Opinion
A130915
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL D. JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. CRF099098)
Defendant Michael D. Jones appeals from his conviction, following a jury trial, of gross vehicular manslaughter while intoxicated. We affirm.
I. BACKGROUND
At about 9:15 p.m. on November 9, 2008, defendant was driving southbound on Parkway Drive, a two-lane road in Crescent City. Ivan Beckendorf, driving in the opposite direction, turned left across the southbound lane to pull into his driveway. Defendant crashed into the side of Beckendorf's truck. Though defendant claims he did not exceed the 50-mile-per-hour posted speed limit on Parkway Drive, a California Highway Patrol accident reconstruction specialist estimated his speed before impact was between 94 and 106 miles per hour. Beckendorf and defendant were seriously injured and taken to a hospital. Defendant's passenger and girlfriend, Jolynda Peters, died.
On May 13, 2009, the Del Norte County district attorney charged defendant with gross vehicular manslaughter while intoxicated with alcohol or drugs, a violation of Penal Code section 191.5, subdivision (a).
During trial, the district attorney presented evidence of defendant's level of intoxication during the crash. Kay Belschner, a senior criminalist with the California Department of Justice, testified defendant's blood-alcohol level was .07 percent two hours following the crash. Such a level, she said, could impair a driver. Belschner also testified defendant's blood-alcohol level could have been even higher when the crash occurred, as defendant's body was likely eliminating alcohol at some point during the two hours following the crash; however, she lacked the information she would have needed, such as defendant's drinking history that day, to predict defendant's blood-alcohol level at the time of the crash with a degree of certainty.
Because, as discussed below, we conclude there was sufficient evidence of defendant being under the influence of alcohol, we need not and do not consider whether there was sufficient evidence of him being under the influence of drugs. We therefore omit extraneous facts about defendant's use of drugs.
Officer Randall, one of two California Highway Patrol officers who responded to the crash, also testified. He had 10 years on the job and was certified as a drug recognition expert following a two-week training program. As Officer Randall approached defendant's car, he saw Peters' body lying over the center console. The top half of her body had crossed from the passenger side into the driver side of the car and was resting behind defendant's back. Randall told defendant not to move Peters' body, but defendant, saying nothing, pushed the body back to the passenger side of the car.
It was then Randall smelled alcohol coming from the car. Randall could not conduct field sobriety tests (such as taking blood pressure and temperature and other measurements) because of defendant's combative, uncooperative nature. According to Randall, defendant aggressively tried to get out of the car, tried to prevent emergency medical personnel from helping him, and did not seem seriously injured. Once defendant was subdued and in the care of the medics, Randall could then discern the smell of alcohol was coming from defendant's body and breath. Randall concluded defendant was intoxicated based on the smell of his breath, an open beer bottle left on the driver's side of the car, his lack of judgment, poor driving, lack of concern for Peters, and unusual pain tolerance. Randall also noticed defendant was disorientated. However, Randall conceded the skid marks defendant's car left at the crash site were very straight, which would be consistent with a driver in control of his car.
Sergeant Gray also worked the crash site and afterwards followed defendant to the hospital. Sergeant Gray, like Officer Randall, had training in drug recognition. He too testified defendant was intoxicated and impaired at the time of the crash. He based his conclusion on the circumstances of the collision (including defendant's speeding), the open bottle in defendant's car, and the odor of alcohol he smelled near defendant's body in the hospital emergency room. On cross-examination, he admitted the smell of alcohol he had noticed on defendant's body could have resulted from the beer bottle spilling on defendant during the crash and may not have been from his breath.
Defendant denied he was impaired at the time of the crash. He denied consuming alcohol or drugs on the day of the crash and claimed the beer bottle in his car was left by a friend. And he denied speeding.
Defendants' uncle testified defendant visited him at his home less than an hour before the crash. The uncle testified defendant was sober and not under the influence of drugs or alcohol at that time.
On November 17, 2010, a jury found defendant guilty of gross vehicular manslaughter while intoxicated. On December 16, 2010, the trial court, based on the conviction being a third strike and other aggravating factors, sentenced defendant to a prison term of 34 years to life.
Defendant filed a notice of appeal on January 13, 2011. He challenges the sufficiency of the evidence underlying his conviction.
II. DISCUSSION
"Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code . . . with gross negligence." (Pen. Code, § 191.5, subd. (a).) Vehicle Code section 23152 prohibits driving "under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug." (Veh. Code, § 23152, subd. (a); cf. id., § 23153, subd. (a) [a similar violation requiring a further unlawful act or negligent omission causing bodily injury]; id., § 23140 [special prohibition targeting those under 21].)
A person is under the influence of alcohol or a drug when, as a result of consuming it, that person's " 'physical or mental abilities are impaired' " such that he or she " 'no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.' " (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 686-687; see also People v. Canty (2004) 32 Cal.4th 1266, 1278 [similarly defining "under the influence" for drugs].) "It is not enough that the drug [or alcohol] could impair an individual's driving ability or that the person is under the influence to some detectible degree. Rather, the drug [or alcohol] must actually impair the individual's driving ability." (People v. Torres (2009) 173 Cal.App.4th 977, 983 (Torres).) "[E]vidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment." (People v. McNeal (2009) 46 Cal.4th 1183, 1198.)
Defendant contends there was insufficient evidence that he was "under the influence" of alcohol or drugs at the time of the crash to support the jury's guilty verdict.
" 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' (People v. Bolin (1998) 18 Cal.4th 297, 331. . . ; accord, People v. Steele (2002) 27 Cal.4th 1230, 1249 . . . .)" (Torres, supra, 173 Cal.App.4th at p. 983.) If circumstances reasonably justify the jury's finding on an element of the offense, " ' "the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' [Citation.]" (People v. Solomon (2010) 49 Cal.4th 792, 816; People v. Lewis (2001) 25 Cal.4th 610, 643.)
It remains "the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) Further, "[i]t is not our function to decide whether the evidence proves the existence of [an] element [of an offense] beyond a reasonable doubt, as that finding and weighing of the evidence has already been performed by the trier of fact at the trial level." (People v. Gallardo (1994) 22 Cal.App.4th 489, 492; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [a court does not " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt' "].)
Here, the jurors could reasonably credit the investigating police officers' conclusion that defendant was under the influence of alcohol during the crash. The officers pointed to the smell of alcohol in defendant's car and on his breath; defendant's driving; his aggressive, combative, and uncooperative behavior; his careless treatment of the deceased; his unusual pain tolerance; and his disorientation. The officers' conclusion was corroborated by the blood test two hours after the crash showing defendant's blood-alcohol level was .07, a level capable of impairing a driver. (See People v. Gallardo, supra, 22 Cal.App.4th at p. 494 [a much lower .03 blood-alcohol level corroborated conclusion of intoxication in gross vehicular manslaughter case].) Indeed, defendant's blood alcohol level, according to the Department of Justice criminalist, could well have been higher at the time of the crash. Further, the testimony of the accident reconstruction specialist demonstrated defendant was driving approximately 50 miles per hour over the speed limit, indicating a degree of recklessness reasonably associated with intoxication. With this evidence before them, jurors could reasonably disregard defendant's testimony that he had consumed no alcohol on the day of the crash and was unimpaired, and find him guilty beyond a reasonable doubt.
Defendant asserts even if there were sufficient evidence of his intoxication, there was insufficient evidence the intoxication affected his ability to drive, trying to analogize his case to Torres, supra, 173 Cal.App.4th 977. Torres reversed a misdemeanor conviction of driving under the influence of methamphetamine in violation of Vehicle Code section 23152, subdivision (a). (Torres, at p. 979.) In that case, there was "no evidence [the defendant's] methamphetamine use actually impaired his driving ability on the night of his arrest." (Id. at p. 983.) Two police officers observed the defendant, but neither testified he was driving erratically. (Ibid.) The defendant was stopped for failing to stop at a limit line, "a common traffic violation" that the prosecution's own toxicology expert testified was "not sufficient to establish a person is under the influence for driving purposes." (Ibid.) The toxicologist further testified "symptoms of fidgetiness, sweatiness, and a high pulse rate do not make a person an unsafe driver." (Ibid.) And while, the toxicologist testified "dilated pupils from methamphetamine use might cause momentary blindness during driving, there [was] no evidence [the defendant] experienced such blindness." (Ibid.)
As we have discussed, the evidence in this case is significantly different. The two officers who observed defendant testified to his apparently intoxicated condition. The prosecution's toxicology expert agreed defendant could have been impaired at the time, given his .07 percent blood-alcohol level two hours after the accident. The prosecution's accident reconstruction expert testified defendant was driving at an extreme and unsafe speed. And the traffic incident, itself, was not a common, minor traffic infraction, but a horrific broadside collision. Though, as in Torres, defendant did not undergo a field sobriety test, the absence of results from such a test does undermine otherwise sufficient evidence of intoxication. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1252 [due to injury "the usual field sobriety tests could not be performed"].)
In sum, defendant's conviction was supported by more than ample evidence.
III. DISPOSITION
The judgment is affirmed.
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Banke, J.
We concur:
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Margulies, Acting P. J.
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Dondero, J.