Opinion
B197763
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WHELAN, Defendant and Appellant.
Randy S. Kravis for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael J. Wise, Steven E. Mercer and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant, Timothy Whelan, appeals from his convictions for: three counts of second degree murder with malice aforethought (Pen. Code, § 187, subd. (a)); driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)); driving with a 0.08 percent or more blood alcohol level and proximately causing great bodily injury (Veh. Code, § 23153, subd. (b)); and the findings that his driving under the influence of alcohol with a 0.08 percent or greater blood alcohol level proximately caused bodily injury or death to three individuals. (Veh. Code, § 23558.) Defendant argues the trial court improperly: admitted evidence of his post-accident combativeness and prior driving under the influence conviction; instructed the jury regarding involuntary manslaughter; denied his new trial motion; imposed court security fees as to counts 4 and 5; and miscalculated his presentence credits. Defendant also argues that the trial court should have issued an order prohibiting the use of stayed counts 4 and 5 for penal or administrative purposes pending finality of the judgment. We affirm with modification.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
At approximately midnight on November 5, 2003, Sharon Clayton met a friend, Deanna Hartmann, at the Saddle Ranch Chop House in Universal City. The two women joined defendant and Michael Whitaker at the restaurant. Each of them ordered a "fancy specialty" drink. They remained at the restaurant until 1:30 a.m. Defendant drove all four individuals in his Corvette automobile to the parking structure where Ms. Hartmann had parked her car. Ms. Hartmann got out of the Corvette and drove home in her own car. Defendant testified that on November 4, 2003, he and Mr. Whitaker began drinking at approximately 9:30 p.m. at Rockys, where he had a 20-ounce draft beer and a double shot of vodka. Defendant testified that he had one and one-half "Saddle Ranch Mai Tais" at the Saddle Ranch Chop House, which were served in a wine carafe. After dropping off Ms. Hartman and Ms. Clayton, defendant and Mr. Whitaker went to the Gold Apple bar, where defendant had a double shot of vodka. Defendant also ordered a rum and coke. Defendant and Mr. Whitaker drank one rum and coke. Defendant ordered another double shot of vodka. However, defendant testified that when he attempted to drink that drink he vomited. Defendant was also taking medication at that time, namely 100 milligram Seraquil.
At approximately 2:10 a.m. defendant was seen speeding on the 118 freeway. Paul Flugman was a passenger in a car traveling approximately 75 miles per hour which was passed by defendants Corvette. Mr. Flugman estimated that defendants car passed on the right at approximately 110 miles per hour. Simon McGregor, who was driving approximately 70 miles per hour on the freeway, saw the speeding Corvette in his rear view mirror. The Corvette was speeding and swerving between lanes of traffic. The Corvette passed Mr. McGregor on the right at a high rate of speed. The Corvette continued to cut in and out of lanes thereafter. Within 30 seconds, Mr. McGregor saw a fireball of flames ahead. Jose Lafaurie saw defendants Corvette enter the 118 freeway from the Balboa Boulevard onramp. Mr. Lafaurie estimated that defendant was driving approximately 130 miles per hour. Mr. Lafaurie saw the Corvette approach a car in the fast lane. The Corvette crashed into that car sending a fireball across the freeway. As his car passed by the Corvette, Mr. Lafaurie and several passengers saw a man slumped over in the drivers seat motionless.
Los Angeles Police Detective William Krulac was on his way home from working at approximately 2:10 a.m. on the 118 freeway when he saw a car in his rear view mirror. The car was travelling at a high rate of speed as it transitioned from the 405 to the 118 freeway. Soon thereafter, the car passed Detective Krulac on the left at approximately 105 to 110 miles per hour. The car, a black Corvette, appeared to be accelerating further. The black Corvette then weaved from one lane to another ahead of him. Detective Krulac lost sight of the Corvette momentarily as the road curved ahead. Detective Krulac then saw flames across the freeway approximately one-half mile ahead. As Detective Krulac got closer to the fire, he saw multiple pieces of fiberglass, glass, and metal strewn across the freeway. Detective Krulac saw a car engulfed in flames. The Corvette was also stopped and facing the opposite direction of traffic. Detective Krulac saw an unconscious individual in the drivers seat slumped over the center console in the Corvette.
Juan Tellez had been driving a Honda Prelude in the No. 1 or fast lane at approximately 60 to 65 miles per hour. Based upon the eyewitness testimony, photographs, roadway measurements, physical evidence, and other calculations, accident reconstruction investigators believed defendants Corvette approached Mr. Tellez from behind in lane No. 1. Mr. Tellez then turned into lane No. 2 to avoid a collision. However, the Corvette also pulled into lane No. 2. The Corvette struck the rear right area of Mr. Tellezs Honda. The Honda then struck a center divider wall and was redirected across the lanes. The data recorder in the Corvette recorded defendants speed at 156 miles per hour one second prior to impact. The brakes on the Corvette were not applied prior to the collision. The data recorder also indicated that the airbags in the Corvette activated within .005 of a second of the impact. Two hairs embedded in an area of flesh or skin tissue on the drivers side visor of the Corvette matched defendants deoxyribonucleic acid profile. Mr. Tellez was killed. Also killed were Mr. Tellezs two children, five-year-old Gerardo and seven-year-old Nohemi. All of the victims in the Honda perished due to thermal burns and smoke inhalation.
Brent Smith, a retired firefighter, was driving on the 118 freeway when he saw the burning Honda. Mr. Smith parked on the shoulder of the freeway and saw the Honda fully engulfed in flames. He could not see anyone inside the Honda. Mr. Smith approached the Corvette. Mr. Smith put his face close to the window on the drivers side. Mr. Smith saw two motionless people in the Corvette. Mr. Smith thought the two might be deceased. The two men were in the seats of the car. The driver had his head back. The passenger was slumped towards the passenger door. Mr. Smith and another individual eventually removed the driver side window of the Corvette and opened the door. Mr. Smith attempted to speak to and get the pulse of defendant, who was in the drivers seat. Neither defendant nor the passenger moved. Defendant eventually stirred but seemed very lethargic. Defendant pulled on Mr. Whitaker. At first, defendant whispered but then more audibly said several times, "Dont give me up," or "Dont give me up, man." Defendant then struck Mr. Whitaker several times with a closed fist. Mr. Whitaker raised his arms in self defense. Mr. Smith attempted to restrain defendant. Defendant looked at Mr. Smith and said, "Not going to happen, man." Mr. Smith continued to restrain defendant. Ultimately, defendant stopped trying to strike Mr. Whitaker with a closed fist. However, once released by Mr. Smith, defendant struck Mr. Whitaker again. Mr. Whitaker was restrained by Officer James Orolani, who had arrived at the scene. When firefighters arrived, defendant attempted to punch a firefighter. Mr. Smith again restrained defendant. The firefighters were able to remove defendant from the car and place him on a wheeled litter.
California Highway Patrol State Traffic Officers Suerita Salas and Charles Wilson were on patrol just after 2 a.m. on November 5, 2003. Officer Wilson was driving their patrol car westbound on the 118 freeway when they received a dispatch regarding a traffic collision on the same highway. Officer Salas immediately saw a ball of flames near Balboa Boulevard. The patrol car stopped within 50 feet of the burning Honda. A black Corvette was to the left side of the freeway. Officer Salas got a fire extinguisher from the patrol car. However, Officer Salas realized the extinguisher would not be enough. The flames were 20 feet high and the car was constantly exploding. Officer Salas saw one individual inside the burning car. Officer Wilson had walked over to the Corvette, where he believed there were two fatalities.
After setting up a partial flare pattern, the two officers approached the passenger side of the Corvette. The two men inside the Corvette appeared to be slumped over and unconscious. Each individual was in their respective seat with his feet in the foot well of the car. Officer Salas was unsuccessful in her attempt to open the car door. Thereafter, Officer Salas banged on the window with her flashlight and yelled to the men to unlock the doors. Mr. Smith, who was outside the drivers side, identified himself as an off-duty fireman. Eventually, Mr. Whitakers hand moved and the lock opened. Officer Salas opened the door and told Mr. Whitaker not to move. Officer Salas noticed the smell of alcohol. Defendant opened his eyes and looked at Officer Salas. Defendants eyes were red and watery. Defendant put an arm around Mr. Whitakers neck. Defendant then kissed the top of Mr. Whitakers head. Defendant kept saying: "`Im sorry. `Im sorry. `Dont give me up. `Im sorry, man." Shortly thereafter, the paramedics arrived. Officer Salas stepped back to allow them to work with the occupants of the Corvette. Officer Wilson had left to speak to Officer Nathan Parsons, who had arrived on the scene.
When Officer Wilson returned to the Corvette, both defendant and Mr. Whitaker were being treated by paramedics outside the car. Officer Wilson stood next to defendant. Officer Wilson could smell the odor of an alcoholic beverage coming from defendants body. Defendant was flailing and was argumentative with the paramedics. Defendants arms were strapped to a back board and gurney. Defendant was placed in the ambulance. Officer Wilson got inside the ambulance with two paramedics. Officer Wilson again smelled a strong odor of alcohol coming from defendants body. When Officer Wilson began to question defendant about the events surrounding the collision, defendant said: "`Ill take you out, mother fucker. `Look me in the eyes and tell me I wont, mother fucker. `You dont know who I am. `Fuck you. . . . `Ill meet you in hell." Officer Wilson attempted to perform a horizontal gaze nystagmus test on defendant. Defendant was uncooperative. Defendant repeated his prior threats.
Officer Wilson accompanied defendant to Holy Cross Hospital. At the hospital, Officer Wilson again attempted to ask some pre-field sobriety test questions. However, defendants only response to the questions was: "`It doesnt matter. `Tell me, it doesnt really fucking matter. `Im drunk as hell." Thereafter, Officer Wilson used a portable breath testing machine, known as a "preliminary alcohol screening test" to test defendants breath. An initial reading of .198 was recorded. Two additional attempts to test defendants breath were unsuccessful because he was uncooperative. Officer Wilson placed defendant under arrest for driving under the influence and causing injury to another. Officer Wilson advised defendant that he would be required to submit to a blood test as there was no breath machine at the hospital. Defendant moaned but then nodded his head up and down. A registered nurse withdrew a sample of defendants blood. Subsequent tests of defendants blood sample revealed that his blood alcohol level was .26 percent. A 240-pound man would have to consume approximately 20 ounces of 80 proof alcohol and absorb it immediately without any burning off or elimination of alcohol to achieve a .26 blood alcohol level. If such an individual drank over a period of time, he or she would have to consume at least an additional drink for every hour spent drinking to have the remaining . 26 level at the end of the drinking period. An individual with a blood alcohol level of .18 to .35 could reach a "stupor" or be sluggish in their response to any sort of stimuli. Unconsciousness could result from a blood alcohol level from .25 to .45.
III. DISCUSSION
A. Evidentiary Issues
1. Evidence of defendants post-accident combativeness and threats
a. factual and procedural background
Defendant argues that the trial court improperly admitted evidence of his combative conduct and threats following the accident. Prior to trial, defendant made an in limine motion to exclude evidence of his post-crash statements and conduct as highly prejudicial. More precisely, defense counsel argued that pursuant to Evidence Code section 352, the probative value of the exact words and threats used by defendant was outweighed by the resulting substantial prejudice. Defense counsel further objected to the introduction of evidence that defendant swung at treating fireman. Defendants in limine motion was denied.
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."
"Admissible evidence can be excluded if the court concludes that its probative value is substantially outweighed by the undue prejudice it would create. [¶] The court needs to balance the probative value, materiality, versus any prejudice that may exist. [¶] In terms of the probative value, the court is to look at relevance, materiality, and necessity. [¶] The court finds that this particular evidence does show intoxication of the defendant, and the issue of intoxication is a material issue to the Peoples case. [¶] The court does recognize that the breath reading — or blood alcohol reading of the defendant, I believe it was either .25 or .26, that that is available. But the court feels that this evidence is material and probative. The court does not find that it is cumulative. [¶] On the issue of the prejudicial effect of the evidence, the defense argued that the statement, quote, `You dont know who I am, end quote, would cause in the jurors minds a potential conclusion that the defendant is a member of a gang or an organized crime family. The People argue that its just as logical that the statement could make reference to, `Im a high-standing person in the community, and you just dont know who youre dealing with. [¶] Because this case is a Watson murder trial, it seems more unlikely that the jurors would even think about gang activity since the case involves the defendant allegedly driving a brand-new Corvette at a high speed and operating the vehicle under the influence and causing a collision that caused the death of three people. [¶] Prejudice within the meaning of Evidence Code section 352 is not synonymous with damaging. People v. Brogna [] 1988 case, 202 Cal.App.3d 700, at 710. [¶] The prejudice referred to in Evidence Code section 352 applies to evidence which ultimately tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. Citing People v. Karis [], 46 Cal.3d 612, at 638. [¶] Im reading from Justice Simons `California Evidence Manual, the 2006 edition, at section 1:28. [¶] The court notes that in balancing the probative value against the prejudicial effect, the court should not exclude highly probative evidence unless the undue prejudice is unusually great. Citing People v. Sassounian [], 182 Cal.App.3d 361, at 402. Thats a 1986 decision. [¶] In balancing the prejudice in our situation with the probative value, the court also notes that the People argue that the defendants statements to law enforcement can also be viewed in the context of showing that the defendant [] was, in fact, the driver of the vehicle and not the passenger as was claimed as a defense in our first trial. [¶] So in balancing the potential prejudice with the probative value, the court finds that the probative value outweighs any prejudice that may exist. The quote, `You dont know who I am, end quote, the court in the context of the driver of a Corvette on a freeway, a brand-new Corvette, believes that the jurors would not likely view this in terms of gang involvement. The court finds that the probative value as to the amount of intoxication, the behavior of the defendant, and the fact that it is some circumstantial evidence to show that he was the driver, for those reasons the court will allow it. [¶] Furthermore, there was a pattern of this behavior and statements by the defendant, and the court feels that for the jurors to obtain an accurate picture of the evidence, that that statement should not be eliminated. [¶] In terms of the other statements that the defendant allegedly made, for the same reasons the court finds their probative value outweighs any prejudice that may exist. The court does not find any prejudice whatsoever in terms of the statements, `Ill take you out. Ill kill you, et cetera."
b. the trial court could properly admit evidence of defendants combativeness
Trial courts have broad discretion concerning the admission of evidence. (People v. Anderson (2001) 25 Cal.4th 543, 591; People v. Smithey (1999) 20 Cal.4th 936, 973-974.) The California Supreme Court has repeatedly held: "As with all relevant evidence . . . the trial court retains discretion to admit or exclude evidence . . . . [Citations.] A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and 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 [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rodrigues (1994) 8 Cal.4th 1060 at pp. 1124-1125; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
In this case, the trial court judiciously analyzed not only the relevance of the challenged evidence but also its probative value. In concluding that any resulting prejudice was outweighed by its probative value, the trial court explained that the evidence tended to show that defendant was the driver of the Corvette, a critical issue in the trial. Moreover, the trial court found defendants combativeness and statements demonstrated a pattern of drunken behavior that was not cumulative to the blood alcohol evidence. The court could reasonably rule the challenged evidence admissible.
2. Defendants 1988 driving under the influence conviction
a. factual and procedural background
Defendant argues that the trial court improperly admitted evidence of his 1988 driving under the influence conviction. Defendant argues that the admission of the prior convictions evidence violated his constitutional right to due process and that the evidence was inadmissible pursuant to Evidence Code sections 352 and 1101, subdivision (b). During the trial, the prosecutor sought to introduce evidence of defendants prior driving under the influence conviction. Defense counsel argued that the minute order related to that conviction was vague as there was no identifying information to allow the court to be certain the conviction was in fact defendant. Defense counsels second objection related to the fact that the probationary orders did not include any requirement that defendant attend an "alcohol awareness" program. Thereafter, the trial court judicially noticed the document relating to the prior conviction, which included defendants full name, address, birth date, and physical description. In addition, the trial court reviewed a Los Angeles County consolidated criminal history record that included defendants photograph, home address, and a December 12, 1988 guilty plea to a Vehicle Code section 23152, subdivision (a) charge. In finding the evidence admissible, the trial court noted: "The court is more than satisfied beyond a reasonable doubt that the defendant [] did suffer this prior [driving under the influence] conviction. [¶] As part of the minute orders in the case in the computer printout, on line 288 the minute order indicates that the defendant was advised of his rights at mass advisement, and included in those rights are effect of priors, effect of pleas available, and probation. Other than that, I dont see anything in the minute orders that indicate any type of Watson advisement. [¶] I assume the People will be arguing at closing argument that with all of the ads on [television] by mothers against drunk driving, et cetera, that any person who watches [television] in Los Angeles County is made aware of the harm of driving under the influence. [¶] Is that correct?" The prosecutor responded, "Yes, along with other things concerning that." The following stipulation was read to the jurors: "That the defendant, Timothy Richard Whelan, on December 12th, 1988, in Los Angeles Municipal Court, in Case 87F02662-01, was convicted of Vehicle Code section 23152, subsection (a), which is driving under the influence of any alcoholic beverage or drug or under the combined influence of any alcoholic beverage and drug. He was placed on five years summary probation with other terms and conditions."
Evidence Code section 1101, subdivision (b) provides, "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
b. waiver and procedural default
Preliminarily, defendants constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Panah (2005) 35 Cal.4th 395, 436; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274; People v. Padilla (1995) 11 Cal.4th 891, 971, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20.) In addition, defendants objections at trial related only to the documentation of the prior conviction and the lack of mandated drunk driving awareness classes. No objection was made pursuant to either Evidence Code sections 1101, subdivision (b) or 352. As a result, defendant has waived the issue on appeal. (Evid. Code § 353; People v. Gurule (2002) 28 Cal.4th 557, 626; People v. Medina (1995) 11 Cal.4th 694, 753; In re Michael L. (1985) 39 Cal.3d 81, 87-88; People v. Collie (1981) 30 Cal.3d 43, 49.)
c. the prior misconduct evidence could be properly admitted
Notwithstanding those waivers, we find the evidence of defendants prior drunk driving conviction could be properly admitted pursuant to Evidence Code sections 1101, subdivision (b) and 352. As set forth above, we review the trial courts rulings concerning the admissibility of evidence for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; People v. Alvarez (1996) 14 Cal.4th 155, 201; People v. Minifie, supra, 13 Cal.4th at p. 1070; People v. Rowland (1992) 4 Cal.4th 238, 264.) In People v. Ewoldt (1994) 7 Cal.4th 380, 393, our Supreme Court explained that pursuant to Evidence Code section 1101, subdivision (b), evidence of prior misconduct is admissible when it is relevant to establish some fact other than the persons character or disposition: "[The] prior misconduct is relevant to prove a material fact other than defendants criminal disposition, because the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the [prior] misconduct. [¶] `The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. [Citations.] . . . . The existence of such a design or plan also may be proved circumstantially by evidence that the defendant has performed acts having `such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] Evidence of a common design or plan, therefore, is not used to prove the defendants intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Id. at pp. 393-394, footnote omitted.) The California Supreme Court later held: "`The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant `"probably harbored the same intent in each instance." [Citations.]" [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting People v. Kipp (1998) 18 Cal.4th 349, 369-371; see also People v. Carpenter (1997) 15 Cal.4th 312, 379.)
In People v. Ortiz (2003) 109 Cal.App.4th 104, 111, 116, our colleagues in the Court of Appeal for the First Appellate District held evidence of the defendants prior driving under the influence convictions was admissible pursuant to Evidence Code sections 1101, subdivision (b) and 352, where defendants reckless driving resulted in the deaths of two children and serious injuries to their parents. The Ortiz court held: "[S]ince People v. Watson[(1981)] 30 Cal.3d 290, more than half a dozen published opinions of the Court of Appeal have affirmed convictions of second degree vehicular murder. In each of these cases, the trial courts admission of uncharged misconduct evidence to show the requisite mental state supporting a finding of implied malice was upheld on appeal. [¶] The bulk of these cases involved the use of alcohol or other intoxicants in both the uncharged misconduct and the prosecution in which it was sought to be admitted. The resulting case law makes it clear, however, that the contours of the `knowledge exception to the bar imposed by section 1101(a) are not so restricted that the evidence at issue here was admitted erroneously by the trial court. In short, courts have recognized repeatedly that a motor vehicle drivers previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, or another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." (People v. Ortiz, supra, 109 Cal.App.4th at p. 112, original italics; see also People v. Watson, supra, 30 Cal.3d at p. 298 ["From this uncharged misconduct evidence, through a series of inferences, a jury could conclude that, at the time of the charged misconduct, the defendant possessed a `wanton disregard for life, and . . . a subjective awareness of the risk created, from which `malice may be implied . . . ."]; People v. Brogna (1988) 202 Cal.App.3d 700, 709; People v. McCarnes (1986) 179 Cal.App.3d 525, 532.)
In this case, the trial court could reasonably find defendants prior driving under the influence conviction was relevant to show his intent and knowledge of the risks inherent in driving after consuming alcohol as well as implied malice. The trial court could reasonably rule the probative value of the prior conviction was not substantially outweighed any probability of undue prejudice. The introduction of the stipulation regarding the prior conviction did not consume excess time during trial and did not serve to confuse the jurors. (People v. Lewis, supra, 25 Cal.4th at p. 637; People v. Kipp, supra, 18 Cal.4th at p. 371.) We find no abuse of discretion nor federal constitutional violation in the jurys consideration of the prior conviction.
d. harmless error
Any error in admitting the prior conviction was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) By his own admission, defendant drank a large amount of alcohol over a four-hour period. Defendants blood alcohol level over an hour after the accident was .26 percent. Although he denied being the driver at the time of the fatal collision, witnesses testified that the two occupants of the Corvette appeared to be either dead or unconscious immediately after the crash. Within minutes of the collision, several witnesses approached the Corvette where they found defendant in the drivers seat and apparently unconscious. Mr. Whitaker was in the passenger seat and also appeared to be unconscious. Defendant weighed approximately 240 pounds. The Corvettes airbags immediately imploded at the time of the collision. It is unreasonable to presume that a man his size pinned down by an imploded air bag could switch places with another man within the confined space of a two-seater Corvette.
B. Defendant Failed To Prove He Was Denied Effective Legal Representation
Defendant argues that defense counsel was ineffective in failing to request a limiting instruction "limiting the extent to which the jury could consider" defendants prior conviction. More specifically, defendant argues that defense counsel should have requested that CALJIC No. 2.50 be given as a limiting instruction. Before ineffective assistance of counsel may be found, there must be proof not only that counsels performance was deficient but also that defendant suffered prejudice as a consequence. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Williams (2006) 40 Cal.4th 287, 304; People v. Horton (1995) 11 Cal.4th 1068, 1122; In re Fields (1990) 51 Cal.3d 1063, 1068-1069.) Furthermore, we engage in a presumption, which it is defendants burden to overcome, that trial counsels performance comes within the wide range of reasonable professional assistance and that his actions were a matter of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Lewis (1990) 50 Cal.3d 262, 288.)
At the time of trial CALJIC No. 2.50 provided in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. [¶] Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of intent which is a necessary element of the crime charged . . .; [¶] . . . [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged; [¶] . . . [¶] You are not permitted to consider such evidence for any other purpose."
The trial court was not required to instruct sua sponte on the limited admissibility of evidence of uncharged past criminal conduct. (Use Note to CALJIC No. 2.50 (2004 ed.) p. 67; People v. Collie (1981) 30 Cal.3d 43, 63-64.) Moreover, the California Supreme Court has repeatedly held, "`If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Hernandez (2004) 33 Cal.4th 1040, 1053, quoting People v. Scott (1997) 15 Cal.4th 1188, 1212; see also People v. Wilson (1992) 3 Cal.4th 926, 936; People v. Pope (1979) 23 Cal.3d 412, 426.) In this case, there were plausible tactical reasons for defense counsel to decline to request such an instruction. To so instruct would have placed further emphasis on the prior driving under the influence conviction. In addition, defense counsel covered the issue in closing argument: "The prosecution made a big deal about [defendants] criminal record and the criminal record of some of the witnesses. This trial isnt about whether [defendant] is a good guy or a bad guy, or whether hes morally responsible or accountable because he talked about accountability. Thats not what the issue is, and thats a different trial." (See People v. Earp (1999) 20 Cal.4th 826, 886-887 [no prejudice resulted from trial courts failure to give instruction because defense counsels argument covered the issue].) Finally, as set forth above, the evidence of defendants guilt was overwhelming. Defendant failed to meet his constitutionally imposed burden of establishing, on the record before us, prejudicial ineffective representation.
C. The Trial Court Properly Instructed the Jurors on Involuntary Manslaughter
Defendant argues that the trial court improperly instructed the jury with CALJIC No. 8.45, which defines involuntary manslaughter, a lesser included offense to second-degree murder. Defendant further argues that the instruction "created an impermissible mandatory presumption that [his] actions were `dangerous to human life because he violated the basic speed law without using due caution or circumspection." At the time the trial court and counsel discussed the proposed instructions, defense counsel agreed to the giving of CALJIC No. 8.45. As a result, the issue was waived on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326; People v. Jackson (1996) 13 Cal.4th 1164, 1223; People v. Cain (1995) 10 Cal.4th 1, 38, 45, fn. 14.) The issue is not properly before us. Even if CALJIC No. 8.45 was improperly given, any error was harmless. We review an instructional error creating a mandatory presumption under the harmless beyond a reasonable doubt standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Flood (1998) 18 Cal.4th 470, 502-503.) In this case, the jurors heard extensive evidence of defendants drinking over a four-hour period. Defendants blood alcohol after the collision was .26 percent. At that level, stupor or unconsciousness was possible. In addition, defendant drove at 156 miles per hour, swerved back and forth across lanes, failed to brake before the collision, and was unconscious after hitting Mr. Tellezs automobile. Defendant was not even aware of the fire and explosions occurring close by as Mr. Tellezs car became an inferno. Any alleged instructional error was harmless beyond a reasonable doubt.
The jury was instructed as follows: "Involuntary manslaughter in violation of section 192, subsection (b) of the Penal Code is a lesser offense to that charged in count 1, count 2, and count 3, murder. [¶] Every person who unlawfully kills a human being without malice aforethought and without an intent to kill and without conscious disregard for human life is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192 subsection (b). [¶] A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life. [¶] A killing is unlawful within the meaning of this instruction if it occurred: [¶] 1. during the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission, or [¶] 2. in the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm without due caution and circumspection. [¶] A violation of Vehicle Code sections 22349 subsection (a), or Vehicle Code section 22350, or Vehicle Code section 21658 subsection (a), or Vehicle Code section 22107 is an unlawful act not amounting to a felony. [¶] The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. a human being was killed; and [¶] 2. the killing was unlawful."
MOSK, J., Concurring
I concur in the judgment.
I do not believe that defendant waived or forfeited his contentions concerning the admission of the prior drunk driving conviction. Defendant objected to the evidence on the ground that the prior conviction did not reflect knowledge of the dangers of drunk driving and was simply character evidence showing a propensity to commit the crime. This was sufficient under Evidence Code sections 1101 and 352.
Respondent did not argue forfeiture of a constitutional claim. The objection may well have been sufficient to maintain that claim. (See People v. DePriest (2007) 42 Cal.4th 1, fn.6.)
It is difficult to imagine why defense counsel did not request a limiting instruction with regard to the admission of the prior conviction. The idea that it was based on a tactical decision to not further emphasize the conviction is undermined by the references to it in closing arguments. I would not determine the validity of the ineffective counsel argument, leaving any such contention to a habeas corpus petition. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
D. New Trial Motion
1. Factual and procedural background
Following the jury verdict, but prior to sentencing, the trial court notified counsel that it had received a letter from the Mr. Tellezs mother. The letter indicated that Mr. Tellez had been involved in a custody dispute with his childrens mother. Mr. Tellez had threatened to kill himself and the children on the freeway. Mr. Tellez had previously attempted suicide. In addition, Mrs. Tellez learned that Mr. Tellez had been drinking and using drugs on the evening prior to the collision. Thereafter, defendant filed a new trial motion alleging Ms. Tellezs letter constituted new evidence that would have rendered a different result had the jurors heard evidence concerning Mr. Tellezs suicidal intentions and drug use. The motion included Ms. Tellezs declaration. In opposition, the prosecutor argued that Ms. Tellezs statements constituted inadmissible hearsay and, "No reasonable trier of fact would entertain for a moment the suggestion that the victim was attempting suicide on the evening of his death."
On January 26, 2007, the trial court denied the new trial motion noting: "I think that what we have here is we have a defendant who the jury found to be an absolute liar, and the evidence showed beyond all reasonable doubt that he consumed a tremendous amount of alcohol; that he chose to drive his Corvette, brand-new Corvette at 156 miles per hour. That speed in Los Angeles County freeways is almost incomprehensible considering how slow our freeways are and how much traffic there is. But even when there is no traffic, its just inconceivable to be going that speed. [¶] The testimony of the civilian witnesses in this case, their testimony supports the inference and finding that the victim, Mr. Tellez, was just trying to get out of the way, changing lanes, moving over to get away from this bullet-speed vehicle. [¶] The court does not believe that any outcome different would occur even if this evidence were admissible, and Im not 100 percent sure that it would be admissible, and I just dont think the outcome would be any different based upon the evidence that I heard."
2. The trial court could properly deny the new trial motion
Section 1181, subdivision 8 states: "[T]he court . . . may grant a new trial . . .; [¶] . . . 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." The California Supreme Court has held: "`"`The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."" (People v. Staten (2000) 24 Cal.4th 434, 466, quoting People v. Cox (1991) 53 Cal.3d 618, 694; People v. Musselwhite (1998) 17 Cal.4th 1216, 1251; People v. Beeler (1995) 9 Cal.4th 953, 1004; People v. Turner (1994) 8 Cal.4th 137, 210; People v. Delgado (1993) 5 Cal.4th 312, 328.) The Supreme Court has held: "`In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "`1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." [Citation.]" (People v. Beeler, supra, 9 Cal.4th at p. 1004, quoting People v. Delgado, supra, 5 Cal.4th at p. 328; see also People v. Musselwhite, supra, 17 Cal.4th at pp. 1251-1252.) Typically, a new trial motion is supported by declarations containing admissible evidence setting forth matters outside the record. (People v. Riel (2000) 22 Cal.4th 1153, 1216; People v. Jenkins (2000) 22 Cal.4th 900, 1046; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment; §§ 116, 117, pp. 147-148; People v. Carter (2003) 30 Cal.4th 1166, 1216-1217.)
Here, the trial court doubted the evidence would have been admissible and, even if it were, a more favorable judgment would have resulted. Defendant argues that the new evidence supports the "notion" that Mr. Tellez did not unwittingly change lanes in order to commit suicide and kill the two youngsters, but rather did so intentionally. Eyewitness testimony contradicted that theory. Mr. Lafaurie saw the Honda attempt to move to the right to get out of the way of the on rushing Corvette. The Corvette then moved to the right. Mr. Chaffold also saw the victims car attempt to move out of the way prior to the impact. Mr. Alvizo believed the victims car moved to the right just prior to the collision.
Defendant argues that if Mr. Tellez intentionally swerved the Honda into the Corvette as it changed lanes such would constitute a superseding cause. We disagree that the evidence in this case could exculpate defendant because his extraordinarily reckless misconduct was a legal cause of the three deaths. In cases where a jury decides whether one or more causes were proximate to the victims death, a concurrent cause may still result in a defendants conviction: "[A]s long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death. Rather, it is required that the cause was a substantial factor contributing to the result." (People v. Catlin (2001) 26 Cal.4th 81, 155; accord, People v. Sanchez (2001) 26 Cal.4th 834, 847.) In People v. Roberts (1992) 2 Cal.4th 271, 320, fn 11, the California Supreme Court also held: "[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus."
In this instance, without question, defendant should have foreseen the possibility that at his rate of speed and recklessness coupled with his drunken state other consequences could result. Any car on the freeway could have changed lanes into the path of defendants Corvette. The trial court could reasonably rule that no reasonable jury could have found that defendants collision with the Honda was not a concurrent cause of the three deaths. (See People v. Crew (2003) 31 Cal.4th 822, 847; People v. Schmies (1996) 44 Cal.App.4th 38, 50.) The trial court did not abuse its discretion in denying the new trial motion.
E. Cumulative Error
Defendant argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin, supra. 26 Cal.4th at p. 180 [same]; People v. Cudjo, supra, 6 Cal.4th at p. 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to defendants detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has long held, "[A] defendant [is] entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey (1992) 2 Cal.4th 408, 454; People v. Miranda (1987) 44 Cal.3d 57, 123.) In this case, one of essentially uncontroverted evidence of guilt, defendant received more than a fair trial.
F. Sentencing
1. Section 1468.5, subdivision (a)(1) security fees as to counts 4 and 5
Defendant argues that the trial court improperly imposed section 1468.5, subdivision (a)(1) security fees as to counts 4 and 5 because the sentences were stayed on those counts. It is noted that the abstract of judgment inaccurately indicates only one $20 court security fee rather than the trial courts imposition of five such fees. Defendant acknowledges that courts have deemed section 1468.5, subdivision (a)(1) fees as a civil disability that does not constitute punishment. (People v. Wallace (2004) 120 Cal.App.4th 867, 874-878.) In People v. Crittle (2007) 154 Cal.App.4th 368, 370-371, our colleagues in the Court of Appeal for the Third Appellate District held: "Section 654, which prohibits multiple punishment for the same act or course of conduct and generally bars the use of a conviction for `any punitive purpose if the sentence on that conviction is stayed [citation] does not apply to a court security fee because that fee is not punishment. [Citation.] [¶] Accordingly, even though the trial court stayed the punishment for defendants [crime], it was required to impose a $20 court security fee based upon that conviction. [Citation.]" (See also People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) The trial court properly imposed the section 1468.5, subdivision (a)(1) court security fees as to counts 4 and 5. The abstract of judgment must be modified to correctly state the judgment in this regard. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14.)
2. Judgments as to counts 4 and 5
Defendant argues and the Attorney General concedes that the judgment as to counts 4 and 5 should be modified to reflect that these convictions cannot be used for penal or administrative purposes pending finality of the judgment, with the stay to become permanent when service of the sentence is completed. Defendant was convicted of driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) and driving with a 0.08 percent or more blood alcohol level and proximately causing great bodily injury. (Veh. Code, § 23153, subd. (b).) Both of these convictions stem from the same incident. Although the trial court stayed the convictions pursuant to section 654, subdivision (a), they could serve as independent priors in future criminal prosecutions. To avoid that possibility, consistent with the discussion in People v. Pearson (1986) 42 Cal.3d 351, 362 the trial court should have limited future punishment by adding an order staying the use of the convictions for penal and administrative purposes pending satisfactory completion of defendants sentence. (People v. Duarte (1984) 161 Cal.App.3d 438, 447-448; see People v. Conner (1986) 176 Cal.App.3d 716, 719.)
3. Presentence Credits
Defendant argues and the Attorney General concedes that defendant is entitled to one additional day of presentence custody credits. The failure to award a proper amount of credits is a jurisdictional error, which may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Defendant received an incorrect award of presentence credits. (§ 2900.5.) He should have received 1,179 days of actual custody credit. This calculation includes defendants custody from his arrest on November 5, 2003, to his sentencing on January 26, 2007, and acknowledges that 2004 was a leap year. The trial court must insure the abstract of judgment is corrected to accurately comport with its order. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th. 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the award of presentence custody credits of 1,179 days. The superior court clerk shall forward a corrected copy of the abstract of judgment which includes the additional court security fees to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I concur:
ARMSTRONG, J.