Opinion
B295732
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ARON PETROSIAN, Defendant and Appellant.
Geragos & Geragos, Mark Geragos; Law Offices of Cliff Gardner, Cliff Gardner, and Daniel Buffington for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Deputy Attorney General, and David F. Glassman, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA109617) APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed, but reversed in part, and remanded for resentencing. Geragos & Geragos, Mark Geragos; Law Offices of Cliff Gardner, Cliff Gardner, and Daniel Buffington for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Deputy Attorney General, and David F. Glassman, Deputy Attorney General for Plaintiff and Respondent.
* * * * * *
Aron Petrosian (defendant), just shy of 18 years old, rocketed his sports car from a dead stop at a signal to more than 103 miles per hour in less than three-tenths of a mile. At that speed, he was unable to brake in time for a car making a left turn across his path and slammed into it, killing the woman driver, causing brain injury to one of her sons and lesser injuries to her other son. A jury convicted defendant of vehicular manslaughter (as to the mother) and two counts of reckless driving causing a specified injury (as to each of her sons). On appeal, defendant challenges his convictions and 10-year prison sentence. We conclude that the challenges to his convictions lack merit, but that the trial court erred in imposing great bodily injury enhancements as to the reckless driving counts that already account for the degree of injury to the victims. Accordingly, we remand for a plenary resentencing and for the trial court to exercise its newly conferred discretion whether to transfer the case back to juvenile court in light of the jury's inability to reach a verdict on the initially charged murder count.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On December 17, 2014, defendant was driving his Camaro Super Sport along Halliburton Drive in Hacienda Heights, California. He stopped at a red light at Stimson Avenue, just behind the limit line. Although the speed limit on this four-lane stretch of Halliburton was 40 miles per hour, defendant "gunned it" when the light turned green. He pushed the gas pedal 98 percent of the way to the floor. Three-tenths of a mile past the intersection, defendant crashed his Camaro into a BMW making a left turn across Halliburton from a smaller, intersecting street. The BMW had three people in it—a woman driver and her two sons, Isaac and Ramon Jr. The impact killed the woman, caused traumatic brain damage to Isaac that placed him in a coma for 14 days, and caused Ramon to be thrown from the vehicle and to injure his shoulder.
The airbag control module in the Camaro revealed that defendant had accelerated the Camaro to 103 miles per hour just one second before the impact, and that in the next half-second, defendant moved his foot from the accelerator to the brake pedal. Based on this data, a California Highway Patrol (CHP) officer opined that defendant's speed at the time of impact was 81 to 83 miles per hour. Eyewitnesses to the collision provided a variety of estimates of defendant's speed, including "at least 80 miles per hour," between 70 and 75 miles [per] hour, and "60 miles [per] hour." Based on average reaction times and the distance a car can travel at certain speeds, the CHP officer calculated that defendant had to be going at least 64 miles [per] hour because, had he been going any slower, he would have been able to stop short of the intersection where he struck the BMW.
Just over five months earlier, defendant was pulled over on the 134 freeway for speeding in excess of 80 miles per hour and for making "aggressive" lane changes. The CHP officer who stopped him gave him a ticket only for making unsafe lane changes, but warned him that he "need[ed] to stop" driving dangerously. The officer said defendant was attentive while he was issuing his warning.
II. Procedural Background
For the mother's death, the People charged defendant with murder (Pen. Code, § 187, subd. (a)) and vehicular manslaughter (id. § 192, subd. (c)(1)). For the injuries to the sons, the People charged defendant with two counts of felony reckless driving causing great bodily injury, one for each son. (Veh. Code, §§ 23103, 23105.) With respect to the felony reckless driving counts, the People also alleged that defendant personally inflicted great bodily injury "caus[ing] [Isaac] to become comatose due to brain injury" (Pen. Code, § 12022.7, subd. (b)) and that he personally inflicted great bodily injury upon Ramon (id., subd. (a)).
All further statutory references are to the Vehicle Code unless otherwise indicated.
Although defendant was initially charged in criminal court, the trial court certified the case to juvenile court because defendant was 17 years and nine months old at the time of the incident. The juvenile court then conducted a three-day fitness hearing to determine whether to transfer the case back to criminal court. After taking judicial notice of the preliminary hearing transcript and hearing testimony from additional witnesses, the juvenile court returned the case to criminal court. In so ruling, the juvenile court found that three of the five statutory "criteria" favored keeping the case in juvenile court—namely, that the charged crimes did not involve sophistication, that defendant had no prior delinquent history, and that there had been no failed attempts to rehabilitate him. The court found that the remaining two criteria favored transfer to criminal court—namely, that defendant could not "be rehabilitated" in the 28 or 29 months that remained "prior to the expiration of the juvenile court's jurisdiction," and that "circumstances and gravity" of the charged crimes were "aggravated" because they involved "a conscious disregard for human life." "[I]n th[e] court's mind," these two factors justified return to adult court.
The matter proceeded to a jury trial in criminal court. The jury found defendant guilty of vehicular manslaughter and both counts of felony reckless driving causing great bodily injury; the jury also found true the allegation defendant had personally inflicted great bodily injury upon Isaac. The great bodily injury enhancement regarding Ramon was not submitted to the jury because defense counsel stipulated to that enhancement. The jury hung on the murder count.
Defendant moved to transfer the case back to juvenile court, but the trial court denied the motion on the ground that it lacked the jurisdiction to entertain it.
The trial court sentenced defendant to state prison for 10 years. On the felony reckless driving count involving Isaac, the court imposed a seven-year prison sentence, comprised of a mid-term two-year base term plus five years for the personal infliction of great bodily injury causing a brain-injury-related coma. The court imposed a consecutive 20-month sentence on the reckless driving count involving Ramon, comprised of an eight-month base term (calculated as one-third the mid-term sentence of two years) plus 12 months for the personal infliction of great bodily injury (calculated as one-third the mid-term sentence of three years). The court next imposed a consecutive 16-month sentence on the vehicular manslaughter count (calculated as one-third the mid-term sentence of four years).
Defendant timely filed this appeal.
DISCUSSION
I. Validity of Convictions
Defendant argues that all three of his convictions must be vacated because the trial court erred in (1) excluding the expert witness he proffered on the development of adolescent brains, and (2) allowing the People to ask their expert questions about whether defendant would have had time to stop had defendant been driving slower. We review evidentiary rulings for an abuse of discretion (People v. Powell (2018) 5 Cal.5th 921, 961), but review de novo defendant's contentions that these rulings violated his constitutional rights (People v. Cromer (2001) 24 Cal.4th 889, 894).
A. Expert on adolescent brain development
1. Pertinent facts
At trial, defendant sought to call Dr. Elizabeth Cauffman (Cauffman) as an expert witness. Based on her testimony at the juvenile court's fitness hearing, defendant proffered that Cauffman would testify at trial that (1) she was a "developmental psychologist," and (2) based on the physiological development of the human brain, persons under the age of 25 are "impulsive" and unable to control their impulses to engage in risky behavior. Defendant argued that Cauffman's testimony was relevant to show that the CHP officer's warning five months prior to the charged incident did not "st[i]ck" with him.
The trial court excluded the testimony on two grounds. First, the court ruled that the testimony was not relevant. More specifically, the court found that Cauffman's proffered testimony dealt with defendant's lack of "capacity," due to his not-fully-developed brain, "to form the required intent" of "implied malice" (underlying the murder charge) or to be "subjectively . . . aware that his conduct of driving at a high speed would endanger the life of somebody else" (underlying the felony reckless driving charges). This evidence was not relevant, the court reasoned, because it was specifically barred by Penal Code sections 28 and 29.2. Second, the court found that the testimony's probative value, if any, was "outweighed by . . . prejudice" under Evidence Code section 352.
Although the court cited Penal Code section 29.4 rather than section 29.2, this was a mistake because section 29.4 deals with voluntary intoxication (which is not an issue in this case) while section 29.2 deals with lack of capacity.
2. Analysis
The trial court did not abuse its discretion in ruling that Cauffman's testimony was not relevant (and thus also did not err, as defendant suggests in a footnote, in giving a jury instruction based on that testimony). In California, there "shall be no defense of diminished capacity . . . or irresistible impulse" (Pen. Code, § 28, subd. (b)), such that "[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state . . ." (id., at subd. (a)) and "evidence that the accused lacked the capacity or ability to control his or her conduct for any reason shall not be admissible on the issue of whether the accused actually had [the required] mental state" (Pen. Code, § 29.2, subd. (b)). (Accord, People v. Cortes (2011) 192 Cal.App.4th 873, 902.) As defendant concedes, Cauffman's testimony is barred by these statutes. Because this testimony is therefore, as a matter of law, not "of consequence to the determination" of a criminal defendant's mental state (Evid. Code, § 210), it is not relevant and thus within the trial court's discretion to exclude. What is more, the trial court's compliance with the rules of evidence, specifically relevance, did not violate due process. (People v. Mincey (1992) 2 Cal.4th 408, 440 ["Application of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense."].)
Defendant resists this conclusion.
He asserts that his constitutional right to due process overrides California's refusal (in Penal Code sections 28 and 29.2) to recognize lack of capacity and irresistible impulse as viable defenses. For support, he cites Justice Ruth Bader Ginsburg's concurrence in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), which he reads as (1) setting out the rule that due process allows a state to "redefin[e]" the mental state of a crime but not to erect "evidentiary prescriptions" that stop short of redefining the mens rea and hence end up just barring otherwise relevant evidence (id., at pp. 56-58 (conc. opn. of Ginsburg, J.)), and (2) controlling because it provides the fifth vote to affirm. We reject this assertion.
Even if we accept defendant's reading of Egelhoff as accurate, California courts (including our Supreme Court) have repeatedly held that categorical exclusions of evidence like the ones embodied in Penal Code sections 28 and 29.2 effectively—and, under Egelhoff, permissibly—redefine the mens rea of crimes and thus comport with due process. (People v. Soto (2018) 4 Cal.5th 968, 980-981 [rejecting Egelhoff-based due process challenge to Penal Code section 29.4, which bars "evidence of voluntary intoxication" to "negate the capacity to form any mental state[]"]; People v. Carlson (2011) 200 Cal.App.4th 695, 707-708 [same]; People v. Timms (2007) 151 Cal.App.4th 1292, 1300-1301 [same]; People v. Wolfe (2018) 20 Cal.App.5th 673, 692 [same]; People v. Martin (2000) 78 Cal.App.4th 1107, 1116-1117 [same].) The parity between redefinition and categorical exclusion of evidence is even more obvious where, as here, the categorical exclusion of evidence pertaining to lack of capacity and irresistible impulse is accompanied by our Legislature's express declaration that "there shall be no defense of diminished capacity . . . or irresistible impulse" "[a]s a matter of public policy." (Pen. Code, § 28, subd. (b).)
Further, our Legislature's decision to abolish lack of capacity and irresistible impulse as defenses does not offend due process, which renders the abolition of a defense unconstitutional "only if [doing so] 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (Kahler v. Kansas (2020) 140 S. Ct. 1021, 1027 (Kahler), quoting Leland v. Oregon (1952) 343 U.S. 790, 798.) If, as the U.S. Supreme Court recently held, due process is not offended when a state abolishes an insanity defense premised on the defendant's inability to recognize that his criminal act is "morally wrong" (Kahler, at pp. 1024-1037), it is not offended when a state abolishes the defenses of lack of capacity and irresistible impulse. This is no doubt why our Supreme Court has held that "[t]he abolition of the diminished capacity defense and the limitation of admissible evidence" does not "violate the due process right to present a defense." (People v. Saille (1991) 54 Cal.3d 1103, 1116.) We have neither the power nor inclination to disagree with our Supreme Court on this point.
In light of our analysis, we have no occasion to address defendant's further argument that the trial court's Evidence Code section 352 ruling was incorrect (either under that provision or under the Constitution) or to address the People's alternative arguments for affirmance.
B. Testimony regarding time to stop
1. Pertinent facts
At the preliminary hearing, the People called CHP Officer Stephen Taggart to testify regarding the data retrieved from the airbag control module in defendant's Camaro. During cross-examination, defendant's attorney asked Officer Taggart if he could calculate the "distance . . . covered" while the Camaro was decelerating and how that distance might bear on the speed defendant was driving at the time of impact.
Two days before trial was set in mid-November 2018, the prosecutor disclosed to defendant's attorney that the prosecutor had spoken with Officer Taggart and had (1) asked him some follow-up questions regarding "how fast [the Camaro] would go [and] . . . how much distance it would cover," and (2) asked him to calculate "what distance it would take for a vehicle to stop should they be going X number [of] miles per hour."
The next day (and hence one day before trial was set to begin), the defense attorney raised the prosecutor's disclosure with the trial court and apprised the court that he needed to talk to "one or both" of his experts about the deceleration calculations.
On the day trial was set to begin, defendant's attorney reported that he still did not have a full response from his experts. He also commented that it was "somewhat inexplicable," given defense counsel's cross-examination during the preliminary hearing, that the prosecutor had not talked to Officer Taggart about deceleration sooner, but seemed to concede that the prosecutor's disclosure was consistent with the Criminal Discovery Act (Pen. Code, § 1054 et seq.) because, in defense counsel's own words, he would have "stood on [Penal Code section] 1054" and "be[en] jumping up and down if [the prosecutor] . . . didn't do it appropriately." The prosecutor, in order to avoid any "delay [in] trial," offered not to use Officer Taggart's recent deceleration calculations at trial if the defense needed additional time to retain a competing expert on this point, but defendant's attorney rejected the offer as "illusory" because he "want[ed] to get into that area" with Officer Taggart. The prosecutor observed that this put the parties "back to square zero." The trial court ultimately continued the trial for 10 days.
Trial began 10 days later.
When Officer Taggart, on the third day of trial, began to testify about the speed defendant was traveling based on his deceleration calculations, defendant objected that there had been a violation of the Criminal Discovery Act and complained that the prosecutor had offered not to present this evidence. The trial court overruled the objection, recalling that the People's offer not to use the evidence was premised on not delaying the trial and hence was no longer operative once the trial had been continued.
2. Analysis
The trial court did not abuse its discretion in allowing Officer Taggart to testify about his calculations of the minimum speed defendant would have had to be traveling to make the collision unavoidable. We reach this conclusion for two reasons.
First, the prosecutor's pretrial disclosure of the expert's testimony on this point complied with the Criminal Discovery Act. The Act obligates prosecutors to disclose "[r]elevant . . . statements of experts made in conjunction with the case" either "at least 30 days prior to trial" or "immediately," if the information "becomes known to" the prosecutor within 30 days of trial. (Pen. Code, §§ 1054.1, 1054.7.) Although the record does not reveal precisely when the prosecutor spoke with Officer Taggart about the deceleration calculations, the defense attorney's contemporaneous acknowledgment that the prosecutor had complied with the Act suggests that the prosecutor disclosed the information in a timely fashion after speaking with Officer Taggart. (Accord, People v. DePriest (2007) 42 Cal.4th 1, 37-39 [disclosure of information the day after it is acquired; no violation].)
Second, the prosecutor's disclosure did not violate due process. To be sure, the People can violate a criminal defendant's due process rights by conducting a trial by ambush. (E.g., Gholson v. Estelle (5th Cir. 1982) 675 F.2d 734, 738.) But defendant has not established any ambush. The prosecutor disclosed his conversations with Officer Taggart two days before the mid-November trial date, 12 days before trial actually began, and ultimately two weeks before Officer Taggart took the stand. This is nothing like the surprise condemned as violative of due process in the cases defendant cites. (Ibid. [prosecutor did not disclose that prosecution experts had examined defendant until end of trial]; Smith v. Estelle (5th Cir. 1979) 602 F.2d 694, 699-701 [same]; United States v. Tamura (9th Cir. 1982) 694 F.2d 591, 598-599 [prosecutor did not disclose new evidence acquired a month before trial until after trial had begun]; United States v. Roybal (9th Cir. 1977) 566 F.2d 1109, 1110-1111 [same]; Lindsey v. Smith (11th Cir. 1987) 820 F.2d 1137, 1151 [prosecutor did not disclose his possession of an unrecorded confession by defendant until trial].) Nor did the prosecutor surprise defendant by going back on his initial offer not to use the evidence. The record reflects both that the prosecutor's offer was premised on avoiding further "delay" (and hence inapplicable once the trial was continued) and, more to the point, that the defense attorney rejected the offer because he wanted to cover this very topic with Officer Taggart (just as he had at the preliminary hearing).
C. Cumulative error
Because we have rejected defendant's individual claims of error, we necessarily conclude there was no cumulative error. (Accord, People v. McWhorter (2009) 47 Cal.4th 318, 377.)
II. Sentencing Issues
Defendant argues that the trial court erred in imposing additional time for both of the personal infliction of great bodily injury enhancements under Penal Code section 12022.7 because (1) the enhancements punished him a second time for the great bodily injury necessary to establish his guilt of the felony reckless driving counts, and (2) the enhancement as to Ramon was additionally invalid because (a) the parties' stipulation to this enhancement was made without advising defendant of the constitutional rights he was waiving by that stipulation, and (b) the jury did not otherwise find this enhancement to be true beyond a reasonable doubt. Because these arguments turn on issues of statutory construction or the application of the law to undisputed facts, our review is de novo. (People v. Contreras (2018) 4 Cal.5th 349, 416; Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912.)
Defendant's first argument is well taken. Section 23103 defines the misdemeanor crime of reckless driving as "driv[ing] a vehicle upon a highway in willful or wanton disregard for the safety of persons or property." (§ 23103, subd. (a).) As pertinent here, that misdemeanor becomes a "wobbler"—that is, an offense that may be charged as a felony or a misdemeanor—if the "person convicted of reckless driving in violation of Section 23103 . . . proximately causes one or more . . . specified injuries" that are all forms of aggravated great bodily injury such as "[a] loss of consciousness," "[a] bone fracture," or "[b]rain injury." (§ 23105, subds. (a), (b)(1), (b)(3), (b)(7).) Penal Code section 12022.7 provides for an additional consecutive sentence for a defendant "who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony"; the additional sentence is three years for "great bodily injury" and five years for injury that "causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature." (Pen. Code, § 12022.7, subds. (a) & (b).)
The parties disagree as to whether the great bodily injury finding that elevates misdemeanor reckless driving into a felony constitutes an "element" of felony reckless driving (as suggested by People v. Beltran (2000) 82 Cal.App.4th 693, 696-697 (Beltran)) or is instead a sentencing enhancement (as held by People v. Escarcega (2019) 32 Cal.App.5th 362, 373-383 (Escarcega)). We need not decide who is right because, either way, imposition of the Penal Code section 12022.7 enhancement impermissibly punishes defendant twice for causing the same injury to his victims.
If, as Escarcega holds, a finding that defendant caused any of the specified forms of "great bodily injury" is a sentencing enhancement of misdemeanor reckless driving, then we are confronted with two sentencing enhancements—section 23105 and Penal Code section 12022.7—that punish the same "aspect" of the crime (that is, the injury caused). In such instances, Penal Code section 654 presumptively bars imposition of both enhancements. (People v. Ahmed (2011) 53 Cal.4th 156, 162-163; see People v. Elder (2017) 11 Cal.App.5th 123, 142 [so holding, as to duplicative injury-related enhancements]; People v. Eck (1999) 76 Cal.App.4th 759, 762-763 [same].) Instead, we must "impose[]" the "greate[r] of those enhancements." (Pen. Code, § 1170.1, subd. (g).) Although Penal Code section 12022.7 would at first blush appear to be the greater enhancement (because it calls for the imposition of three or five years), it is not. That is because, without the section 23105 enhancement, reckless driving remains a misdemeanor and Penal Code section 12022.7's enhancement cannot apply at all because Penal Code section 12022.7 only applies to "felonies." As between an enhancement that cannot be applied (Penal Code section 12022.7) and one that can (section 23105), the one that can be applied is the greater. Thus, the Penal Code section 12022.7 enhancements must be stricken.
If, as Beltran suggests, a finding that defendant caused any of the specified forms of "great bodily injury" is an element of felony reckless driving, Penal Code section 12022.7, subdivision (g) expressly provides that a section 12022.7 enhancement "shall not apply if infliction of great bodily injury is an element of the offense." (Pen. Code § 12022.7, subd.(g).) Thus, the Penal Code section 12022.7 enhancements must be stricken.
Because the Penal Code section 12022.7 enhancements must be stricken for both of the reckless driving counts, we have no occasion to reach defendant's alternative arguments for vacating the same enhancement as to Ramon. We accordingly remand the matter for a plenary resentencing where the trial court may exercise its usual discretion to impose any sentence at or below the previously imposed sentence of 10 years. (People v. Baldwin (2018) 30 Cal.App.5th 648, 657-658.)
III. Post-Verdict Reconsideration of Transfer Back To Juvenile Court
Defendant also argues that the trial court erred in denying his post-verdict motion to transfer his case back to the juvenile court in light of the jury's inability to convict him of murder. Defendant relies on a statute enacted nine months after that denial—namely, Welfare and Institutions Code section 707.5. (Stats. 2019, ch. 583, §1.) That statute grants trial courts the discretion to return a case back to juvenile court if the defendant was originally charged with an offense listed in Welfare and Institutions Code section 707, subdivision (b) (such as murder) but not ultimately convicted of that offense. (Welf. & Inst. Code, § 707.5, subds. (a) & (b).) Due to its ameliorative effect, this provision is retroactively available to defendants whose convictions are not final. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304, superseded on other grounds, Pen. Code, § 1001.36.) Defendant is accordingly entitled to have the trial court decide whether to exercise its newfound discretion. The People argue that remand for this purpose is an unnecessarily idle act because the trial court already rejected defendant's post-verdict motion on these grounds, but this argument ignores that the trial court rejected the motion—not on its merits—but because it lacked the jurisdiction to entertain it. Welfare and Institutions Code section 707.5 has been amended to confer that jurisdiction. Remand is appropriate.
DISPOSITION
The enhancements for personal infliction of great bodily injury imposed on counts 2 and 3 (Pen. Code, § 12022.7) are vacated. The matter is remanded for resentencing and to consider defendant's motion for return to juvenile court. Otherwise, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
ASHMANN-GERST