Opinion
D068580
02-03-2017
THE PEOPLE, Plaintiff and Respondent, v. GREG J. STRUNK, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Tami Falkenstein Hennick and Lise S. Jacobson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN342235) APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Tami Falkenstein Hennick and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Greg J. Strunk was convicted by a jury of three counts of child abuse or endangerment likely to produce great bodily harm (Pen. Code, § 273a, subd. (a), felonies, counts 1-3), and three related counts of vehicular and substance abuse offenses. (Veh. Code, § 23152, subds. (a), (b), [misdemeanor driving under the influence (DUI) of alcohol with prior DUI convictions], counts 4, 5; Veh. Code, § 14601.1, subd. (a) [driving with suspended license], count 6.) All six counts arose out of the same July 10, 2014 conduct of Strunk's truck hitting another vehicle and a concrete center divider, while he was driving under the influence of alcohol with three teenage children as passengers.
All further statutory references are to this code unless noted. In pertinent part, section 273a, subdivision (a), provides that felony child abuse or endangerment occurs when [a]ny person who, under circumstances or conditions likely to produce great bodily harm or death . . . willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered."
The same jury convicted Strunk of three charges of unlawful possession of drugs and paraphernalia that arose from a driving incident on March 27, 2014, when he had two of the same children in his truck. (Health & Saf. Code, § 11364.1, subd. (a) [possession of narcotics paraphernalia], count 11; Health & Saf. Code, § 11350, subd. (a) [possession of heroin], count 13; Health & Saf. Code, § 11377 [simple possession of methamphetamine], count 8.) However, Strunk was found not guilty of DUI or of another drug count (sales) from that March 2014 incident, and he was acquitted of two related felony child abuse charges arising then (§ 273a, subd. (a), counts 9, 10; see fn. 2, post). After the verdict, he admitted the truth of allegations about his prior DUI convictions and his prior strike conviction. (§ 667, subds. (b)-(i).) Strunk received an aggregate sentence of nine years four months.
On appeal, Strunk challenges the trial court's decision to deny severance of the two sets of charges arising out of the two incidents, as an abuse of discretion. (§ 954; People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) He seeks a partial retrial of the three counts of child abuse, also arguing as a ground that insufficient evidence was produced to support those same convictions. He argues his July 2014 conduct was not shown to be criminally negligent and likely to produce great bodily harm, within the meaning of section 273a, subdivision (a). (People v. Valdez (2002) 27 Cal.4th 778, 784 (Valdez) [§ 273a, subd. (a) is " ' "intended to protect a child from an abusive situation in which the probability of serious injury is great." ' "].) As we will explain, his contentions have no merit and we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. March 27, 2014 Incident
Counts 7 through 13 of the amended information arose out of an incident taking place around 12:40 a.m. on March 27, 2014, when Strunk was driving his truck to take his daughter S. (age 13) and her friend Jacqueline (age 14) to a Vista convenience store. He was going about 5 to 10 mph and about to turn into the store's parking lot when he made an illegal turn that cut off a marked patrol car being driven in the right hand lane by San Diego County Deputy Sheriff Marco Weston. Weston braked hard to avoid a collision, and immediately made a traffic stop of Strunk's vehicle in the parking lot. No one was hurt.
As Deputy Weston was talking to Strunk, he noticed that Strunk looked disheveled, had red and watery eyes with constricted pupils, and had obvious track marks, abscesses and scabs on his hands and arms. Because Weston thought that Strunk might be driving under the influence, he asked him if he had had anything to drink that night, learning that Strunk drank a Margarita a few hours earlier. He put Strunk through several tests for alcohol or drug impairment, some of which showed some impairment while others did not.
Deputy Weston arrested Strunk and searched him, finding $742 in cash in his front pocket. Searching the truck, Weston found there were two syringe caps and a metal spoon coated with a heroin like substance on the passenger side floorboard. A canine search team was brought in and found a pouch under the truck's toolbox that contained several new and used syringes, one of which looked like it had liquid heroin in it, and some spoons, a scale, and packages containing a total of 10.33 grams of methamphetamine and .47 grams of heroin. At the jail, Strunk told a social worker that he kept drugs away from his children by storing them in his truck. Strunk was charged and released.
B. July 10, 2014 Incident
A few months later, in the mid-afternoon of July 10, 2014, Strunk was driving his Toyota truck eastbound on Highway 78 near Vista, accompanied by his minor daughter S., her friend Jacqueline, their friend Jasmine (age 16) and an adult friend, Brittney. A driver in a Ford truck, Robert Gunion, was also going eastbound on Highway 78 at about 50 miles an hour, in traffic he described as heavy.
As Gunion's truck merged out of the number 2 lane into the number 1 fast lane, he noticed in his mirror that the Toyota truck was straddling the two lanes behind him and getting close to his bumper "like he was trying to push me out of the way." Gunion kept going in the fast lane to drive past a motor home in the next lane, so he could move over, but he then saw the Toyota pulling up alongside him on his right, going around 55 to 60 miles per hour. The Toyota's driver jerked his steering wheel to the left and threw some object at Gunion's passenger side window, probably a bottle of some kind. The Toyota's brakes seemed to be locked and it was sliding sideways toward him when its left rear bumper area hit his truck on its right front, forcing him into the center divider wall. When the impact occurred, Gunion looked at the back window of the Toyota and saw a child looking back who seemed to be "just terrorized—just, you know, like scared." The Toyota went sideways as its front hit the center divider, then it spun out and slid to the right shoulder of the highway. Strunk walked across three lanes of traffic toward Gunion's truck. His passengers got out of the Toyota and into a taxi that pulled up behind it. No one reported any injuries.
Gunion stayed in his truck up against the center divider and called the California Highway Patrol (CHP). They ran a traffic break to allow his Ford to be moved to the right shoulder. CHP officer Russell Robertson took a statement from Gunion, who was not hurt and did not appear to be an impaired driver. Robertson then talked to Strunk, who showed him his driver's license and said he had been driving the Toyota. Strunk said that when he entered the freeway, he went all the way over to the fast lane and came upon a slower moving vehicle, the Ford, as it was moving into the fast lane. Strunk explained that he was required to hit his brakes when the Ford changed lanes directly in front of his vehicle. As Strunk went to the right, he passed the Ford and started to move into the fast lane, when it accelerated and cut into his space, causing him to lose control and hit the Ford and the center divider.
As Officer Robertson talked to Strunk, he noticed Strunk's breath smelled like alcohol, his eyes were watery and he seemed to be speaking in a thick, slurred manner. The officer started asking him introductory type questions about whether he had any illnesses or injuries or if he had consumed any alcohol. First, Strunk said he had a beer at noon, then that he had some whiskey during the next hour, and he was feeling the effects of the drinks a little bit. Robertson started conducting a series of field sobriety tests, some of which showed a degree of impairment and some of which did not. He concluded that Strunk was unable to follow all his directions and gave him a preliminary alcohol screening device test. At 4:34 p.m., Strunk's breath test resulted in a .08% reading, and two minutes later, a reading of .079%.
Officer Robertson checked the status of Strunk's driver's license and found it was suspended for failure to appear or to pay a fine. Strunk said he knew that but thought he still had 30 more days to drive. Robertson decided to arrest Strunk for DUI, based on the various statements taken, Strunk's appearance and his poor performance on the field sobriety tests. At the sheriff's station, further breath tests taken at 5:46 p.m. showed a blood alcohol content of .056, and four minutes later, of .051. Strunk was held in custody.
C. Trial Proceedings
Before trial, Strunk brought a motion to sever the counts arising from the July 10, 2014 incident (counts 1-6), from the counts attributable to the March 27, 2014 incident (counts 7-13). In opposition, the district attorney's office argued there was no great disparity between the facts or the severity of the offenses, and the evidence between the two incidents should be cross-admissible. The trial court denied the motion, determining there was nothing factually about either case that was necessarily inflammatory or unduly prejudicial. The jury would be receiving instructions about its duties to analyze each charge independently and to make separate determinations on them.
At trial, Gunion testified about the accident and stated he worked as a Caltrans engineer. Deputy Weston, Officer Robertson and several criminalists testified about their investigations and evaluations of the evidence. Robertson formed his opinion about the cause of the July 2014 accident by taking both drivers' statements into account, as well as the physical evidence of scrapes, dents and concrete dust found along the left side of both trucks. He concluded that the collision was caused by Strunk's unsafe lane change into the fast lane, which caused the left rear of his truck to collide with the right front of the Ford. That impact caused both vehicles to travel out of control.
In the opinion of a criminalist who testified at trial, the chemical tests would place Strunk's blood alcohol content at the time of the July 2014 driving at about .08 to .09 percent. Evaluating the results of those tests in light of how they would affect a person's ability to drive, the criminalist formed the opinion that Strunk must have been DUI at the time of the collision. The amount of alcohol he had consumed would have affected his ability to determine distances, judge speeds and be aware of his surroundings.
In defense, Strunk presented a witness who was an expert on drug abuse, who described the amounts of drugs found in his vehicle in March 2014 as consistent with personal use, not possession for sale. During closing argument, Strunk's defense attorney did not dispute that in March 2014, he was using drugs and possessed drug paraphernalia and drugs (but without intent to sell), or that in July 2014, he was driving with a suspended license. Strunk argued that the remaining charges were not proven, since he had passed some of the DUI tests and no one was hurt. Officer Robertson said the way the accident happened was consistent with Strunk's description, as well as Gunion's. Since Strunk had readily admitted to being the driver, that showed he did not believe the nature of his conduct or the vehicle accident had posed any immediate risks of great bodily harm to the children.
In her closing argument, the prosecutor described the July 2014 accident circumstances as including the "terrorized look" of the child in the backseat of the car, as seen by Gunion. She argued that Strunk's conduct had amounted to criminal negligence and told the jury, "this happens three and half months after he just was arrested for the same thing. And Mr. Strunk puts the same girls in the car, and he drives under the influence and impaired once more."
After receiving instructions, the jury deliberated and found Strunk was guilty of each of the six charged counts from the July 2014 incident, and guilty of two of the drug possession counts from March 2014, as well as one lesser included offense of simple possession of methamphetamine at that time. Strunk was acquitted of the two child abuse counts from the March 2014 incident. The trial court ruled that certain allegations about the July offenses were untrue (that Strunk was out on bail at the time). Strunk admitted the truth of his prior DUI allegations (counts 4, 5) and the prior strike allegation. The trial court sentenced him to state prison, and he appeals.
Strunk was also acquitted of two of the March 2014 charges, transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a), count 7), and the count for DUI of drugs, with a prior DUI conviction (Veh. Code, § 23152, subd. (e), count 12).
II
SEVERANCE
Strunk contends the trial court abused its discretion in denying his motion to sever the July 2014 counts (Nos. 1-6) from the March 2014 counts (Nos. 7-13), causing undue prejudice to his rights to due process and a fair trial concerning the three felony child abuse convictions. We review the ruling from two time perspectives. "[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard." (People v. Cummings (1993) 4 Cal.4th 1233, 1284; People v. Scott (2015) 61 Cal.4th 363, 396 (Scott); Soper, supra, 45 Cal.4th 759, 773-774.) "[C]onsolidation or joinder of charged offenses 'is the course of action preferred by the law.' " (Id. at p. 772.) To establish an abuse of discretion in this context, Strunk "must make a clear showing of prejudice." (Id. at p. 783; People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Ochoa (1998) 19 Cal.4th 353, 409.)
On appeal, we also consider whether, " 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.' " (People v. Sandoval (1992) 4 Cal.4th 155, 174 (Sandoval).)
A. Pertinent Law and Cross-Admissibility
Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately." Strunk does not dispute that these statutory requirements for joinder were met, because the two sets of child abuse/endangerment and drug-related offenses were all, respectively, crimes of the same class. Even when the statutory requirements for permissive joinder are met, however, severance of the charges may be constitutionally required if joinder "would be so prejudicial that it would deny a defendant a fair trial." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244.) We examine if the court's denial of the severance motion failed to recognize any such "substantial danger of prejudice," as Strunk contends. (Bradford, supra, 15 Cal.4th at p. 1315.)
Whether joinder of properly joined counts would cause prejudice depends on the circumstances of each case, "but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) The denial of a severance motion "may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges . . . ." (Sandoval, supra, 4 Cal.4th 155, 172-173; Scott, supra, 61 Cal.4th 363, 395-396.)
An additional criterion not applicable here is whether "any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." (Sandoval, supra, 4 Cal.4th 155, 173.)
As explained in Bradford, supra, 15 Cal.4th at page 1316, "cross-admissibility suffices to negate prejudice, but it is not essential for that purpose." Cross-admissibility of evidence on each of the joined charges is not required (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221), but it remains as a factor to be considered in the discretion of the trial court. (Soper, supra, 45 Cal.4th at pp. 774-775.)
Although evidence of other crimes is not cross-admissible to establish a disposition to commit crimes under Evidence Code section 1101, it is admissible to establish other relevant facts, including intent, motive, knowledge, or identity. (Evid. Code, § 1101, subd. (b).) --------
Both at argument and on appeal, the prosecution pursued the theory that the evidence concerning the two sets of charges could be used under Evidence Code section 1101, subdivision (b) to establish relevant factors about Strunk's state of mind in driving and acting as he did. (See Valdez, supra, 27 Cal.4th 778, 790 [conduct prohibited by § 273a, subd. (a) is not merely accidental, but represents "a gross departure from the conduct of an ordinarily prudent person"].)
In its ruling, the trial court mainly focused on comparing the severity of the two incidents, and concluded that in light of modern attitudes toward drug use, nothing shown to be necessarily inflammatory or unduly prejudicial would be presented during a joint trial. The court did not expressly address the issue of cross-admissibility of evidence between the two incidents, mainly considering the potential of prejudice as shown by other factors. This was a valid approach under these circumstances, and we likewise turn to the remaining criteria as established by case law. (Frank v. Superior Court, supra, 48 Cal.3d 632, 639; Bradford, supra, 15 Cal.4th 1229, 1317.)
B. Other Criteria: Charges as Inflammatory or of Disparate Strength
Strunk suggests that a strong likelihood of prejudice arose from the evidence about the March 2014 incident, because the jury heard from Deputy Weston that he could readily observe when stopping Strunk that his arms had abscesses and scabs evidently relating to ongoing drug use. A lot of drug paraphernalia was found along with two types of drugs. Such evidence was possibly inflammatory and might have caused the jury to think Strunk was a bad man and to blend together the proof about the two sets of charges. Alternatively, the March case was relatively weak, since that incident occurred at a slower speed and no collision took place, and the DUI tests were somewhat equivocal.
We are required to evaluate " 'whether the benefits of joinder were sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes" evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses.' " (Soper, supra, 45 Cal.4th at p. 775.) " 'One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient.' " (Sandoval, supra, 4 Cal.4th at p. 174.)
In closing argument, the prosecutor focused in part on the similarities between the two incidents and arrests. Strunk claims this was an improper focus on propensity evidence to show whether child abuse took place in the later instance. (Evid. Code, § 1101, subd. (a).) Since no one was hurt during either incident, he contends that the jury should not have been allowed to hear about them together, when evaluating the risk of harm posed to the children during the July 2014 driving and accident. The evidence about each of the incidents had some weaknesses and some strengths, and some of the charges arising from the March incident were not sustained. He suggests that the showing made about the July incident on counts 1 through 3 was probably unduly bolstered by the spillover effect of evidence about the earlier incident.
Even balancing the potential prejudice identified by Strunk against the factors of judicial economy, we cannot find the trial court abused its discretion by allowing the charges to remain joined. None of these was unusually inflammatory or a very disparate type of offense. (Sandoval, supra, 4 Cal.4th 155, 172-173.) The evidence from each incident was simple and distinct. (Soper, supra, 45 Cal.4th at p. 784.) Strunk did not show how he would suffer any prejudice in his ability to present defenses to the separate charges, and the jury was told to consider them separately. The trial court carefully analyzed the issue of severance in light of the relevant law, and we find no basis for considering its ruling to be unfounded or irrational.
Even though we determine that the trial court's denial of Strunk's severance motion was appropriate as of the time it was made, we also consider whether " 'despite the correctness of the trial court's ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.' " (Sandoval, supra, 4 Cal.4th 155, 174.) In each case, an eyewitness testified about the type of driving that Strunk demonstrated, as well as the presence of children in the truck. Individualized field sobriety testing evidence was presented about Strunk's degrees of impaired driving, respectively. There was no need or opportunity created for the jury to fill in the blanks from one case to the other, and it was capable of differentiating between the two sets of charges. (Soper, supra, 45 Cal.4th at p. 784.) Since Strunk obtained acquittals of the March child abuse charges and some of the drug-related charges from that incident, his argument that he was prejudiced overall by the joinder of the charges loses a great deal of its force. (Ibid.) He has not shown there was a likelihood of any significant "spillover" effect of aggregate evidence on various charges, to prejudicially alter the outcomes. (Sandoval, supra, 4 Cal.4th at pp. 172-173.)
As noted, the jury was instructed that it had to consider each charge on an individual basis, and that the argument of counsel was not evidence. Even though the prosecutor reminded the jury that the July incident happened only three and one-half months after the March incident, this did not give rise to any undue prejudice. We presume the jury followed the instructions to treat the charges individually. The record does not otherwise indicate that any unfairness or denial of due process occurred from the manner in which trial proceeded. (Soper, supra, 45 Cal.4th at p. 784.)
III
SUFFICIENCY OF THE EVIDENCE
When an appellate court reviews the sufficiency of the evidence to support a conviction, the substantial evidence test applies. (People v. Cuevas (1995) 12 Cal.4th 252, 261.) "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses 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.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on 'isolated bits of evidence.' " (Id. at pp. 260-261, italics omitted; People v. Wilson (2006) 138 Cal.App.4th 1197, 1201 (Wilson).)
As did the appellant in Wilson, supra, 138 Cal.App.4th 1197, Strunk claims there was insufficient evidence of child abuse or endangerment, "because the circumstances or conditions on which the prosecution rested its case were, as a matter of law, not likely to produce great bodily injury or death." (Id. at p. 1201, italics omitted.) In Wilson, this court analyzed "The Law of Likelihood" in different contexts, and stated, " 'likely' as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death. We believe in the context of child endangerment this definition of the term 'likely' draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction." (Wilson, supra, at p. 1204.)
The intent of section 273a, subdivision (a) is to " ' "protect a child from an abusive situation in which the probability of serious injury is great." [Citation.] "[T]here is no requirement that the actual result be great bodily injury." ' " (Valdez, supra, 27 Cal.4th 778, 784.) The jury was instructed in this context on the definition of criminal negligence, as involving conduct that is reckless and a gross departure from the way an ordinarily careful person would act in the same situation, and amounting to disregard for human life or indifference to the consequences of the actions. It heard that the statute would be violated under those circumstances and where "a reasonable person would have known that acting in that way would naturally and probably result in harm to others."
Strunk contends the evidence on these counts did not support a conclusion that his conduct would likely produce great bodily harm, because under his version of the July incident (as communicated to Officer Robertson), he was simply moving into the fast lane but was required to hit his brakes when the Ford changed lanes directly in front of his vehicle. He said that as he passed the Ford and continued to move into the fast lane, its actions in accelerating and cutting into his space caused him to lose control, hitting it and the center divider. Strunk did not dispute that he was driving with a suspended license. However, he points out that his level of blood alcohol at the time was only borderline for purposes of the DUI charges (presumably at about .08-.09) and he did not leave the site of the accident. He contends that the jury did not have a basis in the evidence to evaluate his conduct in July 2014 as having placed the children in a situation that would be likely to produce great bodily harm to them, especially since they were not physically harmed in the accident.
Applying the standards enunciated in Valdez, supra, 27 Cal.4th 778, 788, the evidence in this case sufficiently supported the jury's findings that during the July 2014 incident, Strunk did not act in the manner of "an ordinarily prudent or careful [person] under the same circumstances," and that his actions were "incompatible with a proper regard for human life." (Ibid.) The evidence showed that Strunk, while driving with a suspended license, crossed a number of lanes of heavy traffic immediately upon entering the freeway, and changed lanes several times in an unexpected manner at a speed in heavy traffic that was likely to create substantial danger, or "a serious and well-founded risk" of great bodily harm to the occupants of his vehicle, as well as other drivers. (Wilson, supra, 138 Cal.App.4th 1197, 1204.) The jury found he did this while driving under the influence of alcohol, and having three teenage passengers with him.
Gunion, who was not observed to be impaired or at fault in his driving, testified about being startled by the actions of the Toyota driver, who got on his bumper, darted over to his right, threw something at him from the driver's seat, made fast lane changes in heavy traffic and then hit him. Gunion saw that one of the children in the Toyota had a scared or "terrorized" expression on her face, which was consistent with her realizing that she and her friends were being placed in actual danger of great bodily harm from freeway conditions, through the actions of the driver of their vehicle. The jury had an adequate basis to conclude that the elements of felony child abuse had been proven, in terms of " 'aggravated, culpable, gross, or reckless' " drinking and driving conduct. (Valdez, supra, 27 Cal.4th 778, 788.) No error has been demonstrated.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
AARON, J.