Opinion
C087720
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LEWIS ABUANBAR, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 20, 2019, be modified as follows:
1. On page 3, delete footnote 1 in its entirety and replace it with the following sentence: Defendant did not provide the video on appeal.
2. On page 11, first paragraph, 10th line down, delete the word ramming and replace it with crashing into.
There is no change in the judgment. Defendant's petition for rehearing is denied. BY THE COURT: /s/_________
Robie, Acting P. J. /s/_________
Butz, J. /s/_________
Duarte, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF04616)
The trial court found defendant Anthony Lewis Abuanbar guilty of gross vehicular manslaughter while intoxicated after he pled no contest to hit and run resulting in death and recklessly fleeing a pursuing officer. On appeal, he contends: (1) the trial court erred in denying his motion to suppress evidence from a blood draw; (2) there was insufficient evidence for the court to find gross negligence; and (3) the abstract of judgment erroneously reflects gross vehicular manslaughter while intoxicated is a violent felony. We agree the abstract of judgment should be corrected but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Crime
On September 12, 2017, Michael Cesspooch was riding his bicycle when defendant abruptly swerved his truck off the road striking and killing Cesspooch. After driving away, defendant pulled off into a nearby gravel lot, turned his lights off, and stopped his truck behind an 18-wheeler. Witnesses approached defendant and told him he had just hit someone. Defendant responded, "[i]t's okay. There's nothing wrong. It's okay." "I'm going back." Defendant then accelerated out of the lot when he saw a police car driving his way. This led to a five-mile police chase during which defendant drove over 100 miles an hour, failed to stop at multiple stop signs, and hit an electrical box. Defendant eventually held a white object out of his truck indicating surrender and officers took him into custody. When officers asked his name, defendant said his name was George Henry. Defendant told officers he "blacked out" and officers described him as "sweating heavily," "excited," and having "uncontrollable movements." A judge issued a search warrant for defendant's blood. The toxicology report showed several drugs in defendant's system, including a high amount of methamphetamine.
II
The Trial
Oroville Police Officer Ali Khan and Detective Raymond Stott testified about defendant's appearance on the night of the incident. Officer Khan said defendant appeared "excited," "sweat[ed] heavily," had "uncontrollable movements" and "fast speech." Officer Khan also testified defendant sang a song in the back of the patrol car and initially lied about his name. When asked by the prosecutor if Officer Khan had seen effects like this before, he responded, "I have [¶] . . . [¶] [n]ormally for people who are under the influence of a controlled substance or stimulant." Detective Stott testified defendant appeared "incoherent" and "didn't seem to understand the questions."
The prosecution also played and entered into evidence Officer Khan's body-worn camera video from that night. Defendant's truck could be heard crashing into a patrol car on the video and defendant could be heard saying he "blacked out." Officer Khan explained defendant also appeared to be excited, sweating, and breathing hard in the video.
Defendant did not provide the video or the transcript of the video on appeal. Defendant states in his brief that the crash occurred because his truck was not in park and it rolled into Officer Khan's patrol car. However, during trial, Officer Khan testified defendant first crashed into a patrol car then failed to put his truck in park before leaving the vehicle. Once his truck was dislodged from that patrol car, it rolled into Officer Khan's patrol car. Officer Khan's testimony is consistent with the warrant stating defendant "ramm[ed]" a patrol car. As such, we resolve this issue consistent with Officer Khan's testimony.
The prosecution called Sarah Porter, a forensic scientist, to testify about the effects of methamphetamine on the body. Porter first noted defendant's toxicology report indicated methamphetamine, tramadol, lidocaine, and carboxy delta-9 THC (marijuana). The therapeutic range for methamphetamine is .02 to .05 milligrams per liter and Porter testified that the amount in defendant's system indicated abuse and would likely have an effect on him. The second phase of methamphetamine abuse includes drowsiness, paranoia, hallucinations, and can cause a person to pass out. Porter stated the other drugs in his blood likely did not have an effect on defendant due to their low levels.
Porter testified the most common type of vehicle crashes involving individuals under the influence of methamphetamine are single-vehicle, drive-off-the-road-type accidents. After viewing the body-worn camera video, Porter testified, "[j]ust with regard to that particular video, I would say there may be, there may be some indicators that the -- or some indicators that this person is potentially being affected by a drug such as methamphetamine."
DISCUSSION
I
The Search Warrant
Defendant contends the trial court erroneously denied his motion to suppress evidence from the blood draw because the warrant lacked probable cause. The People assert there was probable cause to support the warrant, and even if there was not, the officer acted in good faith and the evidence should not be suppressed. We conclude the warrant was supported by probable cause; as such, we do not discuss the good faith exception.
A
Background
Oroville Police Detective Shane Carpenter applied for a "DUI Blood Draw" search warrant the night of the incident. The warrant application stated in whole: "The arrest was based on the following circumstances that were witnessed by me or, where indicated, were witnessed by another officer who informed me of the circumstance. On 9/12/2017, at approximately 2027 hours, [defendant] . . . was driving on Feather River Blvd. when he struck a pedestrian riding a bicycle. [Defendant] pulled over and told a witness that he had hit someone on a bicycle. As Officers arrived on scene [defendant] took off in the vehicle he was driving. The vehicle pursuit ended with [defendant] being arrested but not after ramming a patrol vehicle and lying to [an] Officer about his name. [Defendant] is exhibiting common objective signed [sic] of being under the influence of some type of narcotic." The magistrate issued the warrant.
At a motion to suppress hearing, the court denied the motion and found probable cause supported the warrant. The court found the magistrate could have drawn several reasonable inferences from the warrant to make a finding of probable cause. The factors included the time of night, the fact that defendant acknowledged he hit someone, fled from the police, rammed a police car, lied about his name, and exhibited common objective signs of being under the influence of a stimulant.
B
The Trial Court Did Not Err In Finding Probable Cause For The Search Warrant
When reviewing a trial court's denial of a motion to suppress, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A magistrate must decide whether probable cause exists to issue a search warrant. (People v. Scott (2011) 52 Cal.4th 452, 483.) Probable cause is, " 'a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' " (People v. Hurtado (2002) 28 Cal.4th 1179, 1188-1189.) " '[Probable] cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.' " (People v. Costello (1988) 204 Cal.App.3d 431, 446.)
A blood draw is a search under the Fourth Amendment. (Birchfield v. North Dakota (2016) 579 U.S. ___ [195 L.Ed.2d 560, 574-575].) The Supreme Court has always been firm in its position that a search warrant for a blood draw is preferable. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." (Missouri v. McNeely (2013) 569 U.S. 141, 152 [185 L.Ed.2d 696, 707].) When an officer does obtain a search warrant, courts presume the warrant is valid because such warrants may only be issued upon a showing of probable cause. (Walcyzk v. Rio (2d Cir. 2007) 496 F.3d 139, 155-156.) "Courts have a 'strong policy favoring search by warrant rather than upon other allowable basis.' [Citations.] For this reason, when, as here, the police do obtain a warrant, that warrant is presumed valid." (People v. Amador (2000) 24 Cal.4th 387, 393.)
Detective Carpenter obtained a search warrant for a blood draw, and as such, we presume the warrant is valid; however, we review the evidence to determine if probable cause existed when the magistrate issued the warrant. In determining whether probable cause existed, we consider the totality of the circumstances. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) There are several factors in this case, taken together, that establish probable cause. These factors include: defendant hit a person, left the scene of the accident without rendering aid, fled from police, rammed a police car, lied to officers about his identity, and exhibited common signs of being under the influence of a stimulant. These factors indicate a substantial chance of criminal activity; in fact, they show defendant likely committed multiple criminal actions while under the influence. Defendant exhibited a consciousness of guilt in that he fled from capture and lied to officers, indicating something other than inadvertence caused defendant to hit the victim. Further, not only did defendant hit someone while driving, he also caused property damage when he hit a patrol car. This also shows defendant did not inadvertently hit the victim, but that something else was causing him to drive unsafely for more than an isolated period. Combined with his abnormal behavior, probable cause supported the detective's belief that it may have been drug use. Considering the totality of the circumstances, there is sufficient evidence for a magistrate to find probable cause.
Defendant disputes there was probable cause indicated in the warrant because the warrant consisted of conclusory statements and lacked the officer's basis of knowledge. The court, however, relied on other factors relevant to the totality of the circumstances inquiry when making its decision, including the circumstances surrounding the crash, as well as defendant's resulting behavior. Its reliance on these other factors was sufficient to support its finding of probable cause.
Defendant further cites several cases where courts found probable cause to support a blood draw and argues the circumstances of his collision did not rise to the level found sufficient in those cases. But defendant fails to cite one case where a court did not find probable cause. Defendant cites to Chapel and contends, "[T]he fact of the collision was insufficient to establish probable cause that evidence of a crime would be found in [defendant's] blood." (Citing U.S. v. Chapel (9th Cir. 1995) 55 F.3d 1416.) Chapel does not stand for that proposition. (Id. at p. 1417.) The only issue in Chapel was whether officers had to arrest the defendant before drawing blood without a warrant, which it decided was not required. (Ibid.) The Chapel court made no determination as to probable cause. (Id. at p. 1420.) As such, defendant's argument is without support.
In the other cases defendant cites, the defendants were not involved in multiple traffic collisions and did not exhibit the consciousness of guilt defendant exhibited here. In Tennessee, the reviewing court upheld the trial court's probable cause determination by pointing to the defendant's unsafe driving and his common objective signs of intoxication. (People v. Tennessee (1970) 4 Cal.App.3d 788, 792.) The unsafe driving consisted of the defendant weaving in between lanes three times and stopping too far into an intersection on a red light. (Id. at p. 790.) Here, defendant clearly displayed unsafe driving. He hit and killed a bicyclist, led police on a five-mile high-speed pursuit, and hit one patrol car. Likewise, in Trapane, the court found probable cause to arrest a drunk driving suspect who displayed common objective signs of intoxication despite the officer never seeing the suspect drive. (People v. Trapane (1991) 1 Cal.App.4th Supp. 10, 12, 14.) In our case, officers observed defendant's unsafe driving and noted defendant displayed common signs of being under the influence of a stimulant. (Id. at pp, 12, 14.) As such, the cases cited by defendant plainly demonstrate probable cause supported the search warrant obtained here.
Accordingly, the trial court did not err in denying the motion to suppress.
II
Sufficient Evidence Supports The Trial Court's Finding Of Gross Negligence
Defendant argues the evidence was insufficient to establish gross negligence to support his conviction for gross vehicular manslaughter while intoxicated. We disagree.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1289.)
A conviction for gross vehicular manslaughter while intoxicated requires a finding of gross negligence. (Pen. Code, § 191.5, subd. (a).) "Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] 'The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens." ' [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved." (People v. Bennett (1991) 54 Cal.3d. 1032, 1036.) Courts evaluate gross negligence in vehicular manslaughter cases by considering, " 'the level of the defendant's intoxication, the manner of driving, or other relevant aspects of the defendant's conduct resulting in the fatal accident.' " (Id. at p. 1039.) The finding of gross vehicular manslaughter while intoxicated is "based on the overall circumstances surrounding the fatality." (Id. at p. 1040.)
All further section references are to the Penal Code unless otherwise specified.
In Bennett, the defendant and two friends were drinking all afternoon when defendant decided to drive. (People v. Bennett, supra, 54 Cal.3d at pp. 1034-1035.) One friend rode with defendant and the other followed in his own car. (Id. at p. 1034.) While driving, defendant weaved in and out of traffic. (Ibid.) After passing several cars on a blind curve, defendant lost control of the car causing it to go off the road and roll over five or six times killing his passenger. (Id. at pp. 1034-1035.) The defendant's level of intoxication played an integral role in finding gross negligence. (Id. at p. 1038.) " 'One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.' " (Ibid.) The court held there was sufficient evidence to support the conviction for gross vehicular manslaughter while intoxicated. (Id. at p. 1040.)
Defendant's case is similar to Bennett. The evidence presented at trial supports the conclusion that defendant was consciously indifferent to the consequences of his actions. Defendant was under the influence of methamphetamine at the time he caused the fatal incident. The expert testified the level of methamphetamine in defendant's system indicated abuse. The abusive level of methamphetamine in defendant's system caused impairment, such as drowsiness, paranoia, and hallucinations. Indeed, as the expert testified, drivers under the influence of methamphetamine commonly cause incidents of the nature involved here -- single-vehicle, drive-off-the-road incidents. Only in this case, when defendant drove off the road, he hit the victim who was on his bicycle. Like in Bennett, the high level of a stimulant in defendant's system supports the trial court's finding of gross negligence because it demonstrates a conscious disregard for the safety of others.
Defendant also relies on Nicolas and Leitgeb to argue he was not grossly negligent. The defendant in Nicolas was found grossly negligent when she crashed into a car at 80 miles an hour killing the driver of that car. (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1169-1170, 1172.) Evidence showed traffic had been at a complete stop for 20 to 30 seconds before the crash. (Id. at p. 1170.) There was no evidence the defendant attempted to take any evasive action before the crash. (Id. at p. 1172.) In the 17 minutes before the crash, defendant sent and received 14 text messages and answered two phone calls. (Id. at p. 1170.) After the crash, the defendant did not assist the victim -- instead she asked for her phone. (Ibid.) The court found the jury's finding of gross negligence was supported by substantial evidence. (Id. at p. 1171.)
Also, in Leitgeb, the court found the defendant acted with gross negligence when he veered across a corner in his car and hit a victim who was standing in a safety zone. (People v. Leitgeb (1947) 77 Cal.App.2d 764, 769-770.) The court found no condition on the road that would have inhibited the defendant's view of the pedestrian and therefore "the only reasonable explanation of defendant's failure to see the decedent is that he was not exercising even the slightest degree of care." (Id. at p. 770.)
Defendant's inattention to the bicyclist, just like the inattention to traffic in Nicolas and the inattention to the pedestrian in Leitgeb, shows defendant's conscious indifference. Defendant testified he did not remember hitting the bicyclist, evidencing his lack of attention. Not only did defendant testify to not seeing the bicyclist, but after witnesses told defendant he hit a person with his truck, defendant drove away -- further demonstrating his conscious indifference, like the defendant in Nicolas who requested her phone instead of assisting the victim.
Defendant argues his methamphetamine use and postcollision conduct cannot support a finding of gross negligence and that the accident alone does not justify gross negligence. Not so. The trier of fact is to consider, "all relevant circumstances." (People v. Bennett, supra, 54 Cal.3d at p. 1038.) Additionally, the court in Nicolas explicitly said postcrime actions and statements are relevant considerations when determining gross negligence. (People v. Nicolas, supra, 8 Cal.App.5th at p. 1172.) While Von Staden does suggest the mere fact of a traffic accident does not show gross negligence, the court held "gross negligence can be shown by the manner in which the defendant operated the vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law violation." (People v. Von Staden (1987) 195 Cal.App.3d 1423, 1427.) Here, the surrounding circumstances of the incident -- the abusive level of methamphetamine, hitting a bicyclist, failing to render aid, fleeing from police, ramming a police car, and lying to an officer are all part of "the overall circumstances" that show defendant's conscious indifference and gross negligence.
Accordingly, we conclude the verdict is support by substantial evidence.
III
The Abstract Of Judgment Should Not Reflect Gross
Vehicular Manslaughter While Intoxicated Is A Violent Felony
Defendant argues and the People concede gross vehicular manslaughter while intoxicated is not a violent felony. We will direct the trial court to correct the abstract of judgment to delete this incorrect information.
Gross vehicular manslaughter while intoxicated is a serious felony; however, it is not a violent felony. (§ 1192.8, subd. (a).) Gonzales directly addresses whether gross vehicular manslaughter while intoxicated may qualify as a serious felony. (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1690-1691.) The court in Gonzales found gross vehicular manslaughter while intoxicated "will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice." (Id. at p. 1694.) Subsequently, in 1996, the Legislature codified Gonzales in section 1192.8, subdivision (b). The statute explicitly provides gross vehicular manslaughter while intoxicated is a serious felony. (Ibid.) However, no statute dictates gross vehicular manslaughter while intoxicated is a violent felony.
We agree with defendant that the prosecution could not plead or prove the great bodily injury enhancement as required by section 667.5, subdivision (c)(8) because the statute for the great bodily injury enhancement specifically states, "This section shall not apply to murder or manslaughter . . . ." (§ 12022.7 subd., (g); People v. Cook (2015) 60 Cal.4th 922, 924.) As such, the trial court did not sentence defendant to the enhancement and his conviction could not be classified as a violent felony. (§ 667.5, subd. (c)(8).)
Accordingly, the trial court must correct the abstract of judgment to delete that gross vehicular manslaughter while intoxicated is a violent felony.
DISPOSITION
The trial court is directed to correct the abstract of judgment to delete the reference that gross vehicular manslaughter is a violent felony pursuant to section 667.5. The trial court shall send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.