Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA063991. Janice C. Croft, Judge.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Sara Olivia Bravo (defendant) of second degree murder (count 1; Pen. Code, § 187, subd. (a)), gross vehicular manslaughter (count 2; § 192, subd. (c)(1)), evading an officer causing death or injury (count 3; Veh. Code, § 2800.3), and unlawful driving of a vehicle (count 4; Veh. Code, § 10851, subd. (a)). As to count 4, the jury found that defendant personally inflicted great bodily injury on a person under five years of age during the commission of the offense. (§ 12022.7, subd. (d).) The trial court sentenced defendant to 22 years to life in state prison as follows: count 1, 15 years to life; count 2, stayed pursuant to section 654; count 3, the midterm of two years to run concurrent with the sentence in count 1; and count 4, the midterm of two years for the underlying offense plus the midterm of five years for the great bodily injury enhancement. The trial court declared the sentence imposed on count 4 as the determinate sentence to be served before the indeterminate sentence imposed on count 1.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the following: (1) there was insufficient evidence of implied malice to support the second degree murder conviction; and (2) her sentence amounts to cruel and unusual punishment. We affirm.
BACKGROUND
On December 11, 2005, at approximately 9:00 a.m., Harvey Hyde (Hyde) and his partner were taking a walk when they saw defendant looking under the hood of a parked vehicle. Hyde asked defendant whether she needed assistance and she said “No.” Hyde and his partner thought defendant’s rejection of their offer to help was suspicious so they memorized the vehicle’s license plate and called the Arcadia Police Department (APD) to report their encounter.
APD Officer Joseph Cortez was dispatched to the scene. When Officer Cortez arrived, he ran the license plate of defendant’s vehicle, which was still parked at the time, and saw that it had been reported stolen. Officer Cortez radioed for assistance. As Officer Cortez was waiting for backup units to arrive, defendant started the vehicle and began traveling at a speed of seven to 10 miles per hour (mph). Officer Cortez followed the vehicle but did not activate his lights or sirens. Defendant increased her speed to less than 20 mph. As defendant approached a stop sign, she accelerated past the sign and made a left turn onto another street. Officer Cortez activated his lights and sirens and continued to follow defendant’s vehicle. Defendant increased her speed to approximately 50 mph on a residential street where the speed limit was 35 mph.
Leticia Gonzalez, the registered owner of the vehicle that defendant was driving, testified that in December 2005, she had loaned the vehicle to her friend Saul Duarte. Duarte testified that on December 6, 2005, he parked the vehicle at a McDonald’s and went inside to buy food. When he returned, the vehicle was gone. Both Gonzalez and Duarte testified that they did not know defendant and had not given her permission to use the vehicle. The parties stipulated that on December 11, 2005, defendant had a suspended driver’s license.
As defendant approached an intersection, she made a right turn and struck a pickup truck. Defendant continued driving and increased her speed to approximately 70 mph through residential streets. Officer Cortez continued to pursue her and changed the sound of his sirens from a wail to a yelp to let surrounding pedestrians and drivers know that he was in pursuit. Defendant approached an intersection with a traffic signal showing red. Defendant crossed the center divider, entered a lane of oncoming traffic, and turned left onto a small residential street. Defendant continued driving at 70 mph.
The driver of the pickup truck testified that there was minimal damage to his truck as a result of the impact with defendant’s car.
Defendant turned onto Del Mar Boulevard (Del Mar) in a westbound direction and increased her speed to over 70 mph. Defendant continued driving on Del Mar at this speed as she approached Altadena Drive (Altadena). Officer Cortez, who was following defendant from a distance of approximately two blocks, saw that the traffic signal was red. Officer Cortez saw defendant drive past the red traffic signal and enter the intersection of Del Mar and Altadena at approximately 80 mph. Defendant collided into a vehicle driven by Talmin Moye (Moye) that was lawfully in the intersection. Before defendant collided into Moye’s vehicle, Officer Cortez did not see defendant attempt to brake or swerve her vehicle to avoid the collision. The force of the collision caused Moye’s vehicle to spin and land in the front yard of a nearby house.
Ron Perez, who was out for a walk when he witnessed the collision, also testified that he did not hear or see signs, such as screeching or smoke, that defendant had attempted to stop her vehicle before colliding into Moye’s vehicle. Perez estimated that defendant’s vehicle was traveling at 50 to 55 mph at the time of impact.
Moye’s three-year-old son was in a car seat on the passenger side of Moye’s vehicle, the side on which the impact with defendant’s vehicle occurred. After the collision, Moye turned around and called out to his son but heard no response. APD Officer Brandon Karmann testified that when he reached the scene, he saw Moye’s son slumped forward with blue cheeks, blue lips, and fluid coming out of his eyes and mouth. An emergency room physician testified that when Moye’s son arrived at the hospital, he had no heartbeat or brain activity. Her physical examination revealed injury to the head, neck, spleen, and liver. A county medical examiner testified that the cause of death was multiple blunt force injuries consistent with being hit by a vehicle travelling at a high speed.
APD Officer Patrick Moore examined defendant’s vehicle after the collision. He determined that the vehicle’s braking system was in working order at the time of the collision.
Stephen Haverkamp (Haverkamp), a police officer and accident reconstructionist, reviewed the available data and calculated the minimum speed of defendant’s vehicle at the time of impact was 56 to 65 mph. Haverkamp emphasized this was the minimum calculated speed and that in his opinion, the speed of defendant’s vehicle at the time of impact was “definitely higher.” Haverkamp calculated that defendant’s vehicle was approximately 500 to 660 feet away when Moye’s vehicle first entered the intersection, and that defendant could have avoided a collision if she had applied her brakes from that distance. Haverkamp visited the scene and did not observe any braking marks left in the intersection.
Haverkamp further testified that there were three traffic signals on Del Mar facing defendant as she was driving toward Altadena, one in the center, one on the right side, and one on the left side. The yellow light bulb in the traffic signal on the right side was burnt out at the time of the collision. This burnt out yellow bulb, however, would not have affected the phasing of the red or green light bulbs. All of the bulbs in the center and left traffic signals were functioning properly. Haverkamp testified that the absence of a working yellow bulb in the right traffic signal was not a factor in the collision because all the traffic signals facing defendant on Del Mar, including the signal with the burnt out yellow bulb, had already phased red for six to seven seconds before defendant entered the intersection.
On the issue of visibility, Haverkamp testified that shrubbery on the corner of Del Mar and Altadena would have prevented defendant and Moye from seeing each other until the front of Moye’s car entered the intersection.
The defense presented three witnesses. Andrew Torres, the Public Works Department Supervisor for Pasadena, testified that approximately two weeks after the collision occurred, one of his employees replaced a burnt out yellow bulb on the “secondary traffic signal” at Del Mar and Altadena. He confirmed that the center traffic signal and the other secondary traffic signal were in working condition.
Don Henderson, who regularly drove through the intersection of Del Mar and Altadena, testified that the yellow light bulb in one of the traffic signals on Del Mar had burned out several weeks before the collision.
Muriel Lang was walking her dog on Del Mar at approximately 9:00 am on December 11, 2005. She saw police vehicles following defendant’s vehicle, but she did not hear any sirens. In her estimation, the vehicles were going no more than 40 mph.
DISCUSSION
I. Sufficiency of Evidence
A. Defendant’s Argument
Defendant argues that there was insufficient evidence of implied malice to support the second degree murder conviction. According to defendant, the evidence supports only a conviction for gross vehicular manslaughter.
B. Relevant Authority
“Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citations.]” (People v. Hansen (1994) 9 Cal.4th 300, 307.) The element of “malice” may be express or implied. Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) “Malice is implied when the killing is proximately caused by ‘“an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’” (People v. Knoller (2007) 41 Cal.4th 139, 143.) “In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another-no more, and no less.” (Ibid.) “Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves a degree of wantonness which is absent in gross negligence.” (People v. Watson (1981) 30 Cal.3d 290, 296.) Implied malice may be proven by circumstantial evidence. (People v. James (1998) 62 Cal.App.4th 244, 277.)
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the 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.’ [Citations.]... The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain the findings. If the findings are supported by substantial evidence, we must give due deference to the jury’s findings and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard for securing a reversal is just as high when the prosecution’s case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing court’s opinion that contrary findings might also have been reasonable does not require a reversal. (Id. at p. 793.)
C. Analysis
After reviewing the entire record, we conclude that there was sufficient evidence to support a finding of implied malice and a conviction of second degree murder. There was ample evidence that defendant deliberately engaged in behavior that was dangerous to human life, knew that her conduct was dangerous to human life, and acted with a conscious disregard for human life. (Knoller, supra, 41 Cal.4th at p. 143.) Officer Cortez testified that defendant ignored his sirens and lights, drove through residential areas at speeds in excess of 70 mph, drove past a stop sign without stopping, entered a lane of oncoming traffic to avoid stopping at a red light, and continued driving after colliding with a pickup truck. As defendant approached the intersection of Del Mar and Altadena, she was driving at up to 80 mph to evade police units that were following her. According to Haverkamp, the light facing defendant had phased red six to eight seconds before defendant entered the intersection, which would have given her time to stop, or at least slow her vehicle, before entering the intersection. Furthermore, at the point Moye’s car was in the intersection and visible to defendant, defendant still had a distance of 500 to 660 feet to stop her vehicle, which would have been sufficient to avoid contact with Moye’s car had defendant initiated her brakes. Defendant, however, elected not to brake and plunged at full speed into the intersection, which caused a fatal collision. The jury could well conclude from this evidence that defendant acted with implied malice.
Citing several cases in which courts have upheld second degree murder convictions in cases where the defendant had multiple drunk-driving convictions, defendant argues that there was no evidence that she was impaired when she collided with Moye’s car, and thus she did not deliberately choose to act with conscious disregard for human life. We reject this argument. While it is true that there was no evidence that defendant was intoxicated before the collision, that fact does not negate the evidence that she knowingly drove through residential streets at excessive speeds, flouted police officers who directed her to stop her vehicle, and ignored traffic signals that were put in place to prevent precisely the type of fatal collision that occurred here. (People v. Contreras (1994) 26 Cal.App.4th 944, 955 (Contreras) [“the absence of intoxication... from pursuing officers does not preclude a finding of malice”].)
We likewise reject defendant’s argument that evidence of a burnt out yellow bulb on the secondary traffic signal and limited visibility of Moye’s vehicle require reversal of the second degree murder conviction. The jury was entitled to disregard this evidence in favor of evidence that the primary center traffic signal facing defendant as she drove westbound on Del Mar was functioning properly and that Moye’s vehicle was visible in the intersection for six to eight seconds before the collision. Defendant is asking us to disregard the jury’s findings and reweigh the evidence ourselves, which is contrary to the standard of review. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
II. Cruel and Unusual Punishment
A. Defendant’s Argument
Defendant argues that the sentence imposed by the trial court violated the prohibition against cruel and unusual punishment contained in our state and federal Constitutions.
B. Relevant Authority
“[A] sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it ‘shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1413, overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547.) Similarly, under the federal Constitution punishment may be considered unconstitutionally excessive and in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment if it is “grossly out of proportion to the severity of [his] crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) “‘[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’” (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).)
C. Analysis
According to defendant, the sentence of 22 years to life is “grossly disproportionate” to her convicted crimes for the following reasons: (1) her “conduct amounted to gross vehicular manslaughter and not to second degree murder”; (2) “[t]here was no evidence that she acted in conscious disregard for human life”; and (3) she had a minimal prior criminal record and there was no evidence that she was intoxicated at the time of the collision.
We summarily reject defendant’s first argument. The jury convicted defendant of second degree murder in addition to gross vehicular manslaughter, and as explained above, substantial evidence supported the jury’s conviction.
Defendant’s second argument is likewise meritless. There was overwhelming evidence that defendant acted with a conscious disregard for human life. In an effort to escape arrest, defendant drove through residential areas at speeds in excess of 70 mph while engaging in dangerous maneuvers and committing a hit-and-run of a pickup truck. Rather than pulling over to see whether the driver of the pickup truck she hit was injured, defendant sped past a red light at over 60 mph and directly into a car with two passengers. That collision resulted in the death of a three-year-old child. Defendant’s actions exemplify a conscious disregard for human life.
Third, the fact that defendant had a minimal prior criminal record does not outweigh the severity of her actions in the present case. (People v. Felix (2003) 108 Cal.App.4th 994, 1001.) Nor does the fact that defendant was not intoxicated at the time preclude a finding that she acted maliciously. (Contreras, supra, 26 Cal.App.4th at p. 955.)
In sum, defendant has failed to demonstrate how a sentence of 22 years to life for the murder of a child is one of those “‘exceedingly rare’” cases of cruel and unusual punishment. (Ewing, supra, 538 U.S. at p. 21.)
DISPOSTION
The judgment is affirmed.
We concur: DOI TODD, ACTING P.J., ASHMANN-GERST, J.
John Chee was in the vehicle behind Moye’s vehicle when they were both stopped at the red light on Altadena. According to Chee, when the light turned green, Moye entered the intersection at a “normal [speed].” Chee estimated that defendant was driving 50 to 60 mph when the collision occurred. Chee did not hear the sound of brakes being applied.