Opinion
D075627
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. TORIBIO MARTINEZ SANCHEZ, Defendant and Appellant.
Christine M. Aros, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS297609) APPEAL from a judgment of the Superior Court of San Diego County, Patricia Garcia, Judge. Affirmed. Christine M. Aros, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Toribio Martinez Sanchez challenges the sufficiency of the evidence to sustain his conviction for gross vehicular manslaughter while intoxicated. After considering the evidence that supports each element he contests, we affirm his conviction. He also raises an ineffective assistance of counsel claim, which we decline to consider given the incomplete record before us.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2017 at around 7:00 p.m., Sanchez was headed home from work, driving his Dodge Durango SUV westbound on Coronado Avenue in Imperial Beach. As he attempted to turn left onto Thermal Avenue, he collided with motorcyclist Alexis Corona. Corona, who was traveling east on Coronado, was thrown from the motorcycle and died as a result of his injuries. Witnesses to the accident and its aftermath tried to help. Enrique Martinez, who was walking his dog nearby, called 911. Jesus Garcia-Lopez, the driver immediately in front of Sanchez in the left turn lane, saw the accident in his rearview mirror after he turned. He flagged down Sheriff's Deputy Victor Franco (who happened to be across the intersection) for help. Franco made a dispatch call to report the collision and administered CPR to Corona until paramedics arrived.
Sanchez, apparently in shock, stayed in his car. The first deputy who spoke to him smelled alcohol emanating from the car's interior. Sanchez told her he had gotten off work, had something to drink, and was headed home. He told other officers who interviewed him at the scene that he had one bottle of beer an hour before he drove. In recounting the accident, he said he saw the green arrow, attempted the turn, and got hit. He noticed Corona's headlight in the distance, but he thought it was far away.
The San Diego County District Attorney charged Sanchez with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). It was further alleged Sanchez committed this crime while failing to yield and using his cell phone while driving (Veh. Code, §§ 21801, subd. (a) and 23123.5, subd. (a)), and that he personally inflicted great bodily injury to Corona (§ 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code, unless otherwise specified.
At trial, the prosecution argued that Sanchez caused the accident—and Corona's death—because he was intoxicated, failed to yield at the light, and was using his phone. Officers who conducted field sobriety and preliminary alcohol screening tests on Sanchez at the scene reported he displayed multiple signs of intoxication. Two breathalyzer tests taken about an hour and a half after the accident showed his blood alcohol level was 0.086 or 0.087 percent. And a blood draw taken two hours after the accident indicated his blood alcohol concentration was 0.076 percent at that time. Criminalist Grace Farinas, who testified about Sanchez's blood alcohol content, conducted a retrograde extrapolation analysis to determine that his concentration would have been 0.091 percent at the time of the accident. (See generally People v. Warlick (2008) 162 Cal.App.4th Supp. 1.) He would have consumed about four standard drinks to reach this level.
Evidence that Sanchez failed to yield was presented through several witnesses. Garcia-Lopez was the driver in front of Sanchez in the left turn lane. He testified that when he made the turn from Coronado onto Thermal, the traffic signal for the turn lane was a solid green circle. It was also a green circle for the two cars in front of him. He knew this meant he had to yield to oncoming traffic. Garcia-Lopez saw Corona's motorcycle coming and judged that he could make the turn before it. He saw Sanchez try to turn shortly after he did. Traffic engineer Mariana Sadek explained the order of the traffic signals, saying a green orb would not turn back to a green arrow without first cycling through the remaining yellow and red signals. The protected left turn arrow, which gives drivers in the left-turn lane the right-of-way, always appears before the green orb, which permits drivers in the left-turn lane to turn but only after yielding to oncoming traffic.
Witnesses with expertise in accident reconstruction also testified. Kazimierz Lewak, a traffic detective, explained that he believed Sanchez had the green orb signal when he turned—meaning he was obligated to yield to oncoming traffic. Lewak concluded the failure to yield was the primary cause of the wreck. Sanchez's intoxication and use of his cell phone were secondary, contributing causes. Michael Edwards, an investigator for the district attorney's office, concurred with Lewak's conclusions. He personally observed the cycle of the lights at the intersection and confirmed the order from the green orb proceeded to yellow and then to red. After that, it would cycle back to either a green arrow or a green orb depending on demand from the left-turn lane. Edwards further determined Corona had not been speeding. The damage to the Durango, its position after the collision, and where Corona landed all supported this conclusion. Two officers who evaluated the vehicles also testified they did not find any mechanical problems that may have contributed to the collision.
Although the front braking system for Corona's motorcycle was worn down to the metal, this was not considered a contributing factor because his back brakes were functional and there were no indicators that Corona either had time to brake or applied his brakes before the accident.
The prosecution also offered evidence that Sanchez was using his cell phone. Taher Zarifi, an Uber driver wrapping up work for the night, was traveling northbound on Thermal and waiting to turn right on Coronado when he saw Sanchez using his phone in the adjacent turn lane. Zarifi observed Sanchez holding his phone with his left hand, looking down at it, and saw the light from the phone display on Sanchez's face. He estimated that 10 to 15 cars passed after that before the wreck occurred. Detective Michael Gottfried, who analyzed Sanchez's cell phone data, testified about his phone use in relation to the timing of the collision. The first 911 call about the accident was made at 7:07:40 p.m. Sanchez made three calls to his wife right before that, at 7:06:11, 7:06:46, and 7:06:56 p.m. The first two were of such short duration that Sanchez probably hung up. The third call lasted long enough for either a very brief conversation or a voicemail. Because collisions usually occur one to two minutes prior to an emergency call, Gottfried thought the accident took place at 7:05 or 7:06 p.m. He concluded Sanchez was likely manipulating his phone at the time of the collision.
The jury returned a guilty verdict and found the allegations true.
The prosecution elected to charge Sanchez with two lesser included crimes as separate counts: driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and driving with a measurable blood alcohol causing injury (Veh. Code, § 23153, subd. (b)). (See People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 [Vehicle Code section 23153, subdivision (a) is a lesser included offense within Penal Code section 191.5, subdivision (a)]; People v. Binkerd (2007) 155 Cal.App.4th 1143, 1149 [concluding any violation of Vehicle Code sections 23140, 23152, or 23153 resulting in a victim fatality is a lesser included offense of simple vehicular manslaughter].) The jury erroneously returned guilty verdicts for both the greater and the lesser included offenses. Recognizing this mistake, the trial court corrected it by setting aside Sanchez's convictions for the Vehicle Code violations. (See generally People v. Reed (2006) 38 Cal.4th 1224.)
DISCUSSION
Sanchez asks us to review the evidence sustaining his conviction for gross vehicular manslaughter while intoxicated. Because we conclude that a jury could reasonably find him guilty beyond a reasonable doubt, we affirm. He also claims his counsel was ineffective for not objecting to fines and fees imposed at his sentencing hearing. But we do not reach the merits of this argument as the claim would be properly raised, if at all, in a petition for habeas corpus.
1. Sufficiency of the Evidence
When a conviction is challenged for lack of sufficient evidence, appellate courts review the "whole record in the light most favorable to the judgment" and ask if there is "substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not reweigh evidence or explore the relative strength of contrary findings; rather, we "presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." (People v. Albillar (2010) 51 Cal.4th 47, 60.) Even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)
Sanchez challenges his conviction for gross vehicular manslaughter while intoxicated. Section 191.5, subdivision (a) defines the crime: "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, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." Sanchez's conviction under this section thus required the prosecution to prove that he (1) drove while under the influence of alcohol, with a blood alcohol level of 0.08 percent or more, (2) committed at least one infraction (the unlawful act), (3) did so with gross negligence, and (4) caused the death of another person as a result. (CALCRIM No. 590.) Sanchez takes issue with the second and third elements, claiming there was not enough evidence that he committed traffic infractions resulting in Corona's death or, alternatively, not enough evidence he did so with gross negligence.
These specific requirements come from Vehicle Code section 23153, subdivisions (a) and (b).
a. Evidence of the infractions
The jury found Sanchez committed two infractions that contributed to the accident: failure to yield and use of a cell phone while driving. Failure to yield is a violation of Vehicle Code section 21801, subdivision (a), which specifically mandates that drivers who intend to turn left "shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard" and "shall continue to yield the right-of-way to the approaching vehicles until the left turn . . . can be made with reasonable safety." In arguing there was not enough evidence to conclude he failed to yield, Sanchez points to purportedly conflicting accounts as to the color of the light when he turned. This detail is significant because it determines whether Sanchez or Corona had the right-of-way. If Sanchez's signal was a green arrow when he attempted the turn, he was not obligated to yield. But if it was a green orb, he was required to yield to oncoming traffic.
There was strong evidence that Sanchez's signal was a green circle, not a green arrow. Garcia-Lopez, who was in front of Sanchez, testified the light was a green orb even before he turned. Zarifi also remembered the signal for his lane was red at the time—further indication that Garcia-Lopez and Sanchez had a green orb in the adjacent turn lane. Grace Farinas and Michael Edwards both described the order of the signals at the intersection, saying it was impossible for Sanchez's signal to revert to a protected green arrow after the green orb without a full cycle of signals in between. The combined effect of this testimony was enough to cause a reasonable juror to conclude that Sanchez was obligated to yield. The only suggestion that the light was a green arrow came from Sanchez himself. But conflicting evidence is for the jurors to assess; its existence does not undermine a finding to the contrary based on reason.
Sanchez also asserts there was not enough evidence that Corona's motorcycle constituted a hazard at the time he turned. But witness testimony and the wreck itself indicate otherwise. Garcia-Lopez could see a single headlight coming in the distance before he turned. He judged he could make the turn before it became a hazard. Sanchez also saw the light. And, although it would not change Sanchez's duty to yield to oncoming hazards, the physical evidence of the wreck showed Corona was not speeding. Even so, the motorcycle collided with the front of the Durango, causing damage to the front bumper, the hood, and one of the lights; Sanchez was not even close to clearing the turn safely. A jury could reasonably conclude from this evidence that Corona was in Sanchez's line of sight and close enough to present a clear hazard. In all likelihood, Sanchez misjudged Corona's speed and distance because he was intoxicated and distracted. This inference is further supported by the testimony of officers trained in accident reconstruction, who concluded Sanchez's failure to yield was the primary cause of the wreck.
The evidence that Sanchez's use of his phone contributed to the accident was less robust, but still sufficient. Vehicle Code section 23123.5, subdivision (a) specifies that "[a] person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving." It is a near certainty that Sanchez was using his phone in violation of the Vehicle Code around the time of the accident. Data extracted from the device showed he repeatedly called his wife. He made outgoing calls to her at 7:06:11, 7:06:56, 7:08:01, and 7:10:55 p.m. According to Lewak, nothing in Sanchez's 1999 Durango indicated it was equipped for hands-free calling (and the defense never suggested otherwise). In addition to this, there was an eyewitness account of his phone use. Just moments before the wreck, Zarifi observed Sanchez holding his phone in his left hand and operating it with the display light reflected on his face.
The uncertainty is in the precise timing of the collision. Sanchez seizes on this ambiguity and presents the various time stamps as more consistent with the conclusion that he only called his wife after the wreck. But this argument suffers from the same flaw as his last one; the existence of another theory that the evidence would sustain does not mean the jury's contrary finding was unsupported. Here, the jury knew Sanchez's calls began at 7:06:11 p.m. Franco made his dispatch call at 7:08 p.m. after Garcia-Lopez waived him down. The first 911 call about the accident came in at 7:07:40 p.m. Gottfried, an experienced investigator, opined that the traffic accidents usually occur one or two minutes before the first emergency call is made, and he believed Sanchez was using his phone at the time of the accident. All of this, coupled with Zarifi's eyewitness account, supports the finding that Sanchez's cell phone infraction contributed causally to Corona's death. Although the evidence presented might also be consistent with the inference that Sanchez began calling his wife after the accident, his state of shock seems less consistent with that theory. In any event, a jury could reasonably conclude he was making at least the first two calls just before the collision occurred and that his phone use factored into his distraction at the intersection.
b. Evidence of gross negligence
Sanchez pursues his sufficiency-of-the-evidence challenge beyond the infractions by asserting the requisite element of gross negligence is unsupported. He characterizes his conduct as, at most, mere traffic violations falling short of the "I don't care" attitude that marks this high degree of negligence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa).) We are unpersuaded. A holistic review of the circumstances supports the jury's conclusion as to this element of the crime as well.
Gross negligence "is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (Ochoa, supra, 6 Cal.4th at p. 1204.) A finding of this degree of negligence cannot be supported by the "mere fact" that a driver violates a traffic law while legally intoxicated. Gross negligence requires something more. (CALCRIM No. 590; People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) The analysis is contextual. Juries are tasked with considering "all relevant circumstances, including [the] level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence." (Id. at p. 1038; accord People v. Hansen (1992) 10 Cal.App.4th 1065, 1078.) "The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved." (Bennett, at p. 1036.)
In support of his argument, Sanchez points to several cases as examples of seriously disturbing conduct by drivers who were convicted of gross vehicular manslaughter while intoxicated. Only some of them involved a challenge to the sufficiency of the evidence. In broad strokes, Sanchez relies on the reprehensible behavior of these drivers to assert that his conduct falls in a different—and less culpable—category. But nothing in these cases suggests that they set the minimum threshold for a finding of gross negligence. We confine our consideration to whether the jury reasonably could have concluded that the conduct in this case met the applicable legal standard.
Ochoa, supra, 6 Cal.4th at p. 1208 [finding enough evidence to support gross negligence where defendant with history of drunk driving was speeding while highly intoxicated, weaving across lanes, and failed to brake before wreck]; People v. Von Staden (1987) 195 Cal.App.3d 1423, 1428 [finding sufficient evidence of gross negligence where highly intoxicated defendant was asked by a party host not drive but did so anyway, speeding and crashing into a telephone poll]; Bennett, supra, 54 Cal.3d at p. 1040 [affirming that a finding of gross negligence can be based on the manner of intoxication]; People v. Thompson (2000) 79 Cal.App.4th 40, 48, 51-51 [finding no error in jury instructions where a highly intoxicated defendant drove into oncoming traffic while speeding and careened down an embankment]; People v. Weaver (2007) 149 Cal.App.4th 1301, 1338 [affirming various sentencing decisions for a highly intoxicated defendant who drove the wrong direction down a freeway].
The evidence before the jury showed that Sanchez got drunk during peak commute hours and then decided to drive. At an intersection teeming with other cars and people, he was manipulating his phone despite the fact that he was already impaired. He endangered numerous other people who were also out at that time: pedestrians on the nearby sidewalk like Martinez; commuters coming home from work like Garcia-Lopez; and people who work on the roads and highways, like Uber driver Zarifi. The victim, who was delivering food for Uber Eats that day, falls into the latter category. Apart from the choice to drive after four drinks, Sanchez displayed further disregard for the consequences of his actions when he compounded his own inattention by using his phone at the intersection.
Sanchez would have us isolate his driving infractions and disregard the picture as a whole. But the jury was entitled to consider all the circumstances to judge his degree of negligence. While Sanchez's conduct does not parallel the extremes exhibited by some other drivers convicted of the same offense, that does not make it unreasonable for the jury—considering the manner in which he drank, drove, and used his cell phone—to find that his actions exhibited gross negligence. The evidence as a whole supports their conclusion.
Since we sustain Sanchez's conviction for gross vehicular manslaughter while intoxicated, we need not consider his argument that the same evidence was insufficient to support the lesser included Vehicle Code offenses. Moreover, Sanchez's appeal does not come to us with these erroneous convictions intact; they were already set aside by the trial court.
2. Ineffective Assistance of Counsel
At his sentencing hearing on March 8, 2019, Sanchez was assessed various fines and fees, none of which he contested. He now claims his defense counsel was ineffective for failing to object on the basis of his inability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (which was decided in January 2019). Even assuming the viability of Dueñas (compare, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, rev. gtd. Nov. 26, 2019, S258946, with People v. Cowan (2020) 47 Cal.App.5th 32, rev. gtd. June 17, 2020, S261952), we cannot make such a determination based on the record before us. A defendant bears the initial burden to introduce evidence of his or her inability to pay any proposed fines of fees. (People v. Castellano (2019) 33 Cal.App.5th 485, 490; People v. Kopp (2019) 38 Cal.App.5th 47, 96, rev. gr. Nov. 13, 2019, S257844.) Our record is incomplete as to both Sanchez's financial situation and any tactical reasons his counsel might have had for failing to object. We do not know what Sanchez would have demonstrated about his personal finances if he had requested a hearing. And although the record contains some financial information, we cannot say with confidence it is complete or that it can be treated as a substitute for the particulars Sanchez would have furnished. Moreover, we are not privy to any additional information counsel might have possessed that would account for her failure to object as a tactical decision. For all these reasons, Sanchez's claim of ineffective assistance of counsel is appropriately presented, if at all, in a petition for writ of habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: AARON, Acting P. J. IRION, J.