When I read opinions, I sometime think: "There but for the grace of God go I." Or at least I try to think that. Whether as a victim or perpetrator or judge, I think it's healthy to remember that participants in both the criminal and civil justice system are always people. Real people. With flaws and imperfections and good days and bad days; with dreams, hopes and struggles.
So, yeah, a lot of times we see them at their worst. Few people probably grow up thinking: "For sure, I definitely want to be in a published opinion in the Ninth Circuit or the California Court of Appeal. That's what I want my life to become." Yet there they are.
Could have been me. Again: as a victim, or perpetrator, or lawyer, or judge, or police officer, or whatever. The path my life actually took was far from predetermined. I could see myself in any of these roles. (Though, obviously, would infinitely prefer some roles to others, and at least hope that certain roles -- e.g., as a mass murderer in a death penalty case -- would be extraordinarily unlikely.)
I mention all this because I could definitely see myself in this opinion.
It all happens on Carlsbad Boulevard in Carlsbad, California. A stretch of two-lane road that fronts the beach in a community in north San Diego County. It's a beautiful place, with gorgeous beaches. As accurately described by the Court of Appeal, "the north and southbound lanes are separated by a wide landscaped median. The southbound lanes run closest to the beach, and, just south of the intersection, there is a dirt parking lot, which abuts the bike lane. The area is a corridor for surfers and beachgoers to get to the beach."
Absolutely right. Have been there numerous times. Driving or biking along the highway, parking and going to the beach, walking on the adjoining sidewalk, crossing the street. etc. Have definitely done it all there.
I'm sure the same was true for Michael Barber. He lived fairly close to the beach, in a neighboring community, so I'm sure that his particular day at the beach on March 8, 2018 wouldn't ordinarily have been that memorable.
Except it was.
"Barber is a retirement planner for teachers and seniors and has a 15- year-old son. On the day of the incident, Barber picked up his son from school at 2:45 p.m. and dropped him off at an athletic training class at 4:00 p.m. The class lasted for an hour." So Mr. Barber had an hour to kill. Why not go for a run on the adjacent beach? Awesome.
"On March 5, 2018, Barber parked his car in the dirt lot just south of the intersection of Carlsbad Boulevard and Avenida Encinas and went for a run. Afterward, he needed to pick up his son. To do so, he wanted to go east on Avenida Encinas, which from the parking lot he could not directly access because it was north of his car, and the lanes abutting the parking lot only went southbound."
Okay, so that's a bit of a hassle. Mr. Barber could have gone southbound, made a U-turn, and then taken a right on Avenida Encinas.
But he was so close to the intersection. He'd of parked just a little bit more towards the north side of the street, he could access Avenia Encinas right from the parking lot.
And there's room. The path looks pretty clear in the short path northward. So "Barber looked for pedestrians and did not see any. He checked his mirrors before he started driving. Barber got into his car and backed up, looking over his shoulder as he drove. Barber estimated that he was going 15 miles per hour as he backed up."
I'm sure that happens repeatedly. Maybe you've done the same thing -- or something similar -- on occasion. Maybe not. Regardless, it happens. I've seen it happen. Ninety nine percent of the time, it works out okay. Perhaps not the smartest thing to do, to be sure. But trust me: It happens. Especially in settings like this one.
Of course, you already know that since the case results in a published opinion, things most definitely did not work out okay here.
"Rather than continuing southbound on Carlsbad Boulevard, making a U-turn, and accessing Avenida Encinas from northbound Carlsbad Boulevard, Barber put his car in reverse and drove northbound backward in the bike lane against the flow of traffic on southbound Carlsbad Boulevard. He had hoped to enter the traffic lanes and make a left turn onto Avenida Encinas. When he looked behind, he did not see any cars, bikes, or pedestrians. . . .
Around that same time, S.H. had been walking along Avenida Encinas and was preparing to cross the intersection at southbound Carlsbad Boulevard. When the light was red for southbound traffic, S.H. proceeded into the crosswalk at the intersection. A motorist who was stopped at the red light saw Barber speeding toward S.H. as she continued through the crosswalk; so, the motorist honked her horn. The honking did not stop Barber from colliding into S.H. as she entered the bike lane area of the crosswalk. The impact of the collision threw S.H. about 10 feet away. Barber felt the impact and looked in the rearview mirror to see a pedestrian bounce off the back of his car. He stopped the car, got out, and saw a woman lying on the ground.
A lifeguard and an off-duty paramedic were in the vicinity when the collision occurred and rendered aid. S.H. was struggling to breathe, coughing up blood, and bleeding profusely from her mouth, nose, ears, and scalp. She displayed symptoms of severe traumatic brain injury.
Barber remained on the scene. He was cooperative, forthright, and very upset about what had happened. A test at the scene revealed that Barber had no alcohol in his system. The rear left area of Barber’s car was dented where he hit S.H.
An ambulance arrived and transported S.H. to the hospital. Upon admission to the hospital, it was discovered that S.H. suffered from traumatic brain injury, which included hemorrhages in the brain and skull fractures. As a result of the brain injury, she had difficulty breathing on her own. Given S.H.’s inability to perform simple tasks, her brain injury was considered severe. In addition to her brain injury, her collarbone, shoulder blade, and three bones in her back were fractured. Once S.H.’s acute symptoms were treated, she was referred to a rehabilitation facility. She had no memory from the day of the collision until she was in the ambulance on the way to the rehabilitation center. As a result of her injuries, she suffered severe memory loss, loss of language, and ongoing physical issues, which continued to require additional surgeries."
Oh my.
Now, you may think that the case involves a civil lawsuit against Mr. Barber. Which I'm sure indeed happened. But notice that the caption is "People v. Barber." This one is instead the criminal case. It's not that Mr. Barber was intoxicated or driving under the influence. He wasn't. But he was nonetheless charged with felony reckless driving with great bodily injury. For which he gets convicted. Hence the appeal.
Just like Mr. Barber got convicted at trial, so too does he lose in the Court of Appeal. He claims that there were jury instruction problems as well as improper enhancements (e.g., the great bodily injury), but the Court of Appeal disagrees.
Which is not surprising. At least not given the circumstances here. The victim, S.H., was seriously injured. All as the result of what I think (and hope) that we all would recognize as an incredibly stupid and unwise decision by Mr. Barber. And, yes, I might well be sympathetic to his plight if he received, say, seven years in prison as a result of the accident. Sure, he did something stupid and reckless, and the life of S.H. will never be the same. But a lengthy prison sentence for someone who does something like this, with no criminal history whatsoever, would (I readily admit) tug upon my heartstrings a bit. "There but for the grace of God" and all.
But here's the thing: Mr. Barber gets sentenced to . . . three years of probation.
Dude! If that's all the punishment you received, thank your lucky stars you didn't get more. Why the heck are you filing an appeal?! Yes, yes, I know; it's a felony conviction, and that doesn't look good on anyone's record (for employment or otherwise). Still. You totally nailed someone with your car while backing up on a busy street and seriously hurt her. That's a setting in which I'd personally be very much inclined to take my lumps and call it a day. Or at least I hope I would. Because, jeeze, I know it might seem weird to be affirmatively grateful for a felony conviction, but if I got probation in a setting like this, that'd be exactly how I'd feel. Lucky. Definitely luckier than my victim. And I'd make every last effort in my heart and soul to avoid doing anything like this ever again.
And definitely wouldn't file an appeal.
Nor is the Court of Appeal especially sympathetic to Mr. Barber. Here's what Justice Huffman says about his decision. In words that pretty much ring true:
"The case before us presents a very egregious set of facts that clearly establish reckless driving in any event. Barber backed out of a parking lot in an area he knew could be crowded with bikers and pedestrians. When he backed out of the parking lot, he then proceeded to drive in reverse in the bike lane traveling in the opposite direction of oncoming traffic. He testified that he decided to drive in reverse, against traffic, because the bike lane was big enough to accommodate his car. Barber further insisted that he would not have decided to travel in reverse, against traffic if the bike lane was narrower and his car would not have fit. Thus, it appears Barber knew traveling the wrong way in a bike lane could be dangerous, but based his evaluation of danger on whether his car would fit in the lane, apparently not considering that bicyclists and joggers could use the bike lane in a busy pedestrian area near the beach. In fact, Barber admitted that “lots of people” go jogging, biking, and travel to the beach in the area he was driving through.
He drove in this dangerous fashion for a substantial distance, from the lot, on the street, through a crosswalk, a busy intersection, and another crosswalk. Although Barber tried to look behind him as he drove against traffic, he admitted he was aware that his car had blind spots and he could not see everything while traveling in reverse.
As Barber proceeded through the intersection, he was not sure if the light was red at Carlsbad Boulevard, but he saw a car stopped at the light and knew it was dangerous to drive through a crosswalk when pedestrians had the right of way. However, without knowing who had the right of way, he crossed through the crosswalk. When he collided with the victim while driving in reverse, he hit her with such force that the car was dented and caused her to fly 10 feet away, producing catastrophic injuries.
Simply put, Barber engaged in this incredibly dangerous course of action to avoid going an extra three quarters of a mile away to make a Uturn, which would have placed him on the right side of the road to turn onto Avenida Encinas. We cannot contemplate how any reasonable juror would not find Barber intentionally drove with wanton disregard for the safety of other people."
Yep. That pretty much sums it up.