Opinion
A112461
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. ERIC PAUL BIGONE, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Eric Paul Bigone appeals from a judgment convicting him of gross vehicular manslaughter while intoxicated and sentencing him to prison for a term of 15 years to life. He contends, among other things, that the trial court abused its discretion by admitting testimony of the details of two prior convictions for driving while intoxicated. He acknowledges that the fact of the prior convictions was admissible, but argues that the details of the offenses were irrelevant and prejudicial. He argues further that there was no substantial evidence to support the jurys finding of gross negligence. We shall affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged by information with one count of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) The information also alleged two prior convictions for driving under the influence. (§ 191.5, subd. (d).) The matter was tried before a jury and the following evidence was presented:
All statutory references are to the Penal Code unless otherwise noted.
Joseph Fossa testified that at 4:00 a.m. on Monday May 31, 2004, he and his son were driving on highway 29 in Lake County. He was driving a truck and pulling a boat. He was traveling at 50-55 miles per hour when he saw headlights behind his truck. He slowed to 45 miles per hour when he reached a passing lane, but accelerated again when he reached the end of the passing lane and the car behind him had not attempted to pass. Shortly thereafter, while on a straight section of the highway, Fossa noticed that the car behind him was trying to pass. He saw headlights approaching in the opposite direction but did not have room in his lane to move to the right. He told his son there was about to be a head-on collision and immediately saw the impact in his mirror. He pulled over and reported the accident to the California Highway Patrol (CHP).
Margaret Finn testified that at approximately 4:30 a.m. she was driving on the same stretch of highway in the opposite direction as Fossa. She was traveling 55 miles per hour and a car was following directly behind her. She saw headlights coming straight towards her and pulled on to the shoulder to avoid hitting the oncoming car. The oncoming vehicle missed her car by inches and then collided with the car behind her. Finns passenger called 911 and reported the accident.
Deputy Sherriff Barry Clark testified that when he arrived at the scene he saw Fossas truck on the side of the road and the two cars that had been involved in the collision. Clark saw a woman with her eyes closed trapped in a Mitsubishi and found defendant in the drivers seat of the other car. Defendant was moaning and bleeding from his face. Paramedic Sammy Hukkanen testified that he checked the driver of the Mitsubishi and determined she had likely died on impact. Doctor Kelly Arthur confirmed at trial that the female driver had died at the scene from blunt force injuries.
Defendant was taken by ambulance and helicopter to the hospital in Santa Rosa. During transport Hukkanen detected a strong odor of alcohol on defendant.
CHP Officer Brian Engle testified that when he arrived at the scene he obtained defendants wallet and identification and photographed the accident. It was obvious to him that defendants car had crossed into the oncoming lane of traffic. He asked an officer in Santa Rosa to confirm that defendant was the driver and check his sobriety. At the hospital, the officer smelled alcohol on defendant and had his blood drawn at 8:19 a.m.
Criminalist Michael Potts analyzed the blood sample and testified that at 8:19 a.m. defendants blood alcohol concentration (BAC) level was .11 percent. Based on the average rate of elimination of alcohol from the bloodstream, he estimated that defendants BAC level was .18 percent at the time of the accident. Forensic toxicologist Daniel Coleman testified that he also tested defendants blood sample and concluded that defendant had used marijuana within hours of the accident. Although he could not pinpoint the exact time, he explained that one of the compounds found in defendants blood at 8:19 a.m. usually is eliminated within six to eight hours after ingestion. He testified that marijuana can affect the ability to drive safely. He also testified that he found evidence of cocaine use in defendants blood but that he could not pinpoint when the cocaine had been ingested.
Defendant did not object to any of Colemans testimony. On appeal, however, he contends that all of this evidence should have been excluded under Evidence Code sections 350 and 352. This claim has not been adequately preserved. (People v. Rogers (1978) 21 Cal.3d 542, 548.) In any event, we see no reason to assume that if asserted the trial court would have considered the potential prejudice of this evidence to outweigh its probative value.
Officer Kevin Domby testified that at the scene he found in defendants car a bottle of Wild Turkey whiskey, one-quarter full, and a burnt marijuana cigarette. Two of defendants friends testified that defendant had been with them on Saturday night and that he and his friends had been drinking from the Wild Turkey bottle.
Defendant contends that evidence of the whiskey bottle "was improperly admitted as the search of the vehicle was done in violation of appellants constitutional rights." Defendant did not challenge the validity of the search or object to the admission of this evidence at trial. This argument also has not been preserved for appeal (§ 1538.5, subd. (m); People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 673), and in all events we see no basis on which the trial court might have concluded that the evidence was obtained illegally.
San Francisco Police Officer Troy Carrasco testified that he had arrested defendant for driving under the influence of alcohol on April 5, 1996, at 1:30 a.m. Defendant had been driving a motorcycle at 50 miles per hour in a 25-miles per hour zone and had driven through multiple stop signs before stopping. His BAC level at the time of the arrest was .14 percent.
San Francisco Police Officer Philip Papale testified that he arrested defendant on February 6, 1997, for driving under the influence of alcohol. Defendant was speeding and admitted to the officer that earlier in the evening he had run into a taxi cab. Defendants BAC level was .19 percent.
Defendant testified on his own behalf. He acknowledged his two prior drunk driving convictions and explained that after the second conviction he took an 18 month course on the dangers of alcohol and driving. After a girlfriend of a friend of his died, he has never again driven after drinking. He knew that if he continued to drink and drive he could kill someone. Defendant admitted that on the Saturday night before the accident he had gotten drunk with his friends and also used marijuana and cocaine. He stopped drinking on Sunday because he knew he would be driving back to San Francisco. He placed the half empty Wild Turkey bottle under the passenger seat as he left with his friends to go to the bar. He explained that he did not try to pass Fossas truck in the passing lane because he was too far behind. Later, when he tried to pass on the straight road, he underestimated the length of the truck and boat. After he pulled out to pass he was trapped and could not avoid the oncoming car. After the collision he was in pain and to ease the pain started drinking the whiskey.
On rebuttal, another officer testified that he had not observed any blood on the whiskey bottle.
DISCUSSION
Section 191.5, subdivision (a) defines gross vehicular manslaughter while intoxicated as "the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." "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 dont care what happens." [Citation.] The test is objective: whether a reasonable person in the defendants position would have been aware of the risk involved." (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) Defendant contends the trial court erred in allowing the prosecution to present testimony regarding the details of his prior convictions to establish that he was grossly negligent. Additionally, he argues that even if that evidence was admissible, there was insufficient evidence to support the jurys verdict.
1. Admissibility of Defendants Prior Misconduct.
In People v. Ochoa (1993) 6 Cal.4th 1199, 1204-1205, the court held that "evidence of defendants prior conviction for driving under the influence of alcohol, his subsequent probation, and his attendance at traffic school, including an alcohol awareness class discussing the dangers of drinking and driving" was admissible to show defendants "awareness of the risk." The court reasoned that although the test for gross negligence is an objective test, "[i]n determining whether a reasonable person in defendants position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. . . . [I]f the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendants position would have recognized the risk." (Id. at p. 1205, italics omitted.)
Defendant acknowledges that under People v. Ochoa evidence of his "actual convictions and education about the dangers of drinking and driving received after those convictions is relevant to [his] knowledge of those dangers." He argues, however, that "evidence of the actual facts underlying those convictions does not provide evidence of his knowledge of the dangers of drinking and driving" so that the evidence was both irrelevant and prejudicial. We review the trial courts decision admitting evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Contrary to defendants assertion, the trial court could reasonably consider the details surrounding defendants prior convictions probative of his awareness of the risks of driving while intoxicated and not unduly prejudicial. The evidence of defendants BAC levels at the time of the prior offenses tended to show that defendant was made aware of the extent of impairment resulting from a level of intoxication similar to the level during the fatal accident. The testimony that the second conviction followed an accident, albeit a minor one, was probative of defendants awareness of the danger of an accident while driving intoxicated. The officers testimony regarding the prior incidents was brief and not particularly sensational. The prior incidents were both significantly less egregious than the present offense. (People v. Brown (2000) 77 Cal.App.4th 1324, 1338.) The evidence was not inflammatory but was relevant to defendants state of mind at the time of the instant offense. Given that the prior convictions and resulting punishment and treatment were admissible, as defendant concedes, the additional testimony that he committed a number of traffic infractions while intoxicated was hardly so prejudicial that it outweighed the probative value of this evidence.
The court excluded the records from defendants prior convictions under Evidence Code section 352, but this does not mean that the court abused its discretion in allowing the police officers to testify regarding the prior offenses. The court excluded the documentary evidence, including documents showing additional prior charges to which defendant did not plead guilty, on the basis that the additional charges were not particularly probative in light of defendants stipulation to the prior convictions. The court also was concerned that the jury might not understand the various notations in the proffered minute orders. Defendant objected to the admission of the documentary evidence on the ground that it was cumulative.
In People v. Ochoa, supra, 6 Cal.4th at page 1206, the court emphasized that any potential prejudice resulting from the admission of evidence of prior misconduct could be cured with a proper limiting instruction. Here, the court instructed the jury that "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of gross negligence which is a necessary element of the crime charged, and the lesser included offense of violating Penal Code [section] 192[, subdivision] (c)(1)." (CALJIC No. 2.50.) The prosecutor argued, consistent with this instruction, "We had an unusual situation here in this case. Its unusual because rarely does the law allow this, but we were able to go into previous crimes of Mr. Bigone for a very limited purpose, and I want to urge you right at the outset its not the Peoples position that hes guilty of this case because he was guilty before. This case has to rise or fall on its own merits. You cant say, well, hes done it before, find him guilty, and we are not asking that. . . . [¶] What it does is it tells you what knowledge he had, what understanding of the risks of driving drunk or under the influence . . . . [¶] . . . [¶] . . . [W]e were allowed to put in that evidence because his understanding, his appreciation of the risk to human life is way up there from his experience. He should have known better. He should have learned from his lesson. Any reasonable person would have. And the court will instruct you not to use that evidence for any other purpose." Thus, the jury was properly instructed that the evidence of defendants prior misconduct could be used only to evaluate his appreciation of the risks involved in driving while under the influence of alcohol and the evidence was urged to show only that.
Defendants argument that the court erred by failing to give a separate limiting instruction at the time of the officers testimony is without merit. Defendant did not request such a limiting instruction at the time of the testimony, nor was it essential that the instruction be given at that time.
Finally, the likelihood of any prejudice resulting from the evidence of the prior convictions is particularly remote in this case because defendant did not deny full appreciation of the risks of driving while intoxicated. Indeed, he emphasized his awareness of the dangers of driving after drinking. His defense was that he did not consume any intoxicants the day of the accident until after the collision, when he drank from the bottle in his car to relieve his pain. The details of the prior convictions were hardly likely to affect the jurys evaluation of the credibility of that defense.
2. Substantial evidence supports the jurys finding of gross negligence.
The jury was instructed that "Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under similar circumstances." (CALJIC No. 8.91.) "`Gross negligence means conduct which is more than ordinary negligence. . . . `Gross negligence refers to a negligent act which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the death was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act." (CALJIC No. 3.36.) The jury also was instructed that "[t]he mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine gross negligence from the level of the defendants intoxication, the manner of driving, or other relevant aspects of the defendants conduct resulting in the fatal accident." (CALJIC No. 8.94.) Contrary to defendants argument, the finding that defendants conduct was grossly negligent is supported by substantial evidence. " `The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
The trier of fact reasonably could infer that defendant, having suffered two prior convictions for driving under the influence of alcohol, one of which involved a traffic accident, having been placed on probation and attended an alcohol-awareness class, and being fully aware of the risks of such activity, nonetheless drove in a reckless manner while highly intoxicated. (See People v. Ochoa, supra, 6 Cal.4th at p. 1208.) Defendants argument that his driving was "not in the least bit reckless or egregious" is not convincing. Fossa testified that defendant had the opportunity safely to pass his truck using the passing lane, but did not do so. Rather, he subsequently tried to pass Fossa when oncoming vehicles were clearly visible. (People v. McCarnes (1986) 179 Cal.App.3d 525, 535 ["Defendants conduct was even more egregious because the oncoming vehicle he collided with was clearly visible to defendant as he entered the opposing lane"].) The accident was foreseeable as evidenced in part by Fossas testimony that he thought it was a "stupid" time to try to pass his truck, and the statement he made to his son that there was about to be a collision. The Attorney General observes correctly that under different circumstances this accident might be viewed as a mistake in judgment, but the evidence supports the jurys determination that defendants excessive alcohol consumption coupled with the attempt to pass when oncoming traffic was visible constituted gross negligence.
Defendants attempt to impeach the evidence regarding his estimated blood alcohol level at the time of the crime is similarly unavailing. The criminalist testified that defendants BAC level was .11 percent at 8:19 a.m. Based on an average elimination rate of .02 percent per hour, he estimated that defendants BAC level at the time of the accident was .18 percent. On cross-examination, the criminalist acknowledged that if, as defendant testified, he had nothing to drink prior to the accident but quickly consumed a substantial amount of whisky after the impact, it was possible for his BAC level to register . 11 percent when tested at 8:19 a.m. The jury, however, was entitled to reject defendants testimony that formed the premise of the hypothetical. Likewise, the fact that defendants BAC level at 6:15 a.m. was calculated at .135 percent does not render the criminologists testimony unsound. The witness explained that the range of elimination is between .01 and . 03 percent per hour. Based on this rate, defendants BAC level dropped by .025 percent in approximately two hours. Even applying this elimination rate, rather than the average, defendants BAC level could be estimated as at least .15 percent, which is significantly over the legal limit. (See People v. Ochoa, supra, 6 Cal.4th at pp. 1206-1207 [rejecting characterization of "defendants probable .15 percent intoxication as `not excessive "on ground that "this percentage was nearly twice the legally permitted level for drivers of motor vehicles, and one and one half times the level at which one is presumed intoxicated and impaired"].)
The criminalist testified that the hospital independently determined that defendants BAC level at 6:15 a.m. was .163 percent. The procedure used by the hospital, however, results in a higher BAC level than that used by the police department. The criminalist testified that the police departments equivalent would be a BAC level of .135 percent.
Accordingly, the jury "could conclude from defendants course of conduct and preexisting knowledge of the risks that he exercised so slight a degree of care as to exhibit a conscious indifference or `I dont care attitude concerning the ultimate consequences of his actions. Applying the objective test for gross negligence, any reasonable person in defendants position would have been aware of the risks presented by his conduct." (People v. Ochoa, supra, 6 Cal.4th at p. 1208.)
For the same reason, we reject defendants contention that the court erred in denying his motion for judgment of acquittal pursuant to section 1118.1.
3. Defendant received a fair trial.
Defendant contends that he did not receive a fair trial because his attorney failed to "fully explore the meaning of the BAC results and the failure to educate the jury as to the various permutations and possibilities that flow from the empirical toxicological evidence." He also contends that the prosecutor committed misconduct by misleading "the jury into believing that there was only one possible BAC at the time of the accident, namely 0.18 percent." Defendant cites no authority in support of his argument and devotes only one paragraph to the issue. In any event, as discussed above, the criminalist presented the evidence of defendants BAC level in a comprehensive manner and acknowledged that the results were also consistent with defendants version of the facts. Hence, defendants attorney was not deficient in his cross examination of this witness. (In re Resendiz (2001) 25 Cal.4th 230, 239; Strickland v. Washington (1984) 466 U.S. 668, 697.) Likewise, there was nothing unfair, let alone deceptive or reprehensible, about the prosecutors presentation of the case. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
4. Defendants sentence is not constitutionally excessive.
Defendant contends that his sentence violates the prohibition against cruel and unusual punishment under the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. Punishment may be unconstitutional "if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) In Lynch, the court "prescribed three `techniques for assessing whether punishment is cruel or unusual. In order to determine if a punishment `is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity [citation] courts should (1) consider `the nature of the offense and/or the offender [citation], (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses [citation] and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Initially, we note that defendant failed to challenge his sentence as cruel and unusual in the trial court, and thus may be deemed to have waived any such argument on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Nonetheless, we conclude for the reasons stated above that defendants claim fails on the merits.
Here, defendant focuses exclusively on the second consideration. He argues that his sentence is unconstitutional because it is the same as that which would be imposed on one "who likewise is convicted under Penal Code section 191.5[, subdivision] (d) but who has one or more prior felony convictions for vehicular manslaughter." Defendant implicitly acknowledges that statutory schemes that provide increased punishment for recidivists are generally constitutional. He argues, however, that section 191, subdivision (d) is unconstitutional because a defendant "whose criminal history involves two misdemeanors, neither of which involved injury, gets the same punishment, 15 years to life in prison, as an individual who has killed a person, perhaps twice, before."
Section 191.5, subdivision (d), provides: "A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision." Vehicle Code sections 23540, 23542, 23546, 23548, 23550, or 23552 all provide enhanced punishment for multiple convictions under Vehicle Code section 23152. The remaining statutes referenced in section 191.5, subdivision (d), involve convictions which require bodily injury to another person.
Section 191.5, subdivision (d), however, does differentiate between injury and non-injury related priors. Under this sentencing scheme, an enhanced sentence may be imposed based on a single prior injury related conviction, but in the absence of a prior injury there must be multiple prior convictions for driving while under the influence to qualify for the same punishment. This distinction and the statutory sentencing scheme as a whole are both reasonable. The Legislature enacted section 191.5, subdivision (d), to increase the punishment for anyone convicted of gross vehicular manslaughter who had a history of driving under the influence. (See Stats. 1996, ch. 645, § 1, p. 3628 (Assem. Bill No. 1985 (1995-1996 Reg. Sess.)) ["This act shall be known and may be cited as `Courtneys Law, in memory of Courtney Cheney of Roseville, who was killed by a drunken driver with a long history of driving under the influence"].) The scheme is consistent with the notion that the law may punish more severely those who do not learn from their prior mistakes. (People v. Martinez, supra, 71 Cal.App.4th at p. 1512 ["[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time"].) In this instance, the Legislature allows an additional opportunity to learn from prior mistakes when no one has been injured, but concluded reasonably that more severe punishment is warranted when one continues driving while intoxicated after two prior convictions.
DISPOSITION
The judgment is affirmed.
We concur:
PARRILLI, Acting P. J.
SIGGINS, J.