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Patricia Molinaro’s husband, Joe, was 10 minutes into his morning ritual – a mile-and-a-half walk from his suburban Bay Area home to Wal-Mart – when her phone rang.
It was a neighbor. Joe had been in an accident.
Patricia rushed to help him, only to find she was too late. Joe, a retired truck driver and her husband of 50 years, was no match for the Nissan sedan that struck him. He lay in the street bleeding, his skull crushed, neck, pelvis and legs broken. Patricia sat down next to Joe on the pavement as he slipped away.
“When I saw him, I knew he was gone,” said Patricia, 79, her voice breaking.
Joseph Molinaro was not jaywalking when he was hit and knocked 30 feet on Sept. 26, 2009. The 85-year-old was in a crosswalk. Investigators found that the driver’s failure to observe the pedestrian’s right of way was the primary cause of the fatal collision.
But Pittsburg police did not give the woman driving a ticket, and the Contra Costa County district attorney did not file criminal charges.
Pedestrian deaths made up more than a quarter of traffic fatalities over the past decade in the two major metropolitan areas in the Bay Area, according to a 2011 report by national transit advocacy group Transportation for America – outpaced only by New York and Los Angeles. An in-depth Center for Investigative Reporting review of the 434 pedestrians killed from 2007 through 2011 in the five largest Bay Area counties found that, like Joe Molinaro, one-third were walking in a crosswalk when they were struck – three times the national average, according to the group’s report. And in 2011, local fatalities increased almost 40 percent from the previous year.
Yet, more often than not, the drivers responsible faced no serious consequences.
Sixty percent of the 238 motorists found to be at fault or suspected of a crime faced no criminal charges during the five-year period, CIR found in its analysis of thousands of pages of police and court records from Alameda, Contra Costa, Santa Clara, San Mateo and San Francisco counties.
When drivers did face criminal charges, punishment often was light. Licenses rarely were taken away. Of those charged, less than 60 percent had their driving privileges suspended or revoked for even one day, an automatic penalty in drunk driving arrests.
Forty percent of those convicted faced no more than a day in jail; 13 drivers were jailed for more than a year. By contrast, those charged in accidental shootings often serve lengthy jail terms, according to media reports.
Walkers are perhaps the most unprotected users of the transportation system. The human body is no match for 3,000 pounds of speeding steel. Autopsy reports routinely describe blood-soaked clothing, fractured skulls, cracked ribs and broken limbs. In the Bay Area, minorities make up a majority of the dead, and the elderly are more likely to die walking than people from other age groups.
Pedestrian advocacy organizations typically are small and underfunded, especially when compared with lobbies for automobile drivers or even bicyclists. For that and other reasons, laws protecting pedestrians have been watered down over the past century. So has the application of those laws.
District attorneys fail to charge the drivers, saying juries sympathize with the motorists. Police occupied with other crimes don’t track down hit-and-run drivers. The state Department of Motor Vehicles doesn’t always pull licenses, at times hindered by the morass of paperwork required to get information from courts and police departments.
Echoing a common sentiment among prosecutors, San Mateo County District Attorney Steve Wagstaffe said jurors see the cases as tragic accidents with no guilty party: “They’re all thinking, ‘There but for the grace of God go I.’ ”
Families of the victims and advocates say that until there are more serious consequences for drivers who kill pedestrians, the deaths will continue.
“If there isn’t a penalty, the message is that it’s all right to run people over and kill them,” said Elizabeth Stampe, executive director and the sole paid employee of nonprofit advocacy group Walk San Francisco. “There’s a joke from New York that maybe isn’t very funny: If you want to kill someone and get away with it, use a car – and that’s true here as well.”
Contra Costa County prosecutors declined to comment on why they didn’t charge the driver who hit and killed Joe Molinaro. But in general, they said, the burden of proof in fatal crashes is hard to meet.
“Before we file any crime we have to answer: Do we believe that this person is guilty of the crime and can we prove it?” said Hal Jewett, deputy district attorney. “If we didn’t (file), it’s not because we’re forgiving of drivers running over pedestrians – it’s because we didn’t think we could prove it beyond a reasonable doubt.”
The driver who hit Molinaro told police she was traveling down two-lane Buchanan Road at around 35 mph, according to the coroner’s report. She said she did not see him in the crosswalk because the sun was in her eyes, a possibility given the time and location – and a common driver explanation in the files reviewed.
Molinaro’s daughter, Doreen, remembered her father as a reserved family man who liked to hunt and fish. She finds the lack of punishment for the driver inconceivable. Her mother agrees.
“It wasn’t right,” Patricia Molinaro said. “They just let her go.”
From murder to misdemeanor
When cars first took to the streets en masse in America, the media likened killing pedestrians to murder. Automobiles were seen as intruders, depicted in editorial cartoons as bloodthirsty monsters. Mobs would attack reckless motorists.
The St. Louis Post-Dispatch made the case in 1923 that even when a child darted unexpectedly into traffic, the “plea of unavoidable accident in such cases is the perjury of a murderer,” according to “Fighting Traffic: The Dawn of the Motor Age in the American City.”
“The message you get from the newspapers is that any driver who injured or killed a pedestrian was just loathed,” said the book’s author, Peter D. Norton, an assistant professor of history at the University of Virginia. “Juries and judges certainly well into the ’20s were on the pedestrians’ side.”
Then in the mid-1920s, ordinances banning jaywalking were passed for the first time with the encouragement of carmakers, Norton said.
In 1945, California lawmakers clearly carved out a vehicular manslaughter statute. It featured a lighter sentencing range than manslaughter and the option of charging the crime as a misdemeanor because prosecutors said they could no longer persuade juries to convict motorists of the more punitive manslaughter charge.
Today, prosecutors often are reluctant to bring even misdemeanor charges against motorists, the review of the five Bay Area counties shows.
No charges were filed in 143 of the 238 fatal pedestrian crashes in which the primary collision factor was a driver violation, such as speeding, blowing through a stop sign or not yielding to a pedestrian’s right of way, or where the driver was suspected of a crime like driving under the influence or hit and run. Of the 95 charged, 10 were dismissed or acquitted
In 41 of the uncharged cases, the DA could not file charges because the drivers left the scene of the accident and police never found them. In two cases, the drivers also died at the scene.
In September 2011, 6-year-old Sioreli Torres was walking to school in East Palo Alto with her family. Sioreli was a few steps ahead in the crosswalk when she was struck and killed by a BMW driven by F. Alisha White-Parker, then 49, a teacher at a nearby elementary school. Sioreli’s mother and three sisters saw everything.
“She was about three steps ahead of us,” said her mother, Guadalupe Zamora. “It’s so difficult.”
Police determined that the crash was the driver’s fault. Wagstaffe, the San Mateo County DA, said prosecutors debated whether to charge White-Parker. As a matter of law, Wagstaffe said, there wasn’t a question in his mind.
“If this is a law school exam, the answer is guilty,” he said. “The elements were there, but we all agreed that no jury was going to convict on that.”
The driver, who according to Zamora rushed out of her car yelling, “I’m sorry, I’m sorry,” after the crash, declined to comment for the story.
Sitting in the living room of a rundown apartment complex, where a cardboard altar on the wall is covered with pictures of a smiling little girl in dark pigtails, Zamora said she still doesn’t understand why nothing was done.
“They didn’t take away her car, and they didn’t arrest her,” Zamora said of White-Parker. “She should have paid for what she did.”
Victims’ families said that on some occasions, police discouraged them from urging the district attorney to file charges. The son of Sandra Graber, 61, killed on the morning of New Year’s Eve 2007, said police told his family: “Don’t bother trying to press charges.”
Graber was walking with a green light in Berkeley when the driver of a Mercedes SUV turned left and hit her. Berkeley police concluded that the driver was at fault for violating the pedestrian’s right of way, but no charges were filed.
Lt. Diane Delaney said the case was submitted to the district attorney’s office to decide whether to file charges. Asked about Ben Graber’s allegations that police recommended he not push for criminal charges in his mother’s death, Delaney said that would have been “unprofessional.”
Ben and Sandra Graber, a mental health worker for the city, had been planning to cook a New Year’s Eve dinner, he said.
“I try to accentuate the positive; I try to make the foods she would make,” said Ben Graber, 33. “She left a book of her recipes. I sort of used that to carry on.”
Even being arrested for driving under the influence doesn’t always mean a driver will be charged with killing a pedestrian.
Steven Omstead, then 28, was arrested for driving his Cadillac under the influence of marijuana when he hit and killed Rosa Vasquez De Mazuelos, 75, in San Jose on Dec. 27, 2009. Lab results found pot in his system, but Santa Clara County Assistant District Attorney Karyn Sinunu-Towery said her lab experts wouldn’t back criminal charges.
Unlike alcohol, there is no legal limit for driving while on drugs, such as marijuana, in California.
Driver’s licenses rarely restricted
When criminal charges are filed, drivers still often get to keep their driver’s licenses. For instance, Sharon Lupo, then 56, pleaded guilty to misdemeanor manslaughter last year and was sentenced to three years’ probation. But she kept her license.
Lupo struck and killed Marlene King, who had moved to the quiet island of Alameda to take care of her two grandsons, Zach and Will. King was in good health. At the age of 74, she jumped in a rented bouncy house with Will before Zach’s 8th birthday party, on April 30, 2011.
The next afternoon, King was walking back to her condo from Walgreens when she was hit and killed in a crosswalk by Lupo’s Acura.
Lupo did not return a call seeking comment. Her lawyer, William Cole, said his client became distracted while comforting her adult daughter, who was crying in the backseat.
“She works in an office as a clerk and to take her license for becoming distracted in a conversation – I mean, who hasn't?” Cole said. “This could happen to anybody.”
King’s daughter, Karin King, said the family was shocked.
“It makes me angry,” King said. “I wish there were more serious consequences, because I do believe there are more distracted drivers out there than there were 10 to 20 years ago.”
More than 40 percent of the drivers charged criminally whose records were reviewed did not lose their driver’s licenses, even temporarily, according to the DMV. (License information could not be obtained for 30 percent of the 95 motorists charged between 2007 and 2012 in the Bay Area because of privacy rules in some jurisdictions.)
For decades, the Department of Motor Vehicles automatically revoked for a year the license of anyone convicted of vehicular manslaughter. But in 1965, a Pasadena attorney persuaded the Legislature to drop the automatic suspension. C.E. Millikan argued that it was unfair that motorists convicted of a misdemeanor, like his client, should receive the same one-year revocation as those convicted of a felony. There was no opposition.
Today, the DMV always revokes licenses following felony vehicular manslaughter convictions, according to Jan Mendoza, a spokeswoman for the agency.
In misdemeanor convictions, the DMV has the option to take action. In all 29 cases reviewed in which the department didn’t suspend or revoke driving privileges, either the driver was convicted of a misdemeanor or the charges were dismissed. Mendoza declined to comment on the record about why the department didn’t take action on those 29 licenses.
Mendoza said the DMV also can suspend driving privileges before a trial “to increase public safety” based on the conclusions of police. But that did not happen in these cases, either.
Judges have the power to order the DMV to take away licenses, and prosecutors can make recommendations to the judge. But some prosecutors maintain that step is too extreme in California, the land of the car.
The punishment doesn’t fit the crime in misdemeanor cases, said Sinunu-Towery, the assistant district attorney in Santa Clara County. She added that it also complicates community service sentences for drivers.
“It puts them in a no-win situation,” she said. “They can’t drive to work; they can’t pick up their kids from school. I would rather them drive to clean up some graffiti with a legal license.”
Maria Banjos maintains that taking away a driver’s license should be the only thing that happens. Her father, 65-year-old Jose Flores Miguel, was struck and killed in a Concord crosswalk by a 61-year-old woman who admitted to taking two Norco pills, a strong painkiller, two hours before the February 2010 crash.
The driver, Marie Judy Jensen, pleaded guilty to misdemeanor vehicular manslaughter and was sentenced to 45 days of home detention and three years’ probation. Although a judge took her license away temporarily, the DMV didn’t follow suit and the driver retained her license.
“I didn’t want her to go to jail because that’s not going bring him back,” Banjos said. “We don’t want money because he doesn’t have a price. But she should never drive again.”
Seeking new laws
Here and there, legislators and prosecutors are beginning to take a different view of pedestrian fatalities.
San Francisco District Attorney George Gascón charged seven out of nine drivers, including one cyclist, found to be at fault in fatal pedestrian crashes his first year in office, 2011, and has continued an aggressive pursuit of the cases. With more than 700 pedestrian injuries every year in the city, Gascón said something needs to be done.
“If we had 700 people being shot every year, we would be jumping up and down,” he said. “Reckless driving is just as bad as people using a firearm recklessly.”
San Francisco’s state assemblyman, Democrat Tom Ammiano, is pushing legislation he hopes will give prosecutors more ammunition. Introduced in February, AB 840 would force drivers to acknowledge the risk of distracted driving when they apply for a driver’s license or a renewal. This later could be used against them in court, Ammiano said.
“Motorists are rarely prosecuted because of the level of proof in court,” Ammiano said. “What we want out of the bill is the attention to this issue and more accountability and to make the job of prosecutors easier.”
Oregon and a handful of other states have passed what are known as vulnerable user laws – enhanced penalties for drivers who injure or kill pedestrians or cyclists. Under the 2007 Oregon law, drivers convicted of careless driving that injures or kills a pedestrian or cyclist receive an extra penalty: community service and driving school or a fine of up to $12,500 and a one-year license suspension.
Ammiano’s 2010 effort to pass a similar law in California foundered.
About 70 years ago, even as the state’s lawmakers reduced penalties for vehicular manslaughter, they increased penalties specifically for the crime of hitting pedestrians. Any driver who violated a pedestrian’s right of way and caused injury or death was subject to six months in jail or a $500 fine – or both.
That statute was struck from the books in 1959, and today, drivers rarely face significant jail time when convicted of killing a pedestrian. Drivers were sentenced to no more than one day of jail time in 27 out of 68 convictions, CIR found. Most of those were misdemeanor vehicular manslaughter convictions, which carry up to a year in jail, but two were felonies.
Prominent environmental attorney Robert Wyatt, then 70, had a blood alcohol level of more than twice the legal limit, 0.18, when he hit and killed Teddy Phillips, 85, with his Bentley Continental in December 2010 on a street in Rossmoor, an upscale retirement community in Walnut Creek. Wyatt pleaded no contest to one count of vehicular manslaughter while intoxicated, a felony, and was sentenced to 90 days of home detention and probation. Wyatt also reached a financial settlement with the Phillips family in a civil proceeding.
Some Rossmoor residents and employees were angry that Wyatt faced no jail time. Don Powell, a lifeguard at the Rossmoor pool who knew Phillips, called the sentence “outrageous,” adding that drivers should know to be especially careful in a retirement community.
Phillips, who had been waiting for his dial-a-ride bus, was struck while crossing the road midblock before 7 p.m., according to court filings. Wyatt’s lawyer, William Gagen, said people who believe the sentence was unfair have not studied the facts of the case.
“I think that reasonable minds could agree that this was an accident where a reasonable person sober could well have done the same thing,” Gagen said. Wyatt did not return a phone call seeking comment.
Suspects in pedestrian deaths usually are contrite. Franklin Edwards, convicted of killing 68-year-old Teresita Malixi, wrote in a letter to the family, “I am ashamed for my actions that morning and can only ask that, with time and healing you may be able to forgive me for taking Teresita from you before her time.”
Edwards, then 30, a Sunnyvale Public Safety Department dispatcher, was pulling his Land Rover out of his San Jose condo complex on Dec. 12, 2008. He turned left and hit Malixi, who was crossing with the green light, investigators concluded. Edwards pleaded guilty to misdemeanor vehicular manslaughter. He was sentenced to community service and ordered to pay $59,257 in restitution to the family. He served no jail time.
Wendy Alfsen, executive director of pedestrian advocacy group California WALKS, recalled a time when drunken driving was brushed off as a relatively minor offense, before Mothers Against Drunk Driving made it a national cause in the 1980s. She said she hopes pedestrian deaths will follow a similar trajectory, with changes in public opinion in turn changing public behavior.
In late January, Beverly Shelton drove from Southern California with her sister to the Berkeley crosswalk where her 5-year-old grandson Zachary Cruz was killed in 2009. They brought fresh flowers to put at the intersection of Derby and Warring streets, now marked with a city sign that reads, “Zachary’s Corner.” At the urging of the boy’s parents, the city also holds Zachary Cruz Pedestrian Safety Month every March.
Shelton, a retired truck driver, often confronts motorists who aren’t paying attention to people walking. She wants stronger penalties for drivers who violate pedestrians’ right of way and has sent letters to President Barack Obama urging him to enact what she calls “Zach’s Law.” She hopes it will prevent deaths, but she knows it won’t erase the memory for families like hers.
“I am reminded of Zach’s death because there are crosswalks everywhere,” she said.
This story was edited by Amy Pyle and copy edited by Nikki Frick and Christine Lee.