Opinion
B224676
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CRISTHIAN CONTRERAS, Defendant and Appellant.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Joseph P. Lee and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles Count Super. Ct. No. KA086532
APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Joseph P. Lee and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Cristhian Contreras, also known as Cristhian Samir Contreras, appeals from the judgment entered upon his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found to be true the allegation that appellant personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1) and the allegation that he had suffered a prior conviction of a serious or violent felony within the meaning of sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d) and 667, subdivision (a). The trial court sentenced appellant to an aggregate state prison term of 36 years to life. Appellant contends that (1) the trial court erred in failing to instruct the jury sua sponte on unconsciousness, (2) he was deprived of his constitutional right to confront the witnesses against him when a coroner who did not perform the autopsy on the victim or write the autopsy report testified as to the cause of death based on that report, and (3) the testifying coroner improperly testified to the opinion of the nontestifying coroner and did not render her own opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
The conviction was rendered in a retrial of appellant after the jury in the initial trial could not reach a verdict and a mistrial was declared.
We affirm.
FACTUAL BACKGROUND
On December 27, 2008, between 5:00 and 6:00 p.m., appellant was at his friend, Jesus Rodriguez's (Rodriguez), house in El Monte. They began drinking Tecate beer and Presidente brandy. By 10:30 or 11:00 p.m., Rodriguez had consumed approximately 14 cans of beer, and appellant had consumed a part of one can of beer and nearly an entire bottle of brandy.
Near midnight, appellant and Rodriguez got into appellant's Ford Bronco (Bronco), and appellant drove to his girlfriend's apartment on Continental Street, a half mile away. Rodriguez remembered only part of the trip, as he was "really drunk" and kept dozing.
After appellant went to his girlfriend's apartment and learned that she was not home, he returned to the Bronco. According to Rodriguez, as appellant started to leave the parking area and turn onto Continental Street, someone in a group that included Gamaniel Lucero (Gamaniel), Jonathan Lopez (Lopez) and two others, who had just left a party after heavy drinking, shouted, "Where are you from?" Appellant stopped the Bronco in the middle of the street, and said, "Where are you from?" He got out of the Bronco, and the initial exchange escalated.
According to Lopez, he and others were walking in two groups. Appellant approached in a Bronco and initiated contact, yelling, "Where you from?"
There was a lot of shouting, and Lopez ran to alert Gamaniel's brother, Trinidad Lucero (Trinidad), who was with a friend Oscar, talking with other friends, who were in a truck. Lopez told Trinidad that someone was talking "smack" to his brother. Trinidad and Oscar hopped into the truck, and the driver took them to appellant's Bronco. They walked up to the Bronco and shouted at appellant. Appellant argued with the men and got back into the Bronco. Rodriguez told him, "Let's go dude, let's go home." Thinking they were leaving, Rodriguez closed his eyes. He then heard a crash, opened his eyes and saw someone on the Bronco's hood, not moving.
Rodriguez claimed that he was then dragged from the Bronco and someone, whom he could not identify, was hitting him. When he was able to free himself, he fled on foot. When he got home, he did not tell his girlfriend about the incident. At trial, he denied driving the Bronco at any time that night.
Lopez's version of events differed from Rodriguez's. Lopez claimed that appellant never got out of the Bronco, but Trinidad tried to pull him from the driver's seat. While Gamaniel was talking to appellant, Gamaniel moved from the sidewalk into the street, where he stood in front of the Bronco and near the rear of a Honda, parked at the curb. Appellant tried unsuccessfully to back up to escape from Trinidad. He then pulled forward, pinning Gamaniel between the Bronco and the Honda. It looked like an accident to Lopez. After being crushed, Lopez testified that Gamaniel said nothing and died instantly. Trinidad and his companions ran to help Gamaniel.
Lopez then saw the Bronco moving in circles and burning rubber, and Trinidad ran to the Bronco and was punching the driver, who was someone other than appellant. That person got out of the Bronco and yelled, "Don't hurt me. I got shot."
Ruben Garcia (Garcia) lived near the murder scene. At approximately 11:35 p.m., he heard arguing and yelling. He saw Gamaniel walk from the sidewalk to the space between the Bronco and a parked car. Within a second or two the Bronco rapidly accelerated and ran him over. It appeared to Garcia that the driver intentionally accelerated and did not accidentally hit the victim. The Bronco then backed up and struck another car. Garcia called 911 and ran to help Gamaniel, who was unconscious and had no vital signs. The two men in the Bronco ran away, chased by others.
According to Carlos Mora and his cousin Tatiana Ramos, they heard the crash and saw Rodriguez take the wheel and frantically back the Bronco up in an effort to get away. He drove fast in small tight circles causing the tires to smoke, ran over appellant and then ran the Bronco into a retaining wall, rendering it undrivable.
Appellant testified on his own behalf. He recalled driving on Continental Street, but had no memory of entering or leaving his girlfriend's apartment complex or going to her apartment. He did recall slowing for two pedestrians who were horsing around, and stopping to let them cross the street. He also remembered one of the men, whom appellant thought he recognized, turning and looking at appellant and asking him where he was from. Appellant recalled responding that he did not gang-bang. He put the Bronco in park, left the lights on and got out. He recalled one of the individuals telling the other to get his brother. Two other men "popp[ed] out of nowhere" and aggressively asked appellant if he was "tripping" on his brother. He then heard screeching tires and saw the Bronco swerve and hit the victim and then hit him. He had no recollection of events after being hit, until he was two blocks away from Continental Street, with no idea of how he got there. Though in great pain, he hobbled home, losing consciousness several times.
Sheriff's Deputy Sergio Lopez was at the scene with the paramedics, who advised him that the victim was deceased. An autopsy by Dr. Chinwah of the coroner's office concluded that Gamaniel had suffered a fracture of the sternum, fractures of three ribs, a two-inch tear to the back of the heart, contusions and bruises to his lungs, and lacerations on his head and right knee. Dr. Ajay Panchal, a deputy coroner, opined that the cause of Gamaniel's death was blunt force trauma breaking his ribs which likely caused the fatal tear to the heart.
DISCUSSION
I. Failure to instruct sua sponte on unconsciousness
A. Background
Appellant and Rodriguez spent several hours consuming a significant quantity of alcoholic beverages before going to the location where the charged incident occurred. Rodriguez admitted being intoxicated, and appellant did not recall some parts of the drive.
The trial court instructed the jury in accordance with CALJIC Nos. 4.21 and 4.22 that if it found that appellant was voluntarily intoxicated, it should consider that fact in deciding whether the defendant had the required specific intent or mental states for first or second degree murder or voluntary manslaughter. It also instructed on first and second degree murder and on voluntary manslaughter in accordance with CALJIC Nos. 8.10, 8.20, 8.30, 8.31, and 8.37. Appellant did not request an instruction on unconsciousness.
B. Contention
Appellant contends that the trial court erred in failing to instruct the jury sua sponte on the defense of unconsciousness in accordance with CALCRIM No. 3425. He argues that he presented sufficient evidence of unconsciousness to warrant an instruction on that defense in that he had "consumed an enormous amount of alcohol [and] . . . remembered very little about any of the events that occurred." This contention is without merit.
CALCRIM No. 3425 provides: "The defendant is not guilty of <insert crime[s]> if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/[or] an epileptic seizure[,]/[or] involuntary intoxication[,]/[or] sleepwalking[,]/or <insert a similar condition>). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty."
C. Duty to instruct
In criminal cases, "'"even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty "'encompasses an obligation to instruct on defenses . . .'" (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) that are "supported by substantial evidence [and] that are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047).
"[T]he existence of 'any evidence, no matter how weak' will not justify instructions . . . , but such instructions are required whenever evidence . . . is 'substantial enough to merit consideration' by the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162.) "'Substantial evidence' . . . is "'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]'" that the [defense] was [applicable]." (Ibid.) In making this assessment, the court is not to assess the credibility of witnesses, a task for the jury. (Ibid.)
D. The unconsciousness defense
Unconsciousness is a complete defense to a charge of criminal homicide (§ 26, subd. Four; People v. Ochoa (1998) 19 Cal.4th 353, 423), unless it is induced by voluntary intoxication, which can never excuse a homicide. (§ 22; People v. Abilez (2007) 41 Cal.4th 472, 516 (Abilez).)The requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and the defendant is guilty of involuntary manslaughter if he voluntarily procured his own intoxication. (§ 22; Abilez, supra, at p. 516; see also People v. Ochoa, supra, at p. 423.)
Section 26 provides in part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Four—Persons who committed the act charged without being conscious thereof. . . ."
Unconsciousness "need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist—and the above-stated rule can apply—where the subject physically acts in fact but is not, at the time, conscious of acting." (People v. Newton (1970) 8 Cal.App.3d 359, 376, fn. omitted; People v. Kelly (1973) 10 Cal.3d 565, 572.) "[A] defendant's mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act. There must be something more than [the defendant's] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of that act." (People v. Coston (1947) 82 Cal.App.2d 23, 40; see People v. Rogers (2006) 39 Cal.4th 826, 888 (Rogers) [defendant's claim of inability to recall event, without more, insufficient to warrant unconsciousness instruction].)
E. Insufficient evidence to justify instruction on unconsciousness
The evidence here was insufficient to warrant instructing the jury sua sponte on unconsciousness. The evidence indicated that appellant had consumed a significant amount of alcohol, but there was no evidence he was so intoxicated that he was unconscious. (See Abilez, supra, 41 Cal.4th at p. 516.) While he testified that he could not recall certain aspects of his conduct that evening, such as entering and leaving the apartment complex and visiting his girlfriend's apartment, a failure to recollect is not alone sufficient to constitute unconsciousness. (People v. Coston, supra, 82 Cal.App.2d at p. 40; Rogers, supra, 39 Cal.4th at p. 888.)
Moreover, appellant's memory was only selectively impaired, as he had significant recollection of many other details, including driving on Continental Street, putting the Bronco in park, leaving the lights on, getting out of the car to speak with a male he recognized in a group of men on the street, one member of the group telling another to get the brother of a group member, and members of the group "getting in [appellant's] face." Only after he heard tires screech and was hit by the Bronco did appellant claim not to recall anything else. There was no evidence regarding what was going on in his mind when he rapidly accelerated the Bronco and ran into Gamaniel, killing him. Appellant, who testified at trial, never claimed to be unconscious or unaware of what was happening at that time or in the moments leading up to it.
F. Inconsistent defense
The trial court did not err in failing to instruct sua sponte on unconsciousness for yet another reason. As previously stated, a trial court is not required to instruct on a defense that is inconsistent with the defendant's theory of the case. (People v. Montoya, supra, 7 Cal.4th at p. 1047.) Here, appellant's theory of the case was that he got out of the Bronco and did not run over Gamaniel, Rodriguez did. Rodriguez then ran over appellant. This theory is inconsistent with the theory that appellant ran over Gamaniel, but was unconscious. The unconsciousness theory was not hinted at trial.
G. Harmless error
Even assuming that the trial court erred in failing to instruct on unconsciousness, the failure to so instruct was harmless, even under the more stringent beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.) The jury was instructed on the definition of intoxication in CALJIC NO. 4.22. That instruction, as given, states: "Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when [he][she] willingly assumes the risk of that effect. [¶] Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance." The jury was also instructed in accordance with CALJIC No. 4.21, which, as given, states: "In the crimes . . . of which the defendant is accused in Counts 1, or that of voluntary manslaughter, which is a lesser crime[] thereto, or in the allegation that a necessary element is the existence in the mind of the defendant of the specific intent or mental states set forth elsewhere in these instructions. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent mental state. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that specific intent mental states [sic], you must find that he [] did not have such specific intent mental states."
The jury was also instructed on first degree murder, second degree murder and voluntary manslaughter. It found appellant guilty of second degree murder. In doing so, it must have concluded that appellant's intoxication was insufficient to negate his acting with malice aforethought. In so concluding, the jury necessarily implicitly found that appellant's intoxication did not reach the level of unconsciousness. As stated in Rogers, "The jury rejected the lesser options and found defendant guilty of first degree premeditated murder. Under the circumstances, there is no reasonable probability that, had the jury been instructed on involuntary manslaughter, it would have chosen that option." (Rogers, supra, 39 Cal.4th at p. 884.) Accordingly, we find the trial court did not err in failing to instruct on involuntary manslaughter.
II. Right to confront nontestifying coroner
A. Background
Dr. Chinwah performed an autopsy on Gamaniel's body, but was on vacation at the time of trial. Consequently, Deputy Medical Examiner Dr. Panchal, who did not participate in the autopsy, testified regarding it. He had a certified copy of the autopsy report prepared by Dr. Chinwah, which was admitted into evidence. Dr. Panchal identified the autopsy photograph as one depicting Gamaniel and stated that he reviewed the autopsy report. Dr. Panchal described the injuries observed by Dr. Chinwah, as reflected in the latter's report.
At a sidebar discussion, defense counsel objected that the information was hearsay in light of Crawford and Melendez-Diaz. Defense counsel stated, ". . . I would have no problem, after the court makes its ruling, to stipulate to the cause of death being trauma." The prosecutor explained that he used the same medical examiner in the first trial and was therefore using him in this trial for the purpose of consistency. He said, "We're not trying to avoid calling [Dr.] Chinwah" and that he had laid a foundation for admission of the report as a business record. The trial court found that the coroner's office is not "specifically involved in prosecution as its primary function," and thus its reports are not testimonial hearsay requiring cross-examination as set forth in Crawford. The court also stated that the report itself might be admissible as within the business record exception to the hearsay rule.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ (Melendez-Diaz).
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When testimony resumed, Dr. Panchal testified to the process involved in preparing autopsy reports and to the contents of Dr. Chinwah's report regarding the injuries suffered by Gamaniel, including a fractured sternum and three broken ribs and a two-inch tear in the back of his heart. Dr. Panchal went through the autopsy photographs and toxicology reports and found them to be consistent with the opinions of Dr. Chinwah. Dr. Panchal testified that his opinion would be the same as Dr. Chinwah's based upon the same facts. Dr. Panchal opined that Gamaniel died of massive blunt force trauma.
B. Contentions
Appellant asserts dual contentions with respect to Dr. Panchal's testimony. First, he contends that he was denied his Sixth Amendment right to confront and cross-examine the witnesses against him, as described in Crawford. He argues that Dr. Chinwah's autopsy report was a testimonial document because it was prepared to assist in the preparation of a criminal case against a murder suspect. Thus, under Crawford and its progeny appellant was entitled to examine Dr. Chinwah at trial, unless he was unavailable and had been previously subject to cross-examination, neither of which was the case. Second, appellant contends that Dr. Panchal did not express his own opinion but merely echoed the opinion of the nontestifying Dr. Chinwah. He argues that the opinion expressed by a testifying expert cannot be the opinion of a nontestifying expert.
C. Harmless error
We need not address these contentions because we conclude that even if there was Crawford error in allowing Dr. Panchal to testify from another medical examiner's report about an autopsy that Dr. Panchal had nothing to do with, the error was utterly harmless by even the most stringent beyond a reasonable doubt standard. (People v. Lara (1994) 30 Cal.App.4th 658, 676; Chapman v. California, supra, 386 U.S. at p. 24; see Lilly v. Virginia (1999) 527 U.S. 116, 139-140; People v. Song (2004) 124 Cal.App.4th 973, 982.)
The cause of death in a murder prosecution may be established by evidence other than expert opinion testimony. (See People v. Catlin (2001) 26 Cal.4th 81, 146 ["We are not persuaded by defendant's contention that the cause of death may be established only through expert opinion testimony and not through other-crimes evidence"].) Here there was no dispute at trial that Gamaniel was killed by being crushed by appellant's Bronco. Rodriguez testified that he opened his eyes from his drunken stupor after hearing a crash and saw Gamaniel on top of the hood of the Bronco, not moving. He saw Gamaniel "in the middle of two cars like a sandwich leaning on the front of our car." Lopez similarly described Gamaniel, stating that he was slammed into and crushed up against a car. He testified, without objection, that Gamaniel said nothing and died instantly. Garcia testified to seeing the accident and trying to provide assistance to Gamaniel, who was not conscious and had no vital signs. Finally, Deputy Lopez testified that he was at the murder scene when the paramedics were attending to Gamaniel. He testified, again without objection, that the paramedics told him that Gamaniel was deceased. So overwhelming was the evidence that Gamaniel died from being crushed that appellant's counsel stated that he would be willing "to stipulate to the cause of death being trauma." Dr. Panchal's testimony was therefore merely corroborative of this overwhelming and uncontradicted evidence. (See Harrington v. California (1969) 395 U.S 250, 254; People v. Moore (2011) 51 Cal.4th 1104, 1129.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________, J.
ASHMANN-GERST
We concur:
_______________, P. J.
BOREN
_______________, J.
DOI TODD