People v. Barber

55 Cal.App.5th 787

269 Cal.Rptr.3d 712

The PEOPLE, Plaintiff and Respondent,

v.Michael Arthur BARBER, Defendant and Appellant.

D076070

Court of Appeal, Fourth District, Division 1, California.

Filed October 9, 2020

George L. Schraer, San Diego, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

A jury convicted Michael Arthur Barber of reckless driving ( Veh. Code, § 23103, subd. (a) ). The jury also found true that Barber personally inflicted great bodily injury ( Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8) ) and proximately caused a loss of consciousness of another ( Veh. Code, § 23105, subd. (a) ). The court placed Barber on formal probation for three years.

Barber appeals, contending the trial court prejudicially erred when it refused to give a special jury instruction he proposed, the great bodily injury enhancement finding must be stricken because it is an element of reckless driving, and, in the alternative, the matter should be remanded with instructions to the trial court to determine whether to strike the great bodily injury finding in furtherance of justice. Additionally, while this matter was pending, we granted Barber's motion to file a supplemental opening brief. In that brief, he argues CALCRIM No. 2200 incorrectly defines one of the elements of reckless driving. We conclude none of Barber's claims has merit. As such, we affirm.

FACTUAL BACKGROUND

Prosecution

Carlsbad Boulevard runs north to south along the coastline. At the intersection of Carlsbad Boulevard and Avenida Encinas in Carlsbad, the north and southbound lanes are separated by a wide landscaped median. The southbound lanes run closest to the beach, and, just south of the intersection, there is a dirt parking lot, which abuts the bike lane. The area is a corridor for surfers and beachgoers to get to the beach.

On March 5, 2018, Barber parked his car in the dirt lot just south of the intersection of Carlsbad Boulevard and Avenida Encinas and went for a run. Afterward, he needed to pick up his son. To do so, he wanted to go east on Avenida Encinas, which from the parking lot he could not directly access because it was north of his car, and the lanes abutting the parking lot only went southbound. Rather than continuing southbound on Carlsbad Boulevard, making a U-turn, and accessing Avenida Encinas from northbound Carlsbad Boulevard, Barber put his car in reverse and drove northbound backward in the bike lane against the flow of traffic on southbound Carlsbad Boulevard. He had hoped to enter the traffic lanes and make a left turn onto Avenida Encinas. When he looked behind, he did not see any cars, bikes, or pedestrians. He was driving at about 25 miles per hour and proceeded backward through the intersection. In doing so, he drove backward through two crosswalks.

Around that same time, S.H. had been walking along Avenida Encinas and was preparing to cross the intersection at southbound Carlsbad Boulevard. When the light was red for southbound traffic, S.H. proceeded into the crosswalk at the intersection. A motorist who was stopped at the red light saw Barber speeding toward S.H. as she continued through the crosswalk; so, the motorist honked her horn. The honking did not stop Barber from colliding into S.H. as she entered the bike lane area of the crosswalk. The impact of the collision threw S.H. about 10 feet away. Barber felt the impact and looked in the rearview mirror to see a pedestrian bounce off the back of his car. He stopped the car, got out, and saw a woman lying on the ground.

A lifeguard and an off-duty paramedic were in the vicinity when the collision occurred and rendered aid. S.H. was struggling to breathe, coughing up blood, and bleeding profusely from her mouth, nose, ears, and scalp. She displayed symptoms of severe traumatic brain injury.

Barber remained on the scene. He was cooperative, forthright, and very upset about what had happened. A test at the scene revealed that Barber had no alcohol in his system. The rear left area of Barber's car was dented where he hit S.H.

An ambulance arrived and transported S.H. to the hospital. Upon admission to the hospital, it was discovered that S.H. suffered from traumatic brain injury, which included hemorrhages in the brain and skull fractures. As a result of the brain injury, she had difficulty breathing on her own. Given S.H.'s inability to perform simple tasks, her brain injury was considered severe. In addition to her brain injury, her collarbone, shoulder blade, and three bones in her back were fractured. Once S.H.'s acute symptoms were treated, she was referred to a rehabilitation facility. She had no memory from the day of the collision until she was in the ambulance on the way to the rehabilitation center. As a result of her injuries, she suffered severe memory loss, loss of language, and ongoing physical issues, which continued to require additional surgeries.

Defense

Barber is a retirement planner for teachers and seniors and has a 15-year-old son. On the day of the incident, Barber picked up his son from school at 2:45 p.m. and dropped him off at an athletic training class at 4:00 p.m. The class lasted for an hour; thus, Barber went for a run on the coast. Barber got back to his car at about 4:45 p.m.

To pick up his son, Barber could go south on Carlsbad Boulevard for three-quarters of a mile and make a U-turn at a cross street. Or he could back up against traffic to Avenida Encinas and use it to get to northbound Carlsbad Boulevard. Barber decided to do the latter.

Barber looked for pedestrians and did not see any. He checked his mirrors before he started driving. Barber got into his car and backed up, looking over his shoulder as he drove. Barber estimated that he was going 15 miles per hour as he backed up. He went straight back and did not see anyone or hear any horns. He was shocked when he felt an impact. Barber got out of the car and saw S.H. lying on the ground. Barber asked if she was okay and took out a towel and placed it under her head.

Barber testified that if he had seen anyone in the area, he would not have driven in reverse against traffic. Barber did not believe he was posing a risk of danger to anyone. Barber knew it was against the law to drive against the direction of traffic and to drive through a crosswalk if there is a pedestrian in it.

DISCUSSION

I

JURY INSTRUCTIONS

A. Barber's Contentions

Barber makes two assertions regarding the jury instructions the trial court provided to the jury. First, he claims the court prejudicially erred in refusing to give a special instruction further defining the term "wanton." Second, Barber insists that CALCRIM No. 2200, which was given to the jury, misstates the law. We reject both of these contentions.

B. Background

Before trial, Barber filed a motion asking the trial court to give two special jury instructions. Barber proposed these special instructions because he believed they were necessary to properly explain the mental state needed to commit reckless driving.

The first requested special instruction stated: "The term ‘wanton’ means the intentional doing of something with the knowledge that serious injury is a probable result. [¶] Negligence, even though it be gross negligence, is not willful misconduct and does not amount to wantonness."

The second requested instruction provided:

"Gross Negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1. He [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 acts is so different from how an ordinarily careful person would act in the same situation that his act amounts to disregard for human life or indifference to the consequences of that act."

During hearings on in limine motions, the parties and the court discussed the instructions Barber had requested. After entertaining argument from the parties, the court tentatively ruled that it would not give either of the requested instructions, but it said defense counsel could revisit the issue depending on the evidence and the arguments defense counsel intended to present to the jury.¹

During the trial, before the parties rested, the matter of the special instructions was raised again. The trial court allowed the parties to argue the merits of the special instructions, but, ultimately, the court said it was not inclined to provide the special instructions to the jury.

The court, however, instructed the jury on the elements of reckless driving under CALCRIM No. 2200. As such, the court instructed the jury, as to the crime of reckless driving, as follows:

"The defendant is charged in Count 1 with reckless driving in violation of Vehicle Code Section 23103.

"To prove the defendant is guilty of this crime, the People must prove the following elements: One, the defendant drove a vehicle on a highway; and two, the defendant intentionally drove with wanton disregard for the safety of persons or property.

"A person acts with wanton disregard for safety when, one, he or she is aware that his or her actions present a substantial and unjustifiable risk of harm; and two, he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage."

During his closing argument, defense counsel acknowledged that by taking a shortcut, Barber "caused a horrendous accident." Counsel argued, however, that Barber "did not commit this serious crime of reckless driving." Defense counsel focused the jury on Barber's state of mind. He then attempted to define wanton disregard for the safety of others, which he explained, "mea...