Opinion
C081861
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RYAN CHRISTOPHER MORALES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SF126044A, STKCRFE20130008918)
Defendant Ryan Christopher Morales killed six people when he sped through an intersection at 80 to 90 miles per hour, while drunk, and talking on a cell phone. Defendant's vehicle hit a pickup truck and caused six fatalities before spinning into a white Suzuki whose occupants were injured. A jury convicted defendant on six counts of second degree murder (Pen. Code, § 187, subd. (a)), five counts of gross vehicular manslaughter (§ 191.5, subd. (a)), two counts of driving under the influence of alcohol or drugs and causing bodily injury (Veh. Code, § 23153, subd. (a)), and two counts of driving with 0.08 percent blood alcohol content causing injury (Veh. Code, § 23153, subd. (b)). The jury also found true the allegations of two great bodily injury enhancements and multiple victim enhancements. The trial court sentenced defendant to serve a term of 90 years to life plus 8 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) his convictions on two counts of Vehicle Code section 23153, subdivisions (a) and (b), must be reversed because they are duplicative of two other convictions for the same subdivisions that relate to the same act of driving, (2) all of the one-year enhancements imposed under Vehicle Code section 23558 must be stayed because he was already punished for the same act with the sentences imposed for six counts of second degree murder, (3) the abstract of judgment must be corrected to remove the reference to full consecutive terms from the sentences ordered stayed by the trial court, and (4) a surcharge imposed under section 1203.1 must be stricken because it applies only to defendants who are granted probation.
We conclude the offenses set forth in Vehicle Code section 23153, subdivisions (a) and (b), relate to the same act of driving for which defendant was convicted of second degree murder. Because defendant engaged in a singular act of driving, the convictions for the second violations of subdivisions (a) and (b) must be reversed. We accept the Attorney General's concession that, if defendant engaged in a singular act of driving, the sentences imposed under Vehicle Code section 23558 must be stayed. We further accept the Attorney General's concessions that the abstract of judgment must be corrected to accurately reflect the terms stayed by the trial court and to strike the surcharge imposed under section 1203.1.
Accordingly, we affirm defendant's convictions except for counts 15 and 16 relating to Vehicle Code section 23153, subdivisions (a) and (b), which are reversed. On remand, the trial court shall correct the abstract of judgment in accordance with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Shortly after 5:00 p.m. on October 22, 2013, defendant drove his GMC Yukon at 80 to 90 miles per hour through a red light at the intersection of Vine Street and Ham Lane in Lodi. Defendant was intoxicated and talking on his cell phone. Based on blood samples drawn later, a criminalist testified defendant had a blood alcohol level of 0.26 percent at the time he sped through the intersection.
Defendant's vehicle hit a Ford F-150 pickup truck with such force that defendant's license plate left its imprint in the side door of the pickup truck. The force of the impact killed six members of the family riding in the pickup truck: L.M., his pregnant wife V. and their unborn child, as well as three of their children: I., J., and S. Another child, E., was the only survivor in the vehicle. E. was transported in critical condition by helicopter to UC Davis Medical Center where he underwent surgery and was hospitalized for two weeks.
The information charged the murder of this unborn child as against "Baby M." The pediatric surgeon who responded to the emergency room admission of V. testified the male fetus was approximately 32 to 34 weeks in gestation and would have been viable if delivered alive. The fetus had no injuries and died only because V. died.
Charles Mellick was driving on Ham Lane at the time of the collision. Mellick testified, "I heard a loud crash and as I turned I saw a car in the southbound lane spinning and then I noticed there was something coming at me. It was a wheel, . . . bouncing across the road coming at my car." The spinning vehicle was defendant's vehicle and "it probably spun . . . two, three times."
Sonia Salazar had just turned her car onto Ham Lane when she saw defendant's vehicle going 80 to 90 miles per hour in the opposite direction. Salazar watched defendant's vehicle in her rear view mirror. She testified, "I just seen the car just hit the other cars and just saw all the dust and everything." She did not see defendant's brake lights turn on before the crash.
Immediately after hitting L.M.'s Ford F-150, defendant's vehicle hit a Suzuki sport utility vehicle occupied by A.R. and his three children. A.R. had difficulty explaining what happened "because everything happened so fast and [defendant] was coming very fast and we just felt the impact." A.R. and his children were taken to the hospital with injuries.
As part of a chain reaction, L.M.'s pickup truck hit another pickup truck driven by A.F. A red Ford minivan driven by M.S. was also hit. A tire that broke off L.M.'s Ford pickup truck hit a Lexus sedan.
City of Lodi Police Lieutenant Shad Canestrino responded to the scene at 5:36 p.m. Lieutenant Canestrino found defendant pinned in his vehicle, smelling of alcohol, and with a cell phone in his pants pocket. Defendant's cell phone showed it had made an outgoing call at 5:20 p.m.
On November 8, 2013, Lieutenant Canestrino went to the hospital where defendant was receiving care. The lieutenant gave defendant a Miranda advisement and asked whether defendant wanted to write a letter to E. Defendant responded affirmatively and wrote a letter to E. in which he apologized for driving while drunk and causing the collision. Defendant admitted: "I should not have been driving, but I'm still immature and do really dumb things, but I promise I'll try to make it clear to people that it's not okay to drink and drive."
Miranda. v. Arizona (1966) 384 U.S. 436 . --------
The prosecution introduced evidence defendant was involved in two prior driving incidents. On January 1, 2012, City of Fremont Police Officer Darryl Manrique attempted to pull over defendant for driving without a front license plate. Defendant's vehicle sped up, cut through a shopping center, and began driving against oncoming traffic on Blacow Road. Officer Manrique ceased pursuit. A few hours later, another Fremont police officer spotted defendant's vehicle and followed him. Defendant sped up, ran a red light, and began driving toward oncoming traffic. The second police officer ceased pursuit. About an hour later, the police officer contacted defendant and gave him a Miranda advisement. Defendant admitted being the driver who had evaded the police that day and explained driving against oncoming traffic "because he had seen a show, a TV show and learned that if he drove in an erratic manner, specifically against oncoming traffic, that the police would not pursue him."
DISCUSSION
I
Vehicle Code Section 23153, Subdivisions (a) and (b)
Defendant contends one of his two convictions for subdivision (a) and one of his two convictions of subdivision (b) of Vehicle Code section 23153 must be reversed as being duplicative of the same prohibited act of driving. The contention is meritorious.
A.
Defendant's Separate Convictions
Defendant was convicted on two counts of subdivision (a) of Vehicle Code section 23153 - one relating to E. and one relating to A.R.
Defendant was also convicted on two counts of subdivision (b) of Vehicle Code section 23153 - again with one relating to E. and another to A.R.
B.
Vehicle Code Section 23153In pertinent part, Vehicle Code section 23153 provides: "(a) It is unlawful for a person, while under the influence of any alcoholic beverage, 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. [¶] (b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood 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." (Italics added.)
As pertinent to this case, the gravamen of the offenses defined in subdivisions (a) and (b) of Vehicle Code section 23153 is the act of driving under the influence of alcohol. In Wilkoff v. Superior Court (1985) 38 Cal.3d 345 (Wilkoff) [superseded by statute on other grounds as recognized in People v. Arndt (1999) 76 Cal.App.4th 387, 393], the California Supreme Court held that "one instance of drunk driving is chargeable as only one count of felony drunk driving (i.e., one count of § 23153, subd. (a) and one count of subd. (b)) even if more than one person is injured thereby." (Id. at p. 349.) This is because "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. The act prohibited by section 23153 is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle." (Wilkoff, at p. 349.) The Wilkoff court noted, "By 'one instance' of drunk driving we refer to one volitional act of driving. Thus if a driver collides with one car and is involuntarily propelled into a second car, only 'one instance' of driving has occurred. But if a driver collides with the first car and then voluntarily drives further and collides with a second car, then two acts of driving have occurred and the driver may be charged with two counts of felony drunk driving." (Id. at p. 349, fn. 4.) Thus, "Wilkoff requires dismissal of multiple convictions of DUI causing injury when they all arise from a single instance of driving. (Wilkoff, supra, 38 Cal.3d at p. 349, fn. 4; see also People v. McFarland (1989) 47 Cal.3d 798, 802.)" (People v. Walker (2014) 231 Cal.App.4th 1270, 1276.)
C.
Defendant's Driving
Defendant contends he engaged in only a singular act of driving, and therefore his redundant convictions of subdivisions (a) and (b) of Vehicle Code section 23153 must be reversed. The Attorney General agrees that if defendant's driving constituted a single act he "committed but one voluntary act of driving under the influence, and the convictions on counts 15 and 16 [relating to A.R.], along with their sentences (a concurrent term on count 15 and a stayed sentence on count 16) must be dismissed." However, the Attorney General asserts neither count 15 nor 16 should be reversed because "[t]he record reflects that [defendant] caused A.R.'s Suzuki to strike his SUV 'nearly simultaneously' with him hitting broadside L.M.'s pickup."
In the Attorney General's view, the fact defendant did not simultaneously strike both L.M.'s Ford pickup and A.R.'s Suzuki SUV precludes reversal. This view conflicts with the California Supreme Court's guidance that multiple convictions of subdivisions (a) and (b) of Vehicle Code section 23153 are precluded when a driver hits one car and is thereafter involuntarily propelled into a second car. (Wilkoff, supra, 38 Cal.3d at p. 349, fn. 4.) In the Wilkoff court's example, there is necessarily a moment between the two collisions even while allowing for only a single conviction. Thus, the test focuses on whether a defendant "voluntarily drives further and collides with a second car" rather than elapsed time between the collisions. (Ibid.)
The record in this case does not admit the conclusion defendant exercised any volitional driving between the time he hit L.M.'s Ford pickup truck and A.R.'s Suzuki in the same intersection. None of the multiple witnesses to the incident described the events as anything other than a single crash even though they saw multiple vehicles were involved. Instead, the testimony was that there was one very loud boom that occurred. None of the testimony allows for enough time between the collisions to allow the exercise of any volitional driving.
Moreover, defendant's vehicle hit L.M.'s Ford truck with such force the front license plate letter left an imprint on L.M.'s truck's side panel. Defendant's lower extremities were pinned inside the truck to the point he had to be cut out of the vehicle. Defendant then spent at least two weeks in the hospital. Thus, there appears no way defendant or the vehicle were able to drive after the initial impact. Though the Attorney General notes defendant's vehicle hit A.R.'s Suzuki SUV "from right to left," this detail does not indicate volitional driving by defendant. Instead, the testimony of the witnesses and configuration of the vehicles in the aftermath of the collision show defendant's vehicle continued to travel after initial impact with the Ford pickup to impact the Suzuki not from volitional driving but due to the high rate of speed with which defendant drove through the red light. Accordingly, the convictions for counts 15 and 16 relating to Vehicle Code section 23153, subdivisions (a) and (b), are reversed.
II
Vehicle Code Section 23558 Enhancements
Defendant contends his sentence enhancements imposed under Vehicle Code section 23558 relating to driving under the influence and causing injury to E. (count 13) must be stayed under section 654. The Attorney General acknowledges that if defendant's driving constituted a singular act, it "then appears that the multiple victim enhancements must be stricken, because the multiple punishments are not permitted for a single course of conduct." Based on our conclusion defendant engaged in a singular act of driving, the multiple enhancements under Vehicle Code section 23558 must be stayed.
A.
Defendant's Three Unstayed Sentence Enhancements
Defendant was sentenced to serve 15 years to life in prison for each of the six second degree murders he committed by driving drunk through the intersection of Vine Street and Ham Lane. As pertinent to this issue, the trial court also imposed six one-year multiple victim enhancements under Vehicle Code section 23558. Six one-year enhancements were imposed in connection with defendant's driving under the influence and causing injury to E. (count 13; Veh. Code, § 23153, subd. (a)). Of these, three enhancements were stayed. Another six one-year enhancements were imposed and were stayed in connection with defendant's driving with over 0.08 percent blood alcohol causing injury on E. (count 14; Veh. Code, § 23153, subd. (b)). Defendant contends the three one-year enhancements not stayed in connection with count 13 must be stayed.
B.
Analysis
Section 654, subdivision (a), provides in pertinent part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." As the California Supreme Court has explained, "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. (See Neal [v. State of California (1960)] 55 Cal.2d [11,] 19; People v. Beamon (1973) 8 Cal.3d 625, 639.) We first consider if the different crimes were completed by a 'single physical act.' ([People v.] Jones [(2012)] 54 Cal.4th [350,] 358.) If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives. (Id. at p. 359; see also People v. Mesa (2012) 54 Cal.4th 191, 199 (Mesa) ['Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts'].) At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. (See Mesa, supra, 54 Cal.4th at p. 196.) When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo. (See People v. Harrison (1989) 48 Cal.3d 321, 335 ['the applicability of [section 654] to conceded facts is a question of law']; accord, People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)" (People v. Corpening (2016) 2 Cal.5th 307, 311-312 (Corpening).)
Corpening involved the question of whether section 654 applied to convictions for robbery and carjacking "based on the same forceful taking of a vehicle." (Corpening, supra, 2 Cal.5th at p. 311.) The defendant in Corpening used a gun to take a van that happened to contain $70,000 worth of rare coins the owner was planning to take to a swap meet. (Id. at p. 309.) Defendant was convicted of and sentenced for both carjacking and robbery. The Supreme Court held that section 654 precluded punishment for both convictions because they arose out of the same physical act. (Ibid.)
Here, defendant engaged in the single physical act of driving drunk through an intersection. His convictions on six counts of second degree murder reflect the loss of life he caused. The six enhancements imposed under Vehicle Code section 23558 relate to the same physical act of driving as well as the same murder victims. Vehicle Code section 23558 provides: "A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements that may be imposed pursuant to this section is three." (Italics added.)
Because the act of driving that supported defendant's murder convictions is the same as that for which the enhancements were imposed under Vehicle Code section 23558, the enhancements must be stayed under section 654. As the Corpening court noted, "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Corpening, supra, 2 Cal.5th at p. 313.) Consequently, we modify the judgment to stay the enhancements imposed under Vehicle Code section 23558.
III
Correction of the Abstract of Judgment
Defendant contends, and the Attorney General agrees, the abstract of judgment must be corrected to delete the "x" marks in the "consecutive full term" column for his convictions of gross vehicular manslaughter (counts 7 through 11) and driving with blood alcohol of 0.08 percent (counts 14 and 16) while leaving the "x" marks in the "654 stay" column. We agree.
When the trial court pronounced the judgment, it stayed the sentences for counts 7 through 11, 14, and 16 under section 654. "A sentence cannot be imposed so as to simultaneously run consecutively to another count and be stayed pursuant to . . . section 654; these are mutually exclusive options. While it is proper for a court to pronounce judgment in terms of 'imposing a term' and 'staying punishment,' it is incorrect to indicate in the minutes or abstract that the sentence thus imposed runs 'consecutive,' as well. . . . On the abstract of judgment, when a term is stayed, on the line indicating the sentence for count 2, a single 'X' should be inserted in the box indicating the punishment is stayed pursuant to . . . section 654." (People v. Toure (2015) 232 Cal.App.4th 1096, 1107.) In accordance with the sentence pronounced by the trial court, the "x" marks indicating the section 654 shall be retained while the "x" marks in the consecutive full term column shall be deleted for counts 7 through 11, 14, and 16.
IV
Section 1203.1
Defendant contends, and the Attorney General agrees, a surcharge imposed under section 1203.1 must be stricken because it applies only to restitution as a condition of probation. We agree section 1203.1 applies only to restitution as a condition of probation. (People v. Anderson (2010) 50 Cal.4th 19, 27.) Since defendant was not granted probation, the surcharge imposed under section 1203.1 is stricken.
DISPOSITION
Defendant's convictions are affirmed—with the exception of counts 15 and 16 for violating Vehicle Code section 23153, subdivisions (a) and (b), which are reversed. The judgment is modified to stay all enhancements imposed under Vehicle Code section 23558. The abstract of judgment shall be corrected to delete the "x" marks in the "consecutive full term" column for defendant's convictions of gross vehicular manslaughter (counts 7 through 11) and driving with blood alcohol of 0.08 percent (counts 14 and 16) while leaving the "x" marks in the "654 stay" column for each of these counts. The surcharge imposed under Penal Code section 1203.1 is stricken. The clerk of the superior court is then directed to amend the abstract of judgment to reflect the judgment as modified and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
DUARTE, J.