People v. Nelson2/1/1983
California Appellate Department, Superior Court
Crim. A. No. 19933
189 Cal.Rptr. 845, 1983.CA.41118
February 1, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAN W. NELSON, DEFENDANT AND APPELLANT
Municipal Court for the Rio Hondo Judicial District of Los Angeles County, No. M-051643, Rudolph A. Diaz, Judge.
Rolf M. Treu for Defendant and Appellant.
Robert H. Philibosian, District Attorney, Donald J. Kaplan and Maurice H. Oppenheim, Deputy District Attorneys, for Plaintiff and Respondent.
Opinion by Rothman, J., with Foster, Acting P. J., and Jones, J., concurring.
Rothman
Defendant appeals from his conviction, after jury trial, of violating Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol). On appeal, defendant contends that the trial court erred in permitting testimony regarding his admission that he was the driver of the vehicle in question in the absence of a prima facie showing by the People of the corpus delicti independent of that admission. Defendant also contends that the trial court erred in failing to adequately admonish the jury with respect to a diagram shown to the jury by the People during their opening statements. Since we find that the People did not adequately establish the corpus delicti of the offense charged, we address only that issue.
In every criminal prosecution it is necessary to establish the "corpus delicti," that is, the body or the elements of the crime. (1 Witkin, Cal. Crimes, § 88, pp. 84-85; People v. Lopez (1967) 254 Cal. App. 2d 185, 189 [62 Cal. Rptr. 47].) The corpus delicti consists of two elements: (1) the facts which form the basis of the loss, injury or harm and (2) the existence of a criminal agency as its cause. (Witkin, supra; People v. Dorsey (1974) 43 Cal. App. 3d 953, 961 [118 Cal. Rptr. 362]; People v. Lopez, supra.) The identity of the individual committing the crime is not a part of the corpus delicti and, thus, the establishment of the corpus delicti does not require proof of the identity of the perpetrator or proof that the person charged committed the offense. (People v. Lopez, supra.) Rather, all that need be shown is " that a crime was committed by someone." (In re Robert P. (1981) 121 Cal. App. 3d 36, 39, [175 Cal. Rptr. 252] italics in original.) Therefore, where the offense is driving under the influence , in violation of former Vehicle Code section 23102, subdivision (a) or the current Vehicle Code section 23152, the corpus delicti is established by a prima facie showing that: (1) an individual, (2) while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug; (3) drove a vehicle on a highway.
In the instant case, Larry Keehne testified at trial that, at approximately 11:30 p.m. on December 5, 1981, he was traveling eastbound on the San Bernardino Freeway when he saw a Volkswagen, less than 100 yards ahead of him in the second lane, move across the freeway at a 45 to 60 degree angle and hit a guardrail. The Volkswagen then slid for a bit and rolled over about three times before coming to a stop upright, in the shoulder lane, partially protruding into lane four. Between the time the vehicle first hit the guardrail and when it finally came to a
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