Metropolitan News-Enterprise


Thursday, July 3, 2008


Page 3


Court Tosses Driver’s Convictions for Striking Pedestrian on Bike Path

Rules Harbor Patrolman in Pursuit Was not a ‘Peace Officer’ Absent Showing of Primary Duty


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday reversed the assault with a deadly weapon and evading a peace officer convictions of a woman who struck a Long Beach pedestrian with her car when she drove down a beach bicycle path, pursued by a harbor patrolman, while fleeing an earlier collision.

Concluding that Los Angeles Superior Court Judge Joan Comparet-Cassani erred when she instructed a jury that the crime of assault does not require awareness as an element, and pointing out that the prosecution had failed to present any evidence that the patrolman, a fire department employee, was a “peace officer” under state law, Div. Four reversed Vicki Lynn Miller’s convictions, remanding her former conviction for retrial while barring retrial on the latter.

The court, in an opinion by Justice Nora Manella, also reversed Miller’s sentence on her conviction for driving with a suspended license as being “legally unauthorized,” noting that the trial court made no findings with respect to the allegation of a previous, similar conviction upon which the sentence was based. However, it left intact that conviction, as well as Miller’s conviction for hit and run driving.

Miller and another driver were involved in a vehicle collision on the afternoon of Feb. 2, 2006, and had pulled into a nearby gas station when the driver of the other vehicle insisted that they exchange insurance information.

He testified that Miller then reentered her vehicle, and was shivering and seemed agitated when he walked up to her car 10 minutes later to continue the exchange of information.

The driver said Miller then told him “I don’t remember who you are, I don’t know what I’m doing here,” and backed into his car—which was partially blocking the exit—before driving off after he threatened to call police.

Shortly thereafter, a harbor patrolman with the City of Long Beach Fire Department working out of a nearby lifeguard headquarters saw Miller drive down the bicycle path, and began following her in a lifeguard truck with light bar and sirens activated.

The patrolman testified that Miller was driving between 25 and 35 miles per hour, causing people to jump and dive off the path to get out of her way, and that she had proceeded past at least one opportunity to return to the road when she struck a jogger, who was run over by the vehicle after first falling onto its roof and then onto the ground.

Miller stopped a little further down the path, where a bystander grabbed her keys, and emerged from the vehicle, reportedly saying “I didn’t see him.”

The patrolman detained Miller, and police officers who arrested her at the scene later testified that she appeared disoriented, that some of her statements did not make sense, and that her speech was slurred.

The pedestrian was taken to a hospital and released within a few hours.

Officers ultimately opted to take Miller to their station to complete field sobriety tests, given her state. However, even though she failed a number of tests, a breathalyzer did not detect any alcohol, and a police nurse was unable to draw blood for testing.

In addition to charges of hit and run driving, assault with a deadly weapon, evading a peace officer and driving with a suspended license, Miller was charged with driving under the influence, causing injury.

Miller introduced testimony that she suffered from a condition affecting her inner ear that could cause intermittent dizziness or vertigo, and the jury was unable to reach a verdict on the driving under the influence charge. It found her guilty as to all of the other charges, and the trial court sentenced her on the assault conviction to a seven-year term in prison with consecutive sentences for the other three counts.

On appeal, Miller first challenged her assault conviction, arguing that the trial court had erred when—in response to the jury’s request that it clarify an instruction that the defendant must have been aware of facts that would lead a reasonable person to realize that physical force would be applied to another as a direct, natural and probable result—it instructed the jury that that “[t]here is no ‘awareness’ requirement.”

Noting that the instruction was “clear error” because it permitted the jury to find Miller guilty of assault without considering all of the elements, Minella agreed, and said that the error was not harmless because the jury had been focused on the very element the trial court told it to disregard.

Turning to Miller’s challenge to her evading a peace officer conviction, Minella also agreed with Miller’s contention that the conviction was not supported by substantial evidence because there was insufficient evidence to show the patrolman—who operated a rescue boat—was a “peace officer” under state law, even though he had authority to issue citations, detain individuals and make arrests.

Reversing the conviction, and barring retrial as a violation of double jeopardy, she commented that the prosecution—by failing to present evidence that the pursuing patrolman was a peace officer—failed to prove every element of the offense of evading a peace officer.

“No question, appellant was engaged in the type of dangerous and defiant behavior the statute was enacted to prevent,” Minella wrote. “However, a criminal conviction, particularly one based on these provisions of the Vehicle Code, cannot be based on a violation of the spirit of the law.”

Presiding Justice Norman L. Epstein and Justice Thomas L. Willhite Jr. joined Minella in her opinion.

The case is People v. Miller, 08 S.O.S. 3906.


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