California Court of Appeal Oct 22, 2014 No. E060288Unpublished
Filed 10/22/14 P. v. Cox CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E060288
v. (Super.Ct.No. FWV1202312)
JASON WAYNE COX, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Stephan G.
Saleson, Judge. Reversed with directions.
Michael Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney
for Plaintiff and Appellant.
Law Offices of Michael A. Scafiddi, Megan A. Scafiddi and Richard V. Myers for
Defendant and Respondent.
1
I
INTRODUCTION
Defendant Jason Wayne Cox was accused of driving a truck that struck and killed
a bicyclist. The People appeal from the trial court’s order setting aside count 1 of the
information, charging defendant with vehicular manslaughter with gross negligence.
(Pen. Code, §§ 192, subd. (c)(1), 995, 1238, subd. (a)(1); People v. Alice (2007) 41
The People contend there is sufficient evidence to charge defendant with gross
vehicular manslaughter in violation of section 192, subdivision (c)(1). Section 192,
subdivision (c)(1), defines felony vehicular manslaughter as “driving a vehicle in the
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commission of an unlawful act, not amounting to felony, and with gross negligence; or
driving a vehicle in the commission of a lawful act which might produce death, in an
unlawful manner, and with gross negligence.”
The meaning of gross negligence has been explained many times. People v.
Bennett (1991) 54 Cal.3d 1032, 1036, asserts: “Gross negligence is the exercise of so
slight a degree of care as to raise a presumption of conscious indifference to the
consequences. [Citation.] ‘The state of mind of a person who acts with conscious
indifferences to the consequences is simply, “I don’t care what happens.”’ [Citation.]
The test is objective: whether a reasonable person in the defendant’s position would have
been aware of the risk involved. [Citation.]” Gross negligence does not include
“inattention, mistaken judgment, or misadventure . . . .” (Id. at p. 1037, fn. 3.) Gross
negligence involves aggravated, reckless, or flagrant disregard for human life, or
indifference to consequences of one’s conduct. (People v. Thompson (2000) 79
Cal.App.4th 40, 54.)
Put another way, gross negligence occurs when the defendant’s acts are such a
departure from what would be the conduct of “‘“an ordinarily prudent or careful [person]
under the same circumstances as to be incompatible with a proper regard for human life,
or, in other words, a disregard of human life or an indifference to consequences.”’
[Citations.]” (People v. Alonzo (1993) 13 Cal.App.4th 535, 540.) “‘The facts must be
such that the fatal consequence of the negligent act could reasonably have been foreseen.’
[Citations.]” (People v. Clem (2000) 78 Cal.App.4th 346, 352, quoting People v. Penny
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(1955) 44 Cal.2d 861, 880; see also People v. Odom (1991) 226 Cal.App.3d 1028, 1032.)
“[G]ross negligence required to convict a defendant of gross vehicular manslaughter . . .
may be based on the overall circumstances surrounding the fatality.” (People v. Bennett,
supra, 54 Cal.3d at p. 1040.)
A number of cases have addressed grossly negligent vehicular manslaughter. In
People v. Leitgeb (1947) 77 Cal.App.2d 764, 769, [cited with approval in People v.
Bennett, supra, 54 Cal.3d at p. 1039], in which the jury found gross negligence:
“[D]efendant was driving his car at 40 miles an hour, veered across a corner of, and
struck decedent in, the safety zone. According to his own testimony, he did not see
decedent until the instant he struck him. There was no evidence whatever as to any
circumstance that would have made it necessary for defendant to invade the safety zone,
nor was there any evidence of any obstruction in the street, or other condition which
would have prevented defendant's seeing decedent standing in the safety zone. The corner
was sufficiently lighted for other witnesses to see objects in the street.”
The Leitgeb appellate court agreed with the jury: “Not only was the conclusion of
the jury a reasonable one, but in our opinion it was the more reasonable. There is not the
least doubt in our minds that upon the state of facts which formed the basis of the verdict,
appellant was guilty of gross negligence. Even if he had been driving at 25 miles an
hour, as he claimed, our conclusion would be the same. It appears from his own
testimony that he was driving past the safety zone at a speed which placed all the
responsibility for avoiding injury upon persons who might be occupying the street at that
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point. He was not slowing down, nor did he have control of the car that would have
enabled him to stop quickly if it should become necessary to do so in order to avoid an
accident. He should have been especially cautious in approaching the safety zone and
should have anticipated the presence of persons waiting for a car. He did not do this, but
took a chance that no pedestrian would get in his way. His failure to see the pedestrian
was unexplained. There are, of course, conditions in which it is difficult for motorists to
see pedestrians on the streets, but the conditions here were not shown to have been
unusual, and the only reasonable explanation of defendant's failure to see the decedent is
that he was not exercising even the slightest degree of care.” (People v. Leitgeb, supra,
77 Cal.App.2d at pp. 769-770.)
Following Leitgeb was a case involving a driver who hit a group of 10 people
gathered in a crosswalk responding to the victim of an earlier accident: “It is unnecessary
to review the evidence for the purpose of pointing out wherein it was sufficient to justify
a finding that defendant was not driving in the exercise of ordinary care or in the
fulfillment of her duties as defined in the instructions. It is not surprising that the jury
determined from the evidence that in causing the death of three people and injury to
seven others, defendant was not driving with the care usually exercised by persons of
ordinary prudence and caution. There was nothing to obstruct her vision or to excuse her
failure to see the crowd in the street ahead of her. It was an inescapable conclusion that
she failed to see them in time to avoid them only because she was paying little or no
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attention to what lay ahead of her.” (People v. Wilson (1947) 78 Cal.App.2d 108, 118-
119.)
Another case citing Leitgeb held: “And where a driver did not see his victim until
the instant of impact or not at all, he is guilty of gross negligence or of an entire
indifference to those who were using the street or highway simultaneously with him.
(People v. Leitgeb, 77 Cal.App.2d 764, 769.)
“. . . There is no fact proved or theory proposed in the record of the instant cause
that could reasonably warrant an inference of appellant’s freedom from gross negligence.
He drove his coupe in the night on a residence and business street at a speed greater than
was reasonable and prudent, to wit, in excess of 50 miles an hour. By reason of his
having thereby killed a person without malice and while committing such lawless act he
is guilty of involuntary manslaughter under section 192 of the Penal Code.” (People v.
Flores (1947) 83 Cal.App.2d 11, 14.)
Inattention was also held to constitute gross negligence in People v. Pfeffer (1964)
224 Cal.App.2d 578, 581: “The course of action followed by the defendant at the time in
question demonstrates a complete failure on his part to exercise any care and shows a
conscious indifference to the consequences which might follow going through a red
signal light at high speed—he obviously had no control over his car and seemingly cared
nothing at all for the right of way of others upon the road at the time—he exercised no
vigilance and seemingly did not anticipate that there might well be automobiles with
passengers therein traveling on Willow Street across Lakewood with the green signal
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lights. If there was anything present to obstruct the view of appellant, or any excuse at all
for that matter, we have not heard of it from the appellant or any witness who observed
what occurred. Driving at excessive speed, taking chances at an intersection, inattention
to driving or similar acts, coupled with other circumstances as here present constitutes
gross negligence.”
CALCRIM No. 592 tracks the statute and case law concerning gross vehicular
manslaughter. The People must prove that, while driving a vehicle defendant committed
with gross negligence a misdemeanor or infraction or otherwise lawful act that might
cause death and the defendant’s grossly negligent conduct caused the death of another
person:
“Gross negligence involves more than ordinary carelessness, inattention, or
mistake in judgment. A person acts with gross negligence when:
“1 He or she acts in a reckless way that creates a high risk of death or great bodily
injury;
“AND
“2 A reasonable person would have known that acting in that way would create
such a risk.
“In other words, a person acts with gross negligence when the way he or she acts
is so different from how an ordinarily careful person would act in the same situation that
his or her act amounts to disregard for human life or indifference to the consequences of
that act.”
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In its simplest phrasing, defendant’s argument is that his conduct was ordinary
negligence because there is no evidence he saw the bicyclist before he hit him or that
defendant realized he had hit the bicyclist and continued without stopping. Although
defendant’s interpretation of the evidence may be plausible, another equally reasonable
interpretation of the evidence is defendant was driving recklessly when he started to
make his right turn from Foothill to Ramona and he disregarded the bicyclist on his right
even though nothing obstructed his view.
This is not a situation in which a driver was fiddling with the radio, or even
inexplicably inattentive, causing him or her to hit someone. In such a case, the driver
reasonably could be expected to stop immediately and to render assistance and report the
accident. Instead, this case involves a driver who demonstrated little regard for the safety
of the victim, as shown by his conduct before and after the accident, as well as the
evidence developed during the investigation.
The circumstances fit the criteria for gross negligence described above. The
evidence showed that the right lane was twice as wide as the left lane on Foothill,
providing enough room for a wide, unmarked bike lane next to the curb. It was still
daylight and there were no obstructions to a driver’s line of sight. The bicyclist was
struck near the beginning of the place where it is likely the truck would have begun to
turn right and the bicyclist was dragged some distance and dropped beside the curb. The
testimony that there were no skid marks created a reasonable inference that defendant did
not see the bicyclist before hitting him and made no effort to stop afterwards. Even if
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defendant was not speeding, he committed numerous code violations: following too
closely, making an unsafe lane change, and failing to pass safely. (Veh. Code, §§ 21703,
21750, and 22017.)
Based on the investigator’s conclusions, a jury could reasonably infer defendant
was driving adjacent to the unmarked bike lane, making him responsible for avoiding
injury. The jury could find the driver should have been especially cautious and noticed
the presence of a cyclist. Even if it was difficult to see a cyclist, the road conditions here
were not unusual. A jury could find the only reasonable explanation for defendant’s
failure to see the decedent is that he was not exercising due care. It was a reasonable
conclusion that defendant hit and dragged the victim because he was paying little or no
attention to what lay ahead of him.
Other circumstances that have a bearing on a charge of gross negligence is that
defendant did not stop and continued to drag the victim some distance. Additionally, he
fled the scene and tried to cover up his involvement. His conduct after hitting the cyclist
contributed to a finding of conscious indifference: “‘The state of mind of a person who
acts with conscious indifferences to the consequences is simply, “I don’t care what
happens.”’ (People v. Olivas (1985) 172 Cal.App.3d 984, 988.)” (People v. Bennett,
supra, 54 Cal.3d at p. 1036.)
Therefore, a jury could reasonably determine, based on the People’s evidence, that
defendant did not heed the bicyclist for reasons that exceeded “ordinary carelessness,
inattention, or mistake in judgment” and constituted recklessness or conscious disregard.
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Based on the totality of the circumstances surrounding the accident, the jury could
reasonably conclude defendant was driving with indifference or conscious disregard for
the consequences of his actions. (Ibid.) As a result, we conclude sufficient evidence
could allow a rational trier of fact to find that defendant acted with gross negligence.
Defendant argues that the cases cited by the People all involved drivers engaging
in much more egregious and reckless behavior than his actions in this case. Defendant
asserts there is no evidence of grossly negligent conduct because no witness saw him
speeding or driving recklessly and dangerously. However, we cannot say—as a matter of
law—that a jury would be unreasonable in finding that defendant’s actions constituted
gross negligence. At this stage of the proceedings, when the showing required for a
charge is “exceedingly low,” there is not a “total absence of evidence.” (Salazar v.
Superior Court, supra, 83 Cal.App.4th at p. 846.) As a result, we conclude that, based on
the legitimate inferences that may be drawn by the evidence, sufficient evidence supports
charging defendant with vehicular manslaughter with gross negligence in violation of
section 192, subdivision (c)(1). (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)
V
DISPOSITION
We reverse the trial court’s order setting aside count 1 of the information and
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direct the court to reinstate the charge of gross vehicular manslaughter. (§ 192, subd.
(c)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence existed at the preliminary hearing to support a charge of vehicular manslaughter with gross negligence, as a jury could reasonably infer the defendant's conduct demonstrated a conscious disregard for human life.
Issues
Whether the trial court erred in setting aside the charge of vehicular manslaughter with gross negligence under Penal Code section 995.
Whether the evidence presented at the preliminary hearing was sufficient to support a finding of gross negligence.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“We agree with the People that, based on the legitimate inferences that may be drawn by the evidence, sufficient evidence supports charging defendant with gross vehicular manslaughter.”
“Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.”
“As a result, we conclude sufficient evidence could allow a rational trier of fact to find that defendant acted with gross negligence.”