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People v. Superior Court of the State of California for the County of Los Angeles

April 6, 2010


ORIGINAL PROCEEDING in mandate. Lisa B. Lench, Judge. Petition granted. (Los Angeles County Super. Ct. No. BA332046).

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



Marcos Barboza Costa was at the wheel of his 25-ton, semi-trailer truck carrying a load of vehicles when he sped down Angeles Crest Highway, ran a red light, and hit a small vehicle on Foothill Boulevard, killing the two occupants. Others were also injured as the truck continued its perilous trek through the intersection, stopping only when it crashed into a bookstore and nail salon. After considering the evidence before it, a grand jury returned an indictment against Costa charging two counts of second degree murder.

We are called upon to determine whether the trial court erred in granting Costa's motion to dismiss the murder charges. We conclude it did. The evidence before the grand jury was sufficient to support a rational ground for assuming the possibility that Costa decided to continue to drive his truck down Angeles Crest Highway with an actual awareness of the great risk of harm his actions created, resulting in the deaths of two people. We therefore grant the People's petition for writ of mandate.


The relevant evidence before the grand jury was as follows: The Angeles Forest and Angeles Crest Highway (together referred to as the Highway) is a steep, two-lane, two-way, mountainous, winding road that runs through the Angeles National Forest. The Highway has numerous turnouts and a passing lane. Commuters use the Highway as a shortcut between Palmdale and Los Angeles. But the Highway is not suitable for heavy trucks. Indeed, as of April 1, 2009, the beginning of the Highway (where it connects with the Antelope Valley Freeway) had a white sign depicting a black truck with a red circle and line through it, prohibiting vehicles over three tons.

On April 1, 2009, Juan Palomino, a County of Los Angeles firefighter, was driving home in his personal vehicle on his usual route from work at the Mt. Gleason Station in the Angeles National Forest. He was southbound on the Highway at about 4:15 p.m. when he caught up to an 18-wheel semi-trailer diesel truck transporting a load of vehicles. The 25-ton truck was registered to Costa, holder of a Class A commercial driver's license. The truck was traveling at about 15 miles per hour and emitting a continuous cloud of white smoke from its rear left wheels, along with a smell of burning rubber. During the three miles that Palomino followed the truck, it crossed the center dividing line five or six times.

Because the presence of such a large truck on the Highway was something "out of the norm," Palomino decided he would try to stop the driver and advise him. He pulled up next to the truck, honked his horn, and asked the driver to pull over.*fn1 They pulled over in a two-lane passing area near the Monte Cristo Campground.

Costa, who was sitting in the truck's passenger seat at the time, got out and told Palomino that he was going to Los Angeles. Palomino did not identify himself as a firefighter, but told Costa the following: (1) The Highway was a bad route for a truck so large, and that he had never seen a truck that size on the Highway; (2) the truck's brakes were "putting out a lot of smoke"; (3) the truck's brakes would be under even more stress on the downhill portion of the Highway going into La Cañada; (4) the rear of the truck's trailer had been crossing over the Highway's double yellow lines; (5) the Highway gets steeper, narrower, and has sharper turns before its descent into the La Cañada area; (6) a lot of rush hour traffic would be coming up the Highway (northbound) from La Cañada; and (7) two miles beyond the Monte Cristo campground, Costa would reach a low profile tunnel that could accommodate his large truck only if he drove down the middle of the two lanes, and that rush hour traffic would be coming in the opposite direction.

Palomino kept emphasizing that rush hour traffic was approaching and Costa needed to be careful because his brakes were smoking, his truck was already crossing the yellow line, and the road would get steeper and narrower, and the turns sharper. He also advised Costa, "If I were you, I would turn around here and go back." Palomino advised him that where they had pulled over was the best place to turn around because it was the one area with two passing lanes, thereby giving Costa four lanes to turn the truck around. Costa appeared to be listening to what Palomino was saying.

Costa did not indicate he would be turning around, so Palomino provided Costa with an alternative route that would avoid the narrow tunnel and be on an upgrade - Upper Big Tujunga Canyon Road. Costa asked for the location of Upper Big Tujunga, so Palomino drew him a map. Costa did not indicate whether he would take this route. After 15 minutes of talking to Costa, Palomino again told him to be careful, emphasized rush hour was coming from the opposite direction, and left in his vehicle.

A short time later, Joshua Kent was driving north on the Highway toward Antelope Valley when he saw a dark red or orange semi-trailer truck carrying a load of vehicles. The truck crossed over into Kent's lane as he came around a left bend about a mile after the Mill Creek station, which is quite a distance before the Monte Cristo Campground. Kent had to immediately react to avoid a collision. Kent, who has used the Highway daily to commute to work from the Antelope Valley, had never seen such a large truck on that portion of the Highway. He said the truck was going "extremely fast" and was "unsafe."

Thomas Kimrey, an off-duty detective with the Los Angeles Police Department, was driving northbound on the Highway at about 5:00 p.m. on his way home to the Antelope Valley when he was startled by the sight of a red semi-trailer truck. Kimrey was taken aback because in the eight years he had traveled on the Highway he had never seen a truck so large use the Highway. A lot of white-gray smoke ...

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