Opinion
F079796
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTHONY MORENO, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F13903993)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
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INTRODUCTION
In the instant appeal, appellant filed a request for this court to take judicial notice of the record and this court's prior unpublished appellate opinion in his prior appeal. (People v. Moreno, Jan. 24, 2019, F074533 [nonpub. opn.].) The People did not oppose the request. On November 6, 2019, this court granted appellant's request for judicial notice. The introduction and factual summary are from the record and this court's prior opinion in that case.
Appellant Luis Anthony Moreno had five prior convictions for driving under the influence and had been admonished that he could be charged with murder if he killed someone as a result of driving under the influence. Despite these warnings, he was driving with a blood-alcohol level of 0.36 percent, four times the legal limit, and crossed over the center line and crashed into a Toyota that had been lawfully traveling in the opposite traffic lane. The driver of the Toyota, Yee Her, was seriously injured and his wife and passenger, Blia Vang, was killed.
Appellant was charged and convicted of the second degree murder of Ms. Vang. (People v. Watson (1981) 30 Cal.3d 290, 298.) On appeal, this court affirmed his conviction and rejected his arguments that the jury should have been instructed on "grossly negligent involuntary manslaughter" as a lesser offense of second degree murder. We held that statutory and decisional law provide that both gross vehicular manslaughter while intoxicated, and involuntary manslaughter, were not lesser included offenses of second degree murder based on driving while intoxicated under the facts of this case.
Thereafter, appellant filed a petition for resentencing pursuant to Penal Code section 1170.95, and argued his conviction for second degree murder must be reduced to manslaughter and he should be resentenced. The superior court summarily denied the motion.
All further statutory citations are to the Penal Code unless otherwise indicated.
In the instant appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has filed supplemental letter briefs raising several issues.
We affirm.
FACTS
Around 7:00 p.m. on May 5, 2013, Yee Her was driving his wife, Blia Vang, on southbound Friant Road in their Toyota Corolla. They had spent the day at Table Mountain Casino and were heading home.
Mr. Her testified another vehicle, later identified as appellant's black truck, crossed into his lane and crashed into his car. It happened so fast that he did not have time to swerve or brake. After the collision, Mr. Her repeatedly tried to shake his wife awake, but she did not move or respond. Mr. Her passed out and did not regain consciousness until he was at the hospital.
Mr. Her's Toyota and appellant's black GMC truck had collided on Friant Road near the south entrance to Lost Lake Recreation area, about five miles south of the casino. There were other drivers on the road that narrowly missed being hit by appellant's truck as it swerved into the opposing lane, and saw it hit the Toyota. Justin Cruz, a passenger in one of the other vehicles, rushed to the truck and found appellant sitting in the driver's seat. Cruz testified appellant smelled "profusely like alcohol. It was just overwhelming." Appellant asked Cruz, "[C]an you help me out, bro[?]" Cruz told him to stay where he was.
Ms. Vang was pronounced dead at the scene. She was still buckled into the front passenger seat of the Toyota. She had suffered a fractured skull, internal bleeding in the brain, broken ribs, abdominal bleeding, and intestinal lacerations.
Mr. Her was seriously injured, but he survived. He was transported to the hospital and required surgery for lacerated intestines. Appellant's statements at the scene
Around 8:30 p.m., California Highway Patrol Officer Yetter responded to the scene of the collision. Appellant was still sitting in the driver's seat of the truck. Yetter testified appellant's "eyes were very red, watery, bloodshot," and he smelled the "distinct odor of an alcoholic beverage" coming from him.
Appellant told Officer Yetter that he was going to the casino. Appellant said he did not have a valid driver's license because it had been suspended, and there was nothing wrong with his truck prior to the collision. Appellant again said he was going to the casino and traveling about 50 miles per hour, and he lost control and blacked out; he did not know what happened.
Officer Yetter testified that appellant's speech was delayed and slurred. Yetter asked appellant what he had to drink. Appellant said he had alcohol and Tecate beer. He said that he started drinking around 3:00 p.m. and stopped around 6:00 p.m. Yetter asked appellant if he felt intoxicated. Appellant said he was "coherent" and knew what was going on, but "of course I'm buzzed."
When appellant got out of the truck, he was not able to stand, and the paramedics placed him on a gurney. Since appellant was not able to stand, Officer Yetter was only able to perform one field sobriety test, the horizontal gaze nystagmus test. Appellant had "indicators of impairment" of "a high blood alcohol level."
Appellant refused to cooperate with a preliminary alcohol screening breath test. He asked Officer Yetter if he was going to be arrested. Yetter replied, "Yeah, unfortunately." Appellant asked the reason for his arrest. Yetter said it was for "driving under the influence for right now." Appellant was transported to the hospital.
Prior to trial, the court held appellant's statements at the scene were admissible.
Officer Yetter testified to his opinion that the collision was caused by appellant's failure to control the truck and maintain it in the proper lane. As a result, appellant made an unsafe turning movement so that the truck swerved into the opposite lane and hit the Toyota. Appellant's blood-alcohol level
About two hours after the collision, appellant's blood was drawn at the hospital. His blood-alcohol level was 0.36 percent, which was over four times the legal limit of 0.08 percent. Appellant's subsequent statements
Officer Yetter interviewed appellant at the hospital the evening after the collision. Appellant admitted that he had several prior convictions for driving under the influence (DUI). He had a "wet and reckless" in 1985 and two arrests in 1990. He had another conviction in 2010.
Outside the jury's presence, defense counsel agreed with the prosecutor that Officer Yetter advised appellant of the Miranda v. Arizona (1966) 384 U.S. 436 prior to the conversation in the hospital.
"[Officer Yetter]: Seems like with having all those DUI's it would be fairly aware of the dangers of it, I mean ...
"A: It's stupid, just plain stupid.
"Q: But did you understand it's dangerous?
"A. Yes."
Appellant said that on the night of the collision, he had argued with his wife, and he drank before and after the argument. He did not feel the full effects of drinking until he was in the truck. He thought about stopping the truck, and it "probably" crossed his mind that he could hurt someone while driving in that condition.
Appellant said he had previously completed an 18-month DUI course in the 1990s. He was ordered to attend another course after the DUI conviction in 2010, but he failed to do so and did not get his driving privileges reinstated. Appellant said he went on disability and could not afford to attend the course. Appellant said there had been several occasions in the past when he was drinking and driving and did not get caught.
"[OFFICER YETTER]. Do you ever consider the possibility that you'd be in the spot you're in now where somebody ended up dying as a result of it?
"A. You hear about it in the news and paper as well and here I'm on the other side. You know ... [Unintelligible] just happened to somebody else.
"Q. ... Do you have anything else ... you wanna [sic] noted [in my report] or any other statement or thing that I maybe haven't asked you that you wanted to say?
"A. Just my stupidity.
"Q. You just felt it was stupid decision?
"A. Psh very...."
APPELLANT'S PRIOR ALCOHOL-RELATED CONVICTIONS
Appellant had several prior alcohol-related offenses beginning in September 1985 with a DUI conviction.
On August 10, 1988, appellant was cited by the Santa Cruz Police Department for driving under the influence, a seatbelt violation, an open container violation, not having insurance, and excessive speed. Appellant was taken into custody. His blood-alcohol level was 0.09 percent; the legal level was 0.10 percent at the time. Appellant subsequently entered a no-contest plea to a "wet and reckless" driving charge in violation of Vehicle Code section 23103.5 and was placed on misdemeanor probation because of a prior conviction, on condition of serving 20 days in jail. Such a conviction constituted an alcohol-related driving offense.
On the night of March 22, 1992, an officer from the Santa Cruz Police Department responded to a crash that involved two intoxicated drivers: appellant and Raymond Julio Gonzalez. Appellant smelled of an alcoholic beverage, his speech was slow and fairly deliberate, and his eyes were watery and red. Appellant failed field sobriety tests. Appellant's breathalyzer test indicated that he had a blood-alcohol level of 0.15 or 0.16 percent. The arresting officer believed appellant's tests indicated he was "obviously a frequent drinker" with a higher degree of alcohol tolerance. On March 24, 1992, appellant pleaded no contest to one count of driving under the influence in violation of Vehicle Code section 23152.
On April 26, 1992, appellant was again cited for driving under the influence. The offense was charged as a felony based on the allegations that he had three prior DUIs. On June 4, 1992, appellant pleaded no contest to a felony DUI in violation of Vehicle Code section 23152, subdivision (a) and admitted the prior offenses. On July 23, 1993, appellant was placed on five years of formal felony probation, with 300 days in county jail. 2009 domestic violence incident
The prosecution introduced evidence that on March 23, 2009, an officer with the Sunnyvale Police Department was dispatched to appellant's home to investigate a domestic violence report. The officer smelled alcohol on appellant's breath, and he appeared to be intoxicated. Appellant said he had too much time on his hands and drank too much whiskey. Appellant said when his girlfriend arrived home, they argued, and he put both his hands around her neck and choked her for about two seconds. Appellant was arrested for felony domestic violence and taken into custody. 2010 DUI conviction and advisement
On October 4, 2010, appellant was again cited for a DUI. On November 4, 2010, he failed to appear for the arraignment and a bench warrant was issued.
On November 15, 2010, appellant waived his right to counsel and pleaded guilty to violating Vehicle Code section 23152, subdivision (b), driving with a blood-alcohol level of 0.08 percent or higher, based on provisional proof that his blood-alcohol level was 0.17 to 0.18 percent at the time he was driving. He was sentenced to five years' informal conditional probation with service of five days, stayed on condition that he attend a residential treatment program.
At the time of his plea for the 2010 DUI offense, appellant signed a change-of-plea form that stated:
"I understand that being under the influence of alcohol or drugs or both impairs my ability to safely operate a motor vehicle, therefore it is extremely dangerous to human life to drive under the influence of alcohol or drugs or both. If I continue to drive under, while under the influence of alcohol or drugs or both and as a result of my driving someone is killed, I can be charged with murder." (Italics added.)
At the 2010 plea proceedings, appellant orally acknowledged that he had read and understood the DUI advisement and waiver of rights form, and he initialed and signed it. The court orally advised appellant: "Okay, um, you understand that driving under the influence is incredibly dangerous and if someone is killed as a result of, uh, your driving you could be charged with murder?" Appellant replied, "Yes, I recall."
The prosecution introduced an audio recording of the court proceedings for defendant's plea on November 15, 2010, and it was played for the jury.
DEFENSE EVIDENCE
Defendant testified that in the hours before the fatal crash, he purchased food and a six-pack of beer, and drank two beers. He argued with his wife and drank more but could not recall whether he finished the six-pack. Appellant vaguely remembered grabbing a bottle of hard alcohol; it was probably whiskey. He could not remember how much whiskey he drank. Appellant took a nap and woke up after 7:00 p.m.; he might have resumed drinking. He was angry and decided to leave the house.
Appellant got into his truck and did not feel the effects of the alcohol. He drove around and was trying to find a motel where he could stay. He ended up on northbound Friant Road but denied he was going to the casino. Appellant could not remember the collision.
Appellant testified he attended a DUI school in the 1990s but could not recall anything that was discussed, such as drunk driving being dangerous to human life. He had another DUI conviction in 2010 and his license was suspended. He did not have a valid license at the time of the collision in this case because he failed to attend DUI school. He did not remember being warned by the court that he could be charged with murder if he killed someone while driving under the influence. Charges and instructions
On August 26, 2016, a first amended information was filed that charged defendant with count 1, murder of Ms. Vang (§ 187); count 2, driving under the influence causing injury to Mr. Her (Veh. Code, § 23153, subd. (a)); and count 3, felony driving with a blood-alcohol level of 0.08 percent or more causing injury to Mr. Her (Veh. Code, § 23153, subd. (b)). As to counts 2 and 3, it was alleged that defendant had a blood-alcohol content of 0.15 percent or higher; he personally inflicted great bodily injury on Mr. Her; and he had a prior DUI conviction in 2010 that occurred within 10 years of the charged offenses.
As to count 1, the court instructed the jury on second degree murder with malice aforethought, and on express and implied malice. Convictions and sentence
On September 14, 2016, appellant was convicted as charged of counts 1 through 3, and the jury found the special allegations true.
On October 13, 2016, the court sentenced appellant to 15 years to life for count 1, second degree murder of Ms. Vang; the consecutive upper term of three years for count 2, driving under the influence causing injury to Mr. Her, plus three years for the great bodily injury enhancement; and stayed the term imposed for count 3, felony driving with a blood-alcohol level of 0.08 percent or more causing injury to Mr. Her. Appellant's first appeal
In his first appeal, appellant argued that the court should have instructed the jury on "gross negligence involuntary manslaughter" as a lesser offense to count 1, second degree murder. We rejected his arguments and affirmed the judgment.
SENATE BILL NO. 1437
" 'Murder is the unlawful killing of a human being ... with malice aforethought.' [Citation.] Under prior California law, a defendant who aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted not only of the target crime but also of the resulting murder. [Citation.] This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed ' "for the criminal harms [the defendant] ... naturally, probably, and foreseeably put in motion." [Citations.]' [Citation.]" (In re R.G. (2019) 35 Cal.App.5th 141, 144.)
"In 2018, the Legislature enacted Senate Bill No. 1437 (Senate Bill 1437) to amend the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [their] participation in a crime.' (§ 188, subd. (a)(3).)" (In re R.G., supra, 35 Cal.App.5th at p. 144.)
Senate Bill 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can only be liable for felony murder if (1) the "person was the actual killer"; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underling felony and acted with reckless indifference to human life." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3; People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020, S260410.)
While the California Supreme Court has granted review in Cornelius and other cases cited herein, we may rely on these cases as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
Senate Bill 1437 thus ensures "that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. [Citation.]" (People v. Anthony (2019) 32 Cal.App.5th 1102, 1147.)
"Senate Bill 1437 also adds ... section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory ... [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ....' [Citation.] [¶] An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citation.]" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
"[T]he petition shall include, among other things, a declaration by the petitioner stating he or she is eligible for relief based on all three aforementioned requirements .... A trial court that receives a petition under section 1170.95 'shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.' [Citation.] If the petitioner has made such a showing, the trial court 'shall issue an order to show cause.' [Citation.]" (People v. Martinez, supra, 31 Cal.App.5th at p. 723.) If, based on the record of conviction, the petitioner is unequivocally ineligible for relief, the trial court may summarily deny the petition. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598.)
THE CURRENT APPEAL
On April 16, 2019, appellant filed, in pro. per., a preprinted petition in the superior court that requested resentencing pursuant to section 1170.95. Appellant checked boxes on the form to allege he was convicted of "1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine" and "2d degree murder under the natural and probable consequences doctrine or under the 2d degree felony murder doctrine," and his murder conviction had to be reversed because of the amendments resulting from Senate Bill 1437. The People's opposition
The district attorney's opposition gave a lengthy recitation of the facts of appellant's conviction and stated that the amendments resulting from Senate Bill 1437 did not apply. The district attorney's office argued appellant's murder conviction was not subject to reversal because he was convicted of murdering Ms. Vang on a theory of implied malice based on proof of his awareness of the dangers of driving while under the influence of alcohol, his intentional act of driving without a license while intoxicated, a blood-alcohol level of 0.36 percent, crossing into oncoming traffic, and colliding with another vehicle and killing the victim. The court's denial of the petition
On June 19, 2019, the superior court issued an order and summarily denied appellant's petition for resentencing, and found appellant failed to make a prima facie showing that he fell within the provisions of section 1170.95: "[Appellant] was more than a mere participant in the crime. The killing resulted from an intentional act with express or implied malice."
On August 12, 2019, appellant filed a timely notice of appeal.
DISCUSSION
As noted above, appellant's counsel has filed a Wende brief with this court. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. By letter on October 18, 2019, we invited appellant to submit additional briefing. In response, appellant has filed two letter briefs that raise the following issues.
Appellant also moved for this court to substitute a new attorney to represent him on appeal solely because his counsel filed a Wende brief. On November 15, 2019, this court denied the motion.
Appellant asserts that he tried to accept a plea bargain for a 10-year term and claims his trial attorney failed to tell the prosecutor's office that he would accept it. The record refutes this argument. Prior to the start of appellant's jury trial, the court stated in the presence of appellant and his attorney that the People had previously made an offer for appellant to enter a plea to second degree murder, with the dismissal of all other counts and enhancements alleged in the original information, and appellant rejected the offer. (People v. Moreno, supra, F074533 at p. 13.)
Appellant complains he was sentenced to a longer term than people convicted of first degree murder. This assertion is meritless. "Generally, offenders who commit different crimes are not similarly situated. [Citation.]" (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.)
Appellant next asserts he was incapable of committing the "intentional act" required for malice because his blood-alcohol level was 0.36 percent, and it was so high that he was likely unconscious and lacked the ability to form intent. As this court explained in his first appeal, however, "driving while intoxicated is an act which may support a conviction for second degree murder under an implied malice theory. [Citations.]" (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080.) "Malice may be implied when a person willfully drives under the influence of alcohol. [Citation.]" (People v. Wolfe (2018) 20 Cal.App.5th 673, 681.) After his fifth DUI conviction, appellant received an express warning and advisement that he could be charged with murder if he continued to drive while under the influence and someone was killed. After he was arrested in this case, appellant said he understood it was dangerous to drive while intoxicated and knew someone could get hurt.
Finally, we find the superior court properly denied appellant's petition for resentencing. Section 188 now requires that all principals in a murder must act with express or implied malice to be convicted of that crime. (Stats. 2018, ch. 1015, § 2.) Appellant was not entitled to relief pursuant to the amendments enacted by SB 1437 because he was not convicted under a felony murder theory or as an aider or abettor. He was convicted of second degree murder as a principal based on express or implied malice. He was the "actual killer" who was driving while heavily intoxicated, swerved into the opposing lane, slammed into an oncoming vehicle, and killed Mrs. Her, after being admonished that he could be convicted of murder if he killed someone while driving under the influence. (See, e.g., People v. Cornelius, supra, 44 Cal.App.5th at p. 58.)
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.