A Redwood City man's vehicular manslaughter conviction in connection with a crash that killed an 8-year-old girl in 2007 has been overturned by a state appeals court in San Francisco.
The Court of Appeal ruled on Monday that San Mateo County prosecutors violated Richard Tom's rights when they presented trial evidence showing he never asked about the wellbeing of the victim and her family when held by police after the accident.
A three-judge panel unanimously ruled the use of that evidence infringed on Tom's constitutional Fifth Amendment right not to incriminate himself.
Justice Martin Jenkins wrote, "We realize that the conclusion we reach today will not provide certainty of outcome for any of the parties impacted by the tragic vehicular accident which occurred on the evening of February 19, 2007.
"However, where, as here, a defendant's right to a fair trial is prejudiced as a result of a vote.
Unless the ruling is successfully appealed to the California Supreme Court, the case will go back to San Mateo County Superior Court, where prosecutors can either retry Tom or dismiss the case.
Eight-year-old Sidney Ng was killed and her 10-year-old sister, Kendall Ng, was injured when Tom's Mercedes Benz crashed into a Nissan Maxima driven by the girls' mother, Lorraine Wong, in Redwood City.
Wong was making a left turn from the two-lane Santa Clara Avenue onto the four-lane Woodside Road when her car was broadsided by Tom's Mercedes.
Tom, 50, who worked as a real estate agent, was convicted in San Mateo County Superior Court in 2008 of vehicular manslaughter with gross negligence for causing Sidney's death, with an enhancement for great bodily injury caused to Kendall.
He was sentenced to seven years in prison and has now served more than three years of that term, according to Marc Zilversmit, his lawyer in the appeal.
The trial jury acquitted Tom of two additional counts of driving under the influence and causing injury to another and driving with a blood alcohol level of 0.08 percent or more and causing injury.
The prosecution and defense disagreed on how. A prosecution expert estimated his speed at more than 67 miles per hour, while a defense expert estimated it at 47 to 52 miles per hour.
After the accident, Tom was detained by police officers at the scene and then at a police station for more than two hours before he was formally arrested.
During the trial, prosecutors introduced testimony from several officers and staff members who said Tom had never asked during that period about the wellbeing of the people in the car that was hit.
In a closing argument, a prosecutor cited that testimony to support her claim that Tom had an "I don't care" attitude consistent with gross negligence.
The appeals court said Tom's detention by police after the accident was equivalent to being arrested, and that he was therefore entitled to be warned he had a right to have a lawyer. Because he wasn't given that warning, prosecutors had no right to use evidence about what he said or did not say during that time, the court said.
Lynda Gledhill, a spokesman for California Attorney General Kamala Harris, said lawyers in that office have not yet decided whether to appeal to the California Supreme Court.
San Mateo County District Attorney Stephen Wagstaffe said, "I'm disappointed." He said that if the ruling is not appealed, he and his staff will consider various factors, including whether the victims' family members want to go through a new trial, in deciding whether to retry Tom.
Zilversmit said, "We're happy with the decision."
--Bay City News
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