People v. Smylie

California Court of Appeal Jun 11, 1963 No. Crim. 3425Published

Before: Pierce

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Holding. The court affirmed the defendant's conviction for felony drunk driving, finding sufficient evidence that the defendant violated Vehicle Code sections 22107 and 21650(f) while driving intoxicated and causing bodily injury. The court also held that the amendment of the information did not require a new jury waiver and that the defendant was not subjected to double jeopardy.

Issues

Whether the evidence was sufficient to support a conviction for felony drunk driving under Vehicle Code section 23101.
Whether the trial court erred in allowing an amendment to the information after the defendant waived a jury trial.
Whether the defendant was subjected to double jeopardy when a mistrial was declared before the jury was sworn.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The order granting probation (being a final judgment under section 1237 of the Penal Code) is affirmed.”

PIERCE, P. J.

Defendant was convicted after a court' trial of felony drunk driving. (Veh. Code, § 23101.) Defendant was found not guilty of “hit and run” driving. (Veh. Code, §§ 20001-20003.) He appeals from the order suspending judgment on the offense of which he was found guilty and granting probation, also from the order denying his motion for a new trial. The latter order being nonappealable, the appeal therefrom will be dismissed.

The three elements of the felony drunk driving of

[120]

fense are: (1) driving on a highway while intoxicated; (2) doing an act forbidden by law or in neglect of a duty imposed by law; and (3) proximately causing bodily harm to another person. (Veh. Code, § 23101.)

The victim, a woman, was a pedestrian walking along Pulton Avenue, one of the principal thoroughfares of the north-metropolitan area of Sacramento. Defendant drove along that highway in the same direction, approached and struck her.

Since defendant admits he was driving on a highway while intoxicated and that he caused bodily injury to another person while doing so, his contention that the evidence was insufficient to support the judgment necessarily focuses upon the proposition that he was doing nothing either forbidden by law or in neglect of a duty imposed by law.

To satisfy requirement of proof of the violation of an act forbidden by law the amended information under which defendant is charged specifies violation of several Vehicle Code sections of which the court found him guilty of having violated two Vehicle Code sections, 22107 and 21650, subdivision (f).

Vehicle Code section 22107 forbids the turning of a vehicle from a direct course right or left on a

“roadway

until such movement can be made with reasonable safety and then only after giving an appropriate signal. ...” (Italics supplied.)

Vehicle Code section 21650, subdivision (f) provides that a vehicle shall be driven on the right half of a

“roadway

People v. Smylie

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PIERCE, P. J.

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