Opinion
C076697
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL WILLIAM WALDEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 12F04876)
Defendant, driving at a high rate of speed through a residential neighborhood at night, struck G.W., H.L.-R., and G.W.'s four dogs. Defendant then fled without stopping. G.W. sustained serious injuries. The four dogs were killed. H.L.-R.'s leg was severed and he later died from his injuries. Defendant was arrested three days after the collision. The arresting officer concluded that defendant was under the influence of marijuana and possibly another drug at the time of his arrest.
A jury convicted defendant of murder in the second degree (Pen. Code, § 187, subd. (a); count one), gross vehicular manslaughter (§ 192, subd. (c)(1); count two), hit-and-run resulting in death or permanent, serious injury (Veh. Code, § 20001, subd. (b)(2); count three), and driving under the influence of a drug (Veh. Code, § 23152, subd. (a); count five.) The jury also found true great bodily injury enhancement allegations in connection with counts one and two related to the injuries sustained by G.W. (§ 12022.7, subd. (a)), and that he fled the scene of an accident (Veh. Code, § 20001, subd. (c)). The jury also found true, in connection with the conviction of driving under the influence of a drug, that defendant had sustained two prior convictions of driving under the influence of a drug within the prior 10 years. (Veh. Code, § 23550.5.) Combined with one other case, the trial court sentenced defendant to an aggregate determinate term of 9 years 8 months to run consecutively to an indeterminate term of 15 years to life imposed on count one, second degree murder.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Vehicle Code section 23152, subdivision (a), provided at the time of charged offenses: "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." (Former Veh. Code, § 23152, subd. (a).) As we shall discuss, this count relates to defendant's driving conduct on the day of his arrest, three days after the collision underlying the other charges.
On appeal, defendant contends that: (1) the trial court erred in admitting evidence of his drug-related convictions and conduct because it was unduly prejudicial and cumulative; (2) the trial court erred in admitting his statement to law enforcement for impeachment purposes in the People's rebuttal case because his statement was taken in violation of his right to counsel and because his statement was coerced through threats and promises of leniency; (3) the trial court erred in instructing the jury that it could consider his prior driving under the influence convictions for purposes of assessing his credibility; (4) the prosecutor committed misconduct by trivializing the burden of proof; (5) the evidence was legally insufficient to support his conviction of driving under the influence of a drug; (6) the judgment should be reversed due to the cumulative effect of trial errors; (7) the great bodily injury enhancements imposed on counts one and two must be stricken because section 12022.7 does not apply to convictions for murder or manslaughter; (8) the enhancement imposed on count one pursuant to Vehicle Code section 20001, subdivision (c), for fleeing the scene of an accident must be stricken because that subdivision does not apply to a murder conviction; and (9) the trial court committed reversible error by failing to give a unanimity instruction sua sponte because the prosecution at trial presented two separate factual theories of defendant's guilt of implied malice murder. Additionally, our review has revealed sentencing error related to section 654 and count two, gross vehicular manslaughter.
We conclude that defendant's contentions concerning alleged evidentiary error, instructional error, cumulative trial error, and prosecutorial misconduct are without merit and/or harmless. We further conclude that the conviction of driving under the influence of a drug is supported by legally sufficient evidence. We modify the judgment to: (1) strike the section 12022.7, subdivision (a), great bodily injury enhancements imposed on counts one and two; (2) strike the enhancement imposed pursuant to Vehicle Code section 20001, subdivision (c), on count one; (3) impose an upper term sentence of six years on count two, gross vehicular manslaughter, and a consecutive sentence of five years for the enhancement for fleeing the scene of an accident, and stay execution of those sentences pursuant to section 654; and (4) impose a consecutive upper term sentence of four years on count three, hit-and-run resulting in death or permanent, serious injury.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged as follows:
Count One—murder (§ 187, subd. (a)), and it was further alleged that, in the commission of this offense, defendant personally inflicted great bodily injury on another victim within the meaning of section 12022.7, subdivision (a), and that, after committing the offense, defendant fled the scene of the accident within the meaning of section 20001, subdivision (c), of the Vehicle Code;
Count Two—vehicular manslaughter (§ 192, subd. (c)(1)), and it was further alleged that, in the commission of this offense, defendant personally inflicted great bodily injury on another victim within the meaning of section 12022.7, subdivision (a), and that, after committing the offense, defendant fled the scene of the accident within the meaning of section 20001, subdivision (c), of the Vehicle Code;
Count Three—failure to stop at the scene of an accident resulting in death or permanent, serious injury (Veh. Code, § 20001, subd. (b)(2));
Count Four—driving when privilege revoked or suspended (Veh. Code, § 14601.1, subd. (a));
Count Five—driving under the influence of an alcoholic beverage or a drug or under the combined influence of an alcoholic beverage and any drug (former Veh. Code, § 23152, subd. (a)) and it was alleged that defendant had two prior violations of Vehicle Code section 23152 which resulted in convictions; and
Count Six—driving when privilege revoked or suspended (Veh. Code, § 14601.1, subd. (a)).
During trial, the court granted the prosecutor's motion to dismiss counts four and six for insufficient evidence.
The People's Case-in-chief
The Collision
G.W. lived on Garfield Avenue in Carmichael. She was dating H.L.-R. G.W. had four Australian cattle dogs. On the evening of July 16, 2012, G.W. and H.L.-R. were at an elementary school park near G.W.'s house with the four dogs so that the dogs could play. Because it was after dark, the dogs were wearing reflective collars and were on reflective leashes.
Unless otherwise noted, witnesses who testified about the collision testified about events that took place during the night of July 16, 2012.
On their return walk to G.W.'s house, they stopped at the intersection of Garfield Avenue and Engle Road, where G.W. and H.L.-R. looked both ways before attempting to cross Garfield. The intersection was well-lit, with lighting emanating from the school, house porch lights, and a street light. G.W. observed headlights in the distance, but, based on the how far away the car was, she decided to cross the street. Before she reached the middle of the street, G.W. saw the car change direction slightly, and then the car crashed into a stop sign as it entered the intersection, sending the stop sign flying into the air. The car continued coming towards them. H.L.-R. shoved G.W. forward, attempting to push her out of the way. The last thing G.W. remembered was H.L.-R. pushing her and the sound of the car's engine, which sounded as though it "was going full throttle." G.W. blacked out. She did not feel any impact.
G.W. awoke in the street. She stood for a moment until her leg gave out because it was broken. G.W. looked at H.L.-R. and realized that his severed leg was in the gutter. Her dogs were lying on various locations on the street and she noticed one of them was bloody. She screamed for help.
Phillip Givant lived nearby. At approximately 9:55 p.m., Phillip and his 17-year-old daughter, Taylor, were driving home. As they approached the intersection of Garfield Avenue and Engle Road, Phillip saw a car run into a stop sign, causing the stop sign to "explode." Phillip did not hear any braking or squealing of tires. Phillip testified that the car was traveling very fast, more than 60 miles per hour. He acknowledged that he told law enforcement on the night of the collision that the car was traveling at 75 to 90 miles per hour, and he testified that it would not shock him to learn that the car was indeed moving that fast. Phillip had lived in the neighborhood for 50 years and he had never seen a car traveling as fast on Garfield as this car had been moving. Taylor estimated that the vehicle was traveling at 80 to 90 miles per hour.
Because Phillip Givant and Taylor Givant both testified at trial, we refer to them by their given names to avoid confusion.
As the car traveled through the intersection, Phillip observed movement in the crosswalk. Phillip heard an impact that sounded like people being struck by the car. Taylor did not see the impact, but she saw people in the street after they were hit.
Taylor "went ballistic" and told Phillip that there were people in the street. Phillip knew people had been hit by the car and that they would need help, but he was also concerned for Taylor, who was hysterical. Phillip drove home, which took a matter of seconds, and directed Taylor to go inside. Phillip then sprinted back to the scene of the collision, which took less than a minute. Phillip and Taylor both tried to call 911, but did not get through.
Jeffrey Gershanoff lived on Garfield approximately a half a block past the intersection. At approximately 10:00 p.m., he heard a loud bang which he believed was the sound of a car hitting a stop sign. He then heard two loud thumps, which he assumed to be the sound of a car hitting plastic garbage cans set out by the curb. Gershanoff ran from inside his garage to the street in time to see a silver late-1980's Nissan or Toyota drive by. Gershanoff testified that the car was traveling at 45 to 50 miles per hour. He acknowledged that he told law enforcement in August 2012 that the car was traveling at 55 to 60 miles per hour. However, he had revised his estimate because he figured that, if a car was traveling at 55 to 60 miles per hour, it would have passed by before he could observe it. He did recall thinking, "Man, this guy is flying. This car is just flying by." (Italics omitted.) The car did not have its headlights on, but the taillights were illuminated. Gershanoff watched the car continue down the street approaching another intersection, expecting it to stop, but the car just "blew right through that stop sign." The brake lights were never illuminated. Gershanoff called 911.
Karen Garden and Marty Cook lived near the collision scene. At approximately 10:00 p.m., Garden and Cook both heard "a pop, pop, real fast." To Cook, it sounded like two two-by-fours hitting each other. Then they heard screaming. Neither Garden nor Cook thought it was a car accident because they did not hear the screeching of tires or a crash. They ran outside; Garden ran ahead while Cook called 911. At the scene of the collision, Garden saw a stop sign in the roadway, and saw "a bunch of dogs" and a mirror in the street. She saw H.L.-R. attempting to get up, but "he didn't realize he didn't have a leg." He immediately fell back down. G.W. was screaming, "my babies, my babies" (italics omitted), but Garden did not see any children. As G.W. continued to scream about her babies, Garden asked if she was pregnant, and G.W. responded, "No. My dogs are my babies." (Italics omitted.) Garden turned her attention to H.L.-R. She told H.L.-R. he was bleeding badly, and she covered his leg from view. Using a neighbor's belt to fashion a tourniquet, Garden wrapped it around H.L.-R.'s leg. Approximately three minutes after Garden arrived on the scene, emergency personnel arrived.
The Victims' Injuries
H.L.-R. sustained a traumatic amputation of the lower leg, a fracture dislocation of the pelvis in multiple locations, an injury near his buttocks, significant injuries to both his small and large intestines which required surgeons to remove portions and staple the ends off pending additional procedures at a later date, and substantial bleeding. Surgeons performed a number of procedures on H.L.-R. over the course of the next several days. During the night of July 28, 2012, as physicians were attempting to diagnose and treat internal bleeding, H.L.-R. went into abrupt cardiac arrest. The team worked on H.R., but to no avail and he died.
G.W. sustained two fractured bones in her lower left leg. She also sustained scratches on her left side where she had been struck by a piece of the stop sign. She remained in the hospital for several days, and required surgery on her leg, including the insertion of a metal rod with screws holding it in place.
Pre-Arrest Investigation
The speed limit on Garfield is 35 miles per hour. There is one lane each way. It was clear, warm, and dry on the night of the collision.
California Highway Patrol Officer David Longo responded to the intersection at approximately 10:15 p.m. G.W. and H.L.-R. had already been evacuated to the hospital. Longo observed pools of blood and other fluids, flesh, car parts, and other debris; the debris field spanned a distance of 300 feet. Longo looked at the scene from the first point of impact—the sheared-off stop sign—through the intersection, and he did not observe any skid marks or other signs of tire friction in the area of the crosswalk where G.W. and H.L.-R. were struck or throughout the entire crime scene. Vehicle debris at the crime scene included a vehicle's mirror, a light assembly, broken glass, and broken plastic parts. Based on the timing of several 911 calls, Longo determined that the collision occurred at approximately 10:00 p.m.
California Highway Patrol Officer James H. Wilkening worked with the major accident investigation team. As part of his job, Wilkening participated in the reconstruction of traffic collisions. On the night of the collision, Wilkening was dispatched to the scene. He characterized the scene of the collision as "rather lengthy." It spanned a distance of approximately 300 feet beyond the intersection. Wilkening testified that the main portion of the stop sign, which had been sheared off, came to rest approximately 65 feet from where it had been installed. There was an additional piece of wood from the sign that Wilkening located even farther away. Wilkening also testified that H.L.-R.'s severed leg came to rest approximately 60 to 70 feet from where the vehicle struck him. According to Wilkening's measurements, the four dogs came to rest at various points between 45 and 125 feet from the point of impact. Wilkening testified that the general area of the debris field was approximately 175 feet long, and further that, from the initial point of impact to the farthest-away documented item of evidence was a distance of approximately 318 feet.
Longo took the auto parts recovered from the crime scene to a Nissan dealership. A parts manager viewed several of the car parts, including a mirror, a side marker light, and a piece of a front valance panel. Based on his examination, the parts manager stated that law enforcement should look for a two-tone gray 1986 or 1987 Nissan Maxima. Using that information, as well as a list of registered vehicle owners, Longo ultimately began to focus his investigation on defendant.
Defendant's Activities Before and After the Collision
Cody Miller and his girlfriend Gina Wolverton were friends with defendant in July 2012. At the time of defendant's arrest, Miller had known defendant for two to three months. Wolverton had known defendant for approximately six months. At the time, Miller was using heroin and Xanax. Xanax enhances or elevates the effect of heroin. According to Miller, defendant was using heroin, methamphetamine, and marijuana. Defendant was also using Xanax and would sometimes ask Miller for the drug, but normally bought it from a mutual friend. Miller also heard defendant speak of using methadone. Wolverton testified that she had observed defendant inject heroin. He was a daily user.
At the time of her testimony, Wolverton was incarcerated for petty theft, a violation of the terms of her probation. She testified under a grant of immunity.
Miller also testified under a grant of immunity.
Miller testified that, for a brief, three-week period prior to defendant's arrest, Miller saw defendant every day or every other day. Defendant was living in a shed behind his mother's house in Carmichael. Miller and Wolverton would often spend the night there with defendant. They would do drugs together, usually heroin. At the beginning of July 2012, defendant told Miller and Wolverton that he was going to North Carolina to see a girl. In preparing for the trip, defendant asked Wolverton if she knew where to obtain methadone pills, but she told him she did not. According to Wolverton, defendant was saving money to buy a large quantity of heroin for the trip so he could "stay well." (Italics omitted.) In an interview, Wolverton told Longo that, prior to leaving for North Carolina, defendant was stealing lawn fountains and other items and selling them in order to make money to buy methadone and heroin for his trip.
Geraldine Kay Kemp, defendant's mother, acknowledged that defendant has had a substance abuse problem for 10 to 15 years. With regard to his trip to North Carolina, Kemp testified that defendant took his Nissan Maxima on his trip in July 2012. No one drove that car other than defendant. Kemp remained in daily contact with defendant by phone while he was away. Defendant would sometimes ask Kemp to send him money. She estimated that, during defendant's trip, she sent him a total of approximately $1,500 by Western Union.
At some point on his trip to North Carolina, defendant called Kemp and told her that he was in jail in Nebraska and that his car had been impounded. Kemp sent more than $600 for bail and so that defendant could retrieve his car. She believed that defendant spent two or three days in jail. Defendant contacted Kemp after he got out of jail and stated that he was continuing to North Carolina. Approximately a week after he arrived in North Carolina, defendant told Kemp that he planned to return to California. It took defendant approximately three or three and a half days to get back to California.
Law enforcement in Nebraska noticed that the vehicle had a broken tail light and the passenger side mirror was affixed with a wire, but there was no major damage to defendant's car at that time.
Kemp testified that she was in contact with defendant much of the day as he was driving back to Sacramento. At 6:57 p.m. on the evening of the collision, Kemp sent one last wire transfer of $20 to defendant in Auburn, California. Kemp testified that she spoke with defendant "in the earlier evening areas and he was in Sacramento at a friend's house." Asked what time this occurred, Kemp responded, "I couldn't give you any accurate time, per se, but I would guess 8:00, 9:00."
At approximately sunset on the day of the collision, Miller and Wolverton were at a friend's house when defendant called to say that he was on his way back to town. Defendant called again later in the evening. In one of their telephone conversations, defendant asked Miller to obtain some heroin for him, and Miller agreed to try. Wolverton testified that defendant sounded stressed out and desperate. He was asking if Miller and Wolverton had any heroin. Miller and Wolverton later told defendant that they had been unable to obtain any heroin, and, according to Miller, defendant responded that he would try to get some and would call Miller back after he did so. According to Wolverton, after she and Miller did manage to obtain some heroin, she called defendant and notified him. Miller testified that they did not obtain heroin for defendant, although Miller did acquire heroin for himself and Wolverton. Defendant said that he was going to get "some" or some "stuff," by which Miller assumed defendant meant heroin. At some point after Miller and Wolverton had obtained heroin, Wolverton asked defendant if he needed any, and defendant stated that he did not.
Cell phone records show calls from defendant to Miller's phone at 8:43 p.m. (6 min. 33 seconds), 9:00 p.m. lasting (52 seconds), 9:19 p.m. (2 mins. 53 seconds), 10:11 p.m. (51 seconds), and 10:27 p.m. (1 min. 41 seconds). At 10:29 p.m. Miller's phone called defendant (3 mins. 19 seconds). Defendant's phone called Miller's phone again at 10:41 p.m. (1 min. 24 seconds) and 10:49 p.m. (1 min. 41 seconds).
As set forth, post, in her interview with Longo, Wolverton stated that defendant sounded "desperate." However, when she testified at trial, she stated: "I feel stressed out is a more accurate word for it."
Sometime after 10:00 p.m., defendant called Miller again and stated that he needed help with his car. The cell phone records show a call from defendant to Miller at 10:11 p.m. Defendant stated that he was at Garfield and El Camino and his car needed to be jumpstarted. Approximately 20 minutes later, Miller and Wolverton arrived in the vicinity and saw police caution tape blocking off the area. They assumed police were operating a DUI checkpoint. Defendant subsequently called again and stated that he did not need a jump anymore and that he managed to get his car started. Defendant told Miller that the battery cable had come off of the battery. Miller agreed to meet defendant at defendant's mother's house.
Miller and Wolverton arrived at defendant's mother's house, but defendant was not there yet. They called him, and he stated that he would be there in 20 minutes. Approximately 40 minutes later, defendant arrived. As Miller approached defendant's car, he noticed that there were more cracks in the windshield than there were before, and that there were dents in the side of the car. Wolverton asked defendant what had happened to his light because his light was broken. As they walked back to his shed, defendant "nonchalantly said he might have hit a dog or something." Wolverton told Longo in an interview that, in her opinion, defendant was under the influence of heroin at that point because he was not sick. However, she testified at trial that "when I was answering [Longo's] question about that night, I was taking it in terms of that night, not when he arrived at that moment." Miller told Longo in an interview that it appeared that defendant was under the influence of heroin when he arrived, but at trial Miller testified that defendant looked sick, as if he had not yet done heroin. Miller testified that defendant told him that he had obtained methadone from a girlfriend while in North Carolina.
Defendant, Miller, and Wolverton went back to defendant's shed. Miller asked defendant what happened to his car, and defendant said that "a dog and a guy stepped out in front of his car." Defendant told Miller that he hit the man and the dog, and that the impact knocked off his side mirror. Miller had noticed the mirror was missing. Miller testified that he did not consider calling the police about the collision because "whatever it was [Miller] didn't want to have anything to do with it." About 15 to 20 minutes after arriving in the shed, the three of them shot up heroin, and then they went to sleep.
The next morning, Wolverton, who woke up early to go to the methadone clinic and to go to McDonald's before breakfast service ended, noticed that defendant's driver's-side mirror was missing. When Miller awoke later, defendant was outside washing his car. There were dents on several parts of the car, including the front fender, the driver's side, and on the roof. The dent on the roof was red. Miller also observed a boot print or something similar. Miller asked defendant what he had struck, because it looked to Miller as though defendant hit more than a man and a dog. Miller did not remember if defendant responded. Miller asked defendant what he was doing in the area where the collision occurred. Defendant responded that he was going to pick up heroin. Miller assisted defendant in getting some of the dents out of the car. Underneath the car, Miller saw what looked like dog hair. When Wolverton returned, she saw Miller attempting to fix the light on defendant's car. She also noticed dents on the hood and on the side of the car.
In the days following the collision, Miller suggested defendant turn himself in to law enforcement. According to Miller, defendant responded: "it is what it is, you know. I guess . . . when they find me, they'll find me."
When Longo interviewed Miller, Miller stated that, in one phone conversation he had with defendant on the day of the collision, defendant stated that he was "looking for some stuff," meaning heroin. Miller indicated that he, too, was looking for heroin and that he would make a call on defendant's behalf. In a subsequent call, defendant told Miller that he would "get [his] own stuff." (Italics omitted.)
Longo's interview with Wolverton was recorded and played for the jury. Wolverton told Longo that she, Miller, and defendant used to shoot heroin together. Wolverton told Longo that, sometimes defendant would nod off or fall asleep immediately after injecting heroin. He would also do Xanax at the same time to enhance the high. Wolverton told Longo that, when she first spoke with defendant on the phone on the day of the collision, he stated that he was looking for heroin, and he sounded sick and like he was going through withdrawal. He had called "everybody in town" looking for heroin, including people who had gone to jail and people who were no longer selling heroin. He was "absolutely desperate" to obtain heroin, and he told Wolverton he had been " 'sick for five days.' " Later in the evening, when Wolverton talked to defendant on the phone and told him that she and Miller "got a little something," defendant told her to meet him at his house, and stated, " 'I'm getting something too.' " When they later met up at defendant's house and Wolverton saw that the light on defendant's car was smashed, she asked what happened and whether he had hit a deer, and defendant responded, nonchalantly, " 'Just a dog or two.' " However, when Wolverton entered the shed after retrieving her "high kit" from her car, Miller told her that defendant, who had stepped outside for a moment, had told him " 'he hit a - a guy and a dog jumped out in front of him.' " While they were in the shed, Wolverton saw defendant pull heroin, Xanax, and methamphetamine out of his pockets and place the drugs on the bed. As they prepared the heroin, defendant told her and Miller that he had gotten "a really good deal on this really good shit and we need to try it." They swapped some heroin and then they all injected heroin. Longo asked Wolverton how defendant seemed before they injected heroin together, and she responded: "He looked like shit. But he wasn't, he had already done some dope." Wolverton told Longo that, although he "looked like shit," she "could tell that he was well."
Defendant's Arrest
On the evening of July 18, 2012, defendant went to his shed at approximately 5:00 or 6:00 p.m. Kemp received a phone call from her daughter at approximately 1:00 a.m. She told Kemp that law enforcement had just been at her boyfriend's home in Citrus Heights looking for defendant in connection with a hit-and-run. Kemp went to the shed and told defendant that law enforcement was looking to talk with him about a hit-and-run. Defendant gathered some items and immediately went to his car. Kemp returned to her house. Five to ten minutes later, Kemp realized that there were flashing lights out front. She went to the front of the house and saw that officers had defendant in handcuffs.
California Highway Patrol Officer Steve Rista testified that on July 19, 2012, just after midnight, he went to a location looking for defendant and his vehicle. As Rista arrived, the vehicle, a 1987 Nissan Maxima, began to pull out of the driveway. They stopped the vehicle, which was being driven by defendant, and instructed him to get out.
Based on his observations and the results of field sobriety testing, Rista concluded that defendant was under the influence of marijuana, and possibly of another drug "cocktail." On cross-examination, Rista acknowledged that nothing about the way defendant drove his vehicle prior to the stop contributed to his conclusion that defendant was under the influence of a drug.
We discuss Officer Rista's driving under the influence investigation and the subsequent drug testing in more detail post, in our discussion of defendant's insufficiency of the evidence claim related to count five, driving under the influence of a drug.
Observing defendant's car, Rista noticed that its driver's side mirror was missing, there was a dent in the roof, and it appeared that it had been recently washed. Rista also observed what appeared to be hair and blood on the underside of the car. Defendant was arrested, and his car towed and impounded.
Post-arrest Investigation
Longo processed defendant's vehicle for evidence. The driver's-side light assembly was missing, as was the left turn signal assembly. The driver's-side mirror was also missing. Longo observed dents in the vehicle, some of which appeared to have been pounded out. There were red streaks to the rear of the sunroof and underneath the front bumper which Longo believed to be dried blood. There was another red streak in the middle of the car's hood, which Longo believed to be from the red paint from the stop sign. The sunroof contained a series of cracks, and there was an indentation in the roof. There was also hair or fibers imbedded in parts of the vehicle including the undercarriage. It appeared to Longo that the vehicle had been washed recently. Longo placed auto parts recovered from the crime scene on their respective locations on defendant's vehicle. He was certain that the parts collected at the crime scene belonged to defendant's vehicle.
Longo obtained defendant's mobile phone records. One telephone number defendant called near the time of the collision was associated with Miller. Another number defendant called near the time of the collision was associated with Duane Graham, who lived in an apartment complex on Sutter Avenue in Carmichael and was a drug dealer from whom defendant had purchased heroin in the past. Another number was associated with Kemp. At 9:59 p.m., defendant received a call from his mother that lasted one minute 40 seconds. That call was received by a cell phone tower on Engle Road in Carmichael. Defendant's mother acknowledged that she had called defendant, but denied hearing a collision during the conversation.
Longo searched the shed where defendant stayed. Among other items he discovered was a black pouch containing a spoon and two hypodermic needles and syringes.
California Highway Patrol Officer Dominic Blancarte was assigned to the red light camera program in the unincorporated portions of Sacramento County. According to Blancarte, the video cameras used in the program continuously operate, and an officer with access to the system can obtain video recorded by any of the program's cameras on a given date at a specified time and location. Longo asked Blancarte to obtain the footage recorded by the camera at the intersection of Manzanita and Cypress on July 16, 2012, between 9:45 and 10:00 p.m., which he did. Longo received a disc from Blancarte containing the video footage. Longo testified that, viewing the video, he observed a vehicle pass through the intersection that he believed to be defendant's car. That vehicle can be seen passing through the intersection at 9:57. It was traveling at a normal rate of speed.
Officers were unable to determine the speed of the car that struck G.W. and H.L.-R. at the time of impact because of the absence of markings on the road surface.
Defendant's Phone Call to his Mother from Jail
On July 20, 2012, Kemp had a telephone conversation with defendant while he was in custody at the jail. That conversation was recorded. In accordance with a ruling of the court concerning the admissibility of the evidence, only a portion of the conversation was played for the jury. In that portion of the call, Kemp told defendant: "they're saying you ran at a stop sign at 80 miles an hour." Defendant responded: "Well, I wasn't going 80. I was going a little fast like 65, but also too, you got to remember I've been used to going 65, 75 miles an hour straight for three days, after the speed limit." Defendant continued, "you ever notice that when you be driving down the- on the, you know, on the freeway for a long time and then you get off on the surface streets, it seems like it's so slow because you're so used to going 65, 70 miles an hour, you know what I mean?" When Kemp said, "that doesn't make it right," defendant responded, "It doesn't make it right, but I mean, you know, you've done it haven't you? Got off the freeway and then like, oh shoot, I'm going kind of fast here."
Defendant's Case
Sally Richardson, a private investigator, conducted a driving-time experiment, driving from the location of the red light camera at the intersection of Manzanita and Cypress to the intersection of Garfield and Engle where the collision took place. The driving distance was approximately one mile. At 9:40 p.m., driving at the speed limit of 35 miles per hour in "medium/light" traffic, the drive took her two minutes 51 seconds. She drove the same route five more times at a fairly constant rate of speed (no more than 40 miles per hour) with results ranging up to four minutes total driving time. She stopped for periods of time at the two stop lights and one stop sign between the two intersections.
Larry Fink testified as an expert in the field of traffic accident diagrams, calculating the distance a vehicle travels in a specified period of time, and the amount of time it takes drivers to perceive and react to stimuli. Based on his calculus involving speed and reaction time, Fink testified, in essence, that an operator driving a vehicle at any speed between 35 and 90 miles per hour who first perceived danger at the stop sign defendant hit would be beyond the crosswalk where G.W. and H.L.-R. were struck before the driver would have sufficient time to react. On cross examination, Fink acknowledged that the 1.5 and 1.6 second reaction times upon which he relied were based on reactions of "normal perception-reaction times of reasonably sober people" as opposed to people under the influence of drugs or alcohol. He also acknowledged that most drivers would swerve or slam on their breaks once they perceived a danger in the road.
Defendant testified and admitted that he was the driver of the car that struck H.L.-R. and G.W. He said he did not intend to hit them. Defendant told the jury: "Although, I've said different things to different people including law enforcement, the truth is I fell asleep at the wheel." He said he was very tired from his three and a half day cross-country trip. Defendant could not estimate his speed at the time of the collision because he had fallen asleep.
Defendant testified that he was not under the influence of heroin at the time of the collision. According to defendant, at the time of the collision, he had not used heroin since the end of June or beginning of July 2012. He denied being under the influence of any drug, medication, or alcohol at the time of the collision.
Defendant also testified that he was not talking on a cell phone at the time of the collision. He told the jury that five to ten seconds after the collision, his cell phone rang and he spoke on the phone with his mother.
Defendant testified that he started using illegal drugs when he was 17 or 18 years old. He began using heroin when he was about 20 years old. He continued to use heroin and occasionally methadone over the next 11 years. He also used methamphetamine. In the six months leading up to the time of the collision, defendant was using methadone, heroin, marijuana, benzodiazepines, and methamphetamine. He used either heroin or methadone every day.
Defendant discussed the incident in Nebraska during his trip to North Carolina. He testified that he had pulled off at an exit to sleep, but the location where he had stopped was private property. Law enforcement woke him up and asked if he had any drugs in the car, and, when he admitted that he did, they searched his car and arrested him. Defendant was detained from July 3 to July 5, 2012, when his mother sent money to bail him out. He retrieved his car from the impound lot and continued on to North Carolina. Having failed to find work in North Carolina, defendant decided to return to California. He began his return trip on July 13. Defendant testified that he did not have any drugs with him on the trip from North Carolina to California or when he entered California.
Defendant's first stop in California was at a K-Mart in Auburn, where he stopped to wrap a burst hose on his car with tape and to refill the radiator. Defendant had his mother send him $20 in Auburn in case he needed to spend more on car repairs before he made it to Sacramento. He collected the money from a Safeway store at 6:57 p.m. Defendant testified that when he left Auburn for Sacramento, he did not have heroin, methadone, methamphetamine, Xanax, or marijuana, nor had he used any of those substances up to that point on July 16, 2012. He said had not used heroin since before he left California for North Carolina.
Defendant's plan was that, if his car made it back to Sacramento, he would get together with Miller and Wolverton and do heroin. He called them to see if they were available. At approximately 9:00 p.m., he called them again to see if they had or could obtain any heroin. On cross-examination, defendant acknowledged that he also called Graham, a drug dealer from whom defendant had purchased heroin in the past. Graham lived at an apartment on Sutter Avenue in Carmichael. Defendant had five phone conversations with Graham that night prior to the collision. According to the phone records, these took place at 6:16, 8:32, 8:34, 8:56, and 9:12. Defendant testified that at the time of the 9:12 call, he was "right near" Graham's residence. Earlier on direct examination, defendant testified he did not remember if he spoke to Graham or left a voicemail at that time. On cross-examination he admitted having a 45-second conversation with Graham at that time. However, he denied seeing Graham on the night of the collision, and testified he did not purchase heroin or any other controlled substances from him that night.
At approximately 9:20 p.m., roughly 10 minutes after his last call to Graham, defendant stopped at a Rite Aid at the corner of Manzanita and Fair Oaks. He walked around the store waiting for the restroom to be available, used the restroom, and walked out of the store at 9:39 p.m., approximately 18 minutes after arriving. Defendant testified that, as of this time, he still had not obtained or used any heroin, marijuana, Xanax, benzodiazepines, or any illegal substances. On cross-examination, defendant denied that he had obtained heroin prior to arriving at the Rite Aid on Manzanita and Fair Oaks, and he denied obtaining needles at that Rite Aid. Defendant testified that at some point, he stopped at another Rite Aid, perhaps at Dewey and Auburn, to obtain needles, although he did so prior to knowing whether he was going to be able to obtain any heroin. Defendant topped off the water and oil in his car in the Rite Aid parking lot at Manzanita and Fair Oaks, which accounted for 18 minutes he spent in the parking lot after walking out of Rite Aid, and thereafter he continued towards home. Defendant said he did not make any calls during the approximately 36 minutes that passed between his arrival at Rite Aid and his passing through the intersection as captured on the video camera.
Wolverton testified that, as a heroin addict, when she needed clean needles, she would go to Walgreens or certain Rite Aid locations. Those stores sold generic brands of needles, which were inexpensive.
As of this time, defendant testified that he was no longer experiencing withdrawal symptoms, having experienced detoxification during the course of his trip to and from North Carolina. Defendant characterized his desire for heroin at this point as a "want" as opposed to a "need."
Defendant testified that when he turned from Cypress onto Garfield, he was driving at a "[n]ormal rate of speed." By this time, defendant was "definitely tired." The last memory defendant had prior to the collision was accelerating after stopping at a stop sign on the corner of Gibbons and Garfield. Defendant did not know how far he proceeded from the stop sign before falling asleep. Defendant's next memory was of being awoken by a loud noise in front and on top of him. He did not know what the noise was, but he realized he had struck something. Defendant did not know how fast his car was traveling. He focused his attention forward and saw what appeared to be a man and a dog almost directly in front of him. He perceived an impact almost instantaneously. Defendant knew he had hit a dog, but he did not know whether he hit the man or not. He said he had felt a "small impact." He testified that it seemed as though striking the stop sign was a greater impact. When asked about his reactions and whether he attempted to brake the vehicle, defendant responded, "I'm not 100 percent sure. I -- I believe that I tried to tap on the brake and just move the wheel a little bit to the right. But I really don't know. Everything was so fast. I really don't know what I did."
After the second impact, defendant "was in panic mode." He knew he hit a dog, although he did not know whether he hit the man. Defendant continued: "I was selfish in my thinking. I didn't have a license. I don't like to be around police. And at that moment I made the decision to leave." Defendant testified that he neither applied the brakes nor increased his speed, but maintained the same speed. Defendant estimated that, as he continued on Garfield, he was traveling between 40 and 50 miles per hour. He ran through the next stop sign because he "just wanted to get out of there." When his mother called almost immediately after the collision, defendant did not mention what had happened.
At the intersection of El Camino and Garfield, defendant pulled into a retirement home to inspect his car. He observed dents on the front driver's side and on the hood, that a light was missing, and that the sunroof was shattered. At that point, defendant grew more scared, realizing that he may have hit the man. When defendant attempted to leave, his car would not start. Believing the problem was a battery-related issue, defendant called Miller to see if he could jumpstart defendant's car. Subsequently, defendant opened the hood and saw that the positive cable had come off of the battery terminal. He replaced it, and the car started. Defendant called Miller and told him that he had managed to get his car started. In a subsequent call, defendant agreed to meet Miller and Wolverton at defendant's house.
Defendant testified that, when he left the retirement home, he went to a nearby apartment complex at Watt and Whitney and purchased a half gram of "lower end" heroin. This location was between Carmichael and North Highlands, closer to where his mother lived. Defendant then drove to his mother's house. Upon his arrival, defendant saw that Miller and Wolverton were already there. Defendant went into his mother's house and briefly spoke with her. He then went to the shed, and he, Miller, and Wolverton went in and began preparing heroin. Defendant testified that, other than the heroin he just bought, he did not have any other controlled substances. The three of them used their heroin, defendant talked to Miller for a while, and then defendant fell asleep.
The next morning, defendant talked to Miller and then went to clean his car. Defendant washed his car, and Miller helped him remove some dents out.
Defendant used heroin again on the morning of July 17, 2012. On the morning of July 18, 2012, defendant again used heroin. That evening, defendant took Xanax pills and smoked two hits of marijuana.
On the night of July 18, 2012, defendant went to sleep at 8:00 or 8:30 p.m. He slept for four and a half or five hours, and then woke up to his mother knocking on the door of the shed stating that the police were looking for him. Defendant grabbed his keys and cell phone and got into his car. By that time, he was not feeling the effects of the heroin, marijuana, or Xanax he had taken during the course of the day on July 18. However, he was tired because he had just woken up. Defendant started his car and backed up. He then saw the police. He began to pull away, hoping that he could sneak by them. Police almost immediately pulled defendant over.
An officer asked defendant to perform field sobriety tests and subsequently placed him under arrest. Police took defendant to a police station, where a blood sample was drawn from him.
On cross-examination, defendant admitted that he was convicted of driving under the influence of drugs in 2001, 2003, and 2005. Defendant acknowledged that he had been ordered to a diversion program in 2003 in which he learned about the dangers of his lifestyle as an addict and how his conduct was dangerous to the lives of others. He was twice enrolled in an SB 38 program following his DUI convictions, where he learned about the dangers of his drug use. Both his mother and his ex-wife tried to get defendant to stop using drugs.
Defendant acknowledged that his account of the night of the collision at trial was very different from what he initially told law enforcement. He also answered questions concerning the jailhouse call he placed to Kemp. He stated that there was more to the call than was played for the jury during the People's case-in-chief. Defendant testified that, during the phone call, he made several references to Kemp about having fallen asleep or nodded off while driving, and that he woke up when his car struck the stop sign.
Prosecution's Rebuttal Evidence
The video of defendant's interview with Longo was played for the jury during the prosecution's rebuttal. We reference its contents, post, in our discussion of defendant's contention that this evidence should have been suppressed, even for impeachment purposes.
Verdicts and Sentencing
The jury found defendant guilty of murder (§ 187, subd. (a); count one), gross vehicular manslaughter (§ 192, subd. (c)(1); count two), hit-and-run resulting in death or permanent, serious injury (Veh. Code, § 20001, subd. (b)(2); count three), and driving under the influence of a drug (former Veh. Code, § 23152, subd. (a); count five). As to counts one and two, the jury found true enhancement allegations that, in the commission of the respective crimes, defendant personally inflicted great bodily injury on G.W. (§ 12022.7, subd. (a)), and that he fled the scene of an accident (Veh. Code, § 20001, subd. (c)). The jury also found true, as to count five, driving under the influence, that defendant had sustained two prior convictions of driving under the influence of a drug within the prior 10 years. (Veh. Code, § 23550.5.)
The court sentenced defendant to 15 years to life on count one with a consecutive three-year enhancement pursuant to section 12022.7, subdivision (a), and a consecutive five-year enhancement pursuant to Vehicle Code section 20001, subdivision (c). Without imposing sentences the court stayed the sentences on counts two and three pursuant to section 654. The court imposed a consecutive term of one year on count five. Finally, the court imposed a two-year consecutive term for violation of probation in a separate case, but stayed 16 months of that sentence pending successful completion of the remaining eight months. Thus, the court imposed the aggregate term of 9 years 8 months consecutive to the indeterminate term on count one of 15 years to life.
The trial court purported to rely on section 12022.7, subdivision (c), in imposing this portion of the sentence. That subdivision involves the infliction of great bodily injury on people 70 years of age or older. Because we will strike the enhancements imposed pursuant to section 12022.7, post, we need not address this error further.
The court erroneously stated that the aggregate term was 10 years consecutive to the 15-years-to-life term. The total aggregate determinate term adds up to 9 years, 8 months. We note that the court erred in how it imposed the consecutive sentence on the subordinate term on the separate case involving a violation of probation, which is not before us on appeal. The subordinate term for each consecutive offense in this situation is one-third the midterm. (§ 1170.1, subd. (a).) "The court should not impose any term other than one-third the middle term. It is not appropriate, for example, to impose the full middle term and suspend all but one-third." (1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 13:19, pp. 13-65 to 13-66 (Couzens et al.).)
DISCUSSION
I. Admission of Defendant's Prior Drug-related Convictions and Conduct
A. Additional Background
1. In Limine Motions and Ruling
In her trial brief and in limine motions, the prosecutor sought to introduce evidence of defendant's prior convictions of driving under the influence as well as testimony from acquaintances to show subjective awareness that his conduct on the night of the collision was dangerous to human life. (See generally People v. Watson (1981) 30 Cal.3d 290, 296-297 (Watson), disapproved on other grounds in People v. Hicks (2017) 4 Cal.5th 203, 214, fn. 3 [in a vehicular homicide case, a finding of implied malice to support a murder conviction depends on a determination that the defendant actually appreciated the risk involved].)
Defendant sought to exclude this evidence, asserting that there was no evidence that he was under the influence of heroin at the time of the collision. Defendant emphasized that there was no evidence that, immediately prior to the collision, he was driving in a dangerous manner. Therefore, according to defendant, the evidence the People sought to introduce would be irrelevant as well as extremely prejudicial. Defendant asserted that this evidence would constitute "bad character evidence" under Evidence Code section 1101, subdivision (a), and should be excluded.
After hearing oral argument, the trial court determined that this evidence was relevant. The court determined that its probative value was not substantially outweighed by its potential prejudicial effect within the meaning of Evidence Code section 352, and ruled that the evidence would be admissible. The jury was instructed that it could consider this evidence in determining whether the prosecution proved the element of malice required for count one, second degree murder, and the element of gross negligence for count two, gross vehicular manslaughter.
2. Trial Evidence
Traci Walden testified that defendant was her former husband. They met in 2004, and married in 2006. After they were together for a couple of years, Traci realized defendant was using illegal drugs. Traci discovered this when he suggested that they use Oxycontin together. Traci acknowledged that, in high school, she used methamphetamine and marijuana. At some point, Traci did begin to take Oxycontin with defendant. After some time, Traci realized defendant's drug use was escalating, in that he began to use other substances, including Ativan, methadone, heroin, and Dilaudid. Traci's drug use also escalated, and she began using heroin and Dilaudid as well as Oxycontin.
Traci could tell when defendant was sober and when he was not. When he was not sober, defendant would fall over or pass out, sometimes so abruptly that he would nod off while chewing food. During the marriage, she observed defendant drive while under the influence of opiates or other drugs. Traci had been in the car while defendant was driving "loaded," and she would make him pull over so that she could drive. Defendant would "all of a sudden start[] nodding out," and that scared Traci. When asked how she could tell when defendant was loaded, Traci responded that he would nod out. On one occasion, while they were driving to a Narcotics Anonymous meeting, defendant started driving very slowly and then stopped approximately 20 feet back from a stoplight. He started nodding out, so Traci made defendant get out of the car. Traci testified that, at least a dozen times, she cautioned defendant about the dangers of driving while under the influence. She told him that someone was going to die if he continued to drive under the influence. In response, defendant told her to stop controlling him. Defendant was present with her in Narcotics Anonymous meetings when the dangers of driving under the influence were discussed, and that doing so could result in the death of the user or someone else. Nonetheless, defendant drove while under the influence and "wrecked every one of" Traci's cars. Ultimately, she resorted to hiding her car keys.
Traci became clean and sober in late 2008. She went into a seven-day inpatient treatment program and has remained sober ever since. Traci and defendant separated, and, in 2011, their divorce was finalized.
Anthony Martin had been defendant's Narcotics Anonymous sponsor. He had known defendant for at least four or five years. Martin testified that he and defendant were at Narcotics Anonymous meetings where discussions included the dangers of driving while under the influence of narcotics.
Dannisha Dyson, program director for the Sacramento drunken drivers program, was the custodian of records for that program's diversion course work and SB 38 program. Defendant attended the SB 38 program in two sessions. He did not complete the program in the first session, but did complete the second session. Because he did not complete both sessions, defendant did not complete the diversion program. The program included a Mothers Against Drunk Driving victim impact panel, 26 two-hour group sessions, 26 individual counseling sessions, six educational classes, and six reentry classes. During this program, instruction was provided on addiction, high risk behavior, and the fact that driving under the influence is dangerous to human life.
The trial court admitted certified records of defendant's prior misdemeanor convictions for driving under the influence in 2001, 2003, and 2005. Those records, which defendant signed, also indicate that, in connection with the 2005 conviction, defendant was advised pursuant to Vehicle Code section 23593 that "a DUI resulting in someone's death can be charged as murder."
Vehicle Code section 23593 requires the court to give a Watson admonition at the time of plea. It provides: "(a) The court shall advise a person convicted of a violation of Section 23103, as specified in Section 23103.5, or a violation of Section 23152 or 23153, as follows: 'You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.' [¶] (b) The advisory statement may be included in a plea form, if used, or the fact that the advice was given may be specified on the record. [¶] (c) The court shall include on the abstract of the conviction or violation submitted to the department under Section 1803 or 1816, the fact that the person has been advised as required under subdivision (a)." "This statute was enacted in response to Watson, supra, 30 Cal.3d at page 294 . . . . Thus, Vehicle Code section 23593 enables the prosecutor to establish a defendant's knowledge of the dangerousness of the conduct by use of the record of advisement." (In re Dean W. (2017) 16 Cal.App.5th 970, 975.)
In seeking in limine to have these records admitted, the prosecutor noted that, "In this 2005 case, the defendant was . . . advised pursuant to Vehicle Code Section 23593(a) that a DUI resulting in someone's death could result in him being charged with murder." In his closing argument, the prosecutor raised these convictions, and emphasized the Vehicle Code section 23593/Watson admonition given in connection with the 2005 conviction as relevant to implied malice.
B. Defendant's Contentions
Defendant asserts that the trial court erred in admitting evidence of his drug-related convictions and conduct. According to defendant, this evidence was unduly prejudicial, confusing, and cumulative. Defendant also asserts that this evidence had minimal probative value as to count two, gross vehicular manslaughter (§ 192, subd. (c)(1)), because, unlike the murder count, count two involved an objective rather than a subjective standard, and therefore his personal knowledge of the relevant hazards was irrelevant. Defendant further claims that, in performing its Evidence Code section 352 balancing test, the trial court should have excluded the evidence as substantially more prejudicial than probative. He also asserts that it is likely that the jury used the evidence for improper purposes.
We conclude that the trial court properly admitted this evidence.
C. Applicable Evidence Code Principles
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Evidence Code section 1101, subdivision (a), provides: "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." However, "[s]ubdivision (b) of [Evidence Code section 1101] . . . provides that such evidence is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan." (People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg), italics added.) "[T]he admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact (i.e., probative value); and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other section 352 concern)." (People v. Hendrix (2013) 214 Cal.App.4th 216, 238, citing Lindberg, at p. 22.)
Evidence Code section 352 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." (Evid. Code, § 352.) "Trial courts enjoy ' "broad discretion" ' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court's exercise of discretion 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) Evidence may not be excluded under section 352 unless the probative value is "substantially' outweighed by the probability of a 'substantial danger' of undue prejudice" or some other Evidence Code section 352 concern. (Holford, at p. 167.)
"The decision whether to admit other crimes evidence rests within the discretion of the trial court." (Lindberg, supra, 45 Cal.4th at p. 23.)
D. Second Degree Murder and Gross Vehicular Manslaughter
The prosecution advanced an implied malice theory on count one, murder. 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 a conscious disregard for life." ' " (People v. Chun (2009) 45 Cal.4th 1172, 1181.) As a shorthand, we will refer to the mental component as "risk awareness."
"A finding of implied malice, unlike a finding of gross negligence, 'depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.' " (People v. Batchelor (2014) 229 Cal.App.4th 1102, 1112-1113, quoting Watson, supra, 30 Cal.3d at pp. 296-297.) " 'Even if the act results in a death that is accidental . . . the circumstances surrounding the act may evince implied malice.' " (Batchelor, at p. 1113.)
Gross vehicular manslaughter is defined as "driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 192, subd. (c)(1).) " '[G]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] . . . The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved.' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa).)
E. Analysis
Defendant concedes that "Evidence Code section 1101, subdivision (b) permits the admission of prior convictions and acts to prove knowledge, an element of implied malice." Defendant asserts that a defendant's knowledge of the dangers of driving while impaired may be presumed, and that, because he admitted that he knew that driving while impaired by drugs can cause one to drive in a reckless manner, evidence of his prior convictions and other bad acts was minimally probative and unnecessary. However, as defendant acknowledges, courts routinely admit evidence concerning prior convictions to prove defendants' subjective knowledge of the hazards of drinking and driving in order to prove implied malice. While defendant asserts that the California Supreme Court in Watson, supra, 30 Cal.3d 290, "did not suggest this procedure was desirable or necessary," he does not assert that it is impermissible, nor could he. The principle is well-settled; driving under the influence convictions and evidence of attendance at and content of mandatory program classes are relevant to show risk awareness. (See People v. Moore (2010) 187 Cal.App.4th 937, 942-943; People v. Garcia (1995) 41 Cal.App.4th 1832, 1848-1850 (Garcia), disapproved on other grounds in People v. Sanchez (2001) 24 Cal.4th 983, 991, fn. 3; People v. Johnson (1994) 30 Cal.App.4th 286, 291 (Johnson); People v. Murray (1990) 225 Cal.App.3d 734, 746 (Murray); People v. Ricardi (1990) 221 Cal.App.3d 249, 260, fn. 5 (Ricardi); People v. Brogna (1988) 202 Cal.App.3d 700, 709 (Brogna); People v. McCarnes (1986) 179 Cal.App.3d 525, 532 (McCarnes).) Indeed, evidence of prior DUI convictions and programs is admissible to show risk awareness even where the defendant was not alleged to be under the influence of drugs or alcohol in a vehicular murder prosecution. (People v. Ortiz (2003) 109 Cal.App.4th 104, 110-116 (Ortiz).) We conclude that defendant's prior convictions and related conduct were highly relevant to prove the element of risk awareness required for implied malice.
Defendant's argument that evidence of his prior convictions and related acts was irrelevant or minimally relevant to the charge of gross vehicular manslaughter because gross negligence is evaluated under an objective standard ignores our high court's decision in Ochoa, supra, 6 Cal.4th 1199. In Ochoa, the defendant was convicted of gross vehicular manslaughter while intoxicated (§ 191.5). (Ochoa, at p. 1202.) Prior to trial, the prosecutor sought to present evidence of the defendant's prior conviction for driving under the influence of alcohol, his resulting probation, and the fact that he attended traffic school, including a class specifically addressing the dangers of drinking and driving. (Ochoa, at pp. 1204-1205.) The trial court admitted the evidence, which was relevant to demonstrate that the defendant was aware of the dangers of drinking and driving. (Id. at p. 1205.) On appeal, the defendant acknowledged that this evidence would have been admissible in connection with a murder charge premised on implied malice to show risk awareness. (Ibid.) However, he asserted that, because the test for gross negligence is an objective one, based on an inquiry as to whether a reasonable person in the defendant's position would have been aware of the risks, evidence relevant to the defendant's subjective state of mind was both irrelevant and unduly prejudicial. (Ibid.) A majority of the Court of Appeal agreed with the defendant, stating: " '[a] defendant's particular state of mind is not the pertinent consideration, rather that of a reasonable person in the same or similar situation. [¶] . . . If a reasonable person placed in [defendant's] position would have been aware of the risks, it does not matter whether [defendant] was actually aware of them.' " (Ibid.)
The California Supreme Court disagreed, concluding that this evidence was properly admitted at trial. (Ochoa, supra, 6 Cal.4th at p. 1206.) Our high court stated: "In determining whether a reasonable person in defendant's position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True, as the majority [of the Court of Appeal] observed, the defendant's lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant's position would have recognized the risk." (Id. at p. 1205.) The majority further stated, "although the test for gross negligence [is] an objective one, '[t]he jury should . . . consider all relevant circumstances . . . to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]' [Citations.] . . . [T]he evidence at issue here was relevant to defendant's awareness of the risk, and was admissible on that basis." (Id. at pp. 1205-1206.)
The Ochoa court further concluded that the trial court did not abuse its discretion in ruling that the evidence was not unduly prejudicial within the meaning of Evidence Code section 352. (Ochoa, supra, 6 Cal.4th at p. 1206.) The majority stated that no abuse of discretion occurred in light of the "clear relevance of the evidence," and the trial court's repeated admonitions to the jury that the evidence was introduced for the limited purpose of demonstrating the defendant's state of mind at the time of the offense. (Ibid.)
Based on Ochoa, we conclude that the evidence concerning defendant's prior convictions and related acts was highly probative not only to prove implied malice on the murder count, but also to prove gross negligence on the gross vehicular manslaughter count. (See Ochoa, supra, 6 Cal.4th 1199.) Similarly, because, "[i]n determining whether a reasonable person in defendant's position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks" (id. at p. 1205), this evidence was relevant as to the lesser included offense to count two of ordinary negligence.
With regard to the asserted prejudicial effect of this evidence, defendant argues that the testimony of Traci, Martin, and Dyson became cumulative and unnecessary, and that, at most, the testimony of just one of these witnesses was necessary. All three testified that defendant was or would have been told that driving while impaired by drugs presented a hazard to human life. However, we disagree that the probative value of the evidence was substantially outweighed by any Evidence Code section 352 concern. The evidence the jury heard was not inflammatory and the testimony was not unduly prejudicial. (Evid. Code, § 352.) Defendant had been punished for the priors, thus lessening any prejudicial impact. (Ortiz, supra, 109 Cal.App.4th at p. 118.) Nor did the testimony of these witnesses necessitate an undue consumption of time. (Ibid.) It also did not present any significant danger of confusing the issues or misleading the jury. (Ibid.) In short, we conclude that the trial court did not abuse its discretion by allowing the totality of this testimony.
Defendant also attacks the admission of this evidence concerning his prior convictions on the grounds that there was a danger that this evidence would confuse or mislead the jury. Defendant's contention is based on the trial court's instruction that the evidence could also be considered for purposes of assessing defendant's credibility. Thus, defendant's actual claim of error is that the trial court erred in instructing the jury, pursuant to the modified version of CALCRIM No. 375, that it could consider this evidence, inter alia, in assessing defendant's credibility, which we address in part III. of the Discussion, post.
In asserting that this evidence was cumulative and unnecessary, defendant relies on People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez). In Lopez, the defendant was convicted of several counts of burglary, using an altered, stolen, or counterfeit credit card, and petty theft. (Id. at pp. 701-702.) At trial, the defendant had objected to the introduction of evidence of a prior car burglary and car theft. (Id. at p. 713.) On appeal, the defendant argued that the evidence was irrelevant to any contested issue at trial, and was only probative to demonstrate that he was a thief disposed to commit the charged crimes. (Ibid.) Specifically with regard to the charged crime of first degree burglary, the defendant argued that the prior uncharged acts evidence was inadmissible as to his intent because, if he indeed committed the act alleged, "his intent in doing so could not reasonably be disputed, that is it was a 'foregone conclusion.' " (Id. at p. 714.) The Lopez court stated that, assuming the defendant committed the alleged act of entering into the kitchen of a residence and taking two purses, "his intent in so doing could not reasonably be disputed—there could be no innocent explanation for that act." (Id. at p. 715.) Therefore, the court concluded that "the prejudicial effect of admitting evidence of a prior car burglary and prior car theft outweighed the probative value of the evidence to prove intent as to the . . . burglary charge." (Ibid.) The Lopez court continued: "Simply put, evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute; the prejudicial effect of the evidence of the uncharged acts outweighs its probative value to prove intent as it is cumulative regarding that issue." (Ibid., italics added.)
Here, unlike the circumstances in Lopez, it cannot be said that defendant's knowledge for purposes of proving implied malice or gross or ordinary negligence was "beyond dispute." Nor was this a case where, if defendant committed the act at issue, there was no possibility but the fact that the element at issue—here risk awareness—was established beyond a reasonable doubt.
Moreover, contrary to defendant's argument, we conclude that the fact that defendant had multiple convictions, multiple driving under the influence program classes, and multiple admonishments by his former wife was more probative than if he had fewer such experiences. The more times a person is told that something is dangerous, the more likely that person will retain that information and have that teaching in mind at the relevant point in time. Indeed, in many of the appellate cases where prior DUI convictions and program participation was admitted to establish risk awareness, evidence of multiple priors and programs was admitted. (See Ortiz, supra, 109 Cal.App.4th at pp. 108-109, 111 [four prior DUI convictions and programs]; Garcia, supra, 41 Cal.App.4th at pp. 1840-1841, 1848 [three prior DUI arrests, one DUI conviction, & two DUI program sessions]; Johnson, supra, 30 Cal.App.4th at pp. 289-291 [four DUI convictions & evidence indicating the defendant completed one DUI program]; Murray, supra, 225 Cal.App.3d at pp. 738, 744 [three DUI convictions & multiple classes related to programs]; Ricardi, supra, 221 Cal.App.3d at pp. 253-254 [six DUI convictions & multiple programs]; Brogna, supra, 202 Cal.App.3d at p. 705 [two DUI convictions, multiple AA meetings where the dangerousness of driving under the influence was discussed, & DUI education programs]; McCarnes, supra, 179 Cal.App.3d at pp. 529, 532 [four prior DUI convictions & two enrollments in DUI education programs].) As the McCarnes court noted, even if the defendant did not realize it was dangerous to drink and drive after sustaining his convictions, "surely realization would have eventually arrived from his repeated exposure to the driver's educational program. To argue otherwise is little short of outrageous." (McCarnes, at p. 532.) Similarly, defendant's convictions and repeated exposure to education concerning the dangerousness of impaired driving and his wife's admonitions were highly probative here. Indeed, they were more probative than fewer such events.
We also do not agree with defendant that the introduction of the evidence of his prior convictions and related prior acts posed a substantial danger of confusing the jury as a general matter. This evidence had the straightforward effect of tending to prove material elements of both the murder count (implied malice) and the vehicular manslaughter count (gross and ordinary negligence), based on the tendency of this evidence to prove defendant's knowledge of the dangers of driving while under the influence of a drug.
In arguing that this evidence likely confused the jury, defendant relies on People v. Leon (2001) 91 Cal.App.4th 812 (Leon). Leon was not a vehicular homicide case. It was a prosecution for residential burglary with the intent to commit a lewd act on a minor. (Id. at p. 814.) Leon is distinguishable for reasons beyond those related to the underlying facts and the nature of the prosecution. After noting that the trial court had failed to weigh the Evidence Code section 352 factors in determining whether certain evidence should be admitted, the Leon court stated that the prosecution failed to demonstrate how the subject evidence was relevant to the charged crimes. (Leon, at p. 816.) The court concluded that, because the subject evidence "was so ambiguous, it likely confused the jury." (Ibid.) In addition, the Leon court stated that the probative value of the subject evidence was "weak." (Ibid.) Here, as discussed, ante, the evidence addressing defendant's knowledge of the hazards of driving while under the influence of a drug, and that continuing to do so put human lives at risk, was highly probative. Moreover, unlike the circumstances in Leon, the evidence here was neither ambiguous nor likely to confuse the jury.
We conclude that the trial court did not abuse its discretion in admitting the testimony of Traci, Martin, and Dyson, or in admitting defendant's prior driving under the influence convictions. Defendant has failed to show that the probative value of this evidence was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
II. Admission of Defendant's Statement to Law Enforcement in Rebuttal
A. Defendant's Contentions
Defendant claims that his statements admitted in the prosecution's rebuttal case were involuntary because they were coerced by threats and express and implied promises of leniency and by law enforcement deflecting his requests for counsel. We agree that defendant's statements were involuntary and that their admission violated his due process rights. However, we further conclude that the error was harmless beyond a reasonable doubt.
While defendant relies on Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in arguing that his statement was not voluntary because, among other things, law enforcement deflected his requests for an attorney and that this undermined the import of the previously given Miranda warnings, he does not expressly assert that reversal is warranted because of a Miranda violation. In any event, even in the face of a deliberate Miranda violation, the prosecution may use the elicited statements in rebuttal to impeach a defendant's contrary testimony as long as the defendant's statements are otherwise voluntary. (Harris v. New York (1971) 401 U.S. 222, 225 ; People v. Nguyen (2015) 61 Cal.4th 1015, 1075-1077; People v. Peevy (1998) 17 Cal.4th 1184, 1188, 1196.) " 'The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.' " (Nguyen, at p. 1075.)
B. Additional Background
1. The Trial Court's Ruling
In her trial brief and motions in limine, the prosecutor sought to preclude the defense from introducing the statements defendant made during his interview with Longo on the night of his arrest. The prosecutor asserted that the statements constituted hearsay. Defendant also sought to suppress his interview statements on the ground that they were coerced and obtained by express and implied promises of leniency, and thus involuntary. Defendant also asserted that law enforcement violated his Miranda rights because he was not read his rights and because he was not afforded counsel despite several requests for an attorney.
Without ruling on the admissibility of the statements for the prosecution's rebuttal, the trial court agreed that defendant's statements would not be admitted during either the prosecution or the defense case-in-chief.
Later, in its rebuttal case, the prosecution was allowed to play a portion of the video recording of defendant's interview with Longo on the night of his arrest. Prior to playing the recording for the jury, defense counsel renewed his objection to defendant's statements to Longo on the grounds that law enforcement violated defendant's Miranda rights, and that defendant's statements to law enforcement had been coerced by promises of leniency. The prosecutor countered that defendant had been advised by Rista of his Miranda rights prior to the time the video recording commenced. At that time, defendant stated that he understood all of his rights and he indicated that he was willing to speak with law enforcement. The prosecutor further asserted that there was no offer of leniency, implied or overt, to coerce defendant's statement. The prosecutor further argued that, while defendant referred to the possibility of consulting a lawyer, he did not unequivocally request counsel. Additionally, the prosecutor asserted that the fact that defendant continued to give self-serving statements demonstrated that his will was not overborne.
The court conducted a hearing on the matter outside the presence of the jury. Officer Rista testified that, after he arrested defendant but before defendant's interview, he advised defendant of his Miranda rights. Rista read his rights card to defendant while defendant was seated in the back of the patrol car. Rista advised defendant of the right to remain silent, the fact that anything he said could be used against him in a court of law, his right to confer with an attorney and have an attorney present before and during questioning, and that if defendant could not afford an attorney, one would be appointed to represent him free of charge. After reading these rights to defendant, Rista asked defendant if he understood each of the rights as explained to him. Defendant indicated that he understood by nodding his head affirmatively. Rista then asked defendant if he was willing to talk with law enforcement, and defendant nodded his head affirmatively again.
The trial court concluded that defendant validly waived his Miranda rights. The court stated that the rights were clearly explained to defendant, and that there was no indication that defendant was confused. The court determined that defendant's waiver was clear and unambiguous. The court further determined that the transition from the waiver to the questioning was "virtually seamless." The court stated that, under the circumstances, there was no requirement that defendant be re-advised of his Miranda rights at the commencement of questioning.
The trial court further ruled that defendant's statements were not involuntary on the basis of express or implied promises of leniency. The court found that defendant's statements were not the result of Longo making misleading or unduly persuasive statements to him during questioning, and that Longo's representations were not false, "other than by underestimating the amount of [potential incarceration] time and the difference between the time of cooperating and . . . not cooperating." The court also expressly found defendant to be sophisticated in the ways of interrogation, bargaining, and charging. The trial court considered the prosecutor's argument that defendant initiated the discussion of leniency, but expressly (and appropriately) did not base its ruling on that circumstance.
As to whether defendant invoked his right to counsel during questioning, the court observed that there is a difference in the analysis in cases such as this where there has been a valid waiver of the right to counsel. The court stated that, following a valid waiver, interrogation may continue unless the subject clearly requests an attorney. The court also relied on case law for the proposition that law enforcement may, but is not required to, seek clarification of ambiguous or equivocal invocations. The court concluded that "the officer did not cross that line in continuing the interrogation here." The court stated that immediately after defendant asked whether the questioning was something for which he needed a lawyer, he went "into negotiating mode." Additionally, the court noted that a number of defendant's statements, if not exculpatory, minimized his culpability. The court found that there was not an invocation of the right to counsel, that the statement was not inadmissible under Miranda, and that, even if it was defective based on Miranda, it was admissible for purposes of impeachment.
2. Longo's Interrogation of Defendant
Following the court's ruling, the remainder of the video was played for the jury. We have reviewed the recording.
Defendant's interview with Longo occurred in the early morning hours of July 19, 2012. Approximately an hour and a half after the commencement of the interview, and after much in the way of background discussions concerning defendant's trip to and from North Carolina and the condition of his car, Longo told defendant that law enforcement was investigating the collision, and revealed the severity of the injuries to the victims. Defendant asked Longo if he suspected defendant was the hit-and-run driver, and Longo responded that he did. Longo also revealed to defendant that the driver's-side mirror and light assembly had been discovered at the scene of the collision, and that those items could be replaced perfectly onto his car. Defendant asked if there was "another possibility," and Longo responded that there was not. Longo further informed defendant that there was blood and dog hair on defendant's vehicle. The following exchange then occurred. The italicized text is important as to defendant's voluntariness claim:
At the time of the interview, H.L.-R. was still alive, although, when defendant asked Longo if the victims were "gonna make it," Longo responded, "I don't think one of 'ems gonna make it Paul."
"[Defendant]: I mean is this somethin' I need a lawyer for or?
"[Officer] Longo: No I'm askin' you just a question Paul.
"[Defendant]: Yeah I know but I know how the cop game works. As soon as I say one thing you guys twisted it and then I'm doin' fuckin' 25 to life.
"[Officer] Longo: I'm not doin' that Paul.
"[Defendant]: Well what are you doin'? What do you want from me? You want me to offer you all this information that I'm not 100% sure on. What are you gonna do for me? I'm not gonna give you all this information to put me in fuckin' jail for 30 fuckin' years.
"[Officer] Longo: I understand.
"[Defendant]: That ain't gonna happen.
"[Officer] Longo: I understand.
"[Defendant]: So what do you want from me?
"[Officer] Longo: What I want from you Paul, is just tell me what happened.
"[Defendant]: And what are you gonna offer me?
"[Officer] Longo: What do you want?
"[Defendant]: The least amount of jail time. The least to get the hell out of here.
"[Officer] Longo: Okay.
"[Defendant]: What do you - what do you want from me?
"[Officer] Longo: Well that's - that . . .
"[Defendant]: I'm not just gonna give you shit for free.
"[Officer] Longo: I understand.
"[Defendant]: I've been in this game a minute.
"[Officer] Longo: Okay. I understand that and that's somethin' that we can work with the DA with.
"[Defendant]: You need to tell me before I give you a damn thing. I'm not just gonna give free shit and then count on you guys to keep your word. I've been to Sacramento a minute.
"[Officer] Longo: I know.
"[Defendant]: You guys don't keep your word.
"[Officer] Longo: Paul I'm not - Paul, I can't promise you anything but I can tell you this. If . . .
"[Defendant]: I can't give you shit if you don't give me somethin'.
"[Officer] Longo: I'll tell you what I can give you. I will do this for you Paul. I will work with the DA because your cooperation - you know the game. You told me you know the game. You know the game. So if you cooperate with us today you know darn well how far that will go.
"[Defendant]: No I don't. Every time I've cooperated I've got fucked. Every time somebody else I've heard's [sic] got a lawyer, they've got off. They've got this, they got that.
"[Officer] Longo: Yeah.
"[Defendant]: So what are you gonna - in writing are you gonna give to me today?
"[Officer] Longo: I wish I could put it in writing Paul. I can't but I can tell you Paul, we don't need it in writing. What you - you know this that if you're truthful that goes a long way with the DA. So let's say instead of you doin' ten years, you know the game, you'll maybe do two. But if you don't cooperate then you'll get ten and I don't know what the time and I'm not sayin' - but you know darn well what the game is. You know what a plea bargain is. If you try to take the - the - the low road with us and try to play hardball with us, you know what you're gonna get is ten years. But if you cooperate with us, you know darn well what a plea bargain - they're not gonna give you a plea bargain if you're gonna take the low road with us. But you'll take the high road and you tell us (unintelligible) what happens then you know what, you may - and I can't promise anything but you're darn right. You know the game. You know the game with a plea bargain is. But I'll tell you right now, I'm talkin' to the people - the person that got his leg severed. He's in critical condition. They just want answers Paul, and I want you to give me answers. What happened that night? What happened buddy? I mean was you visitin' someone? I know you didn't do this on purpose. I know this. I know you well enough by talkin' to you Paul, I know you didn't do this on purpose. That I do know.
"[Defendant]: All right (unintelligible) can I have anything whatsoever in writing that . . .
"[Officer] Longo: I . . .
"[Defendant]: . . . says that you are not gonna go for the maximum blah - blah - blah.
"[Officer] Longo: We - we're not allowed to do that Paul but I will tell you this. I - I don't even need to tell you this. You know the game Paul. You know that e . . .
"[Defendant]: I've been told to keep my mouth shut, ask for a lawyer and that's it. Otherwise I seem to get fucked every time I say a damn thing.
"[Officer] Longo: You know what it is Paul? Here's what it is. You know the game now. I'll - I'll explain to you again. If you take the low road here and try to do that, we have all the forensic evidence against you. We already know that. You know that and I know that. We all know in this room, we know what happened. If you cooperate and you tell me exactly what happened - I know you didn't do this on purpose. You're not a bad guy. I know that. You did not do this on purpose. I know that. Just give an explanation and tell us why - why this occurred and be hon- actually just be honest with us. You know what, that's where the plea bargains come in. I'm not in position to do that but a district attorney is. But if you try to take the low road against us - against these victims here. Not me. The - the victims here. These poor innocent people that I'm workin' with that are cryin' and I have to listen to this. They want answers. That's - you'll get the maximum if you try lawyering up. You know that but you know darn well that if you cooperate and you give the answers and you explain what happened that night, you know darn well the DA's willing to work with you at that point. You know and I know.
"[Defendant]: Am I gonna be able to bail out or?
"[Officer] Longo: That - that's a possibility. I don't - honestly I don't deal with that. That is a possibility though to bail out but you know darn well - I mean it's over Paul. You know it and I know it but the problem is is just what happened that night? And this will go a long - long ways Paul.
"[Defendant]: Yeah it's gonna go a long - long way in my fuckin' life while I'm sittin' in jail."
As the interview continued after approximately a minute, the following exchange occurred:
"[Defendant]: And there's no way I can ask for a lawyer or public defender right now to talk with - what he would say - he would say? What he would (unintelligible) . . .
"[Officer] Longo: I'm just askin' you a certain . . .
"[Defendant]: . . . (unintelligible).
"[Officer] Longo: . . . I'm just askin' you a question.
"[Defendant]: I know and I'm asking you a question. If I brought a lawyer in here right now is that a possibility and what do you think he would tell me to do?
"[Officer] Longo: Well I - I can't answer for an attorney but I'll tell you this much Paul. One is just the evidence on your car. What you've told us already.
"[Defendant]: What did I . . .
"[Officer] Longo: We - we . . .
"[Defendant]: . . . tell you already?
"[Officer] Longo: Your story. Where you were, what you did. How about your cell phone Paul?
"[Defendant]: What about it?
"[Officer] Longo: Well you know about GPS coordinates?
"[Defendant]: Yeah.
"[Officer] Longo: Okay well we have your cell phone.
"[Defendant]: Okay.
"[Officer] Longo: So those coordinates - what we do is we write a warrant. We go into that phone and it give us your locations for as long as we want. So you know darn well where that's gonna put you on the night of the collision Paul. You know that. The thing though I know - this is what I do know is you didn't do this on purpose but tell the family why. I'll tell you right now. . .
"[Defendant]: It's not gonna matter bro.
"[Officer] Longo: It does matter.
"[Defendant]: It's not gonna matter. I've been on the fuckin' - went all the way to the east coast and went all the way down to the west coast. I'm used to drivin' about 65 miles an hour for . . .
"[Officer] Longo: Y . . .
"[Defendant]: . . . the last six days. So when I go on the road, wasn't really payin' attention. I'm just tryin' to get home and I'm goin' kinda fast not realizin' it 'cause I'm used to it.
"[Officer] Longo: Okay.
"[Defendant]: That's what you drive on the freeway.
"[Officer] Longo: Well remember what I said? I said I know you didn't do this on purpose.
"[Defendant]: You know.
"[Officer] Longo: I know that. So you're goin' along - let's say you're goin' down Garfield Avenue. You're goin' along there. How fast do you think you were goin'?
"[Defendant]: 60."
At this point the conversation had gone on for only about two minutes since Longo had said defendant could get two years if he cooperated or ten years if he did not. After saying he was going 60 miles per hour, defendant went on to make statements concerning the collision, claiming that he was headed home, coming back from seeing a friend in Carmichael, traveling at approximately 60 miles per hour and looking down at "the Kearney, Nebraska," directions and phone numbers when he looked up and saw one male and one dog. He told Longo that he swerved to the right and thought he missed the man but perhaps hit the dog. Defendant acknowledged that, after the impact, he kept going.
When Longo again said defendant had not done it on purpose, defendant again said it did not matter, "I'm . . . [¶] . . . [¶] . . . gonna fuckin' get two years in the penitentiary." (Italics added.) By this point, only approximately four minutes had elapsed since Longo offered his two years for cooperating and ten years if defendant took the "low road" example. Approximately four minutes after defendant said he would be imprisoned for two years and after discussing additional details, Longo asked defendant if he felt better. Defendant responded, "No I feel like I'm gonna be fucked sittin' in California State Penitentiary for the next couple years. That's what I feel like." The interview continued for another twelve minutes, during which defendant provided additional incriminating information.
C. Applicable Law Concerning Involuntary Statements
"Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).) " 'The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make "inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion." ' [Citation.] The prosecution must prove by a preponderance of the evidence that a defendant freely and voluntarily gave police statements before the statements can be admitted." (People v. Peoples (2016) 62 Cal.4th 718, 740 (Peoples).)
" 'In general, a confession is considered voluntary "if the accused's decision to speak is entirely 'self-motivated' [citation], i.e., if he freely and voluntarily chooses to speak without 'any form of compulsion or promise of reward. . . .' [Citation.]" [Citation.] However, where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.' [Citation.] 'A confession is "obtained" by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by "proximate" causation. . . . The requisite causal connection between promise and confession must be more than "but for": causation-in-fact is insufficient.' [Citation.] 'This rule raises two separate questions: was a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak?' [Citation.] To answer these questions ' "an examination must be made of 'all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.' " ' " (People v. Tully (2012) 54 Cal.4th 952, 985-986 (Tully).)
" 'When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear.' " (People v. Cahill (1994) 22 Cal.App.4th 296, 312, quoting People v. Hill (1967) 66 Cal.2d 536, 549.)
" ' " 'On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review.' " ' " (Tully, supra, 54 Cal.4th at p. 993.) Where, as here, a defendant's statement to law enforcement is recorded, the facts surrounding an admission or confession are deemed undisputed, and the voluntariness of the confession is subject to our independent review. (Peoples, supra, 62 Cal.4th at p. 740; Linton, supra, 56 Cal.4th at p. 1177.)
D. Analysis
1. Voluntariness
Defendant claims that his statements were involuntary because they were coerced by threats and express and implied promises of leniency and by law enforcement deflecting his requests for counsel. We agree that the trial court erred by admitting these statements. However, we conclude that the error was harmless beyond a reasonable doubt.
The interview took place between approximately 3:00 and 4:45 a.m., on July 19, 2012. Prior to waking up some time after midnight, defendant had slept for approximately four and a half or five hours.
At less than two hours, the duration of the police interrogation was not at all intense. The tone of law enforcement was low key. The location, an interview room, was of no particular consequence. Defendant, by his own representations, was not a novice to the criminal justice system or interacting with the police.
Nonetheless, we conclude that certain aspects of the interview made defendant's statement involuntary, and thus inadmissible at trial for any purpose.
As the interview turned to the subject of the hit-and-run, and Longo connected defendant to the collision based on forensic evidence, defendant asked if "this [was] somethin' [he] need[ed] a lawyer for . . . ." Thereafter, when defendant asked Longo "what are you gonna offer me?," Longo replied, "What do you want?" This was the first of several statements Longo made during the interview that implied a benefit. Instead of telling defendant he could not offer defendant anything, Longo's question suggested to defendant that there was something that defendant could receive by making a statement. When defendant answered Longo's question by saying he wanted the "least amount of jail time. The least to get the hell out of here," Long replied, "Okay," instead of telling defendant he could make no promises about defendant's sentence. When defendant asserted he was not going to make a statement "for free," Longo told defendant, "I understand that and that's somethin' that we can work with the DA with," again implying that a benefit would be extended if defendant made a statement. Longo promised that he would work with the district attorney, and that if defendant cooperated, "you know darn well how far that will go." Defendant expressed skepticism, indicating he did not know and that cooperating in the past had only worked to his detriment. Regarding defendant's request for a writing, Longo told defendant, "I wish I could put it in writing," implying that a benefit was possible, but that he could not memorialize it in a writing. He then reiterated that, if defendant was truthful, his cooperation "goes a long way with the DA."
Longo then provided a hypothetical example of how defendant's cooperation would result in a lower sentence and a failure to cooperate would result in the maximum sentence: "So let's say instead of you doin' ten years, you know the game, you'll maybe do two. But if you don't cooperate then you'll get ten and I don't know what the time and I'm not sayin' - but you know darn well what the game is. You know what a plea bargain is. If you try to take the - the - the low road with us and try to play hardball with us, you know what you're gonna get is ten years. But if you cooperate with us, you know darn well what a plea bargain - they're not gonna give you a plea bargain if you're gonna take the low road with us. But you'll take the high road and you tell us (unintelligible) what happens then you know what, you may - and I can't promise anything but you're darn right. You know the game. You know the game with a plea bargain is." Longo told defendant "just be honest with us. You know what, that's where the plea bargains come in," again, suggesting that providing a statement would result in a lower sentence. He then went on to tell defendant, "you'll get the maximum if you try lawyering up. You know that but you know darn well that if you cooperate and you give the answers and you explain what happened that night, you know darn well the DA's willing to work with you at that point."
We agree with defendant that the foregoing includes both promises of leniency and implied threats. Longo's message is clear: if defendant gave Longo a statement, defendant would benefit with a substantially more favorable disposition than if he did not cooperate—80% reduction if his 10-year, two-year example were taken literally. If, however, defendant took "the low road" and "tr[ied] to play hardball with . . . " law enforcement, presumably by exercising his constitutional right to counsel, his right against self-incrimination, or both, he would face significantly greater punishment. Longo made clear that "they're not gonna give you a plea bargain if you're gonna take the low road with us." While Longo stated once that he could not make promises and could not place any agreement in writing, he further made clear that defendant's cooperation or lack thereof would "go[] a long way with the DA."
Subsequently, after defendant stated that he had been told to "keep [his] mouth shut, ask for a lawyer and that's it," Longo emphasized the forensic evidence against him, and represented that everyone in the room already knew what happened. Altering his tack to adopt a more sympathetic tone, Longo then stated that he knew defendant "didn't do this on purpose," and that defendant was "not a bad guy." He also invoked the victims and their desire for answers. Of particular significance, Longo then made this statement: "you'll get the maximum if you try lawyering up." This is clear threat: if defendant chose to exercise his constitutional right to counsel, a right to which defendant had already referred on more than one occasion, he would "get the maximum."
Thereafter, Longo represented to defendant, in response to his question, that it was a possibility that he would be able to post bail. When defendant again asked if there was any way he could speak with a lawyer or public defender, and then asked Longo how he believed a lawyer would advise him, Longo again redirected the subject from lawyers to the fact that he was "just askin' [defendant] a question." After Longo again emphasized the forensic evidence, as well as the fact that he planned to obtain defendant's cell phone data to determine his location at all relevant times, defendant began to give his statement.
Under the totality of the circumstances, we conclude that Longo's remarks did constitute express threats and express or clearly implied promises of leniency. However, this is not the end of the inquiry. Upon concluding that Longo made what amount to threats and promises of leniency, we must further determine whether there was causation, i.e., whether such threats and promises motivated defendant to speak. We answer that question based upon all the surrounding circumstances (Tully, supra, 54 Cal.4th at p. 986) and conclude that they did.
The entire interview lasted less than two hours. Defendant showed no inclination to acknowledge his awareness of the collision until shortly after Longo made the statements set forth above, almost an hour-and-a-half into the interview. Defendant's clearly expressed desire was to be sentenced to the least amount of prison time possible. While Longo stated that he did not "know what the time and I'm not sayin' . . . ," he further stated that if defendant cooperated, he might be sentenced to two years, whereas, if he did not cooperate, he would be sentenced to ten. It seems clear that defendant focused on the two-year minimum, because he later made two references to the prospect of being imprisoned for two years. In addition to disregarding certain questions posed by defendant about the possibility of obtaining counsel, Longo flatly threatened defendant that, if he "lawyered up," he would get the maximum. There was no break in the interview or other intervening circumstances and only a period of four minutes elapsed between Longo's 80% example before defendant began talking about the collision.
We note that the low-term for a violation of section 192, subdivision (c)(1), gross vehicular manslaughter, is two years. (§ 193, subd. (c)(1).)
Based on all of the relevant circumstances, we conclude that the prosecution failed to carry its burden of proof in establishing that Longo's threats and promises of leniency did not motivate defendant to make his statement.
Accordingly, under the totality of the circumstances, we conclude that defendant's statement was involuntary, and, thus, it was not admissible at trial for any purpose. (See Tully, supra, 54 Cal.4th at p. 985 [" 'where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law' "].)
2. Harmless Error
Although we have concluded that defendant's statements were coerced and involuntary, and thus should not have been admitted at trial, we now must determine whether this error requires reversal. We conclude that it does not.
The harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman), is applicable to error under the United States Constitution, including the erroneous admission of involuntary statements (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal)). "The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.] 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error.' " (Neal, at p. 86.)
The prosecution's case-in-chief established that a car matching the description of defendant's sped through a stop sign and struck H.L.-R., G.W., and G.W.'s dogs. A number of car parts, including the driver's-side mirror and a light assembly, were collected from the scene of the collision, and, according to Longo, they matched defendant's car perfectly. Defendant's vehicle was recorded on a red light video camera near the scene of the collision minutes before it occurred.
Defendant, a long-time drug addict, was in the area of the collision that night to obtain heroin. At some point prior to the time of the accident, defendant stated on a phone call with Miller or Wolverton that he was going to get "some," or "some stuff," by which he meant heroin. Defendant spoke on the phone with Graham five times that night, at 6:16, 8:32, 8:34, 8:56, and 9:12. At some point, defendant told Wolverton he no longer needed any heroin. Shortly after the last phone call to Graham at 9:12, defendant arrived at a Rite Aid location near Graham's residence and near the scene of the collision, where he stayed for approximately 18 minutes. Thereafter, he remained in the Rite Aid parking lot for another 18 minutes before resuming his journey. Wolverton testified that Rite Aid was one of the locations where a heroin user could obtain generic needles inexpensively. After speaking with Miller on a call that began at 9:19, defendant, who had been repeatedly placing calls looking for heroin throughout the evening, did not place any additional calls during the almost 40 minutes that passed between his arrival at Rite Aid and when he passed through the intersection as captured on the red light video camera.
When defendant arrived at home after the time of the collision, Miller observed that there were cracks in defendant's windshield that had not been there previously, and there were dents in the side of his car. Wolverton noticed that defendant's light was broken. Miller and Wolverton both noticed defendant's driver's-side mirror was missing. Miller asked defendant what happened to his car, and defendant responded "that a dog and a guy stepped out in front of his car." Defendant told Miller that he hit the man and the dog, and that the impact knocked off his side-view mirror. Miller told Longo that, when he saw defendant that night, defendant "was not sick," meaning that he did not have the symptoms that an addict going through withdrawal would experience in the absence of drugs in his system. Miller also told Longo that defendant looked well, meaning that defendant "had done some type of drugs." Wolverton told Longo: "He looked like shit. But he wasn't, he had already done some dope."
The morning after the collision, Miller awoke to find defendant outside washing his car. Miller asked defendant what he had struck, because it looked to Miller as though defendant hit more than a man and a dog. There were dents on several parts of the car, including the front fender, the driver's side, and on the roof. The dent on the roof was red. Miller also observed a boot print or something similar. Underneath the car, Miller saw what looked like dog hair. Wolverton also noticed dents on the hood and on the side of defendant's car. In the days following the collision, Miller suggested defendant turn himself in to law enforcement. According to Miller, defendant responded: "it is what it is, you know. I guess . . . when they find me, they'll find me."
In the portion of a jailhouse call defendant made to his mother that was admitted in the prosecution's case-in-chief, Kemp told defendant that "they're saying you ran at a stop sign at 80 miles an hour." Defendant responded: "Well, I wasn't going 80. I was going a little fast like 65, but also too, you got to remember I've been used to going 65, 75 miles an hour straight for three days, after the speed limit." Defendant added, "[Y]ou ever notice that when you be driving down the- on the, you know, on the freeway for a long time and then you get off on the surface streets, it seems like it's so slow because you're so used to going 65, 70 miles an hour, you know what I mean?" When Kemp observed, "[T]hat doesn't make it right," defendant responded, "It doesn't make it right, but I mean, you know, you've done it haven't you? Got off the freeway and then like, oh shoot, I'm going kind of fast here."
When he testified on his own behalf, defendant admitted that he was the driver of the vehicle that struck H.L.-R., G.W., and G.W.'s dogs. While he testified that he had simply fallen asleep at the wheel and denied having been under the influence of heroin or anything else at the time, he also acknowledged that he had proffered several different versions of what happened.
After the collision, defendant made the decision to continue driving and flee from the scene. And he did so at a high rate of speed, intentionally running through a stop sign and evincing a consciousness of guilt.
We conclude, beyond a reasonable doubt, that the admission of defendant's statements to law enforcement in rebuttal did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24; Neal, supra, 31 Cal.4th at p. 86.) In the context of the trial evidence, defendant's statements to Longo were unimportant in relation to the other evidence considered by the jury, marshaled above. (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432, 449], disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385, 399, fn. 4]; Neal, at p. 86.) Defendant's statement to Longo added little, if anything, to the trial evidence for the jury to consider.
In the interview, defendant admitted that he was driving "kinda fast not realizin' it 'cause [he was] used to it." He also estimated his speed at 60 miles per hour. These claims were already before the jury following the prosecution's case-in-chief as a result of, among other things, defendant's jailhouse phone conversation with his mother in which he stated that he "was going a little fast like 65," and that he had been used to driving fast because he had been driving at freeway speeds during his trip.
Defendant told Longo he looked up and saw a man and a dog, that he swerved, that he thought he hit a dog but missed the man, and then "kept goin'." These facts, too, were established in the prosecution's case-in-chief. Miller asked defendant what happened to his car, and defendant responded "that a dog and a guy stepped out in front of his car," and that he hit the man and the dog and the impact knocked off his side-view mirror. Because this evidence was already before the jury, defendant's additional statement to Longo that he told his mother that he thought he hit something but was not sure what did not add anything for the jury to consider.
Defendant told Longo that he did not believe he ever applied his brakes and admitted leaving the scene. However, the fact that the driver did not apply the vehicle's brakes was established through Longo's testimony concerning his observations at the scene, specifically that he did not observe skid marks or other indicators of friction in the area of the crosswalk where G.W. and H.L.-R. were struck. Also, neighbors testified they did not hear the sound of a car skidding. It was undisputed that the driver fled the scene.
Defendant acknowledged to Longo in the interview that, the day after the collision, Miller "was tryin' to kinda get some of the dents out of the outside" of his car. However, this was also already before the jury. Miller himself admitted that, on the morning after the collision, he assisted defendant in getting some of the dents out of the car. Wolverton saw Miller attempting to fix the light on defendant's vehicle.
In the interview, defendant admitted to a prior conviction of driving under the influence of a drug, his third. However, evidence of defendant's prior convictions was already properly before the jury.
Defendant told Longo that he did not consider turning himself in. This sentiment was already before the jury, because defendant obviously did not turn himself in, and, when Miller urged defendant to do so, defendant responded: "it is what it is, you know. I guess . . . when they find me, they'll find me."
In his statement to Longo, defendant stated that, at the time of the collision, he was looking down at "the Kearney, Nebraska," directions and "different phone numbers and stuff" because he had not heard from the girl he visited in North Carolina since he left. This is the only aspect of defendant's statement that added something not already before the jury. Defendant is correct that the jury had to decide if he acted with implied malice so as to support the murder count (§ 187, subd. (a)), and, as to the vehicular manslaughter count (§ 192, subd. (c)(1)), if he acted with gross negligence or with ordinary negligence. However, we conclude, beyond a reasonable doubt, that the admission of this statement in the prosecution's rebuttal case did not contribute to the verdict obtained on counts one and two. (Chapman, supra, 386 U.S. at p. 24.) As defense counsel argued in closing, defendant fabricated "a story that sounded better to him than falling asleep . . . nonsensically claiming that he was looking for directions to Kearney, Nebraska, ten days after he left Nebraska while driving at 10:00 at night in Carmichael, California . . . ." (Italics added.) We conclude that there is no possibility that the jury convicted defendant on the basis of this statement on the theory that he acted with implied malice or gross negligence by looking at these Nebraska directions and at "some phone numbers" at the time of the collision.
The admission of defendant's statement to Longo added nothing harmful to defendant's case that was not already before the jury. Thus, the jury verdict rendered here was surely unattributable to the erroneous admission of defendant's statement to Longo in the People's rebuttal case. (See generally Neal, supra, 31 Cal.4th at p. 86.) While our high court has observed that " 'the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial . . .' " (ibid., quoting People v. Cahill (1993) 5 Cal.4th 478, 503), under the particular circumstances of this case, the admission of defendant's statement was not prejudicial. We conclude that the admission of defendant's statement to law enforcement in the prosecution's rebuttal case was harmless beyond a reasonable doubt.
III. CALCRIM No. 375 and Impeachment
A. Additional Background
At the instruction conference, the trial court discussed CALCRIM No. 375 at length. Defendant did not object to the modified version the trial indicated it would give.
The modified CALCRIM No. 375, told the jury in pertinent part: "If you decide that the defendant committed the prior driving under the influence offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not on July 16, 2012, the defendant acted with malice, as required in Count One; was grossly negligent, as required in Count Two; and was ordinarily negligent, as required in the lesser offense to Count Two. [¶] . . . [¶] If you conclude that the defendant committed the prior driving under the influence offenses, 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 murder or manslaughter. The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purposes of determining the defendant's credibility and . . . whether the People have proved beyond a reasonable doubt the prior conviction enhancements to Count Five." (Italics added.)
B. Defendant's Contentions
Defendant asserts that the trial court erred in instructing the jury that it could consider his prior convictions on the issue of his credibility and for purposes of impeachment. He asserts that the crimes of misdemeanor driving under the influence and simple possession of controlled substances are not crimes of moral turpitude. Therefore, these prior convictions were not properly considered for purposes of assessing his credibility, and the trial court erred in instructing the jury that it could consider the evidence of his prior convictions for this purpose. Defendant asserts that this error was prejudicial as his credibility "was key to his defense," and the instruction lightened the prosecution's burden of proof. We conclude that the trial court did not err in allowing the jury to consider for impeachment purposes defendant's three prior misdemeanor convictions for driving under the influence, all of which were committed within four years of each other.
C. Analysis
1. Forfeiture
Defense counsel at the instruction conference did not object to the language of CALCRIM No. 375, as modified, which included the language quoted, ante. The People assert that, as a result, defendant has forfeited this claim. The failure to object to a proposed instruction that is correct on the law and responsive to the evidence presented or to request a modification of the language forfeits the claim on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 113.) However, whether this instruction was correct on the law on this point is defendant's precise contention. Viewed another way, even in the absence of a request for a modification or clarification before the trial court, "a defendant may argue the court erred in instructing the jury 'if the substantial rights of the defendant were affected thereby.' (§ 1259.)" (People v. Johnson (2015) 60 Cal.4th 966, 993.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Because defendant asserted in his opening brief that the instruction was not correct on the law, and, in response to the prosecutor's forfeiture argument, asserts that the error affected his substantial rights, we turn to consideration of the merits.
2. Admissibility of the Prior DUI Convictions for Impeachment
Evidence Code section 788 provides for the impeachment of a witness with a prior felony conviction. In People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), our high court held that misdemeanor convictions themselves are not admissible for impeachment because the record of conviction is hearsay, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion under Evidence Code section 352. (Wheeler, at p. 297.) But in 1996, the Legislature enacted Evidence Code section 452.5 (added by Stats. 1996, ch. 642, § 3), which provides the type of hearsay exception the Wheeler court noted did not previously exist. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461.) Evidence Code section 452.5, subdivision (a), provides that certified court records are admissible to prove the fact of a conviction and the commission of the underlying offense; it, thus, created a hearsay exception allowing the admissibility of such records. (Duran, at p. 1460.) This provision "allows prior misdemeanor conduct to be proved by official records of misdemeanor conviction." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, fn. 8.) As we have noted, the trial court admitted certified records of defendant's three prior misdemeanor convictions for driving under the influence, convictions from 2001, 2003, and 2005.
However, even though the hearsay exception could support admission of the conviction record and evidence of the underlying conduct could still be admitted under Wheeler, such evidence must still be relevant. In this context, that means it would have to have some bearing on the veracity of the witness, or, in other words, a tendency to demonstrate moral turpitude. (Wheeler, supra, 4 Cal.4th at pp. 295-296.) Moral turpitude in the context of impeachment in criminal cases has been defined to mean a general readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 314 (Castro).) Misconduct involving moral turpitude suggests a willingness to lie. (Wheeler, at pp. 295-296.) Defendant asserts that misdemeanor driving under the influence is not a crime of moral turpitude, relying on In re Carr (1988) 46 Cal.3d 1089, 1091 (Carr), where our high court held that misdemeanor driving under the influence of alcohol is not a crime of moral turpitude in an attorney disciplinary proceeding.
The People assert that defendant's three prior driving under the influence convictions equate to conduct showing moral turpitude, relying on People v. Forster (1994) 29 Cal.App.4th 1746 (Forster). In Forster, the court held that a prior felony conviction for driving under the influence with three or more driving under the influence convictions within seven years is a crime of moral turpitude. (Id. at p. 1757.) Acknowledging that Forster involved a felony conviction, the People assert that because defendant sustained three prior convictions requiring court mandated programming, the underlying reasoning in Forster applies here. The Forster court reasoned, "A violation of [former] section 23175 requires that a person be convicted of driving under the influence [citation] and that the offense occurred within seven years of three or more separate violations of driving under the influence. Thus, we are discussing a recidivist type crime involving an extremely dangerous activity. Having suffered at least three previous convictions for driving under the influence, a person who has violated [former] section 23175 is presumptively aware of the life-threatening nature of the activity and the grave risks involved. [Citation.] Continuing such activity despite the knowledge of such risks is indicative of a 'conscious indifference or "I don't care attitude" concerning the ultimate consequences' of the activity [citation] from which one can certainly infer a ' "depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." ' " (Id. at p. 1757.)
We agree with the People that the Forster court's reasoning applies here. Defendant's second misdemeanor conviction acknowledged one prior, and his third acknowledged two. They occurred within a four-year period of time. The only thing that distinguishes Forster from the instant case is that the third prior conviction for driving under the influence in Forster was for a felony whereas defendant's convictions here are misdemeanors, including the third which could have been charged as a felony. However, as we have noted, misdemeanor convictions are admissible for impeachment if they involve moral turpitude. Moreover, the " ' "I don't care attitude" ' " and " 'conscious indifference' " about which the Forster court spoke (Forster, supra, 29 Cal.App.4th at p. 1757) are present whether or not the defendant's third conviction is a felony pursuant to former section 23175 or charged as a misdemeanor. We conclude defendant's repeated conduct of driving under the influence within the span of just four years involved a readiness to do evil and thus was relevant to his veracity.
In his reply brief, defendant again notes our high court's decision in Carr, supra, 46 Cal.3d 1089, and argues that we are bound to follow that decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. We disagree. As defendant acknowledges, the definition of moral turpitude in attorney discipline proceedings is not the same as in criminal cases. The court in Forster recognized this as well, observing that attorney disciplinary cases are not determinative on the issue of moral turpitude for purposes of impeachment in criminal cases. (Forster, supra, 29 Cal.App.4th at p. 1757.) As our high court has noted, moral turpitude in attorney discipline proceedings is "defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards." (In re Grant (2014) 58 Cal.4th 469, 476 (Grant).) Moral turpitude in the attorney discipline context is not coextensive with the definition our high court established in Castro, supra, 38 Cal.3d at pages 314-315, a general readiness to do evil. (Grant, at p. 476.) "[W]hether a conviction 'reflect[s] upon an attorney's moral fitness to practice law is a far cry from [whether] . . . such conviction has some relevance . . . on the issue of a witness' credibility.' For that reason, a moral turpitude finding in one context is 'not determinative on the issue of moral turpitude' in the other." (Grant, at p. 476, quoting Forster, at p. 1757, & People v. Armendariz (1985) 174 Cal.App.3d 674, 682 [holding that assault with a deadly weapon is a crime of moral turpitude for purposes of impeachment in criminal cases, even though such a conviction might not be a moral turpitude crime for attorney discipline purposes if it does not reflect on the attorney's fitness for practicing law].)
Accordingly, we conclude that the trial court properly instructed the jury with its modified version of CALCRIM No. 375 to the effect that the jury could consider the evidence of defendant's prior misdemeanor driving under the influence convictions and underlying conduct in evaluating his credibility.
IV. Failure to Give a Unanimity Instruction Sua Sponte
A. Additional Background
In her initial closing argument, the prosecutor argued that the jurors could "get to a conviction in this case a couple of different ways." At one point in her argument the prosecutor asserted that, at the time of the collision, defendant was talking on his cell phone. Subsequently, she argued that the evidence demonstrated that defendant obtained heroin and injected it when he stopped for almost 20 minutes at Rite Aid prior to the collision. The prosecutor also asserted that whether defendant was "under the influence or he's not under the influence, the reckless driving in this case with his background, makes him guilty of murder."
In his closing argument, defense counsel primarily relied on the defense of unconsciousness. Defense counsel also asserted that defendant was sober at the time of the collision. Counsel argued that the prosecution's contention that defendant was under the influence after injecting heroin at Rite Aid was based on speculation, and that the evidence concerning defendant's cell phone conversations with Miller demonstrated that defendant had not yet obtained heroin at that time. Defense counsel also argued that the evidence demonstrated that defendant was not talking on his cell phone at the time of the collision.
B. Defendant's Contentions
In his supplemental brief on appeal, defendant asserts that, at trial, the prosecutor relied on two theories to prove defendant's guilt of implied malice murder: (1) that he was under the influence at the time he struck the victims and their dogs and that he had prior convictions for driving under the influence, and (2) that he was talking on his cell phone and speeding at the time. Defendant further asserts that the prosecutor never elected between those theories and the jurors could have been divided on which theory supported a guilty verdict. Defendant contends that, under these circumstances, a unanimity instruction was warranted, the trial court had a sua sponte duty to give such an instruction, and it erred in failing to do so. Defendant also notes that, when the trial court denied his motion for a new trial, it stated, sitting as a 13th juror, that the prosecution had not proved the driving-under-the-influence theory beyond a reasonable doubt. Under the circumstances presented here, defendant asserts that the trial court's failure to give a unanimity instruction sua sponte constituted reversible error as the People cannot establish that the error was harmless beyond a reasonable doubt.
The trial court concluded that substantial evidence supported the driving-under-the-influence theory, but went on to find, sitting as the 13th juror in ruling on defendant's new trial motion, that the evidence was insufficient to establish beyond a reasonable doubt that defendant was under the influence at the time of the collision. It found however, that the implied malice element was proven by the evidence establishing that defendant was "driving at that speed at night in a residential area to the point and in the condition where he either fell asleep, which would suffice for either the malice or the gross negligence or simply ignored the dangers and the risks of behaving the way he did, which would also suffice for the malice and the gross negligence. . . . [¶] The . . . gravement [sic] of this offense is being so reckless that he hit the stop sign as well as being so reckless that . . . he collided with the people in this case. . . . [¶] So I will find even as a 13th Juror that the counts have been proved beyond a reasonable doubt."
We conclude the trial court did not err. No unanimity instruction was required.
C. General Principles Regarding Unanimity Instructions
"In a criminal case [in California], a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo), citing People v. Collins (1976) 17 Cal.3d 687, 693, & Cal. Const., art. I, § 16.) "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Russo, at p. 1132, second italics added.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Ibid.) " 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' " (Ibid.) For instance, our high court found it to be reversible error for the trial court to have failed to give a unanimity instruction where the defendant was convicted of a single count of bribery but the evidence demonstrated that there were two discrete bribes. (Ibid., discussing People v. Diedrich (1982) 31 Cal.3d 263.) Some of the jurors may have believed that the defendant committed one of the acts of bribery while other jurors believed that the defendant was guilty of the other act of bribery, resulting in a verdict that was not unanimous. (Russo, at p. 1132.)
In Russo, a conspiracy prosecution, our high court held that a "jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy." (Russo, supra, 25 Cal.4th at p. 1128.) The Russo court provided a framework for determining whether unanimity is required. "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [the defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at pp. 1134-1135.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Id. at p. 1132.) Discrete crimes require an unanimity instruction, but theories of the case do not. (Ibid.; see also People v. Wolfe (2003) 114 Cal.App.4th 177, 185 ["a unanimity instruction is not required if the evidence shows only a single crime, albeit committed in several possible ways"].) Where warranted based on the facts of the case, the unanimity instruction must be given sua sponte, even in the absence of a request by the defense. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) In general, we review a claim of instructional error de novo. (People v. Selivanov (2016) 5 Cal.App.5th 726, 751.)
D. Analysis
Here, the evidence demonstrated that defendant committed one murder, not two. Although the prosecutor argued two possible theories as to how the murder was committed, there is no evidence which would have allowed the district attorney to charge defendant with more than one murder. Whether defendant killed H.L.-R. because he had injected heroin and was under the influence at the time of the collision, he was talking on his cell phone and speeding at the time, a combination of these circumstances, or based on some other explanation, these distinctions are theories as to how the murder occurred, not discrete crimes. As our high court observed nearly two decades ago, discrete crimes require an unanimity instruction, theories of the case do not. (Russo, supra, 25 Cal.4th at p. 1132.) Where the evidence merely presents the possibility that the jury may divide as to the exact way the defendant is guilty of a single discrete crime, the trial court need not give the unanimity instruction. (Id. at p. 1135.)
Defendant acknowledges that California Supreme Court case law indicates "that a unanimity instruction is not required when the prosecutor offers multiple theories to prove a single crime." He argues, nevertheless, "Russo left open the possibility that a unanimity instruction may be required in some cases involving multiple theories and a single crime." We are not persuaded. The language in Russo clearly refutes that contention.
Defendant mainly relies on People v. Dellinger (1984) 163 Cal.App.3d 284 (Dellinger), in support of his contention. In Dellinger, the defendant was charged with the murder of his two-year-old stepdaughter. (Id. at p. 289.) The child had sustained blunt force trauma to the head, which, after completing his first autopsy, a pathologist determined to be a major cause of death and concluded the death was accidental. (Id. at p. 290.) A toxicology report later revealed that the child had cocaine in her system and the same pathologist concluded that "cocaine was probably a contributing cause of her death." (Ibid.) Further investigation into the death was conducted. (Ibid.) A biomedical engineer concluded that the force of a fall down stairs could not have caused the injury. (Ibid.) The first pathologist thereafter recharacterized the cause of death as criminal and a second pathologist concurred. (Ibid.) A second autopsy revealed a contusion of the cervical spinal cord which probably resulted from the same blunt trauma which caused the head injury. (Ibid.) The defense produced two experts who testified that the injuries could have been sustained from a fall down the stairs. (Ibid.) The trial court instructed the jurors that they could find the defendant guilty of first degree murder if they found the killing of the child to be willful, deliberate, and premeditated, or if they found the child was murdered by poison. The jury was not instructed that it had to unanimously agree on which act constituted murder. The prosecution relied on both theories. (Id. at p. 300.)
On appeal, the Dellinger court observed that, unlike the typical unanimity instruction case, "there was only one offense and one victim but there were several hypotheses as to which act or acts caused" the child's death. (Dellinger, supra, 163 Cal.App.3d at p. 301.) Without citation to authority addressing separate acts instead of separate offenses, the court wrote: "As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity." (Ibid.) The Dellinger court reversed the defendant's first degree murder conviction, concluding that the trial court should have instructed the jury, on its own motion, that a conviction required their unanimous agreement on whether the defendant killed the victim by giving her cocaine or by inflicting a fatal blow to her head. (Dellinger, at pp. 300-302.)
Here, the prosecution did not theorize that there were two possible causes of death. Defendant killed H.L.-R. by colliding into him with his car. Unlike the circumstances here, Dellinger involves two different discrete acts resulting in two potential causes of death.
Moreover, the Court of Appeal decision in Dellinger was decided 17 years before our high court's decision in Russo. Thus, the Dellinger court obviously did not have the benefit of our high court's guidance in Russo. Nor did that court have the benefit of the decisional law that evolved on this subject after it published its decision in 1984. We do.
Post-Dellinger, courts have held unanimity is not required for the following: (1) the theory of first degree murder (Schad v. Arizona (1991) 501 U.S. 624, 629-645 [due process does not require a jury to unanimously agree whether a charge of first degree murder was committed by an intentional, premeditated killing or by felony murder]; People v. Taylor (2010) 48 Cal.4th 574, 626-628 [jury not required to unanimously agree which of three felonies was the target offense during the commission of which the murder occurred to prove felony murder; nor does Apprendi v. New Jersey (2000) 530 U.S. 466 require a unanimity instruction]; People v. Santamaria (1994) 8 Cal.4th 903, 918; People v. Beardslee (1991) 53 Cal.3d 68, 92 (Beardslee) [observing that a jury could convict a defendant of first degree murder "without making a unanimous choice of one or more of several theories proposed by the prosecution"]); (2) the theory supporting a special circumstance verdict (People v. Grimes (2016) 1 Cal.5th 698, 726-728 (Grimes)); (3) the overt act required for conspiracy (id. at pp. 725-726 [conspiracy to commit robbery where five different overt acts were alleged]; Russo, supra, 25 Cal.4th at p. 1135); (4) participation liability—whether the defendant was the actual perpetrator or an aider and abettor (People v. Wilson (2008) 44 Cal.4th 758, 801-802; Beardslee, at pp. 92-94; People v. Quiroz (2013) 215 Cal.App.4th 65, 73-74 (Quiroz) [applying Russo, court held jurors were not required to agree on whether the defendant was the shooter or a person who aided and abetted the shooter]; People v. Perez (1993) 21 Cal.App.4th 214, 222 [same].)
Agreement on what acts a defendant committed is simply not required. In the context of a lying-in-wait murder prosecution, our high court long ago held that it was not necessary for the jury to unanimously agree which acts constituted lying in wait. (People v. Edwards (1991) 54 Cal.3d 787, 824.) In the context of rejecting a unanimity instruction on the question of direct liability or aiding and abetting liability, courts have held that such an instruction is not required "even if the jurors might conclude that the defendant is guilty based on different facts, or on different findings about the acts the defendant committed or his mental state." (Quiroz, supra, 215 Cal.App.4th at p. 73, italics added, citing People v. Jenkins (2000) 22 Cal.4th 900, 1025-1026 (Jenkins); People v. Pride (1992) 3 Cal.4th 195, 249-250; People v. Davis (1992) 8 Cal.App.4th 28, 45.) This is because the jury's verdict will still reflect a unanimous agreement that the defendant committed a single crime. (Quiroz, at pp. 73-74.) We see no reason to apply a different rule in the context of this case where the prosecution offered two different factual theories of what defendant was doing at the time he committed this implied malice murder.
Defendant asserts that our high court has "acknowledged the continued vitality" of Dellinger in People v. Crandell (1988) 46 Cal.3d 833, Beardslee, supra, 53 Cal.3d 68, and Grimes, supra, 1 Cal.5th 698, and from this, he argues Dellinger applies here. Those cases made no such express acknowledgment, but merely distinguished the fact pattern presented from Dellinger.
In Beardslee and Crandell, the court distinguished Dellinger on the bases that the defendant's acts involved a single course of conduct. (Beardslee, supra, 53 Cal.3d at p. 93 [the two theories advanced by the prosecution—actual perpetrator and aider and abettor—involved a single course of conduct]; Crandell, supra, 46 Cal.3d at p. 875 [defendant shot and strangled the murder victim; acts formed part of one transaction and thus the continuous conduct exception to the unanimity requirement applied].)
In Grimes, supra, 1 Cal.5th 698, two different factual theories were advanced to establish the special circumstances allegation: that defendant ordered an accomplice to kill the victim and thus he acted with the intent to kill, and that, if he did not order the murder, he was major participant who acted with conscious disregard for life. (Id. at p. 727.) The defendant asserted on appeal that the jury had to unanimously agree on the acts he committed. Quoting Russo, the court reiterated a "unanimity instruction is not required ' "where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event." ' " (Grimes, at p. 727, quoting Russo, supra, 25 Cal.4th at p. 1135.) The Grimes court reaffirmed, that "[t]his is true even if the theories are based on different facts." (Grimes, at p. 727, citing Jenkins, supra, 22 Cal.4th at p. 1025.) The court reasoned, "there was no evidence that more than one crime of murder was committed. Rather, the evidence left 'room for disagreement as to exactly how that crime was committed or what the defendant's precise role was.' " (Grimes, at p. 727, quoting Russo, at p. 1132.) The Grimes court then went on to write: "Even assuming that Dellinger was correctly decided, it is factually distinguishable from this case. Here, there was no dispute as to what acts caused the victim's death." (Grimes, at p. 728.)
Likewise, in the instant case there was no dispute about the cause of H.L.-R.'s death. Thus, regardless of whether Dellinger may continue to have vitality in the context of requiring agreement as to the cause of death in a murder case, Russo applies here. The Russo court set forth the test to be employed, and we have asked ourselves the two questions associated with that test: (1) whether there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) whether the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. (Russo, supra, 25 Cal.4th at pp. 1134-1135.) We conclude that the answer to the first question is no. This case falls into the second category and thus a unanimity instruction was not required. (Ibid.)
Defendant also relies on what he characterizes as a "cautionary footnote" in Russo, quoting only a portion of the footnote: "In some cases, the trial court may have to give some form of unanimity instruction." (Russo, supra, 25 Cal.4th at p. 1136, fn. 2.) From this, defendant argues that he "believes that a unanimity instruction remains warranted when the facts are similar to those presented in [Dellinger]: the prosecutor offers two different factual scenarios/theories to prove murder and there are separate defenses to each scenario." Again, we disagree.
The footnote does not stand for the asserted proposition and a reading of the entire footnote reveals as much. The entire footnote states: "In some cases, the trial court may have to give some form of a unanimity instruction. For example, if there is a question regarding the statute of limitations, the court might have to require the jury to agree an overt act was committed within the limitations period [citation], or if evidence existed that the defendant had withdrawn from the conspiracy, the court might have to require the jury to agree an overt act was committed before the withdrawal. No such circumstance exists here, so we do not consider these questions." (Russo, supra, 25 Cal.4th at p. 1136, fn. 2.) The footnote clearly has to do with the timing of overt acts in a conspiracy prosecution.
Having considered and rejected each of defendant's contentions, we conclude the trial court did not err in failing to give a unanimity instruction sua sponte.
V. Prosecutorial Misconduct Claim—Trivialization of the Burden of Proof
A. Additional Background
During his closing argument, defense counsel discussed the prosecution's burden of proof as follows: "[CALCRIM No.] 220 is the Court's instruction on the burden of proof. We know . . . the People must prove . . . beyond a reasonable doubt that the defendant was conscious when he acted. In this instruction it indicates, it says flatly: The defendant in a criminal case is presumed to be innocent and the prosecution must prove every element of every charge beyond a reasonable doubt. And proof beyond a reasonable doubt is that which leaves you with an abiding conviction of the truth of the charge. The evidence need not eliminate all possible doubt because everything in life is open to possible or imaginary doubt. [¶] The question to ask yourselves is this. Do I have a doubt about an element of one of the charges? Then your follow-up question is, is my doubt reasonable? Or is . . . my doubt merely a possible doubt or an imaginary doubt? If you have a doubt about an element of a crime and your doubt is reasonable, then you must vote not guilty on that crime. [¶] The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence standard. Jurors are permitted and instructed to apply that rule to the determination of civil actions involving the rights of property only. But in the decision of a criminal case where life or liberty is at stake, something further is required. There must be in the minds of a jury an abiding conviction of the truth of the charge derived from a comparison and consideration of the evidence. [¶] This means in your daily affairs, your ordinary daily affairs, no matter how important you think a decision is, you are making that decision on a preponderance of the evidence standard. No matter how important you can think of a decision you would make, using a preponderance of the evidence standard. We can go back and change almost any decision we make in life. [¶] One of the most important decisions we make in life is whether to get married to a particular person or not. And you're making that decision using a preponderance of the evidence standard. Why? A month, a year, ten years later, you can change your mind. You can get a divorce. [¶] The marriage example simply illustrates how high of a standard of proof beyond a reasonable doubt is. If you felt when you got married to that person that you were marrying the right person and you are only using a preponderance of the evidence standard, just think how positive you would have to be if you were required to use beyond a reasonable doubt standard of proof. [¶] Once a jury reaches its verdict and it[']s reported by the Court, no jurors can come back the next day, the next month, ten years from now, and say I w[a]nt to change my verdict. That means that when you're deliberating in the deliberation room to come to a verdict of guilty, you have to have an abiding conviction of the truth of the charge. And abiding means something is going to last with you forever. If you have a doubt and your doubt is reasonable, your time to express it is in the deliberations room. [¶] For each crime charged, if you have a doubt, and it's reasonable, you're required to vote not guilty."
Defense counsel did not define "preponderance of evidence" during his closing argument. However, the trial court defined the preponderance of the evidence standard in instructing on the use of defendant's prior driving under the influence convictions, using the modified version of CALCRIM No. 375.
Addressing the reasonable doubt standard in her rebuttal argument, the prosecutor stated: "Folks, there is no doubt about the jury instruction concerning reasonable doubt. You have to have an abiding conviction. And one would hope that if making important day-to-day decisions, such as getting married, you're not doing it on a preponderance basis. You're doing it on a reasonable doubt basis." (Italics added.) Defense counsel objected, asserting that the prosecutor was misstating the law. The trial court overruled the objection. The prosecutor continued: "The folks in this courthouse right now -- there are dozens of trials going on, and they're all criminal trials that use this same standard of beyond a reasonable doubt. So, yes, no doubt, highest burden in the law, but it is not some [i]nsurmountable burden. It requires close attention to the facts, close attention to the law and holding tight to your common sense. [¶] Juries every day in this courthouse convict on this same standard."
After the jurors retired to deliberate, the court offered defense counsel the opportunity to elaborate on his objection. Defense counsel relied on People v. Nguyen (1995) 40 Cal.App.4th 28, 36 (Nguyen), for the proposition that, in the ordinary affairs of life, including marriage, people employ the preponderance of the evidence standard, that criminal cases require a higher standard—proof beyond a reasonable doubt—and that the prosecutor had "water[ed] down the beyond a reasonable doubt standard by implying or by coming out and saying that in the ordinary affairs of life, we use a beyond a reasonable doubt standard of proof when we clearly do not." The court overruled defense counsel's objection, stating that the relevant language in Nguyen was dicta rather than a legal holding.
The following morning, after the court had been advised that the jury had reached a verdict, defense counsel indicated that he had submitted a brief to the court offering more detail concerning Nguyen and his objection to the prosecutor's characterization of the burden of proof. Defense counsel stated that he submitted the brief in time such that a revised jury instruction addressing the burden of proof could have been issued to the jury to correct any misunderstanding jurors may have had about the beyond-a-reasonable-doubt standard of proof. In opposition, the prosecutor stated: "I have read the Nguyen case, and I believe my comments were the exact opposite of what Nguyen is talking about. Nguyen cautioned against trivializing the reasonable doubt standard. And my only comment was one would hope that people made decisions such as who they're going to marry on a higher standard beyond a preponderance of the evidence, merely trivializing that portion rather than trivializing the standard of reasonable doubt. [¶] Before that and after that, I went on to say that reasonable doubt is the highest standard in the law -- or the law in the country, and that was the crux of the argument."
The trial court stated that, because the jury was correctly instructed with the appropriate standard, and the challenged remarks were not given by the court, "it was something that was fairly not dwelled on to -- to a great extent . . . ." Accordingly, the trial court elected not to "single that out and give that to the jury this morning." Immediately thereafter, the jury entered the courtroom and rendered its verdicts.
B. Defendant's Contentions
Defendant asserts that the prosecutor committed misconduct by trivializing the prosecution's burden of proof during closing argument. Defendant contends that by asserting that people employ the beyond a reasonable doubt standard in making decisions such as the decision to marry, a premise rejected in Nguyen, the prosecutor trivialized the burden of proof. Defendant further contends that, by overruling defendant's objection, the court signaled to the jury that the prosecutor's misstatement of the law was correct, further diminishing the burden of proof. Defendant asserts that the error was prejudicial. We conclude that any misconduct committed by the prosecutor in discussing the reasonable doubt standard was harmless.
C. Standard of Review
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' " (People v. Parson (2008) 44 Cal.4th 332, 359; see also People v. Centeno (2014) 60 Cal.4th 659, 674.)
"[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He [or she] has the right to fully state his [or her] views as to what the evidence shows and to urge whatever conclusions he [or she] deems proper." (People v. Lewis (1990) 50 Cal.3d 262, 283.) However, it is misconduct for the prosecutor to misstate the law. (People v. Boyette (2002) 29 Cal.4th 381, 435.) To prevail on a claim of prosecutorial misconduct in argument to the jury, the defendant must show a reasonable likelihood that the jury understood or applied the prosecutor's comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
D. Analysis
In Nguyen, the prosecutor, discussing the reasonable doubt standard, stated: " 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes.' " (Nguyen, supra, 40 Cal.App.4th at p. 35, italics added.) In addressing the defendant's prosecutorial misconduct argument, the Nguyen court stated, "[t]he prosecutor's argument that people apply a reasonable doubt standard 'every day' and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce." (Id. at p. 36.) Turning to applicable precedent, the Nguyen court observed: "As our Supreme Court stated over 120 years ago in People v. Brannon (1873) 47 Cal. 96, 97 [(Brannon)]: 'The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. . . . There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence.' " (Nguyen, at p. 36.) Based on this, the Nguyen court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Ibid.) However, the defendant in Nguyen had forfeited the claim by failing to object. (Ibid.) Moreover, the Nguyen court concluded that the defendant was not prejudiced because the prosecutor directed the jury to read the reasonable doubt instruction, the jury was correctly instructed on the standard, and it must be presumed that the jury followed the instruction. (Id. at pp. 36-37.)
Here, in response to the defense's closing argument, the prosecutor did state, "one would hope that if making important day-to-day decisions, such as getting married, you're not doing it on a preponderance basis. You're doing it on a reasonable doubt basis." This bears similarity to one of the problematic remarks in Nguyen. We do not, however, find this remark as worrisome as those in Nguyen. The prosecutor here did not analogize the reasonable doubt standard to the "almost reflexive decision to change lanes while driving . . . ." (Nguyen, supra, 40 Cal.App.4th at p. 36.) However, we disapprove of the prosecutor's statement that in making "important day to day decisions" like marriage, she would hope people make such decisions on a "reasonable doubt basis." "The judgment of a reasonable man [or woman] in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence," but something more is required in a criminal trial involving life and liberty. (Brannon, supra, 47 Cal. at p. 97.)
Nevertheless, the prosecutor's error was harmless. After defense counsel's objection, the prosecutor emphasized that "The folks in this courthouse right now -- there are dozens of trials going on, and they're all criminal trials that use this same standard of beyond a reasonable doubt. So, yes, no doubt, highest burden in the law, but it is not some [i]nsurmountable burden. It requires close attention to the facts, close attention to the law and holding tight to your common sense. [¶] Juries every day in this courthouse convict on this same standard." In this regard, rather than trivializing the burden of proof, the prosecutor impressed upon the jury how exacting a standard it is, while at the same time tempering any impression the jury might have derived from defense counsel's closing argument that proof beyond a reasonable doubt was nearly impossible to achieve. The trial court instructed the jury with CALCRIM No. 220, which correctly stated the standard, including the language that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." (See Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) " 'We presume the jury understood and followed the instruction.' " (People v. Capistrano (2014) 59 Cal.4th 830, 880.)
Accordingly, we conclude that any misconduct committed by the prosecutor in discussing the reasonable doubt standard was harmless beyond a reasonable doubt. (Nguyen, supra, 40 Cal.App.4th at pp. 36-37.)
VI. Sufficiency of Evidence of Driving Under the Influence
As noted, defendant was charged with and convicted of driving under the influence of a drug on the day of his arrest, two days after the collision underlying the other charges. Defendant claims that the evidence was legally insufficient to sustain his conviction of driving under the influence of a drug. (Former Veh. Code, § 23152, subd. (a).) We disagree.
A. Legal Sufficiency Standard and Elements of the Crime
"When reviewing a challenge to the sufficiency of the evidence, we ask ' "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." ' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence—that is, evidence which is reasonable, credible, and of solid value" ' that would support a finding beyond a reasonable doubt." (People v. Banks (2015) 61 Cal.4th 788, 804.)
At the time of the offense, Vehicle Code section 23152, subdivision (a), read: "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." (Former Veh. Code, § 23152, subd. (a), enacted by Stats. 1995, ch. 455, § 31, eff. Jan. 1, 1996.) To prove a defendant guilty of driving under the influence of a drug, the People were required to prove (1) that the defendant drove a vehicle, and (2) that, when the defendant drove a vehicle, the defendant was under the influence of a drug. (People v. Enriquez (1996) 42 Cal.App.4th 661, 664; see also CALCRIM No. 2110.) "[F]or a defendant to be guilty of driving while under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a), ' "the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." ' " (People v. Canty (2004) 32 Cal.4th 1266, 1278 (Canty), italics omitted.)
B. Analysis
We conclude that there is substantial evidence in the record to support a finding beyond a reasonable doubt that, when he was pulled over shortly before his arrest, defendant was driving under the influence of a drug.
After he pulled defendant over, Officer Rista detected a slight odor of marijuana emanating from defendant. Defendant was "lethargic" and "[s]low in his movements," and his muscle tone appeared to Rista to be "placid," or loose and limp. Defendant's speech was also slow and lethargic. Defendant's eyes appeared glazed. Rista thought that defendant could possibly be under the influence. Upon inspection, Rista observed a green film on defendant's tongue and white blisters towards the back of defendant's tongue. The green film indicated to Rista that defendant may have recently smoked marijuana. The whiteness and blisters indicated to Rista that defendant may recently have used methamphetamine. Rista observed that defendant's pupils were constricted or small. Rista also observed "rebound dilation," which is when the pupils constrict and then "bounce back up a little bit." Rista testified that rebound dilation is typically observed in someone who has used marijuana. Defendant admitted that he had smoked two hits of marijuana four hours earlier. He also admitted that he had smoked methamphetamine, although he said that he had done that a week earlier.
Rista asked defendant to perform several field sobriety tests. Rista had defendant perform the "Romberg Test," which tests the subject's internal clock. During the performance of this test, defendant displayed eyelid tremors, and he swayed from side to side. According to Rista, eyelid tremors can be an objective sign of intoxication. At the time defendant estimated 30 seconds, 34 seconds had actually elapsed.
Rista then had defendant perform a "[o]ne-[l]eg [s]tand" test, requiring him to raise one foot while keeping his hands at his sides. He was then required to look at his toes and count out loud. Defendant began performing the test before Rista finished explaining, demonstrating a sign that can indicate possible impairment, as subjects are instructed to wait until the officer finishes issuing instructions before beginning any test. When defendant began performing the one-leg stand, he began to lean back towards a chain link fence, moving his left hand back towards the fence to regain his balance. Before defendant started counting, he began hopping up and down. Defendant began to hop on two occasions during the test, and he also raised his hands slightly from their position at his sides in order to maintain his balance.
Based on his observations, defendant's statements and the field sobriety testing, Rista concluded that defendant was under the influence of marijuana, and possibly of another drug "cocktail."
Defendant submitted to a chemical blood test, which was performed at 2:13 a.m. According to criminalist Kristel Suchland, defendant's blood test indicated a presumptive positive result for benzodiazepines and for marijuana, and slightly positive result for opiates. However, the presence of opiates could not be confirmed. Suchland also testified that, if a user combined marijuana and a benzodiazepine, the substances combined can enhance the level of impairment in the user. The positive result for marijuana was confirmed by a subsequent testing technique, although the 1.3 nanograms per milliliter or less of marijuana detected was a "low amount . . . ."
Criminalist Kristen Burke detected 0.04 milligrams per liter of Xanax in defendant's sample, which would constitute "therapeutic level." She testified that, even at that level, the drug will still have an effect on the user's body. She testified that Xanax can have a sedating effect on the user, can diminish the user's ability to multitask, can divide the user's attention, can cause blurred vision, and can cause issues with balance.
Viewing this evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that the prosecution established both that defendant was under the influence of a drug and that he drove a vehicle while his ability to do so was impaired as a result. That defendant was under the influence of a drug, and that he was, as a result, impaired when operating his vehicle, was supported by Rista's objective observations, his resulting opinions, defendant's performance of the field sobriety tests, the toxicology results, the criminalists' testimony concerning the effect of certain drugs, and defendant's admissions.
Defendant's reliance on People v. Torres (2009) 173 Cal.App.4th 977 (Torres) is misplaced. In Torres, the Court of Appeal reversed the judgment convicting the defendant of driving under the influence. (Id. at p. 984.) The appellate court concluded that, while there was legally sufficient evidence to support the conclusion that the defendant was under the influence of methamphetamine when he was arrested, there was no evidence that the defendant's methamphetamine use "actually impaired his driving ability on the night of his arrest." (Id. at p. 983.) As with defendant here, in Torres, there was nothing about the defendant's driving that would establish that he was under the influence for driving purposes. (Ibid.) A toxicologist testified that certain symptoms the defendant exhibited, including sweatiness and an elevated pulse rate, did not render a person an unsafe driver. (Ibid.) Similarly, while the defendant exhibited muscle rigidity, there was no evidence in the record to correlate that symptom to impaired driving, and, although the jury could have inferred that the defendant's muscle rigidity had the potential to affect his driving ability, it could not infer that it actually did so. (Id. at p. 984.) Additionally, while the toxicologist testified that dilated pupils from methamphetamine use could cause momentary blindness while driving, there was no evidence in the record that the defendant actually experienced such blindness. (Id. at p. 983.)
Here, conversely, there was evidence from which the jury could infer that defendant's drug use impaired his ability to drive. According to Rista, defendant actually exhibited objective signs of impairment, including eyelid tremors and failure or inability to follow instructions. He was lethargic and slow in his movements, and he exhibited difficulty with balance. Burke testified that Xanax can have a sedating effect on the user, can diminish the user's ability to multitask, can divide the user's attention, and can cause issues with balance. A jury could infer from Burke's testimony, coupled with that of Rista, that defendant experienced lethargy, difficulties in balancing, and inability to follow direction as a result of Xanax use. Suchland also testified that, if a user combined marijuana and a benzodiazepine as defendant appears to have here, the substances combined can enhance the level of impairment in the user.
Thus, unlike the circumstances in Torres, here, there was substantial evidence from which the jury could conclude not only that defendant was under the influence of a drug, but also that, as a result, at the time he operated his vehicle, his driving ability was impaired to a sufficient degree to support the conviction. (See generally Canty, supra, 32 Cal.4th at p. 1278.)
People v. Davis (1969) 270 Cal.App.2d 197, on which the appellate court in Torres relied and on which defendant relies, is also inapposite. In Davis, officers apprehended the defendant after he stopped the car he was driving, exited the car leaving its doors open, and, after looking furtively at the officers' marked vehicle, rapidly moved away from the area. (Id. at p. 198.) After apprehending the defendant, officers observed that he had constricted pupils and recent, nonprofessional needle punctures on his arms. (Ibid.) A police officer, however, testified that, other than the condition of his eyes, the defendant appeared to be "normal." (Id. at pp. 198-199.) His face and speech were normal, he was cooperative, his coordination was " 'pretty good,' " and " '[h]is Romberg was okay.' " (Id. at p. 199.) He did not stagger or sway. (Ibid.) Additionally, there was nothing unusual or irregular about the defendant's walk. (Ibid.) There was no evidence that the defendant's driving had been erratic or unusual. (Ibid.) The defendant appealed from the denial of his motion for a new trial following his conviction of driving a motor vehicle while under the influence of a narcotic drug (former Veh. Code, § 23105). (Davis, at pp. 197-198.) In reversing that order, the Court of Appeal noted "the total lack of any evidence that defendant's ability to drive was impaired." (Id. at p. 200.) In this regard, the appellate court observed: "There was neither expert opinion nor the observation of anyone that defendant lacked the alertness, judgment and coordination which are needed to operate a motor vehicle in a prudent and cautious manner." (Ibid.)
As we have discussed, ante, there was evidence from which the jury could reasonably conclude that defendant's ability to drive was impaired as a result of being under the influence of a drug.
We conclude that the evidence was legally sufficient to support defendant's conviction of driving under the influence of a drug.
VII. Cumulative Error
Defendant asserts that the judgment should be reversed due to cumulative error. According to defendant, even if we find individual errors to be harmless, the cumulative effect of these alleged errors deprived him of a fair trial. We reject this contention.
The premise behind the cumulative error doctrine is that while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) We have concluded that certain of defendant's claims of error are without merit. In those instances, in parts II. and V. of the Discussion, ante, where we have found arguable error, we have concluded that defendant was not prejudiced as a result. Any of these potential errors identified above "were harmless, whether considered individually or collectively. Defendant was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have reviewed all of defendant's claims and find no cumulative prejudicial error warranting reversal. Defendant was not deprived of a fair trial.
VIII. Sentencing Issues
A. Section 12022.7 Great Bodily Injury Enhancements
Defendant asserts that the great bodily injury enhancements imposed pursuant to section 12022.7, subdivision (a), in connection with counts one and two must be stricken because section 12022.7, subdivision (g), expressly prohibits the imposition of such an enhancement on a conviction for murder or manslaughter. The Attorney General concedes the error and we agree.
The trial court sentenced defendant to an indeterminate term of 15 years to life on count one, murder in the second degree, and imposed a consecutive three-year sentence pursuant to section 12022.7, subdivision (a), as a great bodily injury enhancement for the injuries to G.W. The trial court "stay[ed] imposition of sentence" on count two (gross vehicular manslaughter) pursuant to section 654, and stated that "the 12022.7 . . . being the same in Counts Two and Count One."
Section 12022.7, subdivision (a), provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Section 12022.7, subdivision (g), expressly provides, in part: "This section shall not apply to murder or manslaughter . . . ." There can be no dispute that this subdivision "prohibits enhancing a manslaughter or murder conviction for inflicting great bodily injury on the person who is the subject of that conviction." (People v. Cook (2015) 60 Cal.4th 922, 925.) In Cook, the California Supreme Court went on to address the question of whether "a manslaughter conviction may be enhanced for the infliction of great bodily injury on other victims during the commission of the manslaughter." (Ibid.) Our high court held that it could not. (Id. at p. 924.) "A defendant convicted of murder or manslaughter who also commits crimes against other victims may be convicted of those additional crimes and, to the extent the sentencing laws permit, punished separately for them. But the sentence for manslaughter may not be enhanced for the infliction of great bodily injury as to anyone." (Ibid.)
Accordingly, the section 12022.7, subdivision (a), great bodily injury enhancements imposed on counts one and two must be stricken.
B. Section 654 and Count Two
We have determined that the trial court imposed an unauthorized sentence in applying section 654 to count two, gross vehicular manslaughter. Accordingly, we reach this issue notwithstanding the fact that it was raised by neither defendant nor the People.
Section 654, subdivision (a), provides in relevant part: "An 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. . . ." Here, the trial court "stay[ed] imposition of sentence . . ." on counts two and three pursuant to section 654. However, "when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence [and] to stay the execution of the duplicative sentence . . . ." (People v. Duff (2010) 50 Cal.4th 787, 796 (Duff); see People v. Alford (2010) 180 Cal.App.4th 1463, 1469 (Alford); People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) It is improper to stay imposition of the sentence. (Couzens et al., at § 13:10, pp. 13-50 to 13-52.) Thus, even though section 654 requires that the sentences imposed on counts two and three be stayed, the trial court was nevertheless required to impose judgment on each count, which involves selecting a term, and then staying execution of the sentence on these counts, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. (People v. Salazar (1987) 194 Cal.App.3d 634, 640; see Duff, at p. 796; Couzens et al., at § 13:10.) "This procedure ensures that the defendant will not receive 'a windfall of freedom from penal sanction' if the conviction on which the sentence has not been stayed is overturned." (Salazar, at p. 640.) The trial court thus "committed unauthorized sentencing error by failing first to pronounce sentence on [the] count . . . and then stay execution of that sentence." (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; see Alford, at p. 1472.)
As in Alford, we see no reason to remand for resentencing, but will instead exercise our authority to modify the judgment. (§ 1260; Alford, supra, 180 Cal.App.4th at p. 1473 [concluding that a midterm sentence would have "undoubtedly" been the sentence the trial court would have imposed and stayed].) In sentencing defendant, the trial court, among other things, stated its intention to impose "every hour of every day of every year that I can find. And that's my intention." Thus, the court made explicitly and abundantly clear its intention to sentence defendant to the maximum permissible term. It is clear that the trial court would have imposed the upper term of six years on count two, gross vehicular manslaughter (§§ 192, subd. (c)(1), 193, subd. (c)(1)).
For the same reasons, it is clear that the trial court would have imposed the upper term of four years on count three, hit-and-run resulting in death or permanent serious injury, which we shall discuss further in part VIII.C. of the Discussion, post.
Accordingly, on count two, we impose and stay execution of a sentence of six years plus a five-year consecutive enhancement pursuant to Vehicle Code section 20001, subdivision (c), the stay to become permanent on the completion of sentence as to count one. (See Duff, supra, 50 Cal.4th at p. 796.)
C. Vehicle Code Section 20001 Enhancement on Count One and Imposition of
Sentence on Count Three
Defendant asserts that the Vehicle Code section 20001, subdivision (c), enhancement on count one for fleeing the scene of an accident must be stricken because such an enhancement does not attach to a conviction of murder. Again, the Attorney General concedes the point, and we agree.
Vehicle Code 20001, subdivision (c), provides in pertinent part: "A person who flees the scene of the crime after committing a violation of Section 191.5 of, or paragraph (1) of subdivision (c) of Section 192 of the Penal Code , upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. . . ." (Veh. Code, § 20001, subd. (c), italics added.) By its terms, this enhancement does not apply to the crime of murder. (§ 187.) Accordingly, as defendant asserts and the People correctly concede, the enhancement imposed pursuant to Vehicle Code section 20001, subdivision (c), on count one must be stricken.
Defendant acknowledges, and the People agree, that, if the matter were remitted for resentencing, the trial court could properly exercise its discretion and impose sentence on count three because it only stayed imposition of sentence on count three, pursuant to section 654, based on its conclusion that count three constituted the same single course of conduct as charged in the Vehicle Code section 20001, subdivision (c), enhancement alleged in connection with count one. (See § 654.) The court observed that "[i]n Count Three, the leaving the scene of the collision [was] the same as the allegation in Count One." While we agree with defendant and the People that defendant is subject to being sentenced on count three, for the reasons discussed, ante, we do not agree that there is any need to remit the matter for resentencing.
We lift the stay the trial court imposed on count three. The trial court originally imposed the five-year enhancement and it is clear, based on its remarks at sentencing, that the court undoubtedly would have imposed the upper term of four years on count three had it imposed sentence on that count. (Veh. Code, § 20001, subd. (b)(2).) (See Alford, supra, 180 Cal.App.4th at p. 1473.) Accordingly, we will exercise our discretion (§ 1260) to modify the judgment and impose the upper term sentence of four years. This term shall run consecutive as did the improperly imposed five-year Vehicle Code section 20001, subdivision (c), enhancement.
Had the trial court not made statements indicating its desire to sentence defendant to the maximum amount of time it could possibly impose, the trial court's failure to impose sentence and then stay execution thereof, would have required a remand to the trial court to impose that sentence, incurring the associated expenses and requiring that defendant be pulled out of his prison programming to bus him to Sacramento and back to state prison. (See Alford, supra, 180 Cal.App.4th at p. 1473.)
DISPOSITION
The judgment is modified to: (1) strike the section 12022.7, subdivision (a), great bodily injury enhancements imposed on counts one and two; (2) strike the enhancement imposed pursuant to Vehicle Code section 20001, subdivision (c), on count one; (3) impose an upper term sentence of six years on count two, gross vehicular manslaughter (§ 192, subd. (c)(1)) and a consecutive sentence of five years for the enhancement for fleeing the scene of an accident (Veh. Code, § 20001, subd. (c)), and stay execution of those sentences pursuant to section 654; and (4) impose a consecutive upper term sentence of four years on count three, hit and run resulting in death or permanent, serious injury (Veh. Code, § 20001, subd. (b)(2)). As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
s/ MURRAY, J. We concur: s/ROBIE, Acting P. J. s/MAURO, J.