Opinion
A163805
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO LEON AGUILERA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR-725864-1)
Markman, J. [*]
Defendant Fernando Aguilera appeals from a judgment entered after a jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). Aguilera had two prior convictions for driving under the influence of alcohol (DUI). On appeal, Aguilera argues that (1) the trial court erred by declining to modify the standard jury instruction on gross vehicular manslaughter while intoxicated; (2) his second degree murder conviction was not supported by substantial evidence; and (3) remand is appropriate so that the trial court may exercise its discretion on sentencing under a recent amendment to section 654. We conclude that the abstract of judgment should be modified to correct a clerical error as to the sentence for gross vehicular manslaughter while intoxicated, and affirm the judgment in all other respects.
Undesignated statutory references are to the Penal Code.
BACKGROUND
A. Aguilera's 2009 DUI Conviction
On August 7, 2009, Aguilera was driving 55 miles per hour (mph) on a road with a 40 mph speed limit when he drove over a raised berm, knocked down a tree, damaged a post office mailbox, and landed in a commercial parking lot. Police arrived on the scene and administered breath tests with readings of 0.10 and 0.11 percent, which were both above the 0.08 limit. Aguilera pled no contest to a misdemeanor DUI. He received a conditional sentence that, among other things, prohibited Aguilera from driving with any alcohol in his system for three years and referred him to a "first offender" drinking driver program. Aguilera signed a waiver and plea form stating, in relevant part: "You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving, someone is killed, you can be charged with murder."
B. Aguilera's 2011 DUI Conviction
On February 5, 2011, before the three-year period on his conditional sentence had expired, Aguilera was stopped by police after they observed him weaving erratically on the freeway and then abruptly swerving into the exit lane. Aguilera's breath tests had readings of 0.19 and 0.18 percent. Aguilera pled no contest to a second DUI. He received a conditional sentence that, among other things, required Aguilera to wear an ankle monitor for three months. Aguilera was also referred to a multiple offender drinking driver program. Aguilera again agreed to the same probation condition as in 2009- he was not to drive with any alcohol in his system. He also agreed not to "possess or use any alcohol" and to "stay out of places where alcoholic beverages are the primary item of sale (no bars or liquor stores)."
C. Fatal Collision with Lua
In March 2019, Aguilera worked at a winery in Hopland running filtration. On the evening of March 20, 2019, Aguilera would be staying late to finish his work. The job did not require Aguilera to drink, and drinking the wine would violate winery rules. Aguilera's supervisor told him that Aguilera could stay in one of the rooms at the winery available to workers who put in overtime. Aguilera instead left the winery at 10:18 p.m. to drive home.
Approximately 10:58 p.m., Aguilera's Ford Fusion crashed into the rear of Rosa Lua's Honda Civic on the freeway near Santa Rosa. Lua's car hit the guardrails and a traffic sign, flipped, and landed on its roof off the shoulder of the freeway. Lua died from multiple blunt force injuries within seconds of the collision, according to the forensic pathologist who performed her autopsy.
Aguilera's car ended up in the center median facing the opposite direction of traffic. Data from his car revealed that, one second before the crash, the car was going 101.1 mph in a 65 mph speed limit zone. The steering wheel had been turned slightly to the right and then sharply to the left. Aguilera's phone showed that he placed a call immediately after the collision to a private number. He called 911 about two minutes later. During the 911 call, Aguilera said, "I hit a car, I guess I hit a car, uh, didn't really see it . . ." but then explained that a police officer was arriving on the scene and the call ended. Approximately 20 minutes later, Aguilera received a text message that said, "Are you ok?" Aguilera responded, "I'm ducked."
Aguilera told a police officer at the scene that he was changing lanes from the left, to middle, to right because he was "about to get off at the next exit" when he hit something. Aguilera said the impact occurred between the middle and right lanes, and that he had checked before switching but nothing was there. Aguilera told the officer that he had two glasses of wine that day at his job at the winery. Aguilera's chemical breath test had readings of 0.14 percent. Officers arrested Aguilera on suspicion of DUI.
During his postarrest interview, Aguilera stated that he was "about to switch lanes" to exit the freeway when he hit what felt like a "brick wall." He said that there were no cars next to him when he changed lanes and whatever he hit was "already parked." Aguilera said that the "I'm ducked" text message was an autocorrect for "I'm f----d," which he said he sent to his girlfriend because he was in a crash. Aguilera explained that after being placed on probation in 2009 and again in 2011, he had a breathalyzer in his car, had taken many classes concerning the dangers of driving under the influence, and had "paid a bunch of money" in fines and restitution. When asked if he learned the consequences of drinking and driving in those classes, Aguilera responded: "I can't say, I can't say it now 'cause ya know, I'm in here, but yeah, but yeah, obviously."
Prosecutors charged Aguilera by first amended information with murder (§ 187, subd. (a)) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). The information alleged that Aguilera inflicted great bodily injury upon Lua. It further alleged that Aguilera had suffered two prior DUI convictions under section 23152. The case proceeded to jury trial.
The information also included two other charges that were ultimately dismissed as lesser included offenses of gross vehicular manslaughter while intoxicated.
D. Jury Instructions
The trial court instructed the jury using the standard Judicial Council's Criminal Jury Instructions, known as the CALCRIM instructions. Discussions between the trial court and the parties on jury instructions included CALCRIM No. 590, the standard instruction for gross vehicular manslaughter while intoxicated. Defense counsel stated: "I'm not seeing a direct enough causal link between the alleged vehicle code violations, the infractions, and the cause of the accident. I'm concerned about a failure of adequacy in the instruction regarding causation. In other words, it reads as though . . . the People don't need to prove that one of the infractions was a substantial factor in the cause of the accident." The trial court disagreed, finding CALCRIM No. 590 as drafted "sufficiently covers what is required that the People prove." The court noted that counsel "could certainly in [his] argument highlight the issue for the jury to make sure that they had the same meaning and understanding that we all do." But the court concluded that CALCRIM No. 590 "restates the law appropriately" and would not "modify the elements."
The jury was instructed, pursuant to CALCRIM No. 590, that the People were required to prove four elements: "1. The defendant drove a vehicle under the influence of alcohol or drove with a blood alcohol level of .08 or more; [¶] 2. While driving that vehicle under the influence of an alcoholic beverage, the defendant also committed an infraction; [¶] 3. The defendant committed the infraction with gross negligence, AND [¶] 4. The defendant's grossly negligent conduct caused the death of another person."
The instruction listed three violations of the Vehicle Code as infractions in connection with the crash: making an unsafe turning movement, exceeding the maximum speed law, and violating the basic speed law. Per the form instruction, the jury was instructed that a person acts with gross negligence when (1) he or she "acts in a reckless way that creates a high risk of death or great bodily injury;" and (2) a "reasonable person would have known that acting in that way would create such a risk."
Vehicle Code section 21658, subdivision (a) [vehicle "shall not be moved from the lane until such movement can be made with reasonable safety"]; id. §§ 22349-22350 [prohibiting speed on highway "greater than 65 miles per hour" and "greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property"].
The jury was also instructed that an act "causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence." The instruction continued: "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death."
E. Closing Arguments
In closing, the prosecutor argued that the crime of gross vehicular manslaughter while intoxicated had "several elements," including "the same requirement [as instruction on DUI causing injury] that he commit an illegal act that causes the death of Rosa Lua, the same instruction as before that the injury or the death was a direct, natural, and probable consequence of the illegal act, the unsafe lane change, the unsafe speed, the driving in excess of [65] miles per hour."
Defense counsel argued: "So I would, though, like to start with causation. And, remember, there are certain, I think, elements or aspects of the case that could easily lead a person to relatively quickly reach a potentially faulty conclusion about cause. It would be so easy to just drop the hammer on causation because [Aguilera] had been drinking and to excess, and that he was apparently going one hundred miles an hour." Defense counsel told the jurors that "the People have not proven causation," and quoted police officer testimony that they had no knowledge of the turning movement, lane switching, or speed of Lua's car before the collision. He continued: "Causation, though, still remains something the People have to prove beyond a reasonable doubt .... We can't rule out that an unexpected lane change by [Lua] caused the collision. And we can't rule out that [Aguilera] committed no act that was a substantial factor in the cause of the collision .... Because sometimes even if a person was going the speed limit, the accident would have happened anyway. I mean, we are talking about a confined space, three lanes on a highway."
F. Verdict and Sentencing
The jury found Aguilera guilty as charged and found the enhancement allegations to be true. The trial court sentenced Aguilera to 15 years to life in prison for second degree murder. Pursuant to section 654, the court stayed a sentence of 15 years to life in prison for gross vehicular manslaughter while intoxicated.
This appeal followed.
DISCUSSION
Aguilera makes three arguments on this appeal. First, he argues that we should reverse his conviction for gross vehicular manslaughter while intoxicated because the trial court erred in declining to modify the standard form CALCRIM No. 590 jury instruction. Second, Aguilera contends that we should reverse his conviction for second degree murder because the record lacked substantial evidence that he acted with conscious disregard for life. Third, even if his convictions are not reversed, Aguilera argues that we should still remand the case so that the trial court may exercise its discretion on sentencing under a recent amendment to section 654. We address, and reject, each of Aguilera's arguments. We then explain why we must remand so the trial court can correct a clerical error in the abstract of judgment relating to the sentence for Aguilera's gross vehicular manslaughter conviction, which should be indeterminate and not determinate.
I. No Instructional Error
Aguilera argues that the trial court erred by instructing the jury with the standard CALCRIM No. 590 instruction. He asserts that "under the facts of this case, and the way the prosecution argued it to the jury," the instruction "created a substantial risk that the element of causation was removed from the jury."
A. Standard of Review
The CALCRIM instructions used by the trial court "are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror." (Cal. Rules of Court, rule 2.1050(a).) Per the California Rules of Court, "Use of Judicial Council instructions is strongly encouraged.
If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless the judge finds that a different instruction would more accurately state the law and be understood by jurors. Whenever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument." (Cal. Rules of Court, rule 2.1050(f).)
We review the legal adequacy of jury instructions de novo. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) While "[t]he Judicial Council endorses" the CALCRIM instructions "for use and makes every effort to ensure that they accurately state existing law . . . [t]he articulation and interpretation of California law . . . remains within the purview of the Legislature and the courts of review." (Cal. Rules of Court, rule 2.1050(b).)" 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole. We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (People v. Yoder (1979) 100 Cal.App.3d 333, 338; see also People v. Sanchez (2001) 26 Cal.4th 834, 852 [explaining jurors are "presumed able to understand and correlate instructions"].) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
B. Analysis
Aguilera argues here that, because CALCRIM No. 590 instructs that a person acts with gross negligence when he "acts in a reckless way that creates a high risk of death or great bodily injury" and that a natural and probable consequence is one that "a reasonable person would know is likely to happen if nothing unusual intervenes," the jury understood "recklessness to substitute for causation of the collision." We are not persuaded.
Here, the standard form CALCRIM instruction "adequately explains the applicable law." (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) Gross negligence and causation are two distinct elements in CALCRIM No. 590: the evidence must establish that the defendant committed the infraction with gross negligence and defendant's grossly negligent conduct caused the death of another person. Aguilera's suggestion that the jury somehow might have collapsed these two distinct elements contradicts the assumption we must make that jurors are capable of correlating instructions. (People v. Sanchez, supra, 36 Cal.4th at p. 852.) CALCRIM No. 590 also correctly instructed the jury that an act "causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act." We do not accept Aguilera's contention that the additional definition of one phrase-that "natural and probable" consequence involves whether a reasonable person knows it is "likely" to happen-resulted in the jury ignoring the remainder of the phrase (including that causation be a direct consequence), equating causation with recklessness, and removing the causation element from the crime.
Nor are we persuaded by Aguilera's position that closing arguments created confusion for the jury. In those arguments, the prosecutor set out the causation element and defense counsel then highlighted to the jury that the issue of who caused the collision was distinct from whether Aguilera acted with recklessness.
In sum, we conclude that the trial court did not err in declining to modify the standard CALCRIM No. 590 instruction.
Given this conclusion, we need not and do not address Aguilera's additional arguments that the error violated his due process rights and was prejudicial.
II. Sufficiency of Evidence
Aguilera challenges his second degree murder conviction on the element of implied malice. He argues there was insufficient evidence that he was subjectively aware of the risk to human life by his actions to imply malice. (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697 ["Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his or her actions"].)
A. Standard of Review
" 'When reviewing a challenge to the sufficiency of the evidence, we ask" '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. Navarro (2021) 12 Cal.5th 285, 302.) We examine the record independently for" '" 'substantial evidence-that is, evidence which is reasonable, credible, and of solid value'" that would support a finding beyond a reasonable doubt.'" (Ibid.) We" 'view the evidence in the light most favorable to the jury verdict,'" " 'presume the existence of every fact that the jury could reasonably have deduced from that evidence,'" and"' "accept logical inferences that the jury might have drawn from the circumstantial evidence." '" (Ibid.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Analysis
Here, Aguilera argues there is insufficient evidence that he acted with conscious disregard for human life. While he concedes he may have had "general" knowledge that driving while intoxicated was dangerous, Aguilera asserts the evidence is insufficient to allow the inference that he "actually" appreciated the "immediate" risk of his actions. For example, Aguilera asserts there was no "contemporaneous feedback"-like a near-miss with another vehicle-or anything else that occurred immediately before the collision to "alert" him to the danger of his current actions.
None of the authority Aguilera cites, however, suggest that "contemporaneous" feedback or alert is necessary for a defendant to have acted with subjective awareness of risk to human life. Instead, the law will consider such circumstances among several other factors, including the defendant's level of intoxication and prior DUI convictions. (People v. Watson (1981) 30 Cal.3d 290, 293 (Watson) [defendant drank large quantities of beer, ran red light, had near miss, drove away at high speed, and then struck vehicle]; People v. Olivas (1985) 172 Cal.App.3d 984, 989 (Olivas) [defendant drove at extremely high speeds, avoided police pursuit, and had one collision and another near miss before the fatal collision]; People v. Moore (2010) 187 Cal.App.4th 937, 941 [defendant drove 70 mph in a 35 mph zone, crossed into the opposing traffic lane, and ran a red light]; People v. Autry (1995) 37 Cal.App.4th 351, 358-359 [defendant had four prior DUI convictions and blood alcohol level of 0.22 percent, was speeding and swerving out of control, and had three near misses before hitting construction workers].) As in Olivas, "we read Watson as deliberately declining to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach. If the Supreme Court had intended the factors in Watson to be required in all cases for a second degree murder conviction, it presumably would have said so." (Olivas, at p. 989.)
We conclude there was sufficient evidence here that Aguilera acted with conscious disregard for human life to allow the jury to infer malice. Aguilera was driving with a blood alcohol level of 0.14 percent. He sent a text message after the accident to tell his girlfriend that he was "f----d," from which a jury could reasonably infer that Aguilera was aware of the dangerousness, and the severe consequences, of his actions. He had two prior DUI convictions. He had been to a significant number of first offender and then multiple offender classes for people convicted of DUIs, and had worn a screening device and used an ignition interlock device as a condition of his earlier probation. Further, Aguilera's second DUI conviction was the result of his impaired driving on the same major freeway as his collision with Lua and involved similar conduct: Aguilera swerved abruptly into the exit lane. Aguilera received two judicial admonitions that driving under the influence of alcohol is extremely dangerous to human life. Courts have relied on similar factors to establish the sufficiency of evidence for implied malice. (See People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358-1359 [defendant had prior DUI convictions and another near-collision, received judicial admonitions, and participated in substance abuse programs].)
In sum, we conclude that any rational jury could have found, beyond a reasonable doubt, that Aguilera acted with conscious disregard for human life. (People v. Navarro, supra, 12 Cal.5th at p. 302.) Substantial evidence supported Aguilera's second degree murder conviction.
Having rejected Aguilera's arguments regarding instructional error and sufficiency of evidence, we need not and do not address his additional argument that the combination of these errors violated his due process rights.
III. Sentencing Discretion
A. Amended Section 654
Even if his convictions are not reversed, Aguilera argues that we should remand his case for resentencing to allow the trial court to exercise its "newly-created" sentencing discretion under section 654. Before the Legislature amended section 654, in cases where a jury convicted a defendant of multiple crimes," 'the sentencing court was required to impose the sentence that "provides for the longest potential term of imprisonment" and stay execution of the other term.'" (People v. Jones (2022) 79 Cal.App.5th 37, 45.)
Effective January 1, 2022, amended section 654 states, in relevant part, that an act "punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Stats. 2021, ch. 441, § 1; Assem. Bill No. 518. (2021-2022 Reg. Sess.).) In other words, "section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.) The Attorney General does not dispute the retroactivity of the amendment.
Instead, the Attorney General responds that remand would be "an idle act" because punishment for both of Aguilera's convictions is the same: 15 years to life. We agree. (Compare § 190, subd. (a) ["every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life"] with § 191.5, subd. (d) [person convicted of gross vehicular manslaughter while intoxicated with at least one prior conviction for violating Veh. Code, § 23152 "shall be punished by imprisonment in the state prison for a term of 15 years to life"].)
B. Other Arguments
Aguilera's two additional arguments for remand are similarly unpersuasive. First, Aguilera argues that remand would allow the trial court to exercise discretion under a different statute-section 1385-to strike his prior DUI convictions and then impose a lower sentence of 10 years to life on the gross vehicular manslaughter conviction. Aguilera's argument does not rely on any new amendment to section 1385, and no motion was made to strike the prior convictions at the time of sentencing. We therefore have no reason to believe the trial court failed to understand its discretion when it imposed (and then stayed) the 15 year to life term. (See, e.g., People v. Mosley (1997) 53 Cal.App.4th 489, 496.) "[I]n the absence of any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385 to strike the prior conviction if it believed it had such discretion, relief on appeal is not appropriate in this context." (People v. Fuhrman (1997) 16 Cal.4th 930, 945.)
Second, Aguilera argues that remand for resentencing would allow the trial court to execute the gross vehicular manslaughter sentence and stay the second degree murder sentence, which would then relieve Aguilera from a presentence conduct credit limitation under section 2933.2. We disagree.
Section 2933.2, subdivision (a) prohibits the accrual of presentence credits for "any person who is convicted of murder." Regardless of which sentence the trial court elected to execute versus stay, Aguilera still suffered a second degree murder conviction and is subject to the presentence conduct credit limitation.
IV. Clerical Error in Abstract of Judgment
While the discretion provided by the amended section 654 offers no basis for resentencing here, our review did reveal a clerical error in the abstract of judgment. The trial court sentenced Aguilera to 15 years to life on the gross vehicular manslaughter conviction, but the abstract incorrectly reflects it was a determinate term of 15 years. We therefore order correction of the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to issue an amended abstract of judgment correcting the clerical error to reflect the indeterminate term of 15 years to life on Aguilera's sentence for gross vehicular manslaughter while intoxicated. Aguilera's sentence for second degree murder, as well as the fines, fees, and restitution ordered by the trial court, remain in force. The trial court shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Stewart, P.J., Richman, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.