People v. Grier

BURKE, P. J.

Does the excessive acceleration of an automobile on a highway in such manner as to cause the tires to scream loudly and to lose traction on the roadway constitute an “exhibition of speed on a highway" in violation of Vehicle Code section 23109? This is the question posed in this proceeding. It was determined affirmatively by the Judge of the Municipal Court of the Santa Monica Judicial District and the conviction of defendant in that court was affirmed on appeal by the appellate department of the superior court. The latter court, believing the question to be one of first

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impression in this state, certified the case on its own motion to this court,

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and this court ordered it transferred for hearing and decision.

By complaint filed by the City Attorney of the City of Santa Monica, defendant was charged with a violation of section 23109 of the Vehicle Code of the State of California, which provides in part: “(a) No person shall engage in any motor vehicle speed contest or exhibition of speed on a highway and no person shall aid or abet in any motor vehicle speed contest or exhibition on any highway. ’ ’

Jury trial being waived, the action was tried by the court and defendant was convicted. Defendant asserts on appeal that the evidence was insufficient to show that he engaged in a speed contest or exhibition of speed in violation of the section.

The police officer testified that he first saw defendant driving out of a private driveway onto the public street at which time the vehicle tires “peeled, screaming quite loud.” The officer immediately took pursuit with several cars between his vehicle and that of defendant. Defendant came to a stop at a boulevard and then, making a right turn onto the boulevard, “his automobile tires again peeled, screeching, losing traction with the roadway.” Defendant attained a speed of approximately 40 miles per hour by continuous acceleration within a distance of about three-quarters of a block.

Defendant took the stand in his own behalf and stated that the tires “possibly made some type of a slipping noise, possibly slipping on some sand or gravel” as he left the driveway but that he never heard anything; that as he turned onto the boulevard his tires “did make some squealing noise, about three times”; that he did not go in excess of 40 miles an hour and that he traveled at a safe speed. Defendant contends that before he could be held in violation of the section there must be an observer present. Otherwise, the display of acceleration would not constitute an exhibition. Furthermore, defendant must be conscious of an observer and there must be some evidence to justify the conclusion that defendant intended to make an exhibition of his speed before such an observer. Defendant cites