Gary Robinson

4238 Lindblade Dr. #10a

Los Angeles, Ca 90066

310-398-6544 or

310-439-2292

Defendant and Appellant in Pro Per

APPELLATE DIVISION

OF

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Appellant was cited on June 3, 2001 for the violation of Section 21950(a) of the California Vehicle Code for failure to yield to pedestrians in a cross walk. The Appellant entered a plea of Not Guilty to the above charge and posted a bail of $104. A trial was set and took place on August 27, 2001 at 1:30 p.m. in division 90 of the Los Angeles Superior Court before Commissioner John T. Rafferty.

At the trial, Officer Dohle who issued the citation and the Appellant testified. Officer Dohle testified that on June 3, 2001 at 2 p.m. he was traveling west bound on Windward Avenue, approaching Windward Circle. The officer was in a patrol car immediately behind the Appellant's car. Officer Dohle testified that he saw pedestrians in the crosswalk. He testified that he saw the Appellant come to a complete stop before the stop sign at the intersection.

Officer Dohle testified that he executed an enforcement stop and issued a citation after he witnessed the Appellant proceed through the crosswalk "without waiting for the pedestrians to cross the street."

The Appellant testified to the accuracy of Officer Dohle's statements. He also testified that on this sunny summer weekend afternoon that the pedestrian traffic was heavy. Windward Circle is in Venice and only two blocks from the beach. The Appellant testified that he proceeded through the crosswalk only after there was a significant gap in the pedestrian traffic and the pedestrians in the crosswalk gestured for the Appellant to go through.

Upon cross examination Officer Dohle admitted that although he did not see the gesture that it may have occurred.

The Court found the Appellant guilty of violating Vehicle Code §21590(a) for failing to yield to a pedestrian in a crosswalk. The Court stated that the law required that motor vehicles wait until there were no pedestrians in the crosswalk.

The trial court erred when it found the appellant guilty of a violation of 9140(a) when undisputed evidence indicated that the pedestrian in the crosswalk had communicated to the Appellant to go through the crosswalk.

Case law indicates that conviction of minor traffic infractions, when reversed, should be in the interests of justice, ordered dismissed by the appellate court, rather than be sent back to the trail court for retrial. (People v. Kriss (1979) 96 Cal. App. 3d 913; People v. Binghinatti (1975) Cal. App.3d Supp. 5.)

1. A violation of a pedestrian right-of-way in a crosswalk’s occurs "only under circumstances when the different courses of the vehicle and the pedestrian render it dangerous for both to proceed on their respective ways without delay"(Giles v. Happely (App. 1 Dist. 1954) 123 Cal. App.2d 894, 898.)

 

Vehicle Code §21950(a) states that " The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter."

In Giles v. Happely, supra, the Court upheld the following jury instructions regarding the duty of a motorist to yield the right-of-way to a pedestrian crossing a road way:

"The rule established by this section applies only under circumstances when the different courses of the vehicle and the pedestrian render it dangerous for both to proceed on their respective ways without delay."

"You are instructed that when a pedestrian crossing a roadway in the crosswalk is proceeding beyond the path of the approaching vehicle so that no interference between them is reasonably to be expected, the driver need not wait and yield the right of way."

"You are further instructed that if a driver, after having allowed a pedestrian in a crosswalk to proceed in front of him and reach a place of safety out of the way of his automobile, with no apparent further danger of conflict between them, may then proceed to drive across and through said crosswalk and he need not wait until the pedestrian has cleared the entire roadway."

In this case the Appellant was found guilty of violating VC §21950(a) because he did not wait for "the pedestrians to cross the street." (Engrossed Settled Statement on Appeal, Page 2, lines 9,10) Appellant testified and the arresting officer did not refute the fact that the pedestrians had made a gesture to indicate that the Appellant could go through the crosswalk first. Appellant stated that "I feel what I did was safe" and the "The pedestrian were yielding to me." (Engrossed Settled Statement on Appeal, Page 2, lines 23,24)

The Court erred in finding a violation of VC §21950, since such violation applies only "under circumstances when the different courses of the vehicle and the pedestrian render it dangerous for both to proceed on their respective ways without delay." (Giles v. Happely, supra, 894). Here, the pedestrians communicated ,voluntarily, their intention not to proceed through the crosswalk until the Appellant had crossed first. Therefor, the danger of conflict between the pedestrians and Appellant no longer existed.

2. A pedestrian who is in a crosswalk. can waive his or her right-of-way to a driver who subsequently goes through the crosswalk.

According to Opinions of the Attorney General (38 Ops. Atty.Gen 100 cited by West's Ann. Cal. Vehicle Code § 21950 page 289) "a driver of a vehicle is required to yield the right of way to a pedestrian who steps into crosswalk and then halts, unless there is no danger of a collision or pedestrian has waived his right of way."

The Appellant according to the arresting officer was stopped at a stop sign. The pedestrians gestured to the Appellant for the Appellant to go through the crosswalk first. By doing this the pedestrians waived their right of way.

For the reason set forth above, appellant’s conviction should be reversed. In addition, the trail court should be ordered to dismiss the matter rather than retry appellant. Retrial is therefore barred by the Double Jeopardy clause. (Burks. v. United States (1977) 437 U.S. 1.) Reversal would also advance the interests of justice. In People v. Kriss, supra, the court reversed traffic violation convictions for the defendants in consolidated appeal, and order them dismissed, stating:

Given the relatively minor nature of the infractions involved and the fines imposed, and the necessity for retrials that an unqualified reversal would require, we conclude that in these instances it would not be in the interest of justice to prolong these matters, Accordingly the judgments are reversed with direction to dismiss the complaints." (96 Ca. App. 3d, at 921)

DATED: January 17, 2002. Respectfully submitted,

Gary Robinson, Appellant in Pro Per