Local News

Saturday, Dec 24 2011 04:48 PM

Hit a pedestrian?Drivers rarely charged

BY STEVEN MAYER AND JASON KOTOWSKI Californian staff writers smayer@bakersfield.com jkotowski@bakersfield.com

It's one of law enforcement's most troubling calls.

When first-responders hear a dispatcher utter the words "vehicle vs. pedestrian" over the radio, they know a heart-wrenching scene could be awaiting them.

In Bakersfield, the traffic deaths of 15 pedestrians so far this year, five more than in 2010, attest to the dangers of walking the streets.

And the deaths of two young Oildale residents, who were struck and killed Dec. 16 by a patrol car driven by Kern County sheriff's Deputy John Swearengin, made it painfully clear that dangers to pedestrians might also be heightened when nearby law enforcement officers are responding to a call.

If the tragedy on Norris Road generated a measure of increased public awareness of the dangers pedestrians face, it didn't prevent the death, less than a week later, of 40-year-old Shelly L. Keith, a Bakersfield resident. She was stuck by a raised pickup while walking in a marked crosswalk at White Lane and Gosford Road on Wednesday evening.

Police said the driver in the Keith case turned right, onto eastbound White lane and struck the visually impaired woman as she walked in a crosswalk. No arrest was made, though police said their investigation is continuing.

Pedestrians, beware

Of the drivers involved in the 15 local pedestrian fatalities in 2011, only one, a female juvenile who initially left the scene, has faced criminal charges.

Seven other drivers left the scene of the fatal accidents in which they were involved, leaving their mortally injured victims lying alone in the street. Not one of those drivers -- all of whom are wanted for criminal hit-and-run -- has been apprehended.

What remains may be, to some, a surprising statistic.

No driver who remained at the scene of an accident in 2011 has been arrested or charged in the deaths of seven pedestrians who lost their lives while walking in Bakersfield.

There are a number of factors prosecutors must consider when deciding whether to file charges when a pedestrian is struck and killed by a vehicle. The key legal term is "causation." Essentially, it asks who was most responsible for what happened.

Among the factors considered are whether the pedestrian was in a crosswalk or another place where pedestrians normally cross. Visibility, the speed at which the vehicle was traveling and whether any traffic laws were violated are also key, said Kern County Chief Deputy District Attorney Scott Spielman.

"You need some kind of traffic violation that's the cause of it," Spielman said. "There has to be causation that the person driving was the substantial cause in the death."

If the driver wasn't the substantial cause, then it's not criminal, Spielman said.

But the legalities are even more complex than that.

To err is human

Even when charges are filed, Spielman said, it's difficult to win convictions in misdemeanor manslaughter cases because members of the jury often relate to the driver and the plight in which he finds himself.

"They think, 'I was driving here today and I could have done that,'" Spielman said.

"It's one thing to drink and drive; we all know the dangers of that," he said. "But when someone just has a traffic infraction, and as a result of that someone died, it's hard to get a conviction."

A two-year-old case illustrates just how difficult it is.

Golden Empire Transit bus driver Priscilla Martinez was at the wheel of a bus traveling north on H Street on Dec. 26, 2009 when she turned left onto 24th Street. At that point she struck and killed 62-year-old James Tate, police reported. Tate was in a crosswalk with the green light and during daylight hours.

Martinez was charged with misdemeanor vehicular manslaughter. A jury acquitted her of the manslaughter charge, convicting her only of an infraction -- failure to yield to a pedestrian in a crosswalk.

The verdict sent an unambiguous message to prosecutors: that juries don't like convicting drivers of serious charges in cases where the error was, for lack of a better word, human.

And it wasn't just one instance.

"We've had a lot of 'not guiltys' when prosecuting misdemeanor manslaughter cases," Spielman said.

Defense attorneys have also taken note.

Bakersfield defense attorney Kyle J. Humphrey said there needs to be some sort of aggravating conduct instead of just normal negligence.

"This is a world where accidents happen," he said.

An example of normal negligence, Humphrey said, would be a driver turning her head away from the roadway for a moment to look at another driver. It's negligent, but it's something everyone does, he said.

On the other hand, showing a passenger how you can drive without using your hands would be an example of extraordinary negligence, Humphrey said.

Caution to the wind

California law requires motorists to exercise reasonable caution when pedestrians are present, and older pedestrians, the disabled and those with children require special consideration.

Of course, pedestrians bear some responsibility, too. But local motorists say many pedestrians seem to have thrown caution to the wind.

"I just talked to my husband about this," said Amy Pearson, a 30-year-old Bakersfield mom, as she filled up her minivan at a downtown station.

"I was on Airport Drive when a lady pushing a stroller -- with a cigarette in one hand and a cellphone in the other -- walked right out in front of me."

The woman crossed in the middle of the block, Pearson said, even though a marked crosswalk was just a half-block away.

"It's a common thing," Pearson said. "All over Bakersfield."

Robert Foreman, who works in manufacturing, said pedestrians reading or texting on cellphones "seem to walk across the street without watching."

The 62-year-old said Bakersfield drivers are just as bad as pedestrians, but of course the latter are more vulnerable -- and are certain to lose any contest with a motor vehicle.

"Even if you have the right of way," Foreman said, "you have to look. Don't assume."

Lisette Torres, who moved to Bakersfield from Los Angeles two years ago, said the overall pace of life in Bakersfield is slower -- and she loves it.

But that doesn't mean people drive slower.

Both drivers and pedestrians need to show more respect for one another, said the 34-year-old mom.

Torres said she and her children have experienced a couple of close calls when they've gone out for a walk.

Drivers in a hurry to turn right at traffic lights often refuse to wait for Torres and her little ones to pass, even though they have the green.

"It's scary," she said. "But I'm careful."

Diana Noriega, 55, admitted that sometimes she's not careful enough. On Thursday the Bakersfield resident dashed across H Street, between 20th and 21st streets, then jaywalked again against the red light at 20th.

"I'm guilty!" Noriega cried when confronted by a reporter.

"I shouldn't have done that," she said. "If I had been hit by a car, it probably would have been my fault."

Pedestrians in Bakersfield are "a lot less cautious" than they used to be, Noriega said. "I see it every day."

Lights and sirens

Several questions remain in the aftermath of the officer-involved incident in Oildale.

This much is known: Swearengin was driving west on Norris Road and the pedestrians were walking south across Norris near the intersection of Diane Drive when they were struck at around 7:30 p.m., the CHP reported.

Daniel Hiler, 24, and Chrystal Jolley, 30, died at the scene.

Several witnesses have said Swearengin was driving at a high rate of speed without lights or siren.

Authorities have not commented on that possibility. The investigation by the California Highway Patrol could take weeks, officials said.

At a press conference last Monday, Kern County Sheriff Donny Youngblood said Swearengin, a five-year veteran, has been placed on paid administrative leave. While the CHP conducts its investigation, he said, the Sheriff's Department will conduct an administrative investigation.

Information from the patrol vehicle's internal computer, sometimes referred to as a black box, will be analyzed by CHP investigators to determine how fast Swearengin was driving at the time of impact and whether and when he tried to brake.

Youngblood said there is no speed threshold when deputies are responding to emergencies.

But the department's emergency driving policy, which is seven pages long, is explicit.

"The safety of the deputy and the public must be the primary concern when driving under emergency conditions," the policy states.

In addition, the policy says deputies generally cannot violate traffic laws except when done in a safe manner and during Code 3 operations, meaning when utilizing lights and sirens, or while practicing generally approved patrol procedures.

According to Youngblood, Swearengin was headed to an area near Highway 65 and 7th Standard Road in response to a report of a stolen vehicle. He received the call just before 7:30 p.m.; the crash happened soon thereafter.

But that destination is miles from the accident scene on Norris Road. It seems clear that the use of emergency flashing lights on Norris would not have tipped off a perpetrator who may have been at the scene near Highway 65 and 7th Standard Road.

Authorities noted early on that the victims, Hiler and Jolley, were not in a crosswalk when they were struck by Swearengin's patrol car.

But according to the California Driver Handbook -- Laws and Rules of the Road, "most intersections have a pedestrian crosswalk whether or not lines are painted on the street."

Hiler and Jolley were crossing at or near where Diane Drive creates a T-intersection with Norris.

According to the driver handbook, most crosswalks are located at corners and that many crosswalks are not marked, including those in residential areas.

So the question remains: Could the intersection at Diane and Norris be considered an unmarked crosswalk?

'Eerily similar'

When Santa Monica resident Leigh Godfrey happened upon The Californian's coverage of the accident in Oildale last week, her eyes filled with tears.

"It's eerily similar to what our family went through," Godfrey said.

It was an October night in 2009 when Godfrey learned that a Los Angeles Police Department patrol car had crashed into a car driven by her 25-year-old niece, Devin Petelski.

Petelski had just gotten off work when the crash occurred. It was alleged the police vehicle was travelling at high speed without emergency lights or siren.

According to Godfrey, the LAPD claimed the officer was driving at a safe speed, but the black box proved otherwise. One local news report said the black box determined the officer to have been doing 78 miles per hour in a 40 mph zone.

An internal investigation by the LAPD found no wrongdoing on the part of the officers. However, Petelski's family filed a civil suit accusing the LAPD of negligence. It was settled last June.

The Southern California woman's interest in the Oildale case is intense. She said department policies and practices must first consider the safety of the public.

"Why wasn't the deputy tested for drugs and alcohol?" she asked. "I'm a registered nurse, and if there was an accident at the hospital, I would be tested right away," she said.

An alcohol and drug screen was not performed on Swearengin because he didn't show any signs of intoxication -- standard procedure, CHP Officer Robert Rodriguez said last week.

But at the scene of the White Lane and Gosford Road fatality Wednesday, the driver of the pickup was given a field sobriety test minutes after the accident. The sobriety test was apparently negative, as the driver was not arrested.

Still distraught, she came away from the tragedy feeling that law enforcement officers often don't appear to be subject to the same laws as the rest of us.

"It's a horrific story," she added, her voice breaking with emotion. "I feel so much sympathy for the families who've lost loved ones.

"We still haven't gotten over our loss," she said.

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