A driver who seriously injured a man walking his dog while merging onto Highway 85—and left the scene—was sentenced Nov. 29 to two years’ probation and community service, after initially fearing he’d have to do time in jail.
As Brian Oden, who previously pled guilty, entered the Santa Clara County Superior Courthouse for his morning hearing, a petition arguing for a non-custodial sentence organized by the Los Gatos Anti-Racism Coalition was nearing 200 signatures.
“Today they’re supposed to reprimand me to 45 days,” Oden said in the hallway, explaining what he understood to be the latest from his public defender. “I’m gonna go to jail.”
After a day of driving for Postmates, including delivering Apple products to Los Gatos customers, in August 2019, Oden was on his way home to San Jose, where he lives with his parents, he told the Los Gatan.
He stopped for groceries at Lucky, located at Blossom Hill and Snell Avenue in Downer Square, before getting back in his vehicle, and turning onto the freeway, he said.
That’s when he hit something.
“It was like a ‘Boom!’” Oden said. “I’m still moving onto the freeway.”
In the darkness, it was like time slowed down, he remembers, adding he did pull over, at first, but chose to continue on, feeling the situation was unsafe.
“I tried to back up,” he said. “It just seemed dangerous.”
Instead, he pulled off the highway, parked at the transit station by his house and collected himself, before driving home and calling 911.
When police arrived, they confirmed he’d hit someone.
“I was really sad,” he said. “I was very shocked.”
Deputy District Attorney Mai Buell says the victim was severely injured.
“He couldn’t eat or drink for months,” she said.
Oden says he was charged with felony hit-and-run, which was later dropped to a misdemeanor, while he had a reckless driving charge that was increased to a felony.
Buell sought a jail sentence, and Judge Robert Hawk initially did sentence him to a year in custody.
But due to confusion over which crimes can go with which Santa Clara County Sheriff’s Office program, Oden had to return to court.
Meanwhile, anti-racism activists in Los Gatos—where Oden has also worked as a photojournalist—launched a campaign to compare his jail sentence with the one given to former San Jose City Council candidate Jennifer Higgins.
Higgins killed Santa Cruz resident Tim Starkey while driving in Los Gatos and tested positive for benzodiazepine afterwards. She was sentenced to six months in county jail and received two years’ probation.
At a later hearing, the judge granted Ms. Higgins’ request to complete her sentence on private home detention, according to Deputy District Attorney Montana Musso.
“This means that Ms. Higgins never has to physically report to jail, instead she serves her sentence with an ankle monitor at home,” Musso said.
Planning Commissioner Jeffrey Suzuki was one of the lead organizers of the petition.
“The difference with Brian is that he is not a wealthy real estate agent nor does he have the same strings to pull within the community,” reads an article on the group’s website.
“The criminal justice system is far more empathetic and generous to people like Higgins,” said Oden’s mother, Sharon Oden, 65, as she waited for her son to be called into the courtroom, Nov. 29.
“He takes care of me and his dad,” she said, calling the possibility he could be ordered behind bars that very day “devastating,” since his dad has cancer.
Deputy Public Defender Brett Hammon submitted a letter to the court from Oden’s doctor confirming his client has Crohn’s disease. He urged the judge to keep Oden out of the Covid-19-riddled jail system.
Hammon presented eight additional letters from community leaders speaking highly of Oden and noted his client had stuck to the conditions of his pre-trial monitoring.
And he asked the judge to convert the remainder of his client’s sentence to home confinement, or allow him to complete the Sheriff’s Office work program.
The court was unclear whether Oden’s offense qualified for work-release or not.
“I’m happy to take a call and check,” Buell said.
In his jovial drawl, Judge Hawk said he wanted to make sure Oden didn’t get off too lightly, but noted he takes the doctor’s concerns seriously.
“Although he did not mean to hit the victim and his dog…he did not stop,” he said, “He should have conducted himself differently.”
He called the outpouring of support from community members “notable,” but said his original sentence was imposed to ensure justice.
“The jail time was a way of accountability,” he said, then added, “I’m not going to order Mr. Oden to jail today.”
Buell said the victim’s family needs closure, and said, if changes are made to the sentence, the victim should have a chance to speak in court.
But as a decision was hanging in the air, Buell got a message from authorities confirming Oden’s offense does qualify for the work-release program.
Instead of imposing a new sentence, the judge modified the terms of Oden’s probation.
With credits, Oden only had 20 days jail left to serve. He will also have to spend two years on probation.
The judge ordered him to do the remainder of his time through the Sheriff’s work program.
But he added an additional 120 hours of community service to the sentence, and also ordered him to pay restitution of $2,293 to the victim.
Afterwards, Alicia Spargo, an organizer with the Los Gatos Anti-Racism Coalition, said she’s ultimately “extremely happy” with the sentence.
“We’re glad that Brian is getting the same consideration…that Jennifer Higgins did,” she said. “He didn’t do it on purpose.”
Oden’s mom breathed a sigh of relief, commenting that now her son will still be able to look after the family.
“Thank God,” she said. “God is good, all the time.”
Oden says he’s relieved, although still nervous about what’s to come in the days ahead. He now must deal with a related civil case.
“I never meant for this to happen,” Oden said, sharing his message of apology for the victim. “I hope he heals and he recovers.”
*Story updated Dec. 9, 2021 to reflect that Jennifer Higgins is not required to serve her sentence in custody.
