Opinion
C079673
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. OLEG TARASUK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62115893)
While intoxicated and fleeing from law enforcement officers, defendant Oleg Tarasuk drove his pickup truck across a pedestrian median, striking G. from behind and killing him instantly. Defendant was convicted by jury of second degree murder (Pen. Code, § 187), driving under the influence of alcohol (DUI) causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol content (BAC) of 0.08 percent or higher causing injury (id., subd. (b)), evading a pursuing peace officer in willful disregard for the safety of persons or property (Veh. Code, § 2800.2), and resisting an executive officer in the performance of his or her duty (§ 69). In a bifurcated proceeding, the trial court found defendant was previously convicted of a serious felony offense (§ 667, subd. (a)), qualifying as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to state prison to serve an indeterminate term of 30 years to life plus a consecutive determinate term of 13 years 8 months.
Undesignated statutory references are to the Penal Code.
On appeal, defendant brings five contentions, each bordering on the frivolous. Despite the existence of eyewitness testimony that defendant's truck struck G. from behind on the pedestrian median before continuing into the roadway and colliding with another vehicle, and corroboration of that testimony from both the forensic pathologist and the prosecution's expert in accident reconstruction, defendant claims his murder conviction must be reversed because "no other witness to the accident saw [his] truck strike a pedestrian" and there was "ample evidence" showing G. was actually struck and killed by the other vehicle before that vehicle was hit by defendant's truck. This is patently absurd. Defendant also claims his convictions for driving with a BAC of 0.08 percent or more and resisting an executive officer must be reversed for insufficient evidence. To the contrary, as with defendant's murder conviction, these convictions are supported by overwhelming evidence of guilt. Defendant further asserts the trial court prejudicially abused its discretion by allowing a witness, A.S., to testify regarding his observations of defendant's driving, observations that caused the witness to report defendant to law enforcement authorities and resulted in their initial contact with defendant. There was no abuse of discretion. Finally, we also reject defendant's contention the trial court violated section 654 by imposing and executing sentence on both the murder conviction and the DUI causing injury conviction. We therefore affirm the judgment.
FACTS
In August 2012, at about 8:00 p.m., A.S. was driving home from the gym. After making a left turn at an intersection a short distance from his neighborhood, he noticed a truck making a right turn into the intersection from the opposite direction. The truck, driven by defendant, made the turn at a high rate of speed, causing the tires to "screech" against the roadway. Defendant accelerated in the lane adjacent to A.S., pulling up next to him while "revving" the engine, and then braked to back off. He did this several times. When A.S. made a left turn into his neighborhood, defendant followed. He continued to accelerate and decelerate, but this time immediately behind A.S.'s car. A.S. made another turn down the street where he lived and pulled over. Defendant also made the turn, but positioned his truck in front of A.S.'s car and flashed his high beams two or three times. A.S. started to get out of his car to confront defendant, but defendant drove away. A.S. then called 911 and followed defendant a short distance, where he made a U-turn and parked at a roadside recycling center. A.S. parked his car at a safe distance and reported defendant's conduct to the 911 operator, who immediately dispatched officers to the location.
Officer Ron Goodpaster was the first to arrive. He parked his marked patrol car about 30 or 40 feet behind defendant's truck and approached the driver's side of the truck wearing a standard police uniform. The sun had recently set, but it was still fairly light out. Defendant, who was speaking on his cell phone in Russian, told Goodpaster in "very broken English" that he was having an argument with his wife and handed the officer the phone. Goodpaster handed the phone back and told him to hang up. Defendant complied. The officer noticed defendant's eyes were "bloodshot and watery" and his face was "flushed," indicating possible intoxication. The truck was still running, so Goodpaster told him to turn it off. Defendant complied with this direction as well. The officer then performed a horizontal gaze nystagmus test while defendant was still in the driver's seat, which also indicated possible intoxication.
Around this time, Officer Gary Smith arrived on the scene and parked his patrol car between Goodpaster's patrol car and defendant's truck. Smith, who was also wearing a standard police uniform, joined Goodpaster at the driver's side window and also noticed defendant's eyes were "watery and bloodshot." Smith then returned to his patrol car and contacted A.S. on the phone. After speaking to A.S. for three or four minutes, Smith returned to defendant's truck. In the meantime, Officer Curtis Watkins also arrived on the scene. He too arrived in a marked patrol car and was wearing a standard police uniform. When he got to the driver's side window, Goodpaster was trying to communicate with defendant, but "it was difficult . . . due to the language barrier." Defendant did understand he was being questioned about his alcohol consumption, however, and admitted to having a "little bit of beer." Because none of the officers spoke Russian, Goodpaster radioed for a Russian-speaking officer to assist in the investigation.
When law enforcement officers began arriving on the scene, A.S. told the 911 operator to have the officers contact him at his house and drove home. --------
Watkins was briefly alone next to defendant's window while Goodpaster and Smith discussed the latter's conversation with A.S. behind the truck. Goodpaster then returned to his patrol car to wait for the Russian-speaking officer. Watkins attempted to engage defendant in small talk while everyone waited for that officer to arrive and noticed the smell of alcohol on defendant's breath. Defendant then received a call on his cell phone and said it was his wife. Watkins told him not to answer, but defendant did so anyway. After a brief conversation in Russian, defendant hung up the phone and started the truck. Watkins yelled: "Shut off the car." Rather than comply, defendant "began revving the engine" and tried multiple times to shift the truck into drive. He was unable to do so, apparently because his foot was on the gas pedal rather than the brake pedal. While defendant was trying to put the truck in gear, Watkins yelled multiple times for him to turn off the engine. Watkins then reached inside the window just as the gear shift lever engaged in drive and quickly returned the truck to park.
As Watkins and defendant struggled over control of the gear shifter, Smith ran back to the truck yelling: "No. No. Don't drive away." Smith opened the driver's door and both he and Watkins tried to pull defendant out while keeping the truck in park. Defendant's physical resistance, aided by the fact he was wearing his seat belt, prevented the officers from removing him from the truck. As Watkins testified, "he was trying to push us out of the truck and trying to pry our hands from the gearshift lever." As Watkins pulled out his service knife to try to cut the seat belt to allow them to pull defendant out of the truck, Smith deployed his taser in an attempt to incapacitate defendant. The taser misfired. At that point, defendant was able to shift the truck into drive and the officers stepped back to avoid being pulled underneath the truck as it drove away.
Meanwhile, Goodpaster was standing next to his patrol car when he heard defendant's truck start. Seeing Smith and Watkins struggling with defendant, Goodpaster got into his patrol car to try to block defendant's truck from driving away. As the truck began moving forward, Goodpaster activated his overhead emergency lights and tried to intercept defendant. Unable to get in front of defendant, Goodpaster drove his patrol car into the side of the truck in an attempt to push it onto an adjacent dirt road rather than allowing defendant to get back onto the roadway. Both vehicles crashed through a chain link fence separating the roadway from the dirt road, but the truck remained oriented towards the roadway and was gaining traction, so Goodpaster struck the vehicle a second time in an attempt to spin it out and stall the engine. This maneuver succeeded in spinning the truck 90 degrees, but did not stall the engine, allowing defendant to drive onto the roadway heading southbound. When it became clear Goodpaster would not be successful in stopping the truck from getting onto the roadway, Smith and Watkins returned to their patrol cars, activated their emergency lights, and followed in pursuit. Goodpaster followed immediately behind them. Defendant did not have his headlights on despite the fact it was now dark enough to require them to safely navigate the road.
Less than a mile away, G. and his wife, J., were standing on a pedestrian median on the west side of the roadway, waiting to cross Main Street to the south. A traffic signal pole separated them. G. was on the side of the pole that was closer to the roadway where defendant was driving. From the north, the roadway curved slightly before intersecting with Main. As defendant's truck approached the intersection without its headlights on at around 50 miles per hour, defendant was unable to negotiate the curve while remaining in the roadway. The truck drove over the curb separating the roadway from the pedestrian median, continued across the median, and struck G. from behind as it also sideswiped the traffic signal pole. As J. described in her testimony at trial, she saw "flashing police lights" in her peripheral vision. The lights were coming from behind her, so she turned her torso and head to the left to look in that direction. As she did so, she saw G. was also turning his torso and head to the left to look behind him. At that moment, J. heard the sound of "screeching tires" as defendant's truck jumped the curb and struck her husband from behind, throwing him onto the hood of the truck as it continued onto Main Street and struck another vehicle.
J.'s account of defendant's truck hitting G. from behind while G. turned his torso to the left was corroborated by the forensic pathologist's testimony detailing G.'s injuries. The doctor explained G. was struck from behind with enough force to cause a "whiplash- type" dislocation of the joint between his skull and cervical spine, severing his brain stem from the spinal cord. Death came instantly. Several fractures to G.'s posterior left rib cage were consistent with him turning to the left when he was impacted. Other injuries, including pelvis fractures and avulsive skin abrasions to G.'s groin area, were consistent with having been struck from behind. The impact with defendant's truck also fractured G.'s thoracic spine, severing his aorta, a fatal injury.
Returning to the collision, after hitting G. from behind on the pedestrian median, defendant's truck struck an SUV as the latter vehicle was turning left onto Main Street. This broadside collision pushed the SUV across Main and into another vehicle, while defendant's truck spun nearly 180 degrees and ended up behind and pointed away from the SUV. While J. did not see what happened to her husband following the impact with the SUV, other evidence established G.'s legs were briefly caught between the vehicles before his body was thrown free of the collision and landed on the sidewalk on the other side of Main.
The pursuing officers arrived at the crash site within seconds and took defendant into custody. He was transported to the hospital, where further DUI investigation was conducted, including two preliminary alcohol screening (PAS) tests. The first, administered at 9:03 p.m., registered a BAC of 0.191 percent. The second, administered two minutes later, registered a BAC of 0.196 percent. Defendant's blood was drawn at 9:17 p.m. Subsequent testing revealed a BAC of 0.23 percent.
Various witnesses to the collision also testified. We decline to provide a detailed description of their testimony. For our purposes, it will suffice to note that not a single witness testified to seeing a pedestrian attempting to cross Main Street and being struck by the SUV before that vehicle was hit by defendant's truck. The only witness who saw G. as he was hit was his wife, who testified unequivocally that her husband was hit from behind by defendant's truck while he was still on the pedestrian median. A number of these other witnesses also corroborated her testimony that defendant's truck jumped the curb and drove across the median where G. was standing prior to the collision. Such testimony was corroborated by an analysis of the crash site, including tire marks on the curb and tire depressions across the median.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient substantial evidence to support his convictions for murder, driving with a BAC of 0.08 percent or more, and resisting an executive officer. As our recitation of the facts should make abundantly clear, these contentions lack merit.
A.
Murder
Defendant does not dispute the sufficiency of the evidence to support any element of his murder conviction other than causation. He argues evidence of causation is lacking because "[o]ther than [J.], no other witness to the accident saw [his] truck strike a pedestrian" and "ample evidence" shows G. was actually struck and killed by the SUV turning onto Main Street "less than a second" before that vehicle was hit by defendant's truck. This is absurd.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, we need look no further than J.'s testimony to reject defendant's contention. She testified to seeing defendant's truck strike her husband from behind as they turned their torsos and heads to the left to see what was going on behind him. There is nothing physically impossible or inherently improbable about this account. This testimony is corroborated by testimony from both the forensic pathologist and the prosecution's expert in accident reconstruction. The fact no other witness saw defendant's truck strike G. is as irrelevant to our assessment of the sufficiency of the evidence as it is unsurprising. The intersection was dark and, as defendant points out, the scene was "chaotic." This does not mean that J., standing next to G. when he was hit, could not see who hit him. Nor are we persuaded by defendant's assertions J.'s testimony was "biased" and the jury "apparently paid little heed" to the trial court's instruction (CALCRIM No. 200) directing them to "not let 'bias, sympathy, prejudice, or public opinion influence' their decision." First, it is not for this court to determine whether J. harbored a bias against defendant. The jury was appropriately instructed to consider whether her testimony was "influenced by a factor such as bias or prejudice" in deciding whether or not to believe her testimony. (CALCRIM No. 226.) We presume the jury did so. (People v. Yeoman (2003) 31 Cal.4th 93, 138-139.) Second, as to whether the jury allowed its own bias or sympathy to influence its decision, the same presumption applies. The jury was instructed not to do so and we presume it understood and followed the instruction. (Ibid.)
Defendant's assertion that it was the turning SUV that initially struck G. as he attempted to cross Main Street "less than a second" before defendant's truck struck the SUV is contradicted by J.'s testimony and the testimony of both the forensic pathologist and the accident reconstruction expert. The first piece of evidence defendant relies upon in advancing this argument does not support an inference the initial impact was caused by the SUV. He cites testimony from C.W., the driver of the vehicle immediately behind the SUV, specifically that this witness did not see defendant's truck hit G. But this does not supply proof it was the SUV that did so. C.W. did not see that occur either. He did, however, see defendant's truck cross the pedestrian median at a high rate of speed and nearly miss a pedestrian. Presumably, that pedestrian was J. Thus, despite not seeing the impact with G., this witness's account corroborates J.'s testimony. Defendant also cites various pieces of forensic evidence he claims support his version of G.'s death. We decline to recount this evidence here. Instead, we simply note it is the jury that is tasked with resolving conflicts in the evidence, not this court. (See People v. Young, supra, 34 Cal.4th at p. 1181.)
The evidence was more than sufficient to establish causation. It was overwhelming.
B.
Driving With a BAC of 0.08 Percent or More
Defendant argues his conviction for driving with a BAC of 0.08 percent or more must be reversed because the criminalist who testified regarding defendant's blood-alcohol tests "could not say with any degree of certainty" that his BAC was 0.08 percent or higher at the time of the collision. This argument is belied by the record.
The criminalist, Hillary Bantrup, testified an "average-sized male" can typically eliminate about 0.02 percent BAC per hour from his bloodstream. Based on a hypothetical scenario involving a male subject of defendant's height and weight with a BAC of 0.23 percent at 9:17 p.m., Bantrup was asked to estimate that individual's BAC at 8:20 p.m., i.e., the time of the collision. Assuming this hypothetical individual had fully absorbed into his bloodstream all of the alcohol he consumed earlier in the night, and the individual eliminated alcohol from his bloodstream at the average rate, Bantrup testified his BAC at 8:20 p.m. would have been between 0.24 and 0.25 percent. Asked to further assume this hypothetical individual "had not [drunk] any alcohol from 8:05 p.m. to the time of the crash [at] 8:20 p.m.," Bantrup was asked for her opinion as to whether or not that individual's BAC was 0.08 percent or higher at 8:20 p.m. She responded: "Given that information, given that at least 15 minutes had passed from the time of consumption, I would again estimate that approximately 80 percent of whatever the peak alcohol concentration was absorbed into the bloodstream by 8:20 p.m. Given that we have a [0.23], I would safely be able to assume that this individual was over a [0.08] at the time of driving or at the time of [the] crash." This evidence, coupled with the fact that each aspect of the hypothetical was supported by substantial evidence, is more than sufficient to prove beyond a reasonable doubt that defendant drove with a BAC of 0.08 percent or more.
Nevertheless, relying on certain answers taken out of context, defendant claims Bantrup was uncertain about whether or not his BAC was 0.08 percent or more at the time of the crash. When Bantrup said, "I can't say with any certainty what exactly the level was at 8:20 p.m.," she had not yet been asked to assume the hypothetical individual had not drunk any alcohol between 8:05 p.m., i.e., the time he was detained by officers at the recycling center, and 8:20 p.m. Once she had that piece of the hypothetical in place, she "safely" concluded the BAC was over 0.08 percent at 8:20 p.m. Then, during cross-examination, referring to the PAS breath tests administered at 9:03 p.m. and 9:05 p.m., indicating a BAC of 0.191 percent and 0.196 percent, respectively, defendant's counsel asked: "And if you had just those two values, and if both instruments, your chromatograph and the PAS, were accurate, I believe it was your testimony that was that you could not determine back at 8:20 whether this person had a [0.08] or better. Was that your testimony?" (Italics added.) Bantrup answered: "Yes. So if the individual was still, in fact, rising in [BAC], I could not give a specific alcohol concentration at 8:20 p.m." (Italics added.) However, a reasonable inference from all of the evidence is that defendant was not drinking while stopped at the recycling center, during the span of roughly a minute that it took him to get to the crash site, or after being taken into custody following the crash. And assuming this to be the case, Bantrup was able to safely conclude defendant's BAC was over 0.08 percent at 8:20 p.m. Bantrup also explained the PAS tests may have been inaccurate, but the blood test was not.
The evidence was more than sufficient to establish defendant drove with a BAC of 0.08 percent or more.
C.
Resisting an Executive Officer
Defendant further argues his conviction for resisting an executive officer must be reversed for insufficient evidence. He is mistaken.
Section 69 may be violated either by "attempting with threats or violence to deter an officer from performing his or her duties" or by "resisting an officer by force or violence" while that officer was performing his or her duties. (People v. Campbell (2015) 233 Cal.App.4th 148, 160.) The second type of violation, of which defendant was convicted, requires proof that: (1) he unlawfully resisted an executive officer; (2) the resistance was accomplished by means of force or violence; and (3) he knew the officer was performing his or her duties. (People v. Carrasco (2008) 163 Cal.App.4th 978, 984-985.)
Defendant does not claim the evidence was insufficient to establish he unlawfully resisted Officers Goodpaster, Smith, and Watkins at the recycling center, or that he did so by means of force or violence. Their testimony in that regard is overwhelming. Instead, defendant claims he did not know these officers were performing their lawful duties at the time. He bases this argument on testimony from the officers that their interaction with defendant was "cordial and polite" while everyone waited for the Russian-speaking officer to arrive. Because the initial interaction at the recycling center was so "benign," and no one "informed [defendant] that he was to be detained on suspicion that he was driving while under the influence," defendant argues he reasonably believed he was free to leave and "[i]t was only after he started exercising his apparent right to depart that the officers escalated the situation into a free-for-all."
We need not determine at which moment defendant was officially detained on suspicion of DUI. All that is required to sustain this conviction against defendant's challenge is sufficient substantial evidence he knew the officers were performing their lawful duties. "Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise." (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) Here, three officers wearing standard police uniforms arrived in three separate marked patrol cars, asked defendant questions regarding his alcohol consumption, and one of them performed a field sobriety test on defendant as he sat in the driver's seat. That defendant understood the officers was evidenced by the fact he hung up the phone and turned off the truck when Goodpaster told him to do so. Defendant also acknowledged he had drunk a "little bit of beer" when asked about his alcohol consumption. This evidence supports a reasonable inference defendant knew the officers were performing their lawful duties, i.e., investigating him on suspicion of DUI, when he unlawfully and forcibly resisted them by starting the truck, ignoring their commands to turn it off, and physically wresting control of the gear shift lever from both Watkins and Smith as he engaged the vehicle in drive and drove away.
The evidence was more than sufficient to establish defendant resisted an executive officer in the performance of his or her duties.
II
Admission of A.S.'s Testimony
Defendant claims the trial court prejudicially abused its discretion by allowing A.S. to testify regarding the observations that caused him to report defendant to law enforcement authorities. Specifically, defendant argues A.S.'s testimony regarding his "reckless" and "aggressive" driving amounted to inadmissible character evidence "offered only to show that [he] was a person with 'criminal traits' and pre-disposed to engage in reckless anti-social behavior." We disagree.
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) One such exception is found in subdivision (b) of this section, which provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act." (Id., subd. (b).) We review the trial court's admission of evidence for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 25.)
Here, A.S.'s testimony regarding defendant's driving was not evidence of another act suggesting a negative character trait that was relevant to prove the specific charged conduct by way of propensity, i.e., the character trait that caused defendant to commit that other act made it more likely he also committed the charged act. Instead, A.S.'s testimony provided direct evidence of defendant's driving behavior immediately before he was contacted by police. This evidence was relevant to prove the charged act itself, that defendant was driving while intoxicated on the night he killed G. by running him down.
The trial court did not abuse its discretion in admitting this evidence over defendant's objection.
III
Section 654Finally, we also reject defendant's contention the trial court violated section 654 by imposing and executing sentence on both the murder conviction and the DUI causing injury conviction.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offence carrying the highest punishment." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
Defendant argues he engaged in a single criminal act, i.e., hitting G. with his truck while he was intoxicated. However, "section 654 does not apply to crimes of violence against multiple victims" because " '[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.' [Citation.]" (People v. Correa (2012) 54 Cal.4th 331, 341.)
In People v. Murray (1990) 225 Cal.App.3d 734, the Court of Appeal employed this exception to section 654's prohibition against multiple punishment where a single act of intoxicated and reckless driving caused a collision killing four people and injuring two others. Specifically, the Court of Appeal held the trial court acted within its discretion in imposing and executing sentence on four counts of murder and two counts of DUI causing injury, explaining: "Multiple punishment is proper when a single act of violence, including drunk driving, injures or kills multiple victims." (Id. at p. 749.) Here, as in Murray, defendant was convicted of the murder of G. and DUI causing injury to the driver of the SUV he collided with after killing G. Thus, the multiple victim exception applies and defendant's contention fails.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BUTZ, J.