People v. Lytkowski ( 2024 )

Filed 6/11/24
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
THE PEOPLE, APP-23-008729
(Super. Ct. No. 2529479)
Plaintiff and Respondent,
v.
KEVIN LYTKOWSKI,
Defendant and Appellant. OPINION
APPEAL from a judgment of the Superior Court of San
Francisco County, Sharon M. Reardon, Judge. Reversed.
Robert N. Treiman, under appointment by the Appellate
Division of the Superior Court of San Francisco County, for
Defendant and Appellant.
Brooke Jenkins, District Attorney, and Robert Lopez,
Assistant District Attorney, for Plaintiff and Respondent.
__________________________________________
Appellant was convicted by a jury of reckless driving. On
appeal he argues, inter alia, that his conviction must be reversed
because insufficient evidence supports the jury’s factual finding
that he drove recklessly on a highway or offstreet parking
facility, as defined by the Vehicle Code. After considering the
record, arguments, and applicable law, the judgment is
REVERSED.
I. FACTS AND PROCEDURAL HISTORY
On September 14, 2021, at about 5:20 a.m., John Morris,
Jr., a security guard at the Olympic Club in San Francisco, was
sitting in his parked car at the entrance gate to the club when he
saw a vehicle arrive “off of Skyline Boulevard into the driveway
of the club.” Skyline Boulevard is a highway. Morris saw the
vehicle, a burgundy Cadillac Escalade, arrive “very fast . . . with
excessive speed . . . tires screeching,” and driving on the wrong
side of the road. As the Cadillac approached Morris and nearly
collided with his car, it “moved right to the side, hit [a] planter . .
. careened off of that planter, and then hit [a] retaining wall . . .
behind [the] gate, bounced over to the other side” of the driveway,
and hit another retaining wall, before rolling down the driveway.
A club security camera recorded the Cadillac crashing into the
retaining walls. The Cadillac crashed into a tree. Morris called
911.
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San Francisco Police Department Officer Nathan Rapolla
arrived, and saw the Cadillac that had apparently collided with a
tree. Officer Rapolla got out of his patrol car, and saw a man in
the Cadillac next to the tree. Officer Rapolla testified that the
man in the car appeared to be “in and out of consciousness.” The
man, later identified as appellant Kevin Lytkowski, was yelling
at “Hammer,” and he claimed that he was an undercover officer.
“Fuck you, pigs,” appellant said. Appellant attempted to spit at
and bite the officers. Officer Rapolla saw appellant bite
personnel from the San Francisco Fire Department.
San Francisco Police Department Officer Zakariya Ali, who
also arrived at the Olympic Club, identified appellant in court as
the man he saw in the Cadillac on September 14, 2021.
Appellant told Officer Ali that he “was coming from hell.”
When Officer Ali asked appellant to clarify where he was coming
from, appellant said that he was coming from “The Avenues.”
Appellant said that he was going to “hell.” Appellant said that he
drank three cans of beer. Officer Ali testified that he did not
perform field sobriety tests on appellant because it was
“impossible due to . . . his injuries.” Appellant suffered from head
trauma, internal bleeding, and broken bones. Appellant was
taken to the San Francisco General Hospital, where he was
treated for his injuries and a nurse drew blood from his arm.
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Sue Pearring, a forensic toxicologist at the Office of the
Chief Medical Examiner, analyzed a vial which contained
appellant’s blood, and found that it contained 1,112 nanograms
per milliliter of methamphetamine, and 5.5 nanograms per
milliliter of tetrahydrocannabinol (THC). Pearring testified that
it would be “hard to say” whether that concentration of
methamphetamine in someone’s blood would impair their ability
to drive, but that “[g]iven the police report and the narrative here
describing the driving, the high speed, as well as the collision,
and the . . . disregard for the obstacles in the roadway and the
barriers . . . these things are consistent with methamphetamine
and driving.”
On February 16, 2022, appellant was charged by
misdemeanor complaint with driving under the influence of
methamphetamine (Veh. Code, § 23152, subd. (f)). On May 5,
2022, the trial court granted the prosecutor’s motion to amend
the complaint, adding three charges: reckless driving (Veh. Code,
§ 23103, subd. (a), count 2), assault upon a peace officer (Pen.
Code, § 241, subd. (c), count 3), and battery upon a peace officer
(Pen. Code, § 243, subd. (b), count 4). On June 8, 2022, the trial
court granted the prosecutor’s motion to dismiss counts 3 and 4
“in furtherance of justice.” (See Pen. Code, § 1385, subd. (a).)
On June 27, 2022, a jury convicted appellant of reckless
driving. The jury informed the trial court that they were
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hopelessly deadlocked 11-1 on the other count, driving under the
influence of methamphetamine, so the trial court declared a
mistrial on that count. After declaring a mistrial, the jury
foreperson informed the trial court that they were hopelessly
deadlocked 11-1 in favor of guilt.
On April 18, 2023, the trial court suspended imposition of
sentence, and placed appellant on probation for one year, with
conditions that he not drive with drugs or alcohol in his system,
participate in 20 days of drug counseling, and complete a safe
driving course. The trial court imposed various fines and fees,
but stayed them, finding that appellant lacked the ability to pay
them. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)
Appellant timely filed a notice of appeal.
II. DISCUSSION
Appellant argues that there was not substantial evidence
that he recklessly drove on a public highway or in an offstreet
parking facility as that term is defined by statute, so his
conviction must be reversed. We agree.
“In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and of
solid value — such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People
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v. Westerfield (2019) 6 Cal.5th 632, 713.) We also presume in
support of the judgment the existence of every fact the trier of
fact could reasonably infer from the evidence. (People v. Lindberg
(2008) 45 Cal.4th 1, 27.)
The Legislature has defined reckless driving in two ways.
First, “[a] person who drives a vehicle upon a highway in willful
or wanton disregard for the safety of persons or property is guilty
of reckless driving.” (Veh. Code, § 23103, subd. (a), italics added.)
Second, “[a] person who drives a vehicle in an offstreet parking
facility, as defined in subdivision (c) of Section 12500, in willful or
wanton disregard for the safety of persons or property is guilty of
reckless driving.” (Veh. Code, § 23103, subd. (b), italics added.)
“‘[O]ffstreet parking facility’ means any offstreet facility held
open for use by the public for parking vehicles and includes any
publicly owned facilities for offstreet parking, and privately
owned facilities for offstreet parking where no fee is charged for
the privilege to park and which are held open for the common
public use of retail customers.” (Veh. Code, § 12500, subd. (c).)1
There was not substantial evidence that appellant drove
recklessly on a highway. The evidence at trial was that appellant
1 Although appellant was charged with violating Vehicle Code
section 23103, subdivision (a), and the jury’s verdict form states
that they found him guilty of violating subdivision (a), the trial
court instructed the jury that they could find him guilty if they
found he violated either subdivision (a) or subdivision (b).
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drove on Skyline Boulevard, a highway, and turned onto a road
leading to the Olympic Club’s entrance gate. There was no
evidence that appellant had been driving in willful or wanton
disregard for the safety of persons or property while he was on
Skyline. Respondent conceded that there was no direct evidence
regarding appellant’s driving on Skyline, but argued that there
was circumstantial evidence of appellant’s reckless driving there,
based on his quick entry to the club’s parking lot, screeching
tires, and prompt collisions with retaining walls. While a juror
might speculate that appellant had been driving in a similar
fashion on Skyline, facts must be supported by substantial
evidence, not speculation.
Although there was overwhelming evidence that appellant
drove recklessly on the private roads and parking lots of the
Olympic Club, there was not substantial evidence that he drove
recklessly in an offstreet parking facility, as defined by the
Vehicle Code. (Veh. Code, § 12500, subd. (c).) There was no
evidence that the club’s parking lots were held open for use by
the public for parking vehicles. At the entrance to the club, there
is a guard house, and a gate that can close across the road. A
security guard at the entrance to the club stops all cars
attempting to enter, and refuses entrance if they are not
members or guests. A photograph admitted into evidence showed
a sign at the entrance to the club: “MEMBERS & GUESTS
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ONLY.” A reasonable inference from the evidence at trial is that
the club’s parking lot was limited to members and guests of the
club, which is not sufficient to be “open for use by the public”
within the meaning of Vehicle Code section 12500, subdivision
(c).
At oral argument, counsel for appellant argued that
reckless driving on a private road is not a crime in California.
Counsel cited no authority for his argument, which is
inconsistent with provisions of the Vehicle Code allowing cities
and counties to extend application of the Vehicle Code to private
roads and privately owned and maintained off-street parking
facilities.2
Reckless driving on a private road that is not generally
held open for use of the public for purposes of vehicular travel
may be a crime in California. (Veh. Code, § 21107.7, subd. (a)
[“Any city or county may, by ordinance or resolution, find and
declare that there are privately owned and maintained roads as
described in the ordinance or resolution within the city or county
that are not generally held open for use of the public for purposes
2 See, e.g., Veh. Code, § 21107; Veh. Code, § 21107.5 (private
roads open for public use); Veh. Code, § 21107.6 (private roads to
commercial establishments); Veh. Code, § 21107.7 (private roads
not open to public use); Veh. Code, § 21107.9 (private roads
within mobile home parks and manufactured housing
communities); Veh. Code, § 21107.8 (privately owned and
maintained offstreet parking facilities).
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of vehicular travel but, by reason of their proximity to or
connection with highways, the interests of any residents residing
along the roads and the motoring public will best be served by
application of the provisions of this code to those roads.”].)
While San Francisco may have enacted an ordinance or
resolution extending the application of the Vehicle Code to
private roads,3 there was no evidence that “appropriate signs are
erected at the entrance to the road of the size, shape, and color as
to be readily legible during daylight hours from a distance of 100
feet, to the effect that the road is subject to the provisions of [the
Vehicle] code.” (Veh. Code, § 21107.7, subd. (a).)
Since there was not substantial evidence that appellant
recklessly drove on a public highway or in an offstreet parking
facility, and there was no evidence that signs to the effect that
the Olympic Club’s private roads were subject to the provisions of
the Vehicle Code, appellant’s conviction must be reversed.
3 At trial, the parties did not discuss whether an ordinance
existed, nor did they discuss whether the Vehicle Code applies to
the club’s private roads and parking lots.
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III. DISPOSITION
The judgment is reversed.
DATE: June 11, 2024
MURPHY, J.
We concur:
FLEMING, P.J.
GORDON, J.
People v. Kevin Lytkowski (APP-23-008729)
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