Opinion
G056801
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN DAVID LISH, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF0792) OPINION Appeal from a judgment of the Superior Court of Orange County, James E. Rogan, Judge. Affirmed. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Dustin David Lish was driving intoxicated when he caused a head-on collision and killed another driver. A jury convicted defendant of second degree murder (see People v. Watson (1981) 30 Cal.3d 290 (Watson)) and the court sentenced him to 15 years to life in prison.
Defendant argues the trial court abused its discretion in allowing the prosecution to amend the information on the eve of trial. He also argues the court improperly denied his motion for new trial and erroneously excluded his proffered expert witness. Finally, he contends the court violated his due process rights by imposing court fines and fees without conducting a hearing determining his ability to pay them.
We reject these arguments and affirm the judgment.
FACTS
While intoxicated, defendant and a friend rented a U-Haul truck. Shortly after leaving the rental lot, defendant drove the truck on the wrong side of the road and struck another car head-on. Defendant and his friend fled on foot but were found hiding near the scene of the accident and arrested. Defendant's blood was on the truck driver's side airbag. The driver of the other car died as a result of injuries sustained in the crash.
Defendant said he was not sure if he was driving the truck at the time of the accident, but his DNA could be on the driver's side airbag. He said his father had recently been arrested for a DUI, and he knew drinking and driving could make it more likely to get in an accident. He said he knew the consequences if he killed someone while driving drunk. The police then asked him if he knew he could be charged with murder and he said "I do."
DISCUSSION
1. Amended Information
Defendant argues the court improperly allowed the prosecution to amend the information by dismissing a vehicular manslaughter charge on the eve of trial. We do not agree.
A. Background
The original information charged defendant with gross vehicular manslaughter while intoxicated and murder. Two weeks before trial, the prosecutor told defense counsel he intended to dismiss the vehicular manslaughter charge. Defense counsel then filed a motion "for determination of offenses" and argued the manslaughter charge "should be left on or added to the Information or submitted to the jury as a lesser included or related offense . . . ."
On the first day of trial, the prosecutor filed an amended information which charged the defendant with murder but not vehicular manslaughter. The court substituted the amended information and arraigned defendant, and defense counsel reserved "the motions that I filed regarding the dismissed count and my objections thereto."
On the second day of trial, defense counsel explained the motion for determination of offenses was "asking the court to order the district attorney to file [the vehicular manslaughter charge]." The court responded it would give a "tentative" ruling and denied the motion, explaining the decision to file particular charges was an "executive branch, not a judicial branch, function."
After making the tentative ruling on the motion, the court told the parties to brief whether vehicular manslaughter while intoxicated was a lesser included offense of murder. At the end of the hearing, the court explained "even when you do get my tentative rulings on some of the issues . . . they are tentative. I haven't heard the evidence in the case. I am always willing to reconsider."
A few days later, before opening statements, the court said: "I have indicated to counsel preliminarily that, although it would be my preference to instruct on [vehicular manslaughter as a] lesser [offense of murder] and . . . given the [People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez)] case and its ramifications, this court is precluded in so doing. However, this is a tentative ruling only."
The court added: "If the court's tentative ruling holds I do want the record to reflect . . . it is because I believe I am required to rule against [defense counsel] based upon the Sanchez decision. And I would also indicate to the Court of Appeal, if it becomes necessary for them to review that, I would have very strongly exercised my option, my option to consider that if I felt I had that ability."
During the discussion of jury instructions before closing arguments, the court said "given the state of the law in the Sanchez case, this court does not have the authority to instruct on a lesser-included offense of manslaughter in a second-degree . . . Watson murder case." The court said it was "distressed" by Sanchez believing it undid "hundreds of years of both statutory and common law going back to our English legal heritage." The court specified it would prefer to instruct on gross vehicular manslaughter while intoxicated, but "my interpretation of Sanchez is that they have basically taken that off the table."
B. Analysis
The prosecution may amend an information without leave of the court before the defendant pleads or a demurrer to the original pleading is sustained. (Pen. Code, § 1009.) Once a defendant has entered a plea, it is within the court's discretion to allow an amendment to the information. (§ 1009; People v. Flowers (1971) 14 Cal.App.3d 1017, 1020.) We review the trial court's ruling on the amendment for an abuse of discretion. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)
All further statutory references are to the Penal Code unless otherwise noted.
Defendant contends the court erred because it did not understand it had discretion to deny the prosecution's request to amend the information. We disagree.
Defendant concedes (1) the court could not force the prosecution to file the vehicular manslaughter while intoxicated charge, and (2) vehicular manslaughter while intoxicated is not a lesser included offense of murder under Sanchez.
There is no indication the court was unaware of, or confused about, its ability to deny the prosecution's request to amend the information. With no such indication, we presume the court was aware of its discretion because, "[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]" (People v. Moseley (1997) 53 Cal.App.4th 489, 496.)
Defendant argues the court's repeated comments expressing a preference to instruct on vehicular manslaughter while intoxicated indicate the court did not understand it had discretion to deny the amendment. But the record does not support this argument. These comments were made specifically in reference to the jury instructions and the court's belief vehicular manslaughter should be a lesser included offense of murder, not in the context of whether the prosecution should be permitted to amend the information.
Defendant next contends the amendment ruling was contrary to People v. Lettice (2013) 221 Cal.App.4th 139 (Lettice). Not so. In Lettice, the prosecution sought to amend the information to add a strike prior after the defendant had entered a guilty plea. The trial court allowed the amendment, and the Court of Appeal found the trial court did not understand it had discretion to reject the amendment. (Id. at p. 152.)
The Court of Appeal observed, "the trial court expressly, and erroneously, stated that the People had a statutory right to [file] the [amended information], and proceeded to make numerous statements on the record that indicate that the court might well have [denied] the filing of the amended information if it had been aware that it was within the court's discretion to do so." (Lettice, supra, 221 Cal.App.4th at p. 151.)
This case is different. The court here did not state the prosecution had a right to file the amended information, and never made any statements suggesting it would have denied the amendment if it had the discretion to do so. To the contrary, the court characterized the amendment as the prosecution dismissing count 1 and "seeking to simply proceed on the former count 2." This shows the court knew it had discretion to deny the amendment. Consequently, no abuse of discretion has been shown. 2. New Trial Motion
Defendant argues the court improperly denied his motion for new trial because it "misunderstood the legal standard that applied" when acting as a 13th juror. We are not persuaded.
A. Background
As relevant to this appeal, defendant's new trial motion argued there was insufficient evidence to convict him of murder and asked the court to act as a 13th juror pursuant to section 1181, subdivision (6).
In analyzing defendant's motion, the court focused on the so-called Watson advisement. The court explained: "Typically, that is found in second or additional D.U.I. trials where a defendant, having been convicted of a misdemeanor D.U.I., is advised on the record that if they kill somebody in the state of California while driving under the influence, they can be charged with second-degree murder. And it is that advisement in the initial drunk driving case that allows that vehicular homicide charge to rise to the level of a second-degree murder."
The court observed this case was atypical because: "the Watson advisement came from [defendant]'s father. There was direct evidence during the trial that that was indeed the case: the direct evidence provided specifically by [defendant]." The court said it believed defendant's father advised his son about the dangers of drinking and driving, but "I was somewhat skeptical during the trial that that admonition went beyond what a parent normally would do . . . ."
The court continued: "My skepticism was raised further because, during the interview with [defendant] after he was arrested, that point was put directly to him in a very leading question rather than [defendant] volunteering the information. However, there was, as I said, direct evidence that [defendant] was given the so-called Watson advisement and that became a question of fact for the jury. The jury determined that question of fact unanimously as the prosecution argued the case. [¶] So I do believe that, even though the court had personal skepticism about a portion of that evidence, there was indeed direct evidence that it did happen, it was sufficient evidence for the jury to deliberate upon it, and the jury found that in the affirmative."
The court also cited numerous cases concerning the court's role in considering a motion for new trial, and noted it must weigh "the evidence independently and be guided by a presumption that favors the correctness of the verdict and proceedings supporting it." The court concluded: "Adopting every reasonable assumption that the jury could have indulged from the evidence, the court finds that there is a sufficient basis to uphold their unanimous verdict."
B. Analysis
In considering a motion for new trial on the grounds the verdict is contrary to the evidence (§ 1181, subd. (6)), the court "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect as a '13th juror.' [Citations]." (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) The judge should be "'guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.'" (People v. Seaton (2001) 26 Cal.4th 598, 693 (Seaton).) However, "this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence." (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.) We review the denial of a motion for new trial for an abuse of discretion. (People v. Johnson (2003) 113 Cal.App.4th 1299, 1307.)
During the court's detailed discussion of its reasons for denying defendant's motion for new trial, the court correctly stated the applicable law and independently examined the evidence as required. (See People v. Watts (2018) 22 Cal.App.5th 102, 113.) Although it pointed out potential weaknesses in the evidence, it explained the evidence was sufficient to support the verdict. While the court clearly thought it was a close issue whether defendant harbored the implied malice necessary for second degree murder, it did not reject any of the evidence supporting such a conclusion.
Defendant argues the court misunderstood Seaton and gave undue deference to the jury's verdict. This argument mischaracterizes the record. While the court made a statement about "adopting every reasonable assumption the jury could indulge" at the end of its ruling, the court had previously explained the verdict was not contrary to the law or the evidence, and had found there was sufficient evidence to support the verdict. Again no abuse of discretion has been shown. 3. Expert Witness Exclusion
Defendant contends the court improperly excluded his expert witness on the issue of malice proffered under section 28, subdivision (a) (section 28(a)). We disagree.
Section 28, subdivision (a) provides: "Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."
A. Background
Defense counsel sought to introduce expert testimony about the brain development of people under the age of 25 generally, but not about defendant's brain development specifically. He said the testimony was relevant to support the argument "that mental disease or mental defect" prevented defendant from forming the implied malice required for second degree murder.
The court excluded the expert witness on two grounds. First, the court determined People v. Cortes (2011) 192 Cal.App.4th 873 (Cortes) only permitted an expert to testify as to a specific defendant's mental defect and not about the behavior of a "'general person' in the 'population at large.'" (Id. at p. 909.) Second, the court reasoned a person being "under the age of twenty-five does not qualify as a 'mental illness, disorder or mental defect' within the meaning of the statute."
B. Analysis
We review the trial court's decision to exclude evidence for an abuse of discretion. (Cortes, supra, 192 Cal.App.4th at p. 908.)
On appeal defendant does not argue a person being under the age of 25 qualifies as a mental disease, mental defect, or mental disorder under section 28(a). Instead, he contends the court's determination youth does not meet the definition of mental disease or defect means the limitations of section 28(a) simply do not apply. From this he concludes the court should have admitted the expert testimony because it was generally relevant and admissible pursuant to Evidence Code section 351.
The problem is defendant did not present this theory of admissibility at trial, so it is not cognizable on appeal. (Evid. Code, § 354; cf. People v. Alcala (1992) 4 Cal.4th 742, 795-796.) Defendant specifically argued the expert testimony was admissible under section 28(a) because it related to mental disease or defect. We will not fault the court for rejecting this argument, because we agree a person being under the age of 25 does not qualify as a mental disease, mental defect, or mental disorder under section 28(a). Thus, the expert testimony was properly excluded. 4. Court Fines and Fees
Because the court did not err in determining defendant's expert testimony did not qualify for admission under section 28(a), we need not address defendant's additional arguments: (1) the court erred in its analysis of Cortes, and (2) the exclusion of his expert resulted in prejudicial error.
The court imposed a $70 fee pursuant to section 1465.8, a $300 restitution fine pursuant to section 1202.4, subdivision (b), and a $300 parole revocation fine pursuant to section 1202.45. Defendant cites People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and argues the court erred in imposing court fines and fees without first determining he had the ability to pay them. Dueñas does not apply here.
In Dueñas, the Court of Appeal ruled a homeless mother's right to due process was violated when she was ordered to pay fines she could not conceivably afford. (Dueñas, supra, 30 Cal.App.5th at p. 1167.) The defendant in Dueñas was placed on probation and faced additional punishment if she could not pay the fines and fees. She had cerebral palsy, was unable to work, and her family could not afford basic necessities. Her inability to pay earlier traffic citations lead to the suspension of her driver's license, which lead to a series of misdemeanor convictions and more fines and fees she could not afford to pay. At sentencing, she requested a hearing and provided evidence she could not afford to pay the fines and fees. (Id. at pp. 1162-1163.)
The Court of Appeal determined "[i]mposing unpayable fines on indigent defendants" amounted to punishing them for their indigence. (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Thus, Dueñas's due process rights were violated, "[b]ecause the only reason [she] cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Id. at p. 1160.)
In this case defendant was ordered to pay fines under the same statute at issue in Dueñas, "but there the similarity ends." (People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).) Unlike Dueñas, defendant was employed prior to the incident, and on the date of the crime he was able to rent a moving truck. This is sufficient for us to conclude defendant was not saddled "with a financial burden anything like the inescapable, government-imposed debt trap . . . Dueñas faced." (Ibid.)
Further, because he was sentenced to prison (not probation), defendant does not face the possibility of reimprisonment if he cannot afford to pay the fines and fees. More importantly, defendant's life prison term will afford him an opportunity to earn prison wages over a significant number of years. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes the defendant's ability to obtain prison wages]; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [restitution fine imposed under section 1202.4 "may be based on the wages a defendant will earn in prison"].)
Finally, even assuming the court erred in failing to hold an ability to pay hearing, that error is harmless because defendant will have sufficient time to earn enough to pay the fines and fees from his prison wages. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035; Johnson, supra, 35 Cal.App.5th at pp. 139-140.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.