People v. Bustos

DRAPER, P. J.

A jury found defendant guilty of involuntary manslaughter in the driving of a vehicle (Pen. Code, § 192, subd. 3) and of felony drunk driving (Veh. Code, § 23101). On the first count, he was admitted to probation for 4 years on condition he serve 6 months in county jail and refrain from drinking alcoholic liquors. Defendant appeals.

A hardtop sports ear, travelling at high speed, crossed the double line and struck another car head on. Occupants of the sports car were defendant, his 4-year-old son, and Yanes, who owned the car. The boy and Yanes were thrown from the car by the impact. When the car came to rest, defendant was unconscious. The upper portion of his body was hanging outside the ear on the right (the driver’s seat was on the left),

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but his feet were wedged between the gear shift lever and the seat. A pair of sunglasses lay on the pavement beneath his head. Defendant and Yanes were seriously injured, and the latter died in the hospital to which he was taken from the scene. A motorist who had seen the sports car before the accident identified the driver as wearing sunglasses and a distinctive shirt matching that seen on defendant immediately after the collision. Two doctors testified that Yanes’ injuries were consistent with his having been thrown against the steering wheel, and those of defendant of the type which would be sustained by the passenger. But another physician expressed a contrary opinion.

The sole fact issue was whether defendant was the driver. A sample of defendant’s blood showed that he was intoxicated at the time of the collision, and, probably impelled by this showing, he admitted at trial that he had been drunk, but testified that Yanes drove. The facts recited above readily dispose of defendant’s assertion that the evidence is insufficient to support the verdicts.

But defendant asserts error in the admission, over objection, of evidence of the blood sample. The blood was taken at the direction of police officer Brown, while defendant was in the hospital, unconscious, some three hours after the collision. It was taken by a qualified physician in a manner concededly meeting medical standards. Although evidence procured by “brutal” or “offensive” conduct is inadmissible