Defendant/Appellant Rohullah Hamidi passed a car that was stopped in an unmarked crosswalk at the intersection of El Cajon Boulevard and Altadena Street in San Diego. He then struck and killed a pedestrian who was running in a different lane than the one in which the car was stopped. A jury convicted Hamidi of manslaughter, but he appealed, arguing that a different jury instruction should have been given because the death was unintentional. The appellate court disagreed and upheld the decision of the trial court.

After hitting the pedestrian, identified only as Ms. Magdalena, Hamidi stopped his car, told witnesses to call 911, and explained to the police he did not see the woman he hit. In March 2022, he was charged with one count of misdemeanor vehicular manslaughter under §192 (c) (2) of the California Penal Code, which defines vehicular manslaughter as “driving a vehicle with ordinary negligence that results in the unlawful killing of a human being.”

The prosecutor claimed that Hamidi’s negligence occurred when he passed a stopped vehicle in a crosswalk in violation of California Vehicle Code §21951, which prohibits drivers from overtaking and passing vehicles stopped in crosswalks. Hamidi argued that the trial court should have given a CALCRIM No. 3404 as a jury instruction that says: “A defendant is not guilty (of vehicular manslaughter) if he acted without the intent required for the crime, but acted instead accidentally.” He also said the court should have clarified the meaning of “overtake and pass.” Both requests were denied by San Diego Superior Court Judge Robert Amador.

A three-judge panel from Division One of California’s Fourth District Court of Appeal, composed of Presiding Judge Albert T. Harutunain III and Judges Frank L. Birchak and Brad A. Weinreb, affirmed the trial court’s rulings on November 20. The appellate opinion began by explaining that requests for denials of jury instructions must be supported by “substantial evidence” of lawful behavior. Here, the panel found that Hamidi did not act lawfully because his driving violated the State Vehicle Code. This was true despite the defendant’s claim that it was an accident; it was dark, the crosswalk was not lit, the stopped vehicle obstructed his view, and Ms. Magdalena “ran into the crosswalk.”

The panel further reviewed the defense’s claim that Hamidi should be entitled to an “accident defense” because of Ms. Magdalena’s running in the crosswalk. Her behavior, the court said, is “in essence a contributory negligence argument.” And, they continued, “Contributory negligence is not a defense to a crime…Defense cannot do an end-run around the prohibition by relabeling it an accident argument. And it is error to instruct in a way that implies to the jury that contributory negligence is a defense.” Thus, Hamidi’s request for an “accident defense” jury instruction was properly denied. The “accident defense” will excuse criminal behavior if it is not done with intent.

The opinion next focused on the necessity of the intent for a vehicular manslaughter conviction. The accident defense requires that Hamidi had “acted without forming the mental state necessary to make his actions a crime.” For this defense to prevail, however, Hamidi would have had to present evidence that satisfied “the legal meaning of the accident defense.” The panel said, “A defendant’s blanket claim that it was an accident is not necessarily sufficient to support the accident defense” because it “did not negate ordinary negligence.” In fact, they wrote, actions like those of Hamidi’s were the “very harm that Vehicle Code section 21951 was designed to prevent.”

The opinion went on to clarify that the “defense of accident” could never be a winner. If Hamidi’s car, for example, had experienced mechanical failure or if he had tried, but was unable to stop, that would “negate ordinary negligence as he was trying to exercise due care.” But here, the opinion said, “unintentional” is not the same thing as “accidental.”

Next, the appellate court reviewed defendant’s request for a clearer definition of the terms “overtake and pass.” The panel explained that certain conditions would allow one vehicle to overtake and pass to the right of another vehicle. These include being on a “highway outside of a business or residence district with unobstructed pavement of sufficient width and clearly marked for two or more lines of moving traffic in the direction of travel.” Neither that condition nor any other permissible passing conditions was present in Hamidi’s case. Thus, he failed to accurately state the law. The court concluded, “Unintentional does not equate with accidental and vehicular manslaughter has never been premised on an intent to cause death…The trial court did not err in giving the instruction(s).”