Opinion
F074151
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO ALBERTO CONTRERAS, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160614A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
While under the influence of marijuana, defendant Rodolfo Alberto Contreras caused a traffic collision in Bakersfield that killed another driver, David A., and injured David's wife, Kathleen A. Defendant was charged with and convicted by jury of second degree murder (Pen. Code, § 187, subd. (a) (count 1)), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a) (count 2)), and driving under the influence and causing bodily injury to Kathleen (Veh. Code, § 23153, former subd. (e) (count 3)). In addition, the jury found true the multiple victims sentence enhancement allegation attached to count 2 (as to Kathleen) and count 3 (as to David), and it found true the sentence enhancement for personal infliction of great bodily injury (GBI) attached to count 3 (as to Kathleen).
All further statutory references are to the Penal Code.
At the time of defendant's conviction, subdivision (e) of Vehicle Code section 23153 provided: "It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." Effective January 1, 2017, a new subdivision was added to the statute and subdivision (e) was renumbered to subdivision (f). (Assem. Bill No. 2687, approved by Governor, Sept. 28, 2016 (2015-2016 Reg. Sess.) ch. 765, § 2.)
In the amended information, count 3 also included a GBI enhancement allegation as to David. Due to an oversight, the jury was not given a verdict form for that enhancement, however, and postverdict, it was stricken from the amended information.
The trial court sentenced defendant to a total term of 15 years to life plus five years in state prison. On count 1, the court imposed a term of 15 years to life. On count 2, the court imposed the middle term of six years, plus an additional one year for the multiple victims enhancement, stayed under section 654. On count 3, the court imposed the middle term of two years, plus an additional three years for the GBI enhancement and an additional one year for the multiple victims enhancement. The court stayed the one-year multiple victims enhancement term under section 654, and ordered the term on count 3 to run consecutive to the term on count 1.
On appeal, defendant advances five claims. He challenges both his murder conviction and his gross vehicular manslaughter conviction as unsupported by substantial evidence. He also claims the trial court erred under Evidence Code sections 1101, subdivision (b), and 352 when it permitted the prosecution to introduce evidence that one month prior to the fatal collision, he drove at a high rate of speed and rolled his car; erred when it permitted a lay witness for the prosecution to testify that he appeared to be under the influence of marijuana at the time of the collision; and erred when it imposed a consecutive sentence on count 3.
The People dispute defendant's entitlement to any relief on his claims. We agree and affirm the judgment.
FACTUAL SUMMARY
I. The Collision
On March 8, 2014, in the late morning, defendant was driving southbound on Gosford Road in Bakersfield at a high rate of speed. He lost control of his white Honda, crossed over the center median into oncoming traffic and hit a blue Ford Explorer. The force of the impact split defendant's Honda in two. The engine compartment dropped at the point of impact. The passenger compartment traveled through the air and skimmed the top of a second blue Explorer driven by M.J., causing only minor roof damage. A third vehicle, a silver Toyota, was also struck. David, who was driving the first Explorer hit, died at the scene from severe head injuries. His wife, Kathleen, was injured but survived.
David and M.J. were both driving blue Ford Explorers.
After defendant's Honda collided with David's Explorer and split apart, the contents of the passenger compartment spilled into the roadway. In this debris field, responding law enforcement personnel located a bong for smoking marijuana wax. Inside the passenger compartment of defendant's Honda, they located several containers of marijuana wax, several bags of marijuana, a pipe and a bottle of cannabis from a marijuana dispensary.
The Bakersfield Police Department responded to the collision.
The jury was informed that the active ingredient in marijuana is delta-9-tetrahydrocannabinol (THC) and that marijuana wax, or THC wax, is made using a highly concentrated form of THC derived from the resin of marijuana buds. The wax is then smoked for a stronger, more intense high than that obtained from smoking marijuana leaves.
II. Percipient Witness Testimony
A. Kathleen
Kathleen testified that she and David were on their way to look at houses that day. David was in the left northbound lane on Gosford Road approaching Stockdale Highway and he was slowing in preparation to turn. Kathleen was in the front passenger seat talking to David when he said, "Oh, God, babe." Their vehicle was then hit. Kathleen told David she could not breathe, but he did not respond and she could not see him due to the vehicle damage.
Someone helped Kathleen out of the Explorer and she ran around to David's side but was unable to get to him because the vehicle was so badly damaged. Kathleen was then pulled away from the wreck by other people and subsequently treated by paramedics before being transported to the emergency room at Kern Medical Center (KMC). She sustained cuts to her face from glass and a fractured finger, had to have glass surgically removed from her foot, developed a neck infection, and testified she continues to suffer from neck, shoulder and hip issues. She also testified she was scheduled to have neck and shoulder surgery soon.
B. Eric E.
Prior to the collision, Eric E. was approaching the same intersection as David and Kathleen from the southbound direction. The windows to his truck were rolled down and he had been watching defendant's white Honda in his mirrors "[f]or quite a bit." Eric testified the Honda was going very fast and he could hear it accelerating as it approached him from behind. As Eric came to a stop at the red light, the Honda swerved around him, ran the red light and became airborne with all four tires off the ground. Eric testified defendant was "flying" and he estimated defendant was going "close to 100 when he hit the intersection." The Honda crossed the center median and, at a tilt, collided with David's and Kathleen's vehicle and split in two pieces.
After the light turned green, Eric drove through the intersection, parked his truck and got out to help. He and two other men tried without success to get David's door open. Eric then walked over to the curb where Kathleen was being assisted by another woman. The two of them removed glass from Kathleen's face before Eric left to check on the other vehicles involved. As he approached the passenger compartment of defendant's Honda, which was upside down in the road, defendant crawled out of the car on all fours and complained his toe hurt.
Eric testified defendant seemed "kind of out of it," like he did not know what was going on. Eric also testified he had seen people impaired by marijuana and defendant looked like that: dilated eyes, slow to respond and lethargic. Upset and frustrated, Eric cursed at defendant and was told by someone else to walk away, which he did before again returning. Eric explained to the jury that he was agitated because someone just died and defendant was complaining about his toe.
C. Theresa A.
The wall at the rear of Theresa A.'s backyard abutted Gosford Road. After hearing a loud crash, Theresa, a registered nurse, hopped over the wall to the roadway on the other side. She approached David's and Kathleen's Explorer and determined David had no pulse. Kathleen was conscious and hysterical. Theresa was able to coax Kathleen out of the car and get her to the curb, where Theresa focused on keeping Kathleen away from the wreckage until paramedics came.
While at the scene, Theresa also approached defendant's Honda. She testified he was still inside and screaming, "I want my pot," "I want my marijuana," "I want my wax," "It's not my day to die," "[M]y toe," and "[W]here is my puff?" He also stated, "I have a card," and "[I]t's legal." Theresa asked defendant if he realized he just killed someone, but he did not respond to the question and kept repeatedly screaming about his marijuana and wax. Theresa testified defendant was alert, but she did not check if he was oriented to time and place. She stated his eyes were open and he made sense when he talked, but he never asked about anyone else.
D. M.J.
M.J. was driving northbound on Gosford Road and was positioned behind David's and Kathleen's vehicle. M.J.'s wife, Christy S., and their son were also in the vehicle. M.J. was slowing down as the light changed to red when she saw something white flash through the air. She hit the brakes and ducked as the passenger compartment of defendant's Honda flew over the top of her Explorer, leaving only some scratches. M.J. and Christy exited their vehicle and Christy, also a registered nurse, approached defendant's Honda as he crawled out. M.J. testified defendant said this was the second time he flipped a car and he was saying, "Just fucking kill me now," "I wish God would kill me," and "I want to get high. I just want to get high."
After determining that defendant seemed fine except for an injured toe, M.J. heard Kathleen screaming. Christy ran over to David's and Kathleen's vehicle and took Kathleen in her arms. Christy shook her head at M.J., which M.J. interpreted as a signal that David did not make it.
M.J. told an officer that defendant was awake and alert but "fitsy." She explained she meant defendant did not seem able to focus on what had just occurred or the severity of it. He did not answer when asked if he was okay, did not seem to realize that his dog had flown out of his car and underneath a smashed vehicle, and did not appear to have a grasp on what had just happened.
The dog was found and cared for by bystanders following the crash.
III. Defendant's Statements at Hospital
A. Dr. Heer
Defendant was also transported to KMC. Dr. Jagdipak Heer, who was the supervising physician on duty at the emergency room that day, testified that defendant complained of pelvic, back and toe pain, and that he was hostile and yelled at staff. Defendant's medical records reflect staff had "a concern about severe intoxication." Defendant reported using marijuana daily, and his urinalysis was positive for THC and opiates. Dr. Heer testified defendant was given morphine at the hospital, but he was not aware whether that occurred before or after the urinalysis.
At the time defendant's blood was drawn for testing approximately one hour after the collision, he was cooperative. He told the nurse drawing his blood that he smoked marijuana daily and had a medical marijuana card. He also stated that two weeks earlier, he was in a rollover accident.
The collision occurred at approximately 11:49 a.m. and defendant's blood was drawn at 12:56 p.m.
B. Officer Beahm
Officer Aaron Beahm arrived at the hospital at approximately 1:30 p.m. and spoke with defendant. Defendant was lying on a gurney hooked up to an IV and monitors, and his neck was in a cervical collar. He was cooperative and reported having a prior serious head injury but declined to provide details and said it did not result in brain damage.
Beahm, who testified as an expert in drug recognition, stated that the objective signs of THC impairment are red eyes, an odor of marijuana emanating from the breath and a green coating on the tongue. Alcohol was ruled out as a factor via a breath test, but Beahm observed defendant had red eyes and a green-coated tongue. Because defendant was on a gurney in a neck collar and hooked up to various machines, Beahm was unable to conduct field sobriety testing other than a horizontal gaze nystagmus (HGN) test, a vertical gaze nystagmus (VGN) test and a convergence test. Defendant did not have HGN or VGN, he had a lack of convergence and his pupils were normal. Beahm explained such results do not rule THC impairment in or out, as they are consistent with either THC impairment or a lack of any impairment. Beahm was unable to reach a conclusion whether or not defendant was impaired by THC; there were some signs of recent ingestion but he was unable to conduct more comprehensive testing given that defendant was at the hospital receiving medical care.
On cross-examination, Beahm testified he could hear defendant crying during his recorded statement to Officer Gospich, which could have caused red eyes.
Beahm explained that the purpose in conducting HGN and VGN tests is to look for an involuntary jerking of the eyes, which is associated with being under the influence of a central nervous system depressant, a dissociative anesthetic or an inhalant, but not with THC impairment.
Defendant possessed a medical marijuana card issued by Bakersfield 420 Evaluations and he told Beahm he obtained the card for an eating disorder and migraines. He also told Beahm he started using marijuana when he was 14 years old and had been "turned on to" marijuana wax about a year earlier. He reported using marijuana almost daily but told Beahm he last used it two days earlier. Defendant said he prefers using marijuana wax, which provides a stronger, longer lasting high comparable to morphine. He told Beahm that he woke up at around 11:00 a.m. that day and drove to the dispensary, where he purchased some leafy marijuana and marijuana wax. He said that at the time of the collision, he was on his way to ingest marijuana at a park or his mother's house.
C. Officer Gospich
Finally, defendant gave a recorded statement to Officer Gospich that was played for the jury. Defendant asked Gospich if anyone died in the collision and stated, "It should have been me dying, you know that? What the fuck? Can I just fucking die already man? This is bullshit. Just fucking take me God. Fuck." Defendant denied driving while drunk or high and said he learned his lesson when he flipped his car on Westside Parkway the month before after swerving to miss someone who cut him off.
Gospich did not testify.
Defendant told Gospich he had been smoking marijuana since the age of 14 and smoked it when "stressing." He stated he smoked every day and had a medical marijuana card for eating issues and migraines. He also stated he uses marijuana to sleep and for pain.
On the day of the collision, he awoke at 11:00 a.m., went to a marijuana dispensary to purchase marijuana and headed to his mother's house. He stated he was going the speed limit, between 40 and 50 miles per hour, and driving "normal" when he hit a bump in the road, which caused his car to go out of control. He then lost control of the car trying to correct it and went off to the side. He said the stoplight was green at the time and he was decelerating. He later said he was possibly going 60 miles per hour but not 80 or 100 and then, as the exchange with Gospich became testier, he stated he did not know how fast he was going. Defendant also repeatedly said he should have died and he wished he had died. He maintained that the collision was an accident, that he was not driving in a rush, and that he was not drunk or high. He stated he last used marijuana two days before the collision, and later stated he was up all night on Thursday, smoked a lot of marijuana, went to bed around midnight on Friday and woke up at 11:00 a.m. on Saturday, the day of the collision.
IV. Accident Reconstruction
Officer Timothy Berchtold, who at the time of the collision was a traffic collision reconstructionist with the Bakersfield Police Department, testified that defendant caused the fatal collision by driving at an extremely high rate of speed, running the red light and swerving into David's and Kathleen's Explorer. He testified defendant never applied the brakes and the Honda was checked for and cleared of mechanical defects.
Berchtold testified the speed limit where the collision occurred is 55 miles per hour and the speedometer of defendant's Honda was locked in place at 70 miles per hour, which was most likely defendant's speed when the car broke apart in the collision. Berchtold testified that, based on one calculation, defendant's Honda was traveling between 68 and 79 miles per hours, approximately, when it created the critical speed scuff, which is the tire mark left on a roadway when a vehicle begins to sideslip. Berchtold explained, however, that the range is designed to give drivers the benefit of the doubt and, based on an analysis of the critical speed scuff, he believed defendant was going at least 79 or 80 miles per hour when the Honda began to sideslip.
V. Toxicology Evidence
A. Prosecution's Expert
Defendant's blood was drawn at the hospital approximately one hour after the collision and tested for THC. Bill Posey, the director of the independent laboratory that conducted the testing, testified as the prosecution's toxicology expert. Posey informed the jury that defendant's blood test results revealed the presence of 16 nanograms per milliliter of THC and 155 nanograms per milliliter of carboxylic acid metabolite (COOH), an inactive metabolite that at that level indicates a heavy user of marijuana.
Posey testified that THC is at its peak level in the blood while the user is smoking marijuana. The user's THC level then drops rapidly and exits the system within six hours, with the most rapid drop occurring the first hour after smoking. He also testified that impairment occurs 45 to 60 minutes after ingestion and experts recommend refraining from driving for two to three hours after reaching peak THC level.
Posey testified it would be "very unlikely" to have 16 nanograms per milliliter of THC in one's blood more than six hours after usage.
Posey explained that marijuana wax has a higher concentration of THC than does leafy marijuana, and it results in a stronger high for the user and a higher level of THC in the blood. While the level of THC in the blood falls off at a similar rate for marijuana wax and leafy marijuana, the initial drop-off is greater with wax. Posey stated that while there is no formula that would allow him to determine, based on defendant's blood test results, the level of THC in defendant's system at the time of the collision, it was necessarily higher at the time of the collision given the rapid drop-off that occurs during the first hour after usage. Although Posey testified he could not determine at what level defendant would be impaired, he stated there was only a slim chance that defendant was not impaired at 16 nanograms per milliliter of THC and, in his opinion based on a hypothetical mirroring the facts of the fatal collision and involving a daily user of marijuana with 16 nanograms per milliliter of THC in his blood one hour after a crash, the driver was impaired. Posey testified that a driver in that situation would be slower to react to a changing light, might run the light and might also overreact or make an incorrect decision such as crossing the center median to the left.
With respect to impairment, Posey testified that recent research correlated eight nanograms per milliliter of THC with a blood-alcohol content (BAC) level of 0.05 percent, 13 nanograms per milliliter of THC with a BAC level of 0.08 percent, and 20 nanograms per milliliter of THC to a BAC level of 0.10 percent or greater. Posey also testified that for the purpose of determining driving impairment, particularly in states that have legalized marijuana, a group of experts advising the National Highway Traffic Safety Administration recommended a level of 5 nanograms per milliliter of THC, although Posey opined that might be on the low side and a level of eight to nine nanograms per milliliter might be more appropriate based on a larger group of heavier users. Posey also testified that studies originally showed marijuana users drove more cautiously, but were less likely to react correctly to a change in driving conditions. However, in a laboratory setting, researchers were starting to see heavy marijuana users driving fast and aggressively.
The study cited by Posey involved 18 people who were moderate users of marijuana.
B. Defense Expert
Darrell Clardy, a forensic toxicologist who testified for the defense, stated that defendant's THC and COOH levels indicated defendant was a heavy user of marijuana and that he had smoked marijuana within three to six hours before his blood was drawn for testing. On cross-examination, Dr. Clardy testified that defendant smoked marijuana no earlier than three hours before his blood draw.
Dr. Clardy was the only witness who testified for the defense.
Dr. Clardy explained that impairment level is individual and varies depending on whether use is light, moderate or heavy. He cited studies showing that occasional users with no tolerance for marijuana drive under the speed limit by approximately 10 miles per hour and are more cautious. In his opinion, a THC level of 15 nanograms per milliliter in light to moderate users "would be significant" and would impair the drivers' divided attention skills, reaction time and decision-making ability. Dr. Clardy testified that the critical factor in this case was defendant's heavy usage; heavy users feel the effects of the marijuana, but they develop a high tolerance to the drug and its usage does not impair their driving. Dr. Clardy also testified that with respect to divided attention skills, heavy users of marijuana can develop a tolerance to the drug, unlike with alcohol use.
Given a hypothetical involving a driver who uses marijuana heavily to control anxiety, had a THC level of 16 nanograms per milliliter and was driving 70 to 72 miles per hour, weaving in and out of traffic, and running a red light, Dr. Clardy testified that the individual was driving recklessly but was not impaired by the marijuana. He explained, "It's the fact that the drug is not treating the anxiety that's causing the impairment, so it's the anxiety. Another way to look at it, he didn't have enough of the marijuana to make him drive slowly and stay away from things and be careful the way marijuana causes a person to drive, so it's the lack of the drug and the anxiety that causes the accident. It's the compounding factor."
VI. Prior Rollover Collision
Approximately one month before the fatal collision, defendant rolled the black Honda he was driving. Lucille M. testified that she was driving westbound in the left lane of Westside Parkway going the speed limit of approximately 60 to 65 miles per hour. In her rearview mirror, she saw a car approaching from a distance and travelling approximately 85 miles per hour. She signaled and moved into the right lane, and, in her left mirror, she saw the car rolling over into the median between the westbound and eastbound lanes. Lucille exited the road and called 911 to report the accident. She told the dispatcher defendant "was going so fast" and she "saw him coming like a bullet ...."
Officer Lorena Vasquez responded to the call. She found a black Honda with major damage overturned by the center divider. Defendant told her he was switching lanes at the same time as the vehicle in front of him and he lost control trying to avoid the other vehicle.
VII. Other Evidence
The prosecutor also called an investigator with the California Department of Motor Vehicles. Robert Stevenson testified that when an individual applies for a California driver's license or identification card, he or she fills out a form that is signed under penalty of perjury and includes an attached advisement regarding the dangers of driving while impaired by alcohol or drugs. The prosecutor introduced evidence that, prior to the collision, defendant had completed the driver's license application form with the attached warning on three occasions.
Denise Roman, the office manager and medical assistant at Bakersfield 420 Evaluations, testified that patients fill out and sign an intake form. The form requires the patient to initial the acknowledgement, "I agree not to drive a car or operate dangerous or heavy equipment while using marijuana." Patients are also required to initial the warning that the clinic will revoke its recommendation for marijuana if the patient is charged with driving under the influence of marijuana. The patient's signature on the last page of the form certifies he or she has initialed the disclosure with "a full understanding."
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
Defendant challenges his convictions for second degree murder and gross vehicular manslaughter as unsupported by sufficient evidence. "The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
B. Conviction for Second Degree Murder
1. Implied Malice
Murder is an unlawful killing with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) It is well settled that causing a fatal traffic collision may support a conviction for second degree murder if there is substantial evidence of implied malice. (People v. Watson (1981) 30 Cal.3d 290, 300-301 (Watson); accord, People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358; People v. Batchelor (2014) 229 Cal.App.4th 1102, 1112-1113, disapproved in part on other grounds by People v. Hicks (2017) 4 Cal.5th 203, 214, fn. 3; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1090; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697 (Costa).)
Section 188 was amended effective January 1, 2019, but those amendments are not relevant to the issues raised in this appeal. (Sen. Bill No. 1437, approved by Governor, Sept. 30, 2018 (2017-2018 Reg. Sess.) ch. 1015, § 2.)
Implied malice has "'"both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and ... acts with conscious disregard for life.' [Citation.]"'" (People v. Soto (2018) 4 Cal.5th 968, 974, quoting Watson, supra, 30 Cal.3d at p. 300.) That is, "malice may be implied when [the] defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life." (Watson, supra, at p. 300.) It "requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (People v. Knoller (2007) 41 Cal.4th 139, 143.)
"Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his or her actions. [Citations.] Malice may be found even if the act results in a death that is accidental. [Citation.] It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence." (Costa, supra, 183 Cal.App.4th at p. 697.) In People v. Batchelor, supra, 229 Cal.App.4th at pages 1114-1115, the Court of Appeal discussed four factors relevant to guiding the determination, but "courts have recognized that there is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach." (Costa, supra, at p. 698.) Indeed, lack of intoxication or absence of a high speed flight from police "'does not preclude a finding of [implied] malice'" (ibid.), nor does a finding of implied malice require "a 'predicate act'" such as a prior driving under the influence (DUI) conviction, a DUI-related accident, or a judicial or drug rehabilitation-related admonition of the dangers of driving while intoxicated (People v. Johnigan, supra, 196 Cal.App.4th at pp. 1090-1091).
Those four factors are: "'(1) a blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.'" (People v. Batchelor, supra, 229 Cal.App.4th at p. 1114, quoting People v. Talamantes (1992) 11 Cal.App.4th 968, 973.)
2. Analysis
Defendant acknowledges that there is evidence he was driving while impaired by marijuana, was speeding, ran a red light, had a prior rollover crash, and had been given written warnings about the danger of driving while under the influence of marijuana, but he argues that this case does not share in common those factors found by other courts to be sufficient to support a finding of implied malice. Defendant contends the evidence "fails to establish blatantly dangerous driving," and he characterizes his driving as negligent, "only slightly hazardous," and "minor" in comparison with that at issue in other cases. He also contends his level of impairment was only moderate, and the evidence of his prior rollover crash and warnings from the DMV and the marijuana dispensary is insufficient to show his awareness of the dangers of reckless or impaired driving.
In support of his arguments, defendant relies on the following cases: Watson, supra, 30 Cal.3d at page 294 (driver going approximately 50 miles per hour over the speed limit with a BAC level of 0.23 percent); People v. Moore (2010) 187 Cal.App.4th 937, 939 (Moore) (driver, who was not under the influence of an intoxicant, ran a red light while going approximately 35 miles per hour over the speed limit, hit another vehicle and killed the passenger); People v. Ortiz (2003) 109 Cal.App.4th 104, 106-107 (Ortiz) (hitting an oncoming vehicle head-on after crossing over the double-yellow line to execute a pass unsafe based on terrain and visibility); People v. Autry (1995) 37 Cal.App.4th 351, 355-357 (drunk driver disregarded passengers' repeated requests to slow down and allow one of them to drive, was speeding and swerving, ran a red light and almost got hit by a truck, and nearly struck another driver's car prior to striking and killing two highway workers); People v. Contreras (1994) 26 Cal.App.4th 944, 947 ("bandit tow truck driver[]" rear-ended a car, resulting in the death of a child passenger, while speeding to the scene of another crash in a tow truck he knew had failing brakes); People v. Talamantes, supra, 11 Cal.App.4th at page 971 (drunk driver going 15 miles over the speed limit at 4:00 a.m. hit another vehicle while driving down the wrong side of the road with the lights off, killing the other driver); People v. David (1991) 230 Cal.App.3d 1109, 1111-1112 (driver under influence of phencyclidine (PCP) ran a red light, almost hitting a woman and two children and, with a deputy then in pursuit, drove between 60 and 80 miles per hour in a primarily residential area, swerved over double-yellow center lines, forced other cars to pull over to avoid being hit and ran a second red light before running a third light and hitting a vehicle, killing both occupants); People v. Murray (1990) 225 Cal.App.3d 734, 738 (drunk driver, who was speeding and swerving all over the freeway, stopped on the shoulder, made a U-turn and drove the wrong way for four miles before striking one car, causing another car to swerve out of control, and striking a third car head-on, killing all four occupants of the car); People v. Ricardi (1990) 221 Cal.App.3d 249, 254 (drunk driver drifted into another lane, snapping a stop sign, and hit a vehicle head-on, killing the driver and injuring her mother); People v. McCarnes (1986) 179 Cal.App.3d 525, 527-528 (drunk driver attempted to pass another vehicle on a two-lane highway and hit another vehicle head-on, killing two people in the vehicle and injuring four others); People v. Albright (1985) 173 Cal.App.3d 883, 884-885 (drunk driver who claimed to be suicidal drove 90-110 miles per hour, entered an intersection and struck another vehicle, killing the other driver); and People v. Olivas (1985) 172 Cal.App.3d 984, 986 (driver under influence of PCP being chased by two patrol cars exceeded the speed limit by between 20 and 75 miles per hour, ran four stop signs and three red lights, struck one car and nearly struck two others before broadsiding a vehicle, killing an infant and seriously injuring the infant's mother).
Defendant concedes the law does not require the presence of any particular factors. He nevertheless urges us that the evidence is insufficient to support the jury's finding of implied malice. We do not agree. "'If the circumstances reasonably justify the trier of fact's findings, [as they do here,] reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 890; accord, People v. Houston (2012) 54 Cal.4th 1186, 1215.)
As defendant acknowledges, there is no specific factual formula at play and we must instead consider the circumstances in this case. (People v. Johnigan, supra, 196 Cal.App.4th at p. 1091; Moore, supra, 187 Cal.App.4th at p. 942; Costa, supra, 183 Cal.App.4th at p. 698.) The evidence demonstrated that defendant was speeding down a two-way, multi-lane city street and weaving around traffic before he ran a red light without even attempting to brake. At the point defendant lost control of his car, which shot across the center median and became airborne, he was going approximately 25 miles per hour over the speed limit. Even the defense expert concurred that defendant was driving recklessly and that his reckless driving was the cause of the collision. Thus, we find defendant's description of his driving as "nothing like the disgracefully reckless driving" at issue in the other cases unpersuasive.
Although defendant argues the video from a surveillance camera showed he was only going 5 or 10 miles an hour over the speed limit, the evidence did not compel that conclusion, as the footage was captured approximately one-half of a mile away from the point at which defendant lost control of his car; Eric testified he could hear defendant accelerating as he approached the intersection of Gosford Road and Stockdale Highway; and Officer Berchtold estimated defendant was going approximately 80 miles per hour when he lost control of his vehicle.
Regarding evidence of his THC level and its correlation to a BAC level of between 0.08 and 0.10 percent, defendant claims "his impairment was not extraordinarily high" and the "jury could not rationally infer that [his] level of impairment was particularly aggravating to support the conclusion that [he] must have known his driving endangered the lives of others." As defendant acknowledges, however, there is no requirement that a finding of implied malice be supported by evidence of any impairment. (Ortiz, supra, 109 Cal.App.4th at p. 112 [the defendant was convicted of second degree murder based on reckless driving and in the absence of any evidence he consumed alcohol or other intoxicant on day of collision]; People v. Contreras, supra, 26 Cal.App.4th at pp. 955-957 [evidence of reckless driving in a tow truck with defective brakes sufficient to support jury's finding of implied malice; evidence of impairment or high speed chase not required].) In this case, there is substantial evidence that defendant was under the influence of marijuana at the time of the collision; that drivers in certain other cases were more impaired than he is of no moment.
Defendant also acknowledges that "the evidence showed that prior to the date of the fatal collision, [he] had been exposed to written warnings at the Department of Motor Vehicles and the marijuana dispensary about the hazards of driving under the influence of marijuana, and had been in a rollover accident after speeding on the highway which involved no intoxication or impairment, no damage to other vehicles, no injury to other persons, no citation, no arrest, and no penal consequences," but claims that such "evidence fails to establish that [he] must have known the danger to life from impaired or reckless driving." As discussed in greater detail in part II., "courts regularly admit prior instances of reckless driving on the question of intent" (Moore, supra, 187 Cal.App.4th at p. 943, citing Ortiz, supra, 109 Cal.App.4th at pp. 113-115), but a finding of implied malice may be made even in the absence of any prior instances of such driving (People v. Johnigan, supra, 196 Cal.App.4th at p. 1091 ["[T]here is no requirement of a 'predicate act,' i.e., a prior DUI or an alcohol-related accident necessary to establish implied malice."]). Here, in inferring knowledge of the dangerousness of impaired or reckless driving, the jury was entitled to consider, along with the other circumstances, the evidence that defendant had received written warnings about driving while under the influence of marijuana and had, only one month before the fatal collision, rolled his car while driving recklessly. Defendant's argument, to the extent it may be interpreted as suggesting otherwise, is untenable.
That the prior rollover crash left an impression on defendant is undeniable given he repeatedly mentioned it after the fatal collision and, at the hospital, he told Officer Gospich he did not drive while high because "ever since these—that accident other happened, I learned my lesson."
In concluding that defendant's second degree murder conviction is supported by substantial evidence, we find the Court of Appeal's decision in Moore particularly instructive. In that case, the court flatly rejected the defendant's argument that "other cases contain factors not found here." (Moore, supra, 187 Cal.App.4th at p. 941.) The defendant in Moore was going approximately 35 miles over the speed limit when he ran a red light and hit a car, causing it to hit another car in turn. (Id. at p. 939.) A passenger in the car the defendant hit was killed, and the defendant continued on his way after the fatal collision. (Id. at pp. 939-940.) He was not under the influence of any intoxicant and he was not being pursued by anyone. (Id. at p. 939.)
The court stated in Moore, "It is true, the cases [the defendant] relies on, particularly People v. Contreras, have factors not present here. But none of those cases hold that implied malice could not be found in the absence of those facts. The question of implied malice is to be decided in light of all the circumstances. [Citation.] Here, a properly instructed jury found implied malice. Under all the circumstances, the finding is reasonable." (Moore, supra, 187 Cal.App.4th at p. 942, italics added.) The court observed pointedly, "Whether [the defendant] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [he] was aware of the risk." (Id. at p. 941.)
We note that defendant separately addresses his unsafe driving, his level of impairment and his prior knowledge of the dangerousness of reckless or impaired driving, and, for each, concludes that the evidence is insufficient to sustain a finding of implied malice. He then summarily concludes that implied malice may also not rationally be inferred by the totality of the circumstances. As we have stated and as defendant's summary conclusion suggests, it is well settled that, on review, we consider whether the totality of all the circumstances supports the jury's finding of implied malice. (Moore, supra, 187 Cal.App.4th at p. 942.) In considering evidence of the circumstances of defendant's reckless driving just prior to the collision, his THC impairment, his receipt of written warnings not to drive while under the influence of marijuana and his prior rollover collision that occurred while he was driving recklessly, there is ample evidence from which a reasonable jury could have concluded, as it did, that defendant acted "with a wanton disregard of the high probability of death," and that he did so with "a subjective awareness of the risk." (Id. at p. 941; see People v. Hicks, supra, 4 Cal.5th at p. 215 [recognizing that driving "80 miles per hour through a red light in a densely populated urban area during the weekday rush hour ... can be likened to shooting a gun into a crowd; it is manifestly an act dangerous to human life," and concluding that the defendant was also on notice]; People v. Canizalez (2011) 197 Cal.App.4th 832, 843-844 [street racing modified cars 50 to 60 miles above the speed limit after drinking beer and in an area where they knew there was a stop sign, and their callous conduct after the resulting fatal crash "overwhelmingly establishes [the] appellants' subjective awareness of the risk of death that their racing created and their callous indifference to its consequences"].) We reject defendant's claim to the contrary.
C. Conviction for Gross Vehicular Manslaughter
Relatedly, defendant argues that his level of unsafe driving, impairment and awareness of the risk do not support an inference of gross negligence.
Section 191.5, subdivision (a), provides: "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." Gross negligence is "the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (Watson, supra, 30 Cal.3d at p. 296; accord, People v. Cady (2016) 7 Cal.App.5th 134, 147-148.) "A finding of gross negligence is made by applying an objective test: if a reasonable person in [the] defendant's position would have been aware of the risk involved, then [the] defendant is presumed to have had a such an awareness." (Watson, supra, at p. 296; accord, People v. Cady, supra, at pp. 147-148.) The jury considers all the relevant facts, "including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct." (People v. Ochoa (1993) 6 Cal.4th 1199, 1207.)
Our determination that there is sufficient evidence to support the jury's finding that defendant acted with implied malice, which requires subjective awareness of the risk, necessarily compels the conclusion that the evidence is also sufficient to support a finding that "'a reasonable person in the defendant's position would have been aware of the risk involved.'" (People v. Ochoa, supra, 6 Cal.4th at p. 1204; Watson, supra, 30 Cal.3d at p. 296.) Accordingly, we also reject defendant's substantial evidence challenge to his gross vehicular manslaughter conviction.
II. Admission of Evidence of Prior Rollover Crash
A. Summary of Trial Court Proceedings
Section 1101, subdivisions (a) and (b), of the Evidence Code provide:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Prior to trial, the prosecutor moved via motion in limine to admit evidence under Evidence Code section 1101, subdivision (b), of defendant's solo vehicle rollover crash that occurred approximately one month prior to the fatal collision. Relying on the Court of Appeal's decision in Ortiz, the prosecutor sought to admit the evidence to show defendant's knowledge—that is, his subjective awareness—of the risk reckless driving presented to human life. (Ortiz, supra, 109 Cal.App.4th at pp. 112-113; accord, Moore, supra, 187 Cal.App.4th at p. 943.)
Defense counsel, arguing that Ortiz was distinguishable, opposed the motion on the ground that the rollover crash was not sufficiently similar to the fatal collision because it did not involve evidence of intoxication, it did not result in any citation or finding of wrongdoing against defendant, no other vehicle was involved, there were no injuries, and the cause of the collision was not determined. Counsel also argued that if the court found the evidence admissible under Evidence Code section 1101, subdivision (b), it should nevertheless be excluded under Evidence Code section 352 as unduly prejudicial.
Section 352 of the Evidence Code provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The trial court concluded that evidence of the prior crash was probative of defendant's knowledge of the consequences of reckless driving and that it was not unduly prejudicial given it was less inflammatory than the evidence of the fatal collision.
B. Summary of Parties' Positions on Appeal
On appeal, defendant recognizes that Evidence Code section 1101, subdivision (b), permits the introduction of evidence to show a defendant's knowledge and that prior acts of reckless driving may be admissible in vehicular homicide cases. He argues, however, that the trial court erred in admitting the evidence in this case because the prior rollover crash and the fatal collision were not sufficiently similar to render the prior crash relevant. Defendant contends that the only similarities were speed, a rollover crash and major damage to the vehicle, and he points to the absence of proof that the rollover was caused by speeding or that he was at fault. He also contends there is no evidence the prior rollover crash involved intoxication and it did not involve damage to other vehicles or injuries to other people. Defendant concludes that "the evidence about the prior speeding and accident was irrelevant because it could not support a rational inference that the prior incident caused [him] to acquire a subjective knowledge that driving at a high speed endangers human life."
Defendant also argues that even if the evidence had some relevance to the issue of his knowledge, it should have been excluded under Evidence Code section 352 as unduly prejudicial. He contends that any probative value was "small," "the jury's inevitable perception that [he] had not been punished for his speeding and accident one month before the fatal collision increased the potential for prejudice and confusion of the issues," and presentation of the evidence was "excessively time-consuming." Defendant maintains the erroneous admission of the evidence was prejudicial under both the state and federal standards of review.
The standard of review applicable to errors under California law is set forth in People v. Watson (1956) 46 Cal.2d 818, 837 and the standard application to federal constitutional errors is set forth in Chapman v. California (1967) 386 U.S. 18. 24. "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v.] Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Seumanu (2015) 61 Cal.4th 1293, 1317.) In this case, defendant argues the error in admitting the evidence also violated his federal constitutional rights because it amounted to a denial of due process. As we conclude the evidence was not admitted in error under Evidence Code section 1101 or section 352, we do not reach this argument. (People v. Winbush (2017) 2 Cal.5th 402, 458 ["Proper admission [of evidence] vitiates [a] defendant's constitutional claim."].)
The People disagree. They contend the evidence of defendant's speeding and reckless driving was highly probative of his knowledge and the evidence was neither unduly prejudicial nor unduly time consuming.
C. Standard of Review
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390. 421, fn. 22; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
D. Analysis
"It has long been the rule ... that evidence of uncharged misconduct is inadmissible to establish a defendant's propensity to commit the offense charged. The bar on the use of such 'propensity evidence' is not that it lacks relevance. Rather, it is the concern that such evidence may be regarded by the trier of fact as too relevant, 'provoking,' ... 'an overstrong tendency to believe defendant guilty' based on the commission of the prior acts rather than those charged in the pending prosecution." (Ortiz, supra, 109 Cal.App.4th at p. 111.) "The exceptions to the bar on the admissibility of such evidence of uncharged acts are equally well established." (Ibid.) Relevant here, evidence of prior reckless driving may tend to show a "defendant's knowledge—gained in the course of the prior misconduct—of the natural consequences, dangerous to life, of the reckless operation of a motor vehicle, and of his persistence in that behavior, thus evidencing a conscious disregard for the lives of others on the road." (Id. at pp. 111-112.)
The parties rely on the decision in Ortiz to support their respective positions. The People have the better argument, however, as the facts of Ortiz undercut defendant's argument that the admission of the prior rollover crash evidence in this case was an abuse of discretion.
In Ortiz, the defendant was speeding and driving "'extremely dangerously'" prior to the fatal collision (Ortiz, supra, 109 Cal.App.4th at p. 107), but he was not under the influence of alcohol or any other intoxicant (id. at p. 111). The prosecutor introduced seven past incidents of prior uncharged misconduct, some of which involved driving under the influence of alcohol. (Id. at p. 110.) On appeal, the defendant challenged the admission of those prior incidents that were related to his drunk driving on relevancy grounds given that the fatal collision did not involve any intoxicants. (Id. at pp. 110-111.) The defendant also argued that if relevant, the failure to exclude the drunk driving evidence was error under section 352 of the Evidence Code. (Ortiz, supra, at p. 111.)
The Court of Appeal described the issue as "intriguing," and recognized that "[t]he bulk of [the post-People v. Watson cases affirming second degree vehicular murder convictions] involved the use of alcohol or other intoxicants in both the uncharged misconduct and the prosecution in which it was sought to be admitted." (Ortiz, supra, 109 Cal.App.4th at p. 112.) It concluded, however, that "[t]he resulting case law makes it clear ... that the contours of the 'knowledge' exception to the bar imposed by [Evidence Code] section 1101[, subdivision ](a) are not so restricted that the evidence at issue here was admitted erroneously by the trial court. In short, courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." (Id. at pp. 112-113, italics added.)
In this case, defendant argues that the prior uncharged rollover crash had little to no relevance because it was not sufficiently similar to the charged fatal collision. "Whether similarity is required to prove knowledge and the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime." (People v. Hendrix (2013) 214 Cal.App.4th 216, 241 [recognizing that in DUI cases, "other crimes evidence may be admissible even though similar only in a general way"].) In both the uncharged incident and the charged incident, defendant was speeding and driving recklessly when he lost control of his vehicle and rolled it. That the prior uncharged incident did not involve intoxicants and did not result in any citation against defendant, any damage to other vehicles or any injuries does not render it irrelevant.
Although the Court of Appeal refers in part to prior uncharged misconduct as "other crimes evidence" (People v. Hendrix, supra, 214 Cal.App.4th at p. 241), Evidence Code section 1101, subdivision (b), applies to prior crimes, civil wrongs or other acts.
In his reply brief, defendant criticizes the People for quoting from Ortiz but omitting the following line: "This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." (Ortiz, supra, 109 Cal.App.4th at pp. 112-113.) Defendant asserts that this omitted line explains and qualifies the appellate court's reasoning, and the present case lacks "any of the consequences enumerated in the Ortiz opinion." Nothing in Ortiz persuades us that admission of prior uncharged misconduct is limited to those incidents that resulted in citation, arrest or other formal civil or criminal penalties, however. Rather, the decision expressly speaks to those "and other consequences" (id. at p. 112, italics added), which include losing control and rolling a vehicle. The very point of the evidence is the "knowledge and understanding of the personal and social consequences" imparted by virtue of having been personally involved in a vehicle crash caused by speed and reckless driving. (Id. at p. 115.) Underscoring this link is the evidence that defendant repeatedly mentioned the prior rollover crash, both at the scene of the fatal collision and at the hospital.
Accordingly, we reject defendant's argument that the trial court erred in admitting the evidence of the prior rollover crash because it was not relevant and did not support a reasonable inference that defendant was subjectively aware of the dangers of driving recklessly at a high speed.
a. Prejudice Must be Undue
Evidence admissible under Evidence Code section 1101 may nevertheless be excluded in the court's discretion under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." However, as the California Supreme Court has explained, "'"'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail. [Citation.] '"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'" [Citation.]' [Citation.] [¶] The prejudice that section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]'" (People v. Scott (2011) 52 Cal.4th 452, 490-491; accord, People v. Tran (2011) 51 Cal.4th 1040, 1048 (Tran).)
b. Nature of Uncharged Misconduct
Defendant argues that the evidence of his prior rollover crash should have been excluded under Evidence Code section 352, even if we find it is admissible under Evidence Code section 1101, subdivision (b). He reiterates that the probative value of the prior incident is low given the dissimilarities between the uncharged incident and the charged offense. However, as we have just discussed, we do not agree.
Although defendant does not specifically argue that the uncharged misconduct evidence is more inflammatory than the charged offense, we note that the California Supreme Court has recognized that any potential prejudice is decreased where the evidence of the uncharged misconduct is no stronger or more inflammatory than the evidence of the charged offense. (Tran, supra, 51 Cal.4th at p. 1047.) We again find the Court of Appeal's decision in Moore instructive in this regard.
In Moore, the court considered and rejected the defendant's claim that the trial court erred under Evidence Code section 352 in admitting evidence of the defendant's prior DUI conviction where the charged offense did not involve alcohol. (Moore, supra, 187 Cal.App.4th at pp. 943-944.) The court concluded that "[e]vidence of a prior drunk driving conviction pales in comparison to the evidence supporting the charged offense." (Id. at p. 943.)
Here, we have the reverse situation: there is no evidence defendant was under the influence of an intoxicant when the uncharged rollover crash occurred, while the charged offense involves driving under the influence of THC. We have no difficulty concluding that the evidence of the uncharged crash, which showed only that defendant was speeding and driving recklessly when he lost control and rolled his car, did not result in any undue prejudice; to the contrary the uncharged misconduct evidence was mild compared to the evidence of the charged offense. (Moore, supra, 187 Cal.App.4th at p. 943; see People v. Brogna (1988) 202 Cal.App.3d 700, 709 ["The stronger the evidence, the more it is 'prejudicial.'"]; cf. People v. Diaz (2014) 227 Cal.App.4th 362, 381-383 [trial court committed prejudicial error under Evid. Code, § 352 when it permitted the prosecutor to show the jury two lengthy, highly inflammatory DUI education-related videos for purpose of demonstrating the defendant's awareness of the risks of drinking and driving; the emotional videos had "near certain potential for undue prejudice and ... marginal legitimate probative value"].)
c. Prior Incident Unpunished
We are also unpersuaded by defendant's argument that the jury's perception he was not punished for the prior uncharged rollover crash increased the risk of prejudice and confusion of issues. The California Supreme Court has recognized "that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether [the]defendant committed the other offenses." (People v. Falsetta (1999) 21 Cal.4th 903, 917, citing People v. Balcom (1994) 7 Cal.4th 414, 427; accord, Tran, supra, 51 Cal.4th at p. 1047.) However, this factor reflects but one consideration under Evidence Code section 352 and is not dispositive. (Tran, supra, at p. 1047.) To the extent the lack of evidence that defendant was punished for the prior rollover crash resulted in any arguable prejudice, we do not find it to be significant on these facts and, as discussed next, the trial court's instruction to the jury and the evidence's independence had a further ameliorative effect.
Pursuant to CALCRIM Nos. 303 and 375, the jury was instructed on evidence admitted for a limited purpose and uncharged acts as follows:
"During the trial, certain evidence was admitted for a limited purpose, and you may consider that evidence only for that purpose and for no other. The People have presented evidence of other behavior by the defendant that was not charged in this case that the defendant was involved in an accident on February 6, 2014. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged act. Proof by a preponderance
of the evidence is different—is a different burden of proof than proof beyond a reasonable doubt.
"A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged act, you may, but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant knew of the potential dangerous consequences of reckless driving a vehicle on a highway. In evaluating this evidence, consider the similarity or lack of similarity between the uncharged act and the [charged] offense. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or disposed to commit crime.
"If you conclude that the defendant committed the uncharged act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the charged or lesser crime. The People must still prove each charge and allegation beyond a reasonable doubt."
On review, we presume the jury understood and followed the instructions given. (People v. Sandoval (2015) 62 Cal.4th 394, 422; see Tran, supra, 51 Cal.4th at p. 1050 [noting jury given limiting instruction in evaluating admission of prior uncharged acts under Evid. Code, § 352]; Ortiz, supra, 109 Cal.4th at p. 118 [court's instructions on uncharged misconduct and evidence for a limited purpose further reduced any potential prejudice].)
In addition, evidence of the uncharged misconduct was independent from the evidence of the charged offense. This consideration is pertinent given the high court's recognition that "[t]he probative value of the [uncharged misconduct] evidence is enhanced if it emanates from a source independent of evidence of the charged offense because the risk that the witness's account was influenced by knowledge of the charged offense is thereby eliminated." (Tran, supra, 51 Cal.4th at p. 1047.)
d. Undue Consumption of Time
Finally, we also reject defendant's argument that presentation of the evidence amounted to "a substantial portion of the [four-day] trial" and was unduly time consuming. The testimony of the witness who saw defendant speeding up behind her and then rolling his car was straightforward and comprises fewer than 11 pages of the trial transcript; the testimony of the officer who responded to the witness's 911 call was also straightforward and comprises only five pages of the transcript. As well, the 911 call played for the jury was very brief and was transcribed in a single page. As such, defendant's assertion of undue consumption of time is directly contradicted by the record.
Under these circumstances, we conclude the trial court's decision to admit the evidence of defendant's prior rollover crash was not an abuse of discretion under Evidence Code section 352.
III. Admission of Eric's Testimony on Marijuana Impairment
A. Background
Over defense counsel's objections, Eric testified that he had seen several people under the influence of marijuana and he described them as slow to respond, lethargic and having dilated eyes. He stated that defendant looked this same way and that he was close enough to observe defendant's dilated eyes. Relying on People v. Navarette (2003) 30 Cal.4th 458 (Navarette), defendant claims the trial court erred under state law when it permitted the testimony in the absence of a proper foundation and he claims the error violated his right to due process under federal law. (See People v. Partida, supra, 37 Cal.4th at p. 439 [evidentiary error under state law violates due process if it renders the trial fundamentally unfair].)
The People respond that the prosecutor laid an adequate foundation for the testimony and the decision in Navarette is readily distinguishable, but, in any event, any error was harmless.
We review the trial court's ruling for abuse of discretion. (People v. Kopatz, supra, 61 Cal.4th at p. 85; People v. DeHoyos, supra, 57 Cal.4th at p. 131.)
B. Any Error Harmless
Pursuant to Evidence Code sections 702 and 800, a lay witness must have personal knowledge of the matter on which he is testifying, and opinion testimony is limited to that which is rationally based on the witness's perception and is helpful to a clear understanding of the testimony. (People v. DeHoyos, supra, 57 Cal.4th at p. 130.) In contrast, "[m]atters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (Id. at p. 131.) A witness qualified as an expert is required in those instances. (Evid. Code, § 801; People v. DeHoyos, supra, at p. 131.) "Lay opinion regarding drug intoxication is admissible so long as the party eliciting the evidence establishes a foundation." (Navarette, supra, 30 Cal.4th at p. 493; see People v. Williams (1992) 3 Cal.App.4th 1326, 1332, disapproved in part on other grounds in People v. Randolph (2018) 28 Cal.App.5th 602, 614.)
In Navarette, the defendant argued the trial court erred in excluding lay witness testimony that the defendant looked like he was under the influence of cocaine. (Navarette, supra, 30 Cal.4th at p. 493.) However, in that case, the first witness testified she had not seen people on drugs before and the second witness testified she had not seen people on cocaine before. (Id. at p. 494.) The California Supreme Court concluded the defendant failed to establish that the witnesses had sufficient knowledge of cocaine use to offer their opinion that he was under the influence of the drug. (Ibid.) Here, in contrast, Eric testified that he had seen people under the influence of marijuana before and he described what he observed to be the outward signs of usage.
Defendant acknowledges the distinction between the testimony of the witnesses in Navarette and Eric's testimony, but contends that because Eric failed to explain how he knew those signs he observed were due to marijuana intoxication, his testimony was as lacking as that at issue in Navarette. We do not agree. The fact that the witnesses in Navarette had no firsthand knowledge regarding cocaine intoxication was the linchpin of the court's analysis. Therefore, we find defendant's reliance on Navarette for the proposition that the trial court erred in admitting Eric's testimony in this case misplaced.
Regardless, even if we assume error, it was harmless. Defendant characterizes Eric's testimony on this issue as "powerful evidence pertaining to a crucial disputed issue in the trial," but defendant vastly overstates the importance of the testimony. Eric was the only witness to the crash who testified that defendant looked like other people he had seen under the influence of marijuana, but leafy marijuana, wax and a bong were found at the crash site; defendant was screaming about his marijuana and wanting to get high; and M.J. also testified that defendant seemed out of it. In addition, hospital staff expressed concern that defendant was severely intoxicated and defendant admitted to being a regular marijuana user. Critically, both toxicology experts testified that defendant's blood test results were consistent with heavy marijuana use and that he had used marijuana within several hours of the crash, and the prosecution's expert testified that defendant's THC level one hour after the crash was consistent with a BAC level of between 0.08 and 0.10 percent and there was little chance he was not impaired at the time of the collision. As well, Officer Beahm, a drug recognition expert, testified that defendant's pupils were normal at the hospital, which is consistent both in the presence of and in the absence of THC impairment, and Beahm was unable to conclude whether defendant was impaired by THC.
Given Beahm's expert testimony, which was at odds with Eric's lay opinion regarding pupil dilation in particular, and in the presence of the other, much more compelling evidence of usage and impairment, we are unpersuaded by defendant's argument that the jury likely placed undue trust in Eric's opinion that he was under the influence of marijuana. We conclude that under the circumstances, any error in admitting Eric's testimony was harmless under either the state or the federal standard of review.
IV. Alleged Sentencing Error
Finally, defendant claims that the trial court abused its discretion when it imposed a consecutive rather than a concurrent term for count 3. Defendant acknowledges the trial court's broad discretion to impose consecutive sentences (§ 669; People v. Shaw (2004) 122 Cal.App.4th 453, 458), and he does not dispute that in electing to impose a consecutive sentence, the court may properly rely on the fact that the offenses were committed against multiple victims (People v. Shaw, supra, at pp. 458-459). He argues, however, that his crimes "are less deserving of consecutive sentencing than more egregious cases involving multiple victims" and "the mitigating factors ... far outweigh the sole significant aggravating factor in [this] case."
The People respond that the trial court acted well within its discretion in imposing consecutive sentences based on injury to multiple victims.
A. Standard of Review
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
B. No Error
The parties do not dispute the applicable law. Although commission of offenses against multiple victims is no longer specifically enumerated as a circumstance in aggravation, subject to exceptions not relevant here, any mitigating or aggravating factors "may be considered in deciding whether to impose consecutive rather than concurrent sentences" (Cal. Rules of Court, rule 4.425), and the existence of multiple victims has long been recognized as an aggravating factor (People v. Calhoun (2007) 40 Cal.4th 398, 408; accord, People v. Leon (2010) 181 Cal.App.4th 452, 468; People v. Valenzuela (1995) 40 Cal.App.4th 358, 365 (Valenzuela)). This is so because where there are multiple victims, the gravity of the offense and a defendant's culpability for the offense are increased. (People v. Calhoun, supra, at p. 408, citing People v. Oates (2004) 32 Cal.4th 1048, 1063; accord, People v. Leon, supra, at p. 468; Valenzuela, supra, at p. 365.) Moreover, a single aggravating factor may suffice to support a consecutive sentence. (People v. Davis (1995) 10 Cal.4th 463, 552.)
Effective January 1, 2018, California Rules of Court, rule 4.421, subdivision (c), which lists circumstances in aggravation, was amended to provide, "Any other factors statutorily declared to be circumstances in aggravation or which reasonably relate to the defendant or the circumstances under which the crime was committed."
During the sentencing hearing, the trial court acknowledged that in mitigation, defendant did not have a serious criminal record, he completed a diversion program under section 1000 and he was young. In aggravation, the court recognized that defendant's act harmed multiple victims. While the defendant in Valenzuela caused a drunk-driving collision that killed two people, as defendant points out, we find that distinction unpersuasive in the context of the court's discretionary sentencing choice in this case. (Valenzuela, supra, 40 Cal.App.4th at p. 365.)
In Valenzuela, the Court of Appeal recognized that the pertinent provisions of the sentencing law "exist to punish according to culpability" and the trial court had "the discretion to make [the defendant] 'pay' for both deaths." (Valenzuela, supra, 40 Cal.App.4th at p. 365.) Here, defendant drove recklessly while intoxicated and caused a collision that cost one man his life and seriously injured his wife. That Kathleen was injured but survived the crash is no shield against the imposition of consecutive sentences, and we do not agree with defendant that his lack of a serious criminal record, his completion of a diversion program and his youth "far outweigh" the gravity of, and his culpability for, his criminal act. To the contrary, the trial court acted well within its discretion in concluding that consecutive sentences were appropriate given that defendant's act harmed more than one victim and we reject his challenge to the imposition of consecutive terms. (People v. Calhoun, supra, 40 Cal.4th at p. 408; People v. Leon, supra, 181 Cal.App.4th at p. 468; Valenzuela, supra, at p. 365.)
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
DESANTOS, J.