Opinion
D071837
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIANNE C. LITTLE, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD265758) APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On February 20, 2016, Julianne C. Little drove her vehicle across a buffer lane, across a bicycle lane, and onto a sidewalk where the vehicle struck two children who were walking on the sidewalk. One child died as a result of the injuries. The other was seriously injured.
A jury convicted Little of vehicular manslaughter with gross negligence as to minor R.R. (Pen. Code, § 192, subd. (c)(1); count 1) and found true allegations Little fled the scene of the crime (Veh. Code, § 20001, subd. (c)), made an unsafe turning movement (Veh. Code, § 22107), failed to stay in a marked lane (Veh. Code, § 21658), drove on a sidewalk (Veh. Code, § 21663), and was distracted while driving. The jury found not true allegations Little drove while texting (Veh. Code, § 23123.5) or was fatigued while driving. The jury also convicted Little of hit and run with serious injury as to minor M.L. (Veh. Code, § 20001, subd. (a); count 2). The court sentenced Little to the upper term of six years for count 1 plus five years for the enhancement for fleeing the scene of the crime of vehicular manslaughter. The court stayed punishment for count 2 pursuant to Penal Code section 654.
Penal Code section 192, subdivision (c)(1) provides a driver may be convicted of gross vehicular manslaughter for "driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." The People asserted Little committed two lawful acts in a manner that might cause death: driving while distracted and/or driving while fatigued.
Little contends there was no substantial evidence she acted with gross negligence, as opposed to ordinary negligence, and the court erred in denying her motion for a judgment of acquittal (Pen. Code, § 1118.1), which she made after the close of the People's case. She alternatively contends the court erred in denying her motion to modify the judgment (Pen. Code, § 1181, subd. (6)) from a finding of felony vehicular manslaughter with gross negligence to misdemeanor vehicular manslaughter without gross negligence because she contends nothing in the defense case offered additional supporting evidence of gross negligence. We conclude the trial court did not err because there was substantial evidence of gross negligence. As a result, we affirm the judgment.
BACKGROUND
A
On the evening of February 20, 2016, 12-year-old M.L. and 10-year-old R.R. set out to walk from their neighborhood to a nearby fast-food restaurant. M.L. and R.R. walked on a sidewalk along a main road toward the restaurant.
M.L. woke up next to a woman wearing running clothes. M.L. was taken by ambulance to a hospital. M.L. sustained a fracture of the right ankle, abrasions on the lower back, and a scrape on the backside of the head. M.L. may have also suffered a concussion.
R.R. was found north of M.L. not breathing or responsive and did not have a pulse. Paramedics were able to restore a pulse and started artificial respirations before transporting the child to the hospital. R.R. never regained consciousness and was later pronounced dead. R.R. died as a result of blunt force trauma resulting in cranial-cervical and torso injuries. The injuries were consistent with being struck by a moving vehicle and then thrown into bushes with a high amount of force. There was evidence of a neck injury. R.R.'s spine was fractured in four places. The area where the brain stem and the spinal cord meet was almost completely severed.
B
Shortly before 6:00 p.m. witness B.S. was driving northbound on the main road. He noticed two children walking on the sidewalk. He had no difficulty seeing them. He later noticed headlights bouncing in his rearview mirror. When he looked in the mirror, he saw a vehicle reentering the roadway from the sidewalk and dust in the air from where the vehicle had been in the landscaping. The vehicle continued driving north in the right-hand lane.
B.S. moved into the left lane and slowed in case he needed to make an evasive maneuver. As the vehicle approached, B.S. started taking mental notes. B.S. noticed the vehicle's right headlight was out. The vehicle was a blue Toyota Corolla. B.S. later identified the driver as Little. Little faced forward with her eyes on the road. She was not crying or shaking. When the vehicles stopped at a red light, B.S. recorded the Toyota's license plate number because he "knew something bad had probably happened" since the car had gone off the road.
The Toyota proceeded north on the main road while B.S. turned his vehicle into a parking lot to turn around. He wanted to go back to see what happened because he thought something was not right.
As B.S. drove southbound, he noticed a woman kneeling in the bushes in the area where the Toyota had gone off the road. B.S. turned around at the next intersection and stopped on the right side of the road. He saw A.P. attending to a child. When B.S. told A.P. he had a description of the car, she gave him her phone. He provided the license plate number and description of the Toyota to the 911 dispatcher.
C
Witness A.P. was running northbound on the main road and, after crossing an intersection, she noticed a shoe. She stopped running and, when she bent down, she saw a child. The child's eyes were closed, but when A.P. shook the child, the child's eyes opened. When A.P. asked if anyone was with the child, the child just asked what happened. A.P. could tell the child was hurt and called 911. A.P. had not seen any cars on the road and did not know how the child got hurt. The 911 system recorded initiation of the call at 6:00 p.m.
While A.P. was on the phone, B.S. arrived on the scene and said he had a license plate number. A.P. stayed with the child until emergency personnel arrived on the scene. A.P. did not know another child was about 50 feet north.
D
Police officers received a call to assist with a hit-and-run accident at 6:13 p.m. They followed up on the license plate number and went to the registered owner's address. They arrived about 6:20 p.m. and found a vehicle parked in the driveway with the same license plate number and matching the description. It appeared the vehicle had been involved in a collision.
E
Little's father brought Little to the scene and told an officer his daughter had fallen asleep while driving a car and had crashed. Little appeared upset. Little provided her cell phone and passcode to a police officer. She told a police officer she called her mother after she got off of work, but completed the call before she started driving. She denied sending a text message while driving prior to the collision.
The phone showed an outgoing call at 5:47:29 p.m., which lasted eight minutes. The call ended at 5:55:36 p.m. The phone showed an outgoing text message sent at 5:56 p.m. to an individual saying, "I'm going to miss you, my friend." There was no response to this message. Little had sent 50 texts to the same individual the day before and received 13 responses. However, there were no responses to 18 text messages Little sent to the individual between 9:12 p.m. on February 19, 2016, and 2:02 a.m. on February 20, 2016. The phone connected to the Wi-Fi at Little's residence at 6:02 p.m.
F
Based on evidence at the scene, the right front tire hit the sidewalk curb first, followed by the right rear tire, causing the vehicle to tilt to the left. Then the left front tire mounted the curb followed by the left rear tire so that all four tires were on the sidewalk. Speed was not a factor in the collision; driving on the sidewalk caused the collision. Depending on how fast the vehicle was traveling, it may have taken about one second between when the first tire hit the curb until the last tire struck the curb, tilting the vehicle back and forth. A mechanical examination of the vehicle revealed no mechanical issues that could have caused the collision.
A police reconstructionist determined M.L. was hit by the right side of the vehicle, deflected away from the vehicle, and came to rest near a tree.
R.R. was struck by the front of the vehicle, brought up onto the hood on the driver's side in front of the steering wheel, and was carried for approximately 60 feet. When some braking occurred, R.R.'s body projected off of the vehicle into the bushes. A human hair was found wedged in the plastic area at the base of the windshield wiper where the windshield meets the hood on the driver's side.
G
Little testified she left her job at a restaurant at 5:30 p.m. She stated she called her mother when she got to the car and, using the speaker phone function, spoke to her mother as she drove home until the call ended. She stated she texted her friend while she was stopped at a red light. She said she would miss her friend because she was going on vacation the next day with her family for three weeks. She stated she put her phone in the center console after sending the text.
Little did not see any pedestrians or other traffic on the main roadway as she drove northbound. She stated she was driving as normal with music playing and "out of nowhere I just literally fell asleep. ... [A]nd then I crashed."
Little stated she woke up as she felt the car moving back and forth and she hit her head. She felt jolted, but did not know what happened. She saw damage to the side of her car and she knew the mirror was gone. She stated she "freaked out" and was disoriented. She said she looked in her rearview mirror, but did not see anything. She knew she hit something, but denied knowing she had hit two children. She denied seeing a child's body on the hood of the vehicle or a head near the windshield. She said she maneuvered back onto the road, but did not see or hear the child's body come off of the vehicle.
She went straight home because she wanted to talk to someone right away. Little told her parents she fell asleep at the wheel and she did not know what had happened. She said she went back to the scene to find out what happened.
When she and her father returned to the scene, they saw red lights and an ambulance. Little waited in the car as her father talked to police officers. Little told the officers she fell asleep at the wheel. Little submitted to testing, which showed no alcohol or drugs in her system. She denied texting while driving. She admitted she incorrectly told police officers after the accident that she had completed her phone call in the parking lot before driving home.
On cross-examination, Little admitted she told police officers she was exhausted and should not have been driving. She claimed this was a post-accident reflection and she felt safe to drive at the time.
She admitted she knew her car light was out and "completely gone" as she was driving home. Little admitted this was "a huge accident" and that she fled the scene.
Little's credibility was also undermined because on direct examination she said she used cocaine once in the month prior to the accident, but on cross-examination, she admitted she sent a text the day before saying, "I got coke and girls." She claimed it was a joke. She also admitted sending a text message two days earlier saying, "I need blow. Let me know how much."
Little's father testified Little came home crying. She said she had fallen asleep and wrecked the car. When Little's father asked what she hit, she said she did not know, but thought it was a wall. Little and her father went back to the scene to find out what had happened. Little's father said his daughter does not always tell the truth.
The defense accident reconstruction expert testified it would have taken less than one second from when the vehicle's first contact with the curb until the vehicle hit the children if the vehicle was traveling 35 miles per hour.
The defense expert estimated R.R. rode on the hood of the car for about 60 feet with the car traveling less than 30 miles per hour before rolling off as the vehicle moved left back onto the street. The expert estimated R.R. was on the hood for approximately 1.19 seconds before rolling off. The defense expert agreed that Little was probably turning the vehicle when the vehicle was on the sidewalk because it never went into the ground cover. He also agreed a reason people veer or turn out of a lane is if they are distracted or not paying attention.
DISCUSSION
I
At the close of the People's case, Little's counsel moved for a judgment of acquittal (Pen. Code, § 1118.1) with regard to the charge of vehicular manslaughter by committing an unlawful act with gross negligence. The defense argued there was no evidence of gross negligence because there was no evidence Little was texting at the time of the collision and there was evidence she fell asleep. The People countered that Little committed infractions other than texting, including failing to stay in the lane and driving on a sidewalk. The People argued gross negligence was evident because Little did not just momentarily fail to stay in her lane, she crossed a buffer lane and a bicycle lane before driving up onto the sidewalk. The court denied the defense motion. Little contends the court erred in its ruling. We disagree.
We independently review a trial court's ruling under Penal Code section 1118.1, but apply the same standard used by the trial court, " ' " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of' " ' the elements of the charged offense." (People v. Whalen (2013) 56 Cal.4th 1, 55.) We test the evidence as it stood at the close of the People's case-in-chief. (People v. Cole (2004) 33 Cal.4th 1158, 1213.)
Penal Code section 192, subdivision (c)(1), defines vehicular manslaughter with gross negligence as "driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence."
"Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] 'The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens." ' [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved." (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) " 'Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment.' " (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1171 (Nicolas).) The trier of fact should "consider all relevant circumstances ... to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence." (Bennett, at p. 1038.)
Here, the People presented substantial evidence of gross negligence. Little was on the phone for eight minutes as she drove from work toward her home. She was apparently less than seven minutes from home when she completed the call at 5:55:36 p.m. because her phone connected to her home Wi-Fi at 6:02 p.m. Within 30 seconds of completing the call, apparently moments before the collision, she sent a complete text message to a person to whom she had sent 50 text messages within the past 48 hours, the last 18 of which were unanswered.
On a main road where people typically run, walk, and ride bicycles, Little drove across a buffer lane that was five or six feet wide, across a bicycle lane that was also five or six feet wide, over a seven-inch curb, and up onto the sidewalk so all four wheels were on the sidewalk. She drove on the sidewalk for some distance before turning back onto the road. This violated several traffic laws. (Veh. Code, §§ 22107 [unsafe turning movement], 21658 [failure to stay in marked lanes], 21663 [driving on a sidewalk].)
There is no evidence Little applied the brakes or took evasive action when her vehicle first hit the curb. Rather, the vehicle rode entirely on the sidewalk and struck the two children walking on the sidewalk. It propelled one away from the vehicle and through the landscaping. The other child flew up onto the hood of the vehicle so the child's head was near the windshield on the driver's side and Little drove with the child in this position for approximately 60 feet until some braking or turning of the vehicle projected the child's body off of the vehicle and into the bushes some 86 feet from the point of impact. The hood was dented significantly and the right front light was shattered so it was no longer working. Yet, Little then drove away from the scene, apparently unfazed.
There was more than ample evidence from which a jury could conclude the collision was not the product of "ordinary carelessness or a momentary lapse of attention." (Nicolas, supra, 8 Cal.App.5th at p. 1172.) The lack of evidence of braking or evasive action before or during the collision "suggests [Little] was oblivious to what was right in front of her." (Ibid.) Additionally, the fact Little did not stop after the collision and drove home apparently unshaken gives rise to an inference she was "indifferent to the consequences of her actions" and "supports a reasonable inference that defendant displayed that same indifference just prior to the collision." (Ibid.) As such, the court properly denied the motion for acquittal at the close of the People's case-in-chief.
II
Prior to sentencing, Little's counsel moved to modify the judgment pursuant to Penal Code section 1181, subdivision (6), to change the vehicular manslaughter count from gross negligence to ordinary negligence arguing the evidence supported only a finding of ordinary negligence and the jury convicted Little of the greater offense based on emotion because Little left the scene and one of the children died. The court rejected the defense argument stating, "[t]he court denies the motion to change the count to ordinary negligence, find[ing] there's sufficient evidence to withstand the jury's finding of gross negligence based on her distracted driving. She wasn't asleep. She[] drove on the sidewalk. In addition to all the other code violations that the jury found." Little contends the court erred in refusing to modify the judgment. We disagree.
Penal Code section 1181, subdivision (6) allows a court to modify a verdict, finding, or judgment without ordering a new trial "if the evidence shows the defendant to be not guilty of the degree of the crime of which [she] was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein[.]" "The statutory scheme ... serves [a] corrective function if a court replaces a single greater offense with a single lesser offense, since such a modification merely brings the jury's verdict in line with the evidence presented at trial." (People v. Navarro (2007) 40 Cal.4th 668, 679.) "The authority of a trial court to modify a jury verdict in lieu of granting a new trial is limited to those cases in which the verdict is contrary to the law or evidence and the record discloses defendant is guilty of a lesser degree of the crime of which [she] was convicted or a lesser crime included therein." (People v. Anderson (1975) 15 Cal.3d 806, 809.) Here, the court did not err in refusing to exercise its discretion to modify the judgment because there was substantial evidence to support the jury's conviction for the greater crime of vehicular manslaughter with gross negligence.
The jury was instructed regarding gross negligence and it was given the option of a lesser included offense of ordinary negligence. Little does not contend the instructions were erroneous. The jury deliberated for under two hours and convicted Little of vehicular manslaughter with gross negligence rather than ordinary negligence. They did not believe her testimony that she fell asleep or was driving while fatigued, but found true she was distracted while driving and acted with gross negligence.
There was substantial evidence in the People's case-in-chief alone, as discussed ante, to support the jury's verdict. The defense evidence did not change that fact. Little testified she lived in the area her whole life and was familiar with the main road on which the collision occurred. She knew there were schools in the area and that a lot of families with young children lived in the area. She also knew people walked and bicycled along the main road. She knew it was dangerous to use a phone while driving and dangerous to text while driving. She also knew it was dangerous to drive into a bicycle lane or onto a sidewalk. Nevertheless, she was using her phone immediately before the collision and it was reasonable to infer she was distracted by her phone, even if she did not actually send the text message when the vehicle was moving.
The jury did not believe Little's story that she suddenly fell asleep moments after sending the text message and was asleep during the collision. However long it took for the vehicle to mount the curb, strike the children, and then drive down the sidewalk with a child on the hood of the vehicle, Little knew she hit "something." Her testimony that she did not know she drove into two children and carried one of them on the hood of the car before depositing the child's body in bushes on the side of the road was implausible. But even if it were true, it could only mean she was not paying attention to either the road or her own vehicle, even after being bounced back and forth. The evidence shows extreme carelessness and a conscious disregard for the consequences of her actions. It supports a conviction based upon gross negligence. (Bennett, supra, 54 Cal.3d at p. 1036; Nicolas, supra, 8 Cal.App.5th at p. 1172.)
Contrary to Little's contention, there was no agreement that the child was only on the hood for one second. The police reconstructionist and the investigator testified the length of time was unknown because they did not know the speed of the vehicle or how long the child was on the hood. The reconstructionist only estimated it could have been about a second if the vehicle was traveling the speed limit of 35 miles per hour and the child was on the hood for 51 feet. The defense expert thought the vehicle was traveling under 30 miles per hour.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. IRION, J.