DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Filed 10/2/23

TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

APPELLATE DIVISION

THE PEOPLE,

Plaintiff(s) and Respondent(s),

v.

ROHULLAH HAMIDI,

Defendant(s) and Appellant(s).

Appellate Division No.: CA296005

Trial Court Case No.: M280287

Trial Court Location: Central Division

DECISION/STATEMENT OF REASONS 

(CCP § 77(d)) BY THE COURT

APPEAL from the October 19, 2022 judgment of conviction following jury trial entered by 

Superior Court, San Diego County, Robert Amador, Judge. This matter was scheduled for argument 

and taken under submission on July 27, 2023.

AFFIRMED.

On May 30, 2023, Appellate Division Judge Maryann D’Addezio issued an Order of 

Recusal and did not participate in the review or consideration of this appeal.

On May 22, 2021, Ms. Magdalena crossed the street at an unmarked crosswalk at the corner 

of El Cajon Boulevard and Altadena. Mr. Hamidi struck and killed her as he passed a vehicle

stopped at the crosswalk in a different lane. After doing so he stopped, turned on emergency lights, 

and requested someone to call 911. Mr. Hamidi told law enforcement—and testified—that he did 

not see Ms. Magdalena until she was running into the crosswalk. There were videos from several 
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

angles of the accident showing the stopped car, Mr. Hamidi driving, and Ms. Magdalena going 

through the crosswalk and being hit.

On March 23, 2022, Mr. Hamidi was charged with one count of misdemeanor vehicular 

manslaughter pursuant to Penal Code section 192, subdivision (c)(2). The alleged negligent acts 

were passing a stopped vehicle at a crosswalk (Veh. Code, § 21951) and failing to yield to a 

pedestrian (Veh. Code, § 21950). During trial, the defense requested that the trial court give 

CALCRIM No. 3404 as an instruction and that the trial court give an instruction regarding the 

meaning of “overtake and pass.” The trial court denied both of those requests. The jury returned a 

verdict of guilty on September 27, 2022. Sentencing occurred on October 19, 2022. Mr. Hamidi 

timely filed his notice of appeal on November 1, 2022.

Accident Instruction

Appellant requested that the trial court give the instruction CALCRIM No. 3404. 

CALCRIM No. 3404 is a “pinpoint” instruction, and “on request, a criminal defendant is entitled to 

pinpoint instructions ... if the instructions are supported by substantial evidence.” (People v. Nelson

(2016) 1 Cal.5th 513, 542.) When reviewing the denial of a request for a jury instruction, doubts as 

to the sufficiency of the evidence are resolved in favor of the accused. (People v. Tufunga (1999) 21 

Cal.4th 935, 944.) In doing so, we do not weigh the credibility of the witnesses, and we focus on 

matters that could justify the instruction rather than the “customary summary of evidence 

supporting the judgment.” (People v. King (1978) 22 Cal.3d 12, 15–16.) However, when the 

evidence is “minimal and insubstantial ..., the court need not instruct on its effect.” (People v. 

Flannel (1979) 25 Cal.3d 668, 684–685, superseded by statute on other grounds as stated in People 

v. Elmore (2014) 59 Cal.4th 121, 138.) As our Supreme Court has cautioned, “unsupported theories 

should not be presented to the jury” and “[t]rial courts have the duty to screen out invalid theories 

of conviction, either by appropriate instruction or by not presenting them to the jury in the first 

place.” (People v. Guiton (1993) 4 Cal.4th 1116, 1131.)

For homicides, the accident defense stems from Penal Code section 195, which states in 

part: “Homicide is excusable ... [w]hen committed by accident and misfortune, or in doing any 

other lawful act by lawful means, with usual and ordinary caution, and without any unlawful 
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

intent.” The defense requires that the defendant act lawfully. (People v. Attema (1925) 75 Cal.App. 

642, 655.) “‘Misfortune’ when applied to a criminal act is analogous with the word ‘misadventure’ 

and bears the connotation of accident while doing a lawful act.” (People v. Gorgol (1953) 122 

Cal.App.2d 281, 307–308.) “An act which is expressly forbidden by law is an unlawful act and an 

act committed in a manner forbidden by law is committed in an unlawful manner.” (People v. 

Wilson (1947) 78 Cal.App.2d 108, 114.) To be unlawful, such an act does not need to be a crime. 

(Ibid.) Here, Mr. Hamidi’s conduct was not lawful.

Vehicle Code section 21951 makes it unlawful for a vehicle approaching from the rear to 

pass a vehicle that “has stopped . . . at any unmarked crosswalk at an intersection to permit a 

pedestrian to cross the roadway.” In this case, it is uncontroverted that there was a vehicle stopped 

at an unmarked intersection, that Ms. Magdalena was crossing, and that Mr. Hamidi approached the 

stopped vehicle from the rear and passed the stopped vehicle. While merely driving through a 

crosswalk is not inherently unlawful, Mr. Hamidi’s driving in this instance violated Vehicle Code 

section 21951the evidence presented regarding Mr. Hamidi’s driving in this instance does not 

support an accident defense instruction. 

For the defense of accident to apply, there must be substantial evidence of the accident 

negating the required intent. “The accident defense is a claim that the defendant acted without 

forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 

Cal.App.4th 382, 390, disapproved in People v. Anderson (2011) 51 Cal.4th 989, fn. 3 [“to the 

extent [it] hold[s] a sua sponte instruction on accident is required when the defense is raised to 

negate the intent or mental element of the charged crime”].) “In each case, the defense of accident 

was raised to rebut the mental element of the crime or crimes with which the defendant was 

charged. (People v. Anderson (2011) 51 Cal.4th 989, 998.) The mental state required for a violation 

of Penal Code section 192, subdivision (c)(2), is ordinary negligence. The mental state of 

negligence is “a want of such attention to the nature or probable consequences of the act or 

omission as a prudent man ordinarily bestows in acting in his own concerns.” (Pen. Code, § 7, subd. 

(2).)
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Appellant argues that giving the instruction is justified because of Mr. Hamidi’s testimony 

and statements that it was an “accident,” that he did not see Ms. Magdalena, that it was dark, that 

the crosswalk was not lit, that Ms. Magdalena ran into the crosswalk, and that the stopped vehicle 

blocked his view. None of this evidence is substantial evidence of an accident negating ordinary 

negligence.

Mr. Hamidi’s conclusory statements that it was an accident do not constitute substantial 

evidence. Such statements are impermissible lay opinion. No evidence was presented that Mr. 

Hamidi had any legal expertise or understanding of the legal meaning of the accident defense. 

“Witnesses must ordinarily testify to facts, leaving the drawing of inferences or conclusions to the 

jury or court.” (Froomer v. Drollinger (1962) 201 Cal.App.2d 90, 98.) A defendant’s blanket claim 

it was an accident is not necessarily sufficient to support the accident defense. (See People v. 

Piorkowski (1974) 41 Cal.App.3d 324.) 

Mr. Hamidi’s broad statements that he did not see Ms. Magdalena do not negate ordinary 

negligence. Multiple cases describe a driver not seeing someone in the crosswalk as negligent. 

“[W]here a driver did not see his victim until the instant of impact or not at all he is guilty of gross 

negligence or of an entire indifference to those who were using the street or highway 

simultaneously with him.” (People v. Flores (1947) 83 Cal.App.2d 11, 14.) “It is also established 

that appellant did not see respondent in the crosswalk at that time, although she must have been 

there. There is sufficient evidence to justify the finding of the trial court that the appellant driver 

therefore was negligent.” (Hall v. Kaufman (1940) 37 Cal.App.2d 264, 267; see also People v. 

Leitgeb (1947) 77 Cal.App.2d 764, 769–770.) Therefore, the blanket assertion about not seeing Ms. 

Magdalena does not negate ordinary negligence.

Mr. Hamidi’s claims that it was dark also fails to negate the intent of ordinary negligence. 

“The driver of the vehicle is not permitted to lessen compliance with his duties because of the hour 

of the day or night . . ..” (Moritz v. City of Santa Clara (1970) 8 Cal.App.3d 573, 576 [referring to 

Veh. Code, §§ 21950 & 21951].) 

Nor does the lack of flashing lights negate the mental state of ordinary negligence, as both 

alleged negligent acts apply to unmarked crosswalks. (Veh. Code, §§ 21950 & 21951.)
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

The argument that Ms. Magdalena ran into the crosswalk is in essence a contributory 

negligence argument. Contributory negligence is not a defense to a crime. (People v. Schmies

(1996) 44 Cal.App.4th 38, 46 citing People v. Rodgers (1949) 94 Cal.App.2d 166, 167.) “It has 

been repeatedly held that contributory negligence is not available as a defense or excuse for crime.” 

(People v. Rodgers (1949) 94 Cal.App.2d 166, 167.) Defense cannot do an end-run around this 

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. (People v. Marconi (1931) 118 Cal.App. 683, 

687–688.)

Injury to a pedestrian as a result of a driver’s view being obstructed by a stopped vehicle 

that the driver is passing at a crosswalk is the very harm that Vehicle Code section 21951 was 

designed to prevent. In a civil case, this would trigger a rebuttable presumption that Mr. Hamidi 

was negligent. (See Evid. Code, § 669.) There is no case law establishing that Evidence Code 

section 669 applies to criminal cases, but even assuming the presumption does not apply, section 

669 helps illustrate why Mr. Hamidi’s asserted inability to see Ms. Magdalena does not negate the 

mental state of ordinary negligence. The analysis under section 669 requires courts to ask if the 

“death or injury resulted from an occurrence of the nature which the statute, ordinance, or 

regulation was designed to prevent....” In light of the Legislature’s enactment of Vehicle Code 

section 21951, a driver who passes a stopped vehicle in a crosswalk would be considered negligent 

because a reasonable person would know their view is obstructed at a location where pedestrians 

are likely to be. A driver’s assertion that they did not see a pedestrian under these circumstances, 

even if true, does not serve to negate the driver’s negligence.

As none of the evidence argued as a basis for the accident defense negated the mental state

of ordinary negligence, the trial court did not err in declining to give the CALCRIM No. 3404

instruction.

This does not mean that the defense of accident can never exist in a case under Penal Code 

section 192, subdivision (c)(2). For example, if Mr. Hamidi’s testimony was that he saw the car 

stopped at the intersection and attempted to stop but—because of mechanical failure or other 
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

misfortune—he was unable to stop before the intersection, that would negate ordinary negligence as 

he was trying to exercise due care.

Appellant appears to suggest that unintentionally causing a death equates with 

“accidentally” causing a death, but vehicular manslaughter has never been premised on an intent to 

cause the death. Again, we believe that an accident instruction, in the context of a vehicular 

manslaughter case, may be justified when the vehicle proceeds in a manner unintended by the 

driver (e.g., the car goes backwards when the driver thinks it is going to go forward). Appellant 

never contended that he lost control of the vehicle. He drove exactly where he intended to drive. He 

was just surprised, due to his failure to strictly comply with the Vehicle Code, to find a pedestrian 

in his path. Being surprised at a negative result of driving does not equate with bearing no criminal 

responsibility for the driving, nor is surprise that unsafe driving resulted in a death sufficient to 

justify an accident defense instruction.

Overtake and Pass Instruction

Appellant also requested the following instruction: “To overtake and pass a vehicle, the 

overtaking vehicle must have been approaching the overtaken vehicle from the rear in the same lane 

prior to overtaking and passing.” This requested instruction is not an accurate statement of law or of 

the legal definition of “overtake and pass.” Contrary to the proposed defense instruction, Vehicle 

Code section 21754 describes several situations as overtaking and passing that do not require a lane 

change: “The driver of a vehicle may overtake and pass to the right of another vehicle only under 

the following conditions: (c) Upon any 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. (d) Upon a one-way street. (e) Upon a highway divided into two 

roadways where traffic is restricted to one direction upon each of such roadways...” These are 

descriptions of lawful driving described by the Legislature as “overtaking and passing.” The trial 

court noted this in its decision not to give the instruction. Because the requested instruction did not 

/ / /

/ / /

/ / /
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

accurately state the law, the trial court did not err in not giving the instruction.

The judgment of the trial court is affirmed. 

Unanimously affirmed.

ALBERT T. HARUTUNIAN III

Presiding Judge, Appellate Division

FRANK L. BIRCHAK

Judge, Appellate Division

BRAD A. WEINREB

Judge, Appellate Division
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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Counsel for Appellant, Rohullah Hamidi:

TROY BRITT, PUBLIC DEFENDER

KATIE BELISLE, DEPUTY PUBLIC DEFENDER

451 A STREET, SUITE 900

SAN DIEGO, CA 92101

Counsel for Respondent, The People:

MARA ELLIOTT, CITY ATTORNEY

APPELLATE DIVISION

1200 THIRD AVE, SUITE 700

SAN DIEGO, CA 92101