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DEATH IN A CROSSWALK -- D.A. passed but a civil jury unanimously blamed the driver

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    By Casey Christie / The Californian

    Cynthia Paregien's daughter, Heather, right, had just finished reading a poem about her mother during Cynthia and Tiffany Paregein's funeral, Jan. 6, 2011, at Greenlawn Southwest Mortuary. Both were killed after being run over on Union Avenue.

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    By Casey Christie / The Californian

    The caskets of Cynthia and Tiffany Paregien were wheeled to their gravesite at the end of their funeral service Jan. 6, 2011, at Greenlawn Southwest Mortuary.

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    By Photo courtesy of Scott Howry

    Shawn Paregien, 14, and his little sister, Lacey, 2, spend time together in the days leading up to a civil trial in March that would result in a $15 million settlement following the death of their mother and grandmother last December.

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BY STEVEN MAYER Californian staff writer smayer@bakersfield.com

Is it possible for the driver of a carrot truck to run over two women, leave them mortally injured or dead on the pavement, and not notice?

That question lies at the heart of the case of Cynthia Paregien, 55, and her daughter, Tiffany, 28, both of whom died in December 2010 after being run over by the driver of a semi truck hauling empty produce trailers.

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Last month, a civil jury awarded the younger Paregien's two surviving children, Shawn, 14, and Lacey, 2, a total of $15 million in non-economic damages for the loss of their mother. It was a significant award from a Kern County jury.

Named as defendants in the lawsuit were the owner of the truck, E & M Trucking, and company principal Emiliano Perez. Perez did not return a message left at his office.

The third defendant was the driver of the truck that struck and killed the Paregiens, E & M employee Antonio Oliva.

But Oliva, 58, was never prosecuted criminally by the Kern County District Attorney's office, despite the fact that California Highway Patrol investigators said he left the scene and told a supervisor at work and CHP investigators that he was nowhere near the intersection of South Union Avenue and Panama Road the night the Paregiens lost their lives.

The D.A.'s decision not to pursue charges of felony hit and run or vehicular manslaughter shocked members of the civil jury, who voted 12-0 on the question of whether Oliva was negligent, and 12-0 again on whether he showed malice, defined in part as conduct performed with a knowing disregard for the rights or safety of others.

"We believed the driver knew he hit them (the victims) -- and that he made a conscious decision not to stop," said Tamarra Harms, one of the jurors in the case. Harms is an advertising account executive with The Californian.

She and her fellow jurors had no reason to believe that Oliva intentionally struck the mother and daughter as they walked, guided by a green light, across Panama Road, Harms said. But it's "ridiculous" to suggest, she added, that the truck driver did not know he had struck the two women.

"I don't think Mr. Oliva is a bad person," Harms said. "I do think he deserves to be in trouble for leaving the scene of an accident."

The scene

According to the CHP's 40-page accident investigation report, the weather on Dec. 27, 2010 was cold, dry and clear when the 911 call came in at a few minutes before 7 p.m. Salvador Cendejas was in his car in the eastbound lane waiting for the light to change when he witnessed a sight he likely will never forget. On the other side of South Union Avenue, he saw two women walking northward across Panama Road.

Cendejas watched, horrified, as a semi truck turned right from the northbound lane of Union Avenue onto eastbound Panama. The truck's trailer ran over both pedestrians and the driver kept going, Cendejas told the CHP. He honked his horn and flashed his high beams in an attempt to get the driver to stop, but to no avail.

The intersection, located a few miles south of Bakersfield, had functioning street lights at each corner.

When the first officer arrived, he found the body of Cynthia Paregien on Panama Road, 29 feet from the east edge of Union Avenue. She had suffered massive head injuries and was pronounced dead at the scene. The area around her body was littered with what investigators called "carrot debris."

Cynthia's daughter, Tiffany, was dragged even farther by the truck. She was found, barely alive, 46 feet from Union Avenue. She'd suffered blunt-force trauma to her pelvic area, according to the incident report. The mother of two was taken by ambulance to Kern Medical Center where she died at 9:10 p.m.

Investigation

The next morning, CHP investigators caught a break. By viewing video images recorded by a security camera at nearby Mission Bank, officers were able to determine that the truck involved in the accident was from Bakersfield-based E & M Trucking.

Video from other businesses in the area also would be used by investigators.

By midday Dec. 28, investigating officers were at E & M Trucking where dispatcher Eduardo Martinez provided them with a list of all trucks in operation on the 27th, including the locations of where the drivers delivered and where they returned.

That afternoon, Martinez instructed all drivers to return to E & M, where several were interviewed and their trucks photographed by the CHP. Truck 22, driven by Oliva, did not return until after the officers were gone.

The following day, investigators determined that Oliva had made a delivery at Sundance Feed Yard on Bear Mountain Boulevard at 6:22 p.m. on the night of the accident. Officers then made contact with Oliva for the first time, according to investigative reports. He told them that on the 27th, he made the delivery at Sundance, refueled at Bear Mountain Travel Stop and drove east on Bear Mountain straight back to Grimmway Farms in Arvin, where he said he dropped his trailers and continued to his residence north of Lamont.

Martinez also asked Oliva whether he had been at Union and Panama the evening of Dec. 27. Oliva told Martinez the same story. No. He had headed east on Bear Mountain Boulevard.

Oliva "was adamant he had not been in the area" of the fatal accident, according to investigative reports.

But it was only a matter of time before the scenario described by Oliva would fall apart.

After reviewing security video at Grimmway, investigators quickly determined that Oliva had not returned to the carrot facility the night of Dec. 27.

Meanwhile, through video enhancement techniques, officers were able to make out the identification number on the truck involved in the deaths of Cynthia and Tiffany Paregien.

It was truck 22.

On the afternoon of Dec. 30, after being told about the video evidence, Oliva admitted to investigators that he indeed had driven home through the intersection at Union and Panama, according to the CHP's report. He recalled being stopped at the light where he saw two women cross Union Avenue west to east. His truck was in the crosswalk, he remembered, so he backed up to allow them to cross.

According to investigators, the two women waited on the southeast corner until the light -- and the pedestrian signal -- turned green. Then they entered the crosswalk.

But Oliva appears to have lost track of the women after they crossed Union.

"He claims not to have seen them afterward," the CHP report states. Oliva "related he did not know anything about a traffic collision."

And according to Michael Kellar, the attorney for the defense, Oliva has never deviated from his assertion that he had no knowledge that he had struck the women in the crosswalk. In addition, Kellar said, a language barrier may have been a factor in Oliva's initial denials.

"There was some inconsistency in his statement to police," Kellar said. "However, it's unclear whether there was confused understanding between Mr. Oliva, who speaks Spanish, and investigating highway patrol officers, who didn't speak Spanish."

Oliva could not be reached for comment. Kellar told The Californian it was not in his client's best interest to comment publicly about the case.

No charges

The CHP recommended to the D.A.'s office that Oliva be charged with felony hit and run and vehicular manslaughter. Not only had Oliva "fled from the scene," the CHP report says, he did not immediately come forward as the driver after being made aware of the accident.

"Oliva did not admit to being in the area of the collision until his statements were proven to be false," the report says.

In addition, investigators assert that while driving on a flat surface with empty trailers, Oliva should have felt the impact as he drove over two adult pedestrians.

Scott Howry, an attorney-partner with Young Wooldridge LLP, was on the legal team representing the Paregien siblings. He met with Assistant District Attorney Scott Spielman in an unsuccessful attempt to convince the D.A's office to file charges against Oliva.

"We met with him (Spielman) on behalf of the family," Howry said. "The family never understood why the D.A.'s office didn't pursue charges."

When he spoke with jurors after the civil trial, he said, they were surprised that Oliva had not faced criminal charges.

"The jurors couldn't believe the D.A. didn't file," Howry said.

Harms, the juror, said she was convinced by a combination of several pieces of evidence that Oliva knew he had struck the Paregiens.

First, she said, the 9-foot-diameter pattern of carrot debris found around the body of Cynthia Paregien indicated the truck trailer had "jumped" when it ran her over, thereby dislodging remnants of the otherwise empty load of carrots.

"I think he felt that," Harms said.

Secondly, she found it unbelievable that Oliva forgot that he had not returned to Grimmway Farms to drop off the trailers -- and that he had actually headed south on Union and turned right on Panama.

"He told his dispatcher that (he went back to Grimmway)," she said. "He told two other cops that."

In addition, Harms is skeptical about why Oliva didn't make it back in a timely manner to E & M when he was called by his dispatcher to return to the truck yard.

And finally, she said, a comparison in court of two different security videos indicated that Oliva's rate of acceleration slowed after he struck the two women.

At that moment, did he begin to realize what had happened?, she asked. Did he take a few seconds to think about it?

"Coasting," she said. "That's kind of how we all thought about it."

Spielman, the assistant D.A., said the decision by the civil jury, in and of itself, is not enough to reverse the decision not to prosecute Oliva. If new evidence had come to light during the civil trial, then it might be worth re-evaluating. But that did not happen.

The size of the rig, the fact that the engine compartment stuck out in front of the cab of the truck, he said, may have impeded the driver's vision and his ability to feel the impact.

"There's no way we can show he knew he had run them over," Spielman said. To convict on hit and run, "we would have to show he knew he had hit them."

In addition, the inconsistencies in Oliva's story did not seem definitive, Spielman said.

And finally there was this:

In most cases of hit and run, Spielman said, drivers stop, then panic and drive away.

"If a driver hits a person, they tend to stop," he said.

That didn't happen in this case.

'Inflamed passion' or justice?

A request through Howry for comment from 14-year-old Shawn Paregien was declined by Sandy Dudley, who is the sister of Cynthia Paregien and guardian of Shawn, Howry said. Dudley also declined to comment.

Defense attorney Kellar, a partner with Robinson & Kellar, said he was surprised by the amount of money the jury awarded the plaintiffs.

"I believe it was excessive," he said, "and was a reflection of the jurors' inflamed passion against Mr. Oliva, the driver of the truck."

It's clear the jurors believed Oliva knew he had run over the victims, Kellar said.

But the value of non-economic damages -- the loss of Tiffany Paregien's love, companionship, comfort, care, and other kinds of motherly moral support -- should not change based on how jurors feel about the defendant, Kellar argued.

It was the first case he's litigated in more than 30 years of practicing law, Kellar said, in which economic damages were not in play.

Indeed, the two women were said to be virtually homeless, with no significant assets.

Finally -- and this information was not allowed by the judge to be admitted as evidence -- according to Kellar, methamphetamine was found in the Paregiens' blood following autopsies.

Kellar was prepared to argue that the drug may have impaired their judgment the night they were killed.

But they were crossing the street with a green light in a marked crosswalk. And the judge closed that door.

Howry believes the award was just and appropriate.

Two women, a mother and her daughter, were run down by a driver who had seen them cross directly in front of him. He didn't stop to render assistance. He took three days to get his story straight.

"The statute of limitations is three years on felony hit and run," Howry said. "I hope the D.A. re-examines the facts of this case."

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