Metropolitan News-Enterprise


Thursday, January 15, 2009


Page 1


Court Allows Constructive Knowledge to Prove Hit-and-Run


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal yesterday rejected an Oakland motorist’s challenge to the use of circumstantial evidence to show he knew he struck a pedestrian with his vehicle, rather than a deer, when he fled the scene of the accident.

Ruling that the crime of failing to stop and offer assistance can be shown through either actual or constructive knowledge that one was in an accident involving a person, Div. Two upheld Lee David Harbert’s conviction in the hit-and-run death of 55-year-old woman in the San Francisco suburb or Moraga.

Contra Costa Superior Court Judge Barbara Zuniga sentenced Harbert, 51, to three years in prison for leaving the scene after his Jaguar sedan struck Gurdeep Kaur as she walked across the road outside of a pedestrian walkway at around 9 p.m. in January 2005.

The impact crumpled the car’s front end and ripped off its hood ornament, fractured the windshield, and produced what one witness described as a “horrific…whomp” noise. Kaur was taken to the hospital, but died within the hour.

Harbert—who was arrested two weeks later—claimed he had stopped, expecting to find “a large animal,” and said he only left after concluding the animal had “scampered off” because he “didn’t see anything.

He was convicted of violating Vehicle Code Sec. 20001 for failing to stop and provide assistance as required under that section and Sec. 20003.

Police were able to tie Harbert to the accident after one of Kaur’s earrings was found in the Jaguar’s windshield well. Additionally, they seized his computer, which showed Internet searches related to auto accidents and legal obligations, and to the accident causing Kaur’s death.

Harbert testified that the collision occurred as he was driving home from nearby St. Mary’s College, where he had intended to watch a basketball game but was unable to find parking.

He also admitted consuming alcohol during an almost-seven-hour business meeting at two restaurant-bars in Marin County earlier that day, but the prosecution was unable to demonstrate that he was legally intoxicated despite testimony by a manager at the second bar that Harbert was belligerent and falling down drunk, and all parties agreed that Harbert was driving within the posted speed limit, 35 miles per hour, when he struck Kaur.

The victim was crossing the road towards her home at the time of the accident, but was not using a crosswalk. Another motorist—who testified she barely avoided hitting Kaur—testified that Kaur made no attempt to get out of the way, and appeared “resolute, on a mission.”

California’s Vehicle Code requires a showing of knowledge of both the accident and any injury or death in order to support a conviction for failing to stop and offer assistance.

While the latter element can be shown by actual or constructive knowledge, Harbert contended on appeal that the former could only be shown by actual knowledge, and argued that Zuniga erred when she instructed the jury that it could impute knowledge of the accident to him based on the circumstances.

But Justice James A. Richman, noting that “[c]laimed ignorance of any accident has been repeatedly rejected in the face of countervailing evidence,” swept aside Harbert’s argument.

“There must be proof—obviously most likely, perhaps exclusively, to be shown by circumstantial evidence—that the defendant was aware of being involved in an accident,” he wrote. “But there is no reason in logic or in law why this knowledge can only come from the defendant’s lips.”

Pointing to cases involving similar facts, Richman opined that “[a] pedestrian struck with sufficient force that he or she reaches the hood or windshield is treated as virtually unignorable,” and he described Harbert’s testimony that he stopped but saw none of those who had gathered around Kaur’s body almost immediately after the incident as “lacking in credibility.”

The justice similarly rejected an argument by Harbert that Zuniga erred in imposing a three-year sentence enhancement for great bodily injury under Penal Code Sec. 12022, which Zuniga stayed.

The statute prohibits enhancement where great bodily injury is an element of the offense, but Richman reasoned that the prohibition was inapplicable because the gravamen of a Vehicle Code Sec. 20001 offense is leaving the scene, rather than causing personal injury to the victim.

Justices Paul R.Haerle and James R. Lambden joined Richman in his opinion.

The case is People v. Harbert, 09 S.O.S. 288.


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