A.2d 721, 722-723] [passenger grabs steering wheel and causes car to swerve]; In re Arambul (Wash. Ct. App. 1984) 37 Wash. App. 805, 807-808 [683 P.2d 1123, 1124-1125] [passenger grabs steering wheel and swerves vehicle to express a greeting to occupants of oncoming vehicle].)
Pointing to Arellano v. Moreno (1973) 33 Cal.App.3d 877, real party in interest also contends that petitioner was a driver of the car even if he merely struck Samayoa, and did not touch the car’s steering wheel or operating controls. There, Arellano agreed to help his friend Davila start his car, which had a dead battery. (Id. at pp. 880-881.) To this end, the two men pushed the car onto a street, where it was hit by another vehicle. At the time of the collision, Davila was next to the opened driver’s door with his hand on the steering wheel, and Arellano was standing near the rear of the car, waiting for Davila to signal him to push. (Id. at pp. 882-883.) Because Arellano and Davila controlled the car’s movement, the court concluded that under section 305 Arellano was a driver of the car at the time of the collision, “even though at that precise time he was not actually exercising such control.” (Arellano v. Moreno, at p. 883.)
In our view, Arellano stands for the proposition that a person may acquire control over a vehicle without physical contact with the vehicle’s operating systems through an agreement or understanding with someone else who operates those systems. That is not the case here. The evidence presented at the preliminary hearing indicates only that petitioner fought with Samayoa, who declined to yield control of the car to him. Although petitioner’s conduct towards Samayoa may have interfered with her control over the car, it cannot reasonably be viewed as transferring a share of control to him. In sum, the trial court improperly held petitioner to answer the charge that he left the scene of an accident because there is no evidence that he was a driver of the car.
DISPOSITION
Let a writ of prohibition issue directing the trial court to vacate its January 23, 2007 order insofar as it denied petitioner’s motion to dismiss the offense alleged against him in count 1 under Vehicle Code 20001, and make a new and different order granting petitioner’s motion regarding that count. The temporary stay shall be effective until this decision is final as to this court.
We concur: EPSTEIN, P. J., SUZUKAWA, J.