People v. Calzada

Opinion

COBEY, J.

The People appeal from an order, made pursuant to Penal Code section 995, which, among other things,

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sets aside a count of second degree felony murder (see Pen. Code, §§ 187, 189) against Gilbert Anthony Calzada. Calzada has also been charged with vehicular manslaughter (Pen. Code, § 192, subd. 3) and with violation of Vehicle Code section 23105.

The appeal lies. (Pen. Code, § 1238, subd. 1.) The sole issue presented is whether Calzada’s allegedly criminal behavior can be charged

[605]

as second degree murder as well as vehicular manslaughter and a violation of Vehicle Code section 23105.

The Facts

Around 8 a.m. on October 15, 1969 a car driven northbound at about 60 miles per hour by Calzada in the outside lane on Highway 101 in Santa Barbara County suddenly straddled the line between that lane and the adjoining lane, rocked back and forth, shot across the planted divider between the northbound and southbound lanes of the four-lane highway and crashed, without warning, into the victim’s car which was proceeding southbound in the inside lane. The victim’s death resulted from the injuries he received in this collision.

A Santa Barbara police officer who came upon the scene of the accident a few minutes after it occurred found Calzada behind the wheel of his car. The pupils of Calzada’s eyes were pinpointed, a characteristic of persons under the influence of opiates. At the hospital, where Calzada was immediately taken by ambulance because of the serious injuries he had suffered in the accident, a nurse in the emergency room saw five fresh punctures in Calzada’s veins on the inner side of one of his elbows. She also heard him say, in attempting to explain how the accident happened, that “When you’re high on that stuff, you have to like keep moving to keep alive.” In response to a hypothetical question, a psychiatrist, who had examined Calzada and many others in the past for narcotics addiction, testified that on the basis of his knowledge of Calzada’s past use of heroin, his past addiction to it, the above related circumstances of the accident, his pinpointed eyes and the fresh venipuncture marks on his arm following the accident,