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People v. Harbert

January 14, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LEE DAVID HARBERT, DEFENDANT AND APPELLANT.



(Contra Costa County Super. Ct. No. 050701300). Trial Court: Superior Court of Contra Costa County Trial Judge: Hon. Barbara Zuniga.

The opinion of the court was delivered by: Richman, J.

CERTIFIED FOR PUBLICATION

Vehicle Code section 20003 requires the driver of a vehicle that is involved in an accident resulting in injury or death to provide, among other things, identifying information and, if necessary, assistance to the injured person. Vehicle Code section 20001 directs that "The driver of a vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Section[] 20003 . . . ." And if the accident results in death or permanent serious injury, the failure to stop and provide information and/or assistance "shall be punished by imprisonment in the state prison for two, three, or four years." (Veh. Code, § 20001, subds. (a), (b)(2) (section 20001).)

Section 20001 has long been deemed to impose a knowledge requirement which requires proof the accused knew or was aware that (1) he or she was involved in an accident and (2) the accident resulted in injury to another. As to the latter, our Supreme Court has construed section 20001 to require proof that the defendant "[knew] that the accident resulted in injury to a person or [knew] that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." (People v. Holford (1965) 63 Cal.2d 74, 83 (Holford).) Here, the trial court instructed on the knowledge requirement with CALJIC No. 12.70, and the jury convicted defendant Lee David Harbert of violating section 20001, and while doing so personally inflicting great bodily harm (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced defendant to state prison for the middle term of three years for the violation of section 20001, with an identical term for the great bodily injury enhancement, the latter stayed pursuant to Penal Code section 654.

Defendant contends that, unlike knowledge of whether a person has been injured, where constructive knowledge is accepted, the other knowledge requirement in section 20001-knowledge that an accident has occurred-is satisfied only with proof of actual knowledge on the part of the driver. Thus, defendant argues, the instruction given was defective because it permitted the jury to convict on the basis that defendant merely had imputed or constructive knowledge. Defendant further argues that it was misconduct for the prosecutor to use the theory of imputed knowledge based on evidence of defendant's conduct after the accident. Lastly, defendant contends that it was error to sentence him on the great bodily injury enhancement, even when the sentence imposed on the enhancement was stayed, because the governing statute prohibits enhancing a sentence in situations where great bodily injury is an element of the offense.

We reject all of these contentions and affirm the judgment in its entirety.

BACKGROUND

At about 9:00 p.m. on January 11, 2005, 55-year-old Gurdeep Kaur was dropped off on Moraga Boulevard, across the street from her home at 712 Moraga Boulevard. She was wearing a white sweater and black pants. Carrying a bag of vegetables and a container of soup from the restaurant where she worked, Ms. Kaur started to cross the road. She was not in a cross-walk or designated pedestrian pathway.*fn1

Eileen Tarrab, a resident of Moraga for 13 years, was driving on Moraga Boulevard when she was startled to see Ms. Kaur in the lanes for traffic. In fact, Ms. Tarrab barely avoided hitting Ms. Kaur, who made no attempt to get out of the way. Ms. Tarrab described Ms. Kaur as "resolute, on a mission. . . . she just seemed like she knew what she was doing." Seeing two vehicles approaching in the two on-coming lanes Ms. Kaur still had to cross, Ms. Tarrab wondered "Is she going to make it?" Ms. Tarrab then heard a "horrific . . . whomp" noise, but she concluded "Oh, that couldn't have been her, because I didn't think a human would make that sound." Looking back in her rearview mirror, Ms. Tarrab saw that "there were no brake lights. The cars kept going" away from her.

Returning to the scene ten minutes later after completing an errand, Ms. Tarrab learned she was wrong-a human being could make that noise when struck by an automobile, even one that was not exceeding the speed limit.*fn2 Here , Ms. Kaur made that noise when she was struck by the Jaguar sedan being driven by defendant, hitting the windshield with enough force to fracture it, and crumpling the hood and snapping off the metal leaping jaguar hood ornament.

Moraga Boulevard where the accident occurred proceeds along a northwest-southeast axis. There are two traffic lanes in each direction, with a bicycle lane next to the curb on each side of the road.*fn3 The vicinity of the accident was a residential district, but the houses are secluded behind hedges and trees. The lanes are straight, and there are street lights. The lane in which defendant was traveling was rising slightly as he came towards Ms. Kaur.*fn4 After the accident, police found no skid marks.

When Ms. Tarrab returned from her errand, emergency personnel were already at the scene. Ms. Kaur was lying in the bicycle lane, still alive, but unresponsive to questions. She was quickly taken to a hospital, where she died within the hour. The coroner determined that the cause of death was "Multiple Blunt Force Injuries" produced by her having been struck by a moving automobile. Initially, possibly due to a red stain on one of the victim's shoes, the Moraga police announced that the suspected vehicle was a red or burgundy Jaguar built between 1995 and 2003.

Defendant's house was searched pursuant to warrant on January 27, 2005, the date defendant was arrested. Inside the closed garage, under a cover, the officers found defendant's black Jaguar. The vehicle was inspected and found to be mechanically sound, that is, there were no problems with the throttle, steering, or brakes. One of the earrings worn by Ms. Kaur was found in the windshield well of the Jaguar. The chief investigator concluded that the car had been cleaned in part because of the "absence of the soup material that we expected would have been on what we found at the scene."

Police also seized defendant's computer during the search. A forensic computer expert testified that an examination of the computer's hard drive showed that on January 12, 2005, defendant did a computer search for the Moraga Police Department's web page. Four days later, defendant made a Google search for "auto glass reporting requirements to law enforcement," and downloaded a web site for "auto accidents and the law." That same day he made searches for "auto glass, Las Vegas" and "numerous" searches related to auto parts. The expert also found that on January 21 defendant made a search for "hit-and-run," which showed an entry for one site "dealing with the Moraga . . . hit-and-run there, and they had a lead and they were talking about the vehicle that they were looking for."

The day after defendant was arrested, his sister, Lynn Schmidt, came out to California from Indiana to lend assistance to defendant's wife and son. Defendant told her that he was driving through Moraga because he was going to meet a friend at a college basketball game in Moraga when he was involved in what he called "an accident." Ms. Schmidt testified to the ensuing conversation: "I asked him if he thought he had hit someone. And he said he thought he had hit a deer. And I said to him, 'Well, did you get out and did you look, did you see if you had any damage to your car?' [¶] I guess that would be my-if I hit something, you would stop and you would look to see what they did. And he said, no, he did not stop." She asked if he had reported the incident to law enforcement authorities; he replied he had not.

Ms. Schmidt further testified that "Initially I believed him," but "as time went on things didn't come all together." Eventually, in the Fall of 2006, these nagging doubts led her to contact local police. "It was very difficult to make a call against my brother, but I felt that it was the right thing to do." She described herself as being troubled by defendant's ...


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