People v. Traylor

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 341 OPINION

This case comes before us upon transfer from the Appellate Division of the Nevada County Superior Court. (Cal. Rules of Court, rule 8.1000 et seq.) The appellate division affirmed the trial court's order dismissing a complaint accusing defendant Dale Traylor of misdemeanor vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2); further undesignated statutory references are to the Penal Code.) The trial court determined that the charge had previously been dismissed, as a felony, pursuant to section 871, and thus was barred by section 1387 as construed in Burnsv. Superior Court (2005) 34 Cal.4th 1012 [22 Cal.Rptr.3d 876,103 P.3d 276] (hereafter Burris). We certified two issues for transfer. *Page 342 The dispositive issue concerns the dismissal of a felony charge and the refiling of a misdemeanor charge for the same offense. The Supreme Court has construed section 1387 to provide that "[m]isdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge." (Burris, supra, 34 Cal.4th at p. 1019.) "Thus, either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge," whether the previous dismissal was of a felony or a misdemeanor charge. (Id. at p. 1020.) Because neither issue reveals error by the courts that have considered this case, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND From 1977 through April 2004, Larry Lason lived on Creek View Drive in Grass Valley. Lason's nine-year-old son, Tyler, had several motorcycles. He had been riding motorcycles since he was about six years old and had ridden many times on Creek View Drive. On an afternoon in April 2004, Tyler left his home and rode his motorcycle westbound on Creek View Drive. He was wearing a motorcycle helmet. The weather was clear and cool, and the pavement was dry and in good condition. In the vicinity of the accident, Creek View Drive is narrow, winding and undulating, and the paved portion is about 14 feet wide. Less than one-quarter mile from his home, Tyler's motorcycle was struck by a 1993 Chevrolet Blazer that defendant was driving eastbound. Tyler died very soon after the collision. The impact occurred near the top of a grade. A driver in either direction would not see a vehicle coming from the other direction until the driver was close to the top of the crest. Defendant told an investigating officer that he had been traveling at about 15 miles per hour immediately prior to the impact. Two skid marks led to the resting place of the Blazer. One skid mark was 24 feet long and the other was 26.5 feet long. Following the collision, two brake tests were performed at the California Highway Patrol office. Full brake applications while the Blazer was being driven at 20 miles per hour produced skid marks of 16 feet four inches, and 17 feet 11 inches. Nothing in the record suggests the Blazer was descending the crown of a hill at the time of these tests. At its point of rest following the accident, the Blazer was entirely to the left of the middle of the road. When asked, defendant had no explanation for why he was driving on the wrong side of the road. *Page 343 The investigating officer had extensive training and experience in the investigation of traffic collisions. He opined that the collision was caused by the Blazer being driven on the wrong side of the road. The Blazer's speed was not a contributing cause. The collision occurred between 5:00 and 5:30 p.m., and the officer arrived on the scene at 5:53 p.m. He noticed a faint odor of alcoholic beverage on defendant's breath. Defendant told the officer that he had consumed one light beer about 4:45 p.m. The officer gave defendant "a couple of balance and coordination type field sobriety tests," which defendant completed as demonstrated. The officer also gave defendant two preliminary alcohol screening tests, which measured 0.054 percent and 0.053 percent. The officer formed the opinion that defendant was not over the 0.08 percent level at the time he was driving. In July 2004, a complaint was filed accusing defendant of felony vehicular manslaughter. (Case No. F04-335; §§ 192, subd. (c)(1), 193, subd. (c)(1).) Following a preliminary hearing, the magistrate (Judge Tamietti) found that there was insufficient evidence of the felony offense, which requires driving with gross negligence; but there was sufficient evidence of misdemeanor vehicular manslaughter, which requires driving with ordinary negligence and "without gross negligence." (§ 192, subd. (c)(2); see In re Dennis B. (1976) 18 Cal.3d 687, 696 [135 Cal.Rptr. 82, 557 P.2d 514].) In his statement of decision, the magistrate found: (1) Speed: Based on testimony of longtime residents of the area, defendant's speed was within the reasonable range for prudent drivers. The investigating officer testified that speed was not a cause of the collision. Thus, defendant's speed did not raise a strong suspicion of negligence, either gross or ordinary. (2) Alcohol: No evidence was presented of the potential for impairment at the 0.054 percent BAC (blood-alcohol content) level shown by the evidence. There was no testimony from the investigating officer that the alcohol in defendant's system contributed to the collision. "In the absence of such evidence, the court is not permitted to impose a supposition that alcohol may have contributed to or caused the collision. Therefore, the court must conclude that the evidence presented about alcohol does not create a strong suspicion of negligence, either gross or ordinary, on the part of the defendant." (3) ABS Brakes: A dash warning light indicated the ABS (antilock brake system) was inoperable. However, a California Highway Patrol technician *Page 344 determined the inoperable system did not alter appreciably the vehicle's stopping capability. Thus, the condition of the ABS did not create a strong suspicion of negligence, either gross or ordinary. (4) Left Side of Road: The accident scene is the crown of a hill where opposing traffic cannot see each other until the last moment. From defendant's direction of travel, an optical illusion creates an impression that a tree is in the center of the road surface. A longtime resident testified that most people driving that road favor the left side of the road when approaching from that direction, in part because of the optical illusion. Based upon these findings, the magistrate concluded that the court "has before it evidence that creates a strong suspicion of negligence in driving on the left side of the road approaching a crown that obscures oncoming traffic. However, the testimony of [longtime residents] indicate that any such negligence is neither aggravated, nor reckless. Instead, it is apparently customary for those persons who frequent this particular private road. Therefore, the court concludes that it has before it only evidence to support a suspicion of ordinary, not gross negligence." The magistrate (Judge Tamietti) ordered the prosecutor to file an amended complaint charging defendant with the misdemeanor offense and continued the matter to January 2005 for defendant to enter a plea to that charge. When no amended complaint was filed, the magistrate (Judge Darlington) dismissed the case pursuant to section 871.1 Following the dismissal, the People consulted with the California Highway Patrol Multidisciplinary Accident Investigation Team (CHP) regarding whether the matter was more appropriately pursued as a case of gross negligence vehicular manslaughter or as a case of ordinary negligence *Page 345 vehicular manslaughter. In April 2005, CHP advised that the case was more appropriately pursued as the latter. Thus in May 2005, the present complaint was filed charging defendant with a misdemeanor violation of section 192, subdivision (c)(2). (Case No. M05-569.) In October 2005, defendant filed a motion to dismiss the present case based upon section 1387 and Burris, supra, 34 Cal.4th 1012. Following a hearing, the trial court (Judge Tamietti) granted the motion.2 The People appealed to the Appellate Department of the Nevada County Superior Court, which unanimously affirmed. In granting the People's petition for transfer, we certified two issues: "1. The application, if any, of `a misdemeanor charged together with a felony' as used in Penal Code section 1387," and "2. The application of the reasoning of [Burris] to these facts."