Metropolitan News-Enterprise


Wednesday, November 22, 2023


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Appellate Division:

Hitting Woman Running in Crosswalk Was Manslaughter

C.A. Approves Decision Holding That Unintentionally Causing Death Doesn’t Mean Death Was Accidental


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal has placed its imprimatur on a decision of the San Diego Superior Court Appellate Division affirming the conviction of a man for vehicular manslaughter based on his act of passing a car stopped at a crosswalk and hitting a pedestrian, holding that unintentionally causing a death does not, in itself, create an “accident” defense.

The Court of Appeal on Monday determined that transfer of the case to itself was unnecessary. The Superior Court’s per curiam opinion was filed Oct. 2.

Left standing is the conviction of Rohullah Hamidi who, on May 22, 2021, struck and killed a woman who was running in a crosswalk. The charge of manslaughter was predicated on Hamidi having passed a stopped vehicle at a crosswalk, in violation of Vehicle Code §21951, and failing to yield to a pedestrian, breaching Vehicle Code §21950.

Ordinary Negligence Instruction

The defendant argued on appeal that San Diego Superior Court Judge Robert Amador erred in declining to give the CALCRIM 3404 instruction. Had he done so (with variables filled in), it would have read:

“The defendant is not guilty of vehicular manslaughter if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of vehicular manslaughter unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.

“You may not find the defendant guilty of vehicular manslaughter unless you are convinced beyond a reasonable doubt that he acted with ordinary negligence.” The instruction defines “ordinary negligence” as “the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else.”

Panel’s Decision

The panel—comprised of Appellate Division Presiding Judge Albert T. Harutunian III and Judges Frank L. Birchak and Brad A. Weinreb—said: “Appellant argues that giving the instruction is justified because of Mr. Hamidi’s testimony and statements that it was an ‘accident,’ that he did not see Ms. Magdalena, that it was dark, that the crosswalk was not lit, that Ms. Magdalena ran into the crosswalk, and that the stopped vehicle blocked his view.

“None of this evidence is substantial evidence of an accident negating ordinary negligence.”

The defense’s pointing to the fact that the victim was running, the panel said, “is in essence a contributory negligence argument,” remarking:

“Contributory negligence is not a defense to a crime….Defense cannot do an end-run around this prohibition by relabeling it an accident argument. And it is error to instruct in a way that implies to the jury that contributory negligence is a defense.”

The panel went on to say:

“This does not mean that the defense of accident can never exist in a case under Penal Code section 192, subdivision (c)(2). For example, if Mr. Hamidi’s testimony was that he saw the car stopped at the intersection and attempted to stop but—because of mechanical failure or other misfortune—he was unable to stop before the intersection, that would negate ordinary negligence as he was trying to exercise due care.

“Appellant appears to suggest that unintentionally causing a death equates with ‘accidentally’ causing a death, but vehicular manslaughter has never been premised on an intent to cause the death….[W]e believe that an accident instruction, in the context of a vehicular manslaughter case, may be justified when the vehicle proceeds in a manner unintended by the driver (e.g., the car goes backwards when the driver thinks it is going to go forward). Appellant never contended that he lost control of the vehicle. He drove exactly where he intended to drive. He was just surprised, due to his failure to strictly comply with the Vehicle Code, to find a pedestrian in his path. Being surprised at a negative result of driving does not equate with bearing no criminal responsibility for the driving, nor is surprise that unsafe driving resulted in a death sufficient to justify an accident defense instruction.”

The case is People v. Hamidi, 2023 S.O.S. 4181.


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