140 Cal. App. Supp. 3d 1 | Cal. App. Dep’t Super. Ct. | 1983
Opinion
Defendant appeals from his conviction, after jury trial, of violating Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol). On appeal, defendant contends that the trial court erred in permitting testimony regarding his admission that he was the driver of the vehicle in question in the absence of a prima facie showing by the People of the corpus delicti independent of that admission. Defendant also contends that the trial court erred in failing to adequately admonish the jury with respect to a diagram shown to the jury by the People during their opening statements. Since we find that the People did not adequately establish the corpus delicti of the offense charged, we address only that issue.
In the instant case, Larry Keehne testified at trial that, at approximately 11:30 p.m. on December 5, 1981, he was traveling eastbound on the San Bernardino Freeway when he saw a Volkswagen, less than 100 yards ahead of him in the second lane, move across the freeway at a 45 to 60 degree angle and hit a guardrail. The Volkswagen then slid for a bit and rolled over about three times before coming to a stop upright, in the shoulder lane, partially protruding into lane four. Between the time the vehicle first hit the guardrail and when it finally came to a stop, the two men in the car were thrown out and one of them landed between lanes two and three of the freeway. Mr. Keehne stopped his vehicle and, along with the other man thrown from the Volkswagen, moved the man lying on the freeway to the shoulder. Keehne could not estimate the speed at which the Volkswagen was traveling, nor could he recall either of the two men.
Officer Jack Greenwood then testified that, in response to a radio dispatch, he arrived at the scene to find two people standing near the Volkswagen, one of whom was defendant. Greenwood asked defendant who was driving the vehicle, to which defendant responded, “I was.” The officer proceeded to question defendant as to how the accident occurred and, while talking to defendant, noticed that he appeared unsteady, that his eyes were bloodshot and watery, and that he had a strong odor of alcohol on his breath. Greenwood then had defendant perform field sobriety tests and, after defendant was unable to satisfactorily perform same, placed him under arrest for driving under the influence. Defendant’s timely objections at trial to the introduction of any statements made by him were overruled and defendant was convicted.
In the instant case, as in Kelley, supra, 27 Cal.App.2d Supp. 771, other than defendant’s own statements, there was no proof whatsoever that defendant was the driver of the vehicle. The only witness to the accident, Mr. Keehne, saw two men thrown from the Volkswagen and was unable to identify defendant as the driver. Thus, it is just as likely that the other man, concerning whom there was no evidence of intoxication, was driving the vehicle. Further, contrary to the People’s contention, the fact of the accident itself is insufficient evidence from which it can be inferred that the vehicle was necessarily driven by an intoxicated individual. Under these circumstances, it was error for the trial court to allow testimony regarding defendant’s admission that he was the driver of the vehicle.
The judgment is reversed.
Foster, Acting P. J., and Jones, J., concurred.