Opinion
A151287
09-11-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR TAPIA-FELIX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR178361)
Appellant Oscar Tapia-Felix was convicted of second degree murder for causing the death of Rosalina Perez while driving under the influence of alcohol and certain other charges. Appellant contends the trial court's admission of several prior acts of uncharged misconduct constituted prejudicial error. We disagree and affirm.
BACKGROUND
On October 24, 2015, at approximately 11:30 p.m., Napa County Deputy Sheriff Jeremiah Bohlander (Deputy Bohlander) was on patrol in American Canyon. As he turned onto West American Canyon Road, he saw appellant driving without his headlights on. Deputy Bohlander pursued appellant for about one mile, during which appellant drove in a reckless and dangerous fashion, which we describe further in Part II, until appellant approached an intersection with a red light. Appellant ran the red light, colliding with Ms. Perez's Toyota minivan, which was making a legal left turn. Ms. Perez suffered "severe blunt impact injuries" that caused her death.
On February 1, 2017, the Napa County District Attorney filed a first amended information, charging appellant with the murder of Rosalina Perez (Pen. Code, § 187; count 1); gross vehicular manslaughter while intoxicated (Pen. Code § 191.5 subd. (a); count 2); evading a police officer causing death (Veh. Code, § 2800.3; subd. (a); count 3); driving under the influence (DUI) causing injury with another DUI conviction (Veh. Code, §§ 23153, subd. (a), 23560; count 4); and DUI with a prior conviction causing injury (Veh. Code, § 23153, subd. (b); count 5). The amended information included special allegations that appellant had an excessive blood alcohol content (Veh. Code, § 23578) and caused great bodily injury (Pen. Code, § 12022.7 subd. (a)).
The prosecution moved in limine to admit several examples of prior acts of appellant's uncharged misconduct. The trial court admitted the following prior convictions: (1) a 1999 DUI conviction; (2) a 1999 hit-and-run conviction arising out of the same incident; (3) a 2002 DUI conviction; (4) a 2002 driving without a license conviction arising out of the same incident; (5) a 2007 DUI conviction; and (6) a 2007 enhancement for a refusal to provide blood, urine, or breath (refusal to test). However, the court excluded a 2006 conviction for driving without a license and crossing a divided highway. Furthermore, the court excluded appellant's statement made during his 2007 arrest that he had been "shocked with electricity" by the police.
On February 2, 2017, a jury convicted appellant of second degree murder, gross vehicular manslaughter, and evading a police officer causing death. The prosecution dismissed the two additional DUI charges.
Based on the guilty verdict on count two, gross vehicular manslaughter while intoxicated, the court dismissed counts four and five pursuant to a motion by the District Attorney.
On April 5, 2017, the trial court sentenced appellant to 15 years-to-life for the murder of Rosalina Perez and stayed the sentences on the remainder of the convictions pursuant to Penal Code section 654. Appellant timely appealed.
DISCUSSION
I. The Trial Court Did Not Err in Admitting Evidence of the 1999 DUI and Hit-and-Run or Evidence of the 2002 DUI.
Appellant asserts the 1999 hit-and-run conviction, the 2002 driving without a license conviction, and the 2007 refusal to test were inadmissible under Evidence Code sections 352 and 1101, subdivision (a) (section 1101(a)). Furthermore, appellant contends the 1999 and 2002 DUIs and their accompanying convictions should have been excluded because they were too remote in time. We find no reversible error.
All undesignated statutory references are to the Evidence Code.
Appellant contends the trial court erred in admitting the 1999 hit-and-run conviction, arguing the prior uncharged misconduct is not admissible to prove malice for the second-degree murder charge. Even if this assertion were true, the prior hit-and-run was admissible under section 1101(b) to establish a violation of Vehicle Code section 2800.3, subdivision (a) (evading a police officer causing death). To prove the crime of evading a peace officer causing death, the prosecution must show that appellant acted with " 'the specific intent to evade the pursuing peace officer.' " (People v. Flood (1998) 18 Cal.4th 470, 477.) Commission of a hit-and-run offense suggests the driver was attempting to avoid legal responsibility for an accident. (People v. Martinez (2017) 2 Cal.5th 1093, 1102 [" ' "The legislative purpose of [hit-and-run statutes] is to prevent the driver of a vehicle . . . from attempting to avoid possible civil or criminal liability for the accident by failing to identify oneself." ' "].) Accordingly, the trial court did not err in admitting appellant's 1999 hit-and-run conviction for purposes of showing the appellant was not simply driving recklessly in the charged offense, but doing so with the specific intent of evading a peace officer.
Because we find the hit-and-run conviction was properly admitted for purposes of showing state of mind, we need not reach appellant's other contentions regarding this evidence.
Appellant also argues the 1999 DUI and hit-and-run convictions and the 2002 DUI and driving without a license convictions should have been excluded under section 352 because they were remote and cumulative. Under section 352, " 'the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.' " (People v. Culbert (2013) 218 Cal.App.4th 184, 192.)
Count one, the murder charge, required the prosecution to establish malice on appellant's part. In People v. Watson (1981) 30 Cal.3d 290, 300 (Watson), the California Supreme Court concluded a death resulting from a DUI could be charged as a second-degree murder if the defendant acted with implied malice. The court stated, "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate subjective awareness of the risk created, malice may be implied." (Id. at p. 298.) Although Watson relied solely on the underlying facts in the case, subsequent courts have routinely admitted evidence of a defendant's driving history to establish implied malice. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 108-109; see also People v. McCarnes (1986) 179 Cal.App.3d 525, 532-533.) Despite occurring 16 and 13 years before the charged conduct, appellant's 1999 and 2002 convictions were relevant to establishing that appellant acted with implied malice because they showed appellant was aware of the danger of his conduct. (Ortiz, at p. 118; see also People v. David (1991) 230 Cal.App.3d 1109, 115 ["Prior convictions and exposure to mandatory educational programs are admissible to show the accused's awareness of the life threatening risks of driving under the influence."]; accord People v. Covarrubias (2015) 236 Cal.App.4th 942, 948.)
People v. Hernandez (2011) 200 Cal.App.4th 953, determined that the admission of 40-year-old uncharged misconduct was not an abuse of discretion, stating, "the passage of time generally goes to the weight of the evidence, not its admissibility." Furthermore, the court noted that because of their probative value, "significant similarities between the prior and the charged offenses may 'balance out the remoteness.' " (Id. at p. 968.) Here, the challenged evidence arose out of DUIs, including one that resulted in an accident. The similarity of the uncharged misconduct "balance[d] out the remoteness" of appellant's uncharged misconduct. (Ibid.) Further, the trial court noted that while some of this prior misconduct occurred "quite a while back," the remoteness was not as "significant [as] it might be . . . if there were no criminal conduct between 1999 and the current incident." (People v. Johnson (2010) 185 Cal.App.4th 520, 534 ["Remote prior conduct is, at least theoretically, less probative of propensity than more recent misconduct. [Citation.] This is especially true if the defendant has led a substantially blameless life in the interim [citation ], which was not true in this case."].)
Like the defendant in Johnson, appellant's 2007 DUI conviction established that he had not "led a substantially blameless life in the interim." (People v. Johnson, supra, 185 Cal.App.4th at p. 534.) The trial court balanced the remoteness of the uncharged misconduct against the probative nature of the evidence. The convictions were probative because they illustrated appellant's overwhelming knowledge of the risks and legal consequences associated with driving under the influence that, in turn, helped establish implied malice. No abuse of discretion has been shown.
Finally, appellant asserts that the admission of the 2002 conviction for driving without a license, and the 2007 enhancement for refusal to test constituted prejudicial error. He claims that this uncharged misconduct was not similar enough to the charged crime and that each of the prior convictions simply "tended to establish that appellant was a person who regularly acted with disregard for the law." We need not address appellant's assertion that the driving without a license conviction and refusal to test enhancement were erroneously admitted because, even if their admission was error, any error was harmless for the reasons explained below.
II. If the Trial Court Erred, Any Error Was Harmless.
Even if the admission of all of the challenged evidence was improper, any error was harmless. Our high court has held, "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Gutierrez (2018) 20 Cal.App.5th 847, 861-862 [despite dissimilarities between the current offense and the uncharged misconduct that could warrant exclusion, any error was harmless because it was not reasonably probable the appellant would have obtained a more favorable result because the evidence overwhelmingly pointed to guilt].)
Similarly, here, even if appellant's 1999 and 2002 convictions and 2007 refusal to test were inadmissible, any error would be harmless because the prosecution introduced overwhelming evidence of appellant's guilt. The prosecution presented the jury with unrefuted testimony and video footage that depicted appellant's conduct on the evening in question. The jury was shown video of appellant drinking 11 beers and behaving in an intoxicated fashion in the Mi Zacatecas Restaurant. He was also involved in a verbal altercation with a bouncer, broke a beer bottle on the ground, and bumped into several individuals on the dancefloor. After repeated requests to cease this conduct, the bouncer had to escort appellant outside of the restaurant.
The bouncer testified that appellant, once outside, went to his truck and began drinking more beer. After appellant entered his truck, the bouncer told him not to drive because of his intoxication. Appellant ignored the request and started his vehicle, which lurched forward and hit one of appellant's friends and several cars before he drove over an embankment and onto West American Canyon Road.
A restaurant employee heard the commotion and ran outside. She witnessed the bouncer unsuccessfully trying to pull appellant out of his truck. According to her testimony, appellant was "obviously intoxicated."
Additionally, the prosecution presented the jury with video and testimonial evidence from Deputy Bohlander. Deputy Bohlander testified that at 11:30 p.m. he saw appellant's truck driving on West American Canyon Road without its headlights on. Appellant straddled lanes, ran through a stop sign, and unnecessarily applied his brakes. Deputy Bohlander activated his patrol car's lights, but appellant accelerated rather than pulling over. Appellant was driving at 50 m.p.h. in a 25 m.p.h. zone and sped up to 77 m.p.h. in a 55 m.p.h. zone. During the pursuit, which continued for about one mile, appellant drove in a reckless and dangerous manner, until appellant approached an intersection with a red light. Appellant ran the red light, colliding with Ms. Perez's minivan, which was making a legal left turn on a green light. At the time of impact, appellant's truck was traveling between 86 m.p.h. and 96.4 m.p.h. Deputy Bohlander's testimony was corroborated by his dash camera footage, which was shown to the jury.
Further, the prosecution introduced testimony regarding appellant's attendance in a DUI program following his 2007 conviction to show appellant had the requisite implied malice for a second-degree murder conviction. Karen McElroy, who was the supervisor of Napa County's drunk driver program in 2007, testified the class taught appellant about the dangers of driving under the influence. She also provided a packet of documents from the program which included appellant's enrollment and attendance forms. This evidence tended to show appellant was driving with a wanton disregard for life.
Finally, appellant did not refute his blood alcohol content or any of the aforementioned evidence.
The only mitigating evidence appellant introduced was testimony from Pedro Antonio Leyva Gaxiola, who testified he did not think appellant would intentionally endanger another person's life.
Thus, the evidence of appellant's guilt was overwhelming. While the prosecution mentioned the challenged evidence in closing argument, its remarks focused on the facts of the instant case. Even if every piece of evidence challenged on appeal had been excluded, it is not reasonably probable t a result favorable to appellant would have been reached.
DISPOSITION
We affirm the judgment.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.