Beverly Hills Police Department have issued a media advisory yesterday concerning a vehicular assault occurring April 3rd
23rd at 5pm in an alley off the 9000 block of Wilshire. ‘Road rage’ hardly does this justice: in a continuation of a prior argument (in which the rider struck the motorist), the motorist actually doubles back to run head-on into the rider and pin him against a dumpster. With the rider hanging on to the door, the motorist then drives in reverse to dislodge the rider. You have to see it to believe it.
Given the prosecutor’s recent decision to prosecute Victoria Chin in a hit-and-run incident near City Hall in Beverly Hills two years ago, we fully expect that this driver will face the law too. After all it’s on video.
In the earlier incident, biker Paul Livingston was gravely injured, but the BHPD’s ‘investigation’ was lame: the driver seemingly got off scot-free even after refusing to answer any police questions or produce the vehicle. Here we have what appears to be clear intent to do severe bodily harm and perhaps even kill the rider.
What does the law say about this kind of behavior? First, under the law it doesn’t seem to rise to attempted murder. Murder is distinguished from manslaughter by ‘aforethought’; manslaughter, by contrast, is the “unlawful killing of a human being without malice.” Aforethought and malice are key; gross negligence and passion are mitigating factors that suggest a charge of attempted manslaughter instead of murder.
But manslaughter comes in several flavors. From the facts presented in this police advisory, a reported preceding violent incident visited upon the driver by the rider might suggest the driver acted “upon a sudden quarrel or heat of passion” – a provocation that mitigates culpability. Voluntary manslaughter “upon a sudden quarrel or heat of passion” is a crime is punishable (per section 192 of the California Penal Code) by imprisonment in the state prison for 3, 6, or 11 years. Could the charge be ‘attempted voluntary manslaughter’?
Then there is attempted vehicular manslaughter, which describes “driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence” (per section 191.5 subsection A). Punishment for vehicular manslaughter is “imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years” – a significant break from the longer term for voluntary manslaughter.*
Again there is sentencing latitude, and a stint in the County clink probably would amount to just a few days and then house arrest. But even with a sentence in the state penn, the imperative to reduce the prison population might kick the offender back to County lockup anyway.
More importantly is an add-on that reflects the legislature’s dim view of the disappearing offender: “A person who flees the scene of the crime after committing a [vehicular manslaughter] violation, upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison.” That might add some heft to a sentence. And stay tuned for the civil suit!
This case may well shape up not as a test of the BHPD, which is likely to pursue the investigation as suggested by the advisory, but of the prosecutor. Prosecutors enjoy significant leeway in charging a defendant, and in the past have not been particularly supportive of the cycling community in vehicular assaults. This will be a good case to watch.
Our take: As a rider, it’s difficult to imagine coming to blows with a motorist over any kind of road dispute. But a willful attempt at harm might suffice. That’s because in our experience, it’s not unheard of for a motorist to behave aggressively, even demonstrating clear intent to harm with a vehicle. And we can see how that can get out of hand as riders subject to abuse are known to be confrontational on occasion. But even if the rider does amplify a dispute with violence, which we can’t excuse, there is simply no justification for waging war on a rider or pedestrian with a two-ton weapon.
Here it was caught on video. Often it’s not. So it’s not difficult to imagine that vehicular assault and attempted voluntary manslaughter occurs more often than we know simply because, like Paul Livingstone, often the rider is left for dead.
Update: Sgt. Max Subin of the BHPD clarified that the incident was reported April 3rd but the department decided to put out a public alert when the motorist to date has not been identified from the city’s CCTV and business surveillance cameras. The incident began a few blocks away with a verbal altercation that resulted in the rider throwing a punch, with the motorist reportedly then chasing the rider while threatening to hurt and kill him. “We see it as attempted murder,” Sgt. Subin said, urging anyone who saw any part of the dispute to come forward. Some tips have come in, he added.
Update 5/1: We spoke with BHPD detective Hyon who is investigating the case, and when asked about the three-week delay between the reported crime and the department’s release to the media, he referred us to Lt. Lincoln Hoshino, the department’s Press Information Officer. Lt. Hoshino was terse in responding to our questions about the delay. He had no idea about the cause of the delay (“I’m the media person”) and spoke generally about how investigations proceed. We mentioned that we’d expect that an attempted murder in Beverly Hills might make it to the media and show up in the crime blotter – as might a jewelry store holdup, say, even without any injuries. For some reason that the Lieutenant couldn’t be clear about, this attempted murder hit-and-run did not make it into the department’s blotter feed. Why not? “No we are not going to discuss our investigative techniques with you.” Can we talk with Detective Hyon about the investigation? “Only if you have a tip.” Case closed? We’ll attend tomorrow’s Traffic & Parking Commission meeting to ask that the commissioners clarify when the department should report on this significant a crime in the city.
Update 7/11/13: Lt. Hoshino reports that the case “has stalled” but that it remains open. “No active leads,” he said.
Anyone with information about the suspect is asked to contact Detective Eric Hyon of the BHPD at 310-285-2156 or the Watch Commander 310-285-2125. The rider has not yet come forward. For updates, check the BHPD twitter.
*The Penal Code, it’s worth pointing out, gives a hefty break to those who commit grave injuries with a motor vehicle as long as they can point to some other mitigating factor. Even driving with gross negligence can be semi-excused under the law if ‘aforethought’ or malice can’t be demonstrated. That’s a get-out-of-jail card for the weapon-wielding driver if we’ve ever seen one.