Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF122223A John R. Brownlee, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
INTRODUCTION
Appellant/defendant Donna Brinkman was driving a car while intoxicated through the small town of McKittrick in Kern County. Defendant hit 76-year-old Robert Morrison as he was crossing the street. Defendant’s car hit Morrison with such force that the car’s windshield was shattered. As Morrison lay in the street, defendant ran to her daughter’s nearby apartment, and convinced her daughter to return to the scene and claim responsibility as the driver. Defendant and her daughter returned to the scene. When the investigating officers asked who was driving the car, defendant said it was her daughter. Her daughter later stated she was driving the car; defendant heard her daughter’s statements and did not say anything to contradict the false claim. A witness came forward while the officers were still at the scene, however, and reported that defendant had been driving the car. Morrison later died from his injuries.
Just one month earlier, defendant had pleaded no contest to driving under the influence. She was placed on probation and her driver’s license was suspended. At the time of the no contest plea, she was admonished that it was extremely dangerous to human life to drive while under the influence of alcohol, and that she could be charged with murder if someone was killed as a result of driving under the influence.
As a result of Morrison’s death, defendant was charged and convicted of the following offenses: count I, second degree murder (Pen. Code, § 187); count II, gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); count III, driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)); count IV, driving with a blood-alcohol level of 0.08 percent or higher and causing bodily injury (Veh. Code, § 23153, subd. (b)); and count V, misdemeanor driving with a suspended license (Veh. Code, § 23540). As to counts III and IV, the court found true the special allegation that defendant had a prior conviction for driving under the influence (Veh. Code, § 23540).
All further statutory citations are to the Penal Code unless otherwise indicated.
Defendant was sentenced to an indeterminate term of 15 years to life for count I, second degree murder, with a concurrent term of 90 days for count V. The terms on the remaining convictions were stayed pursuant to section 654.
On appeal, defendant contends there is insufficient evidence to support her convictions in count I for second degree murder, and in count II for gross vehicular manslaughter while intoxicated. She also contends the court abused its discretion when it permitted the prosecution to introduce evidence about the underlying circumstances of her prior conviction for driving under the influence, and her hostile and combative behavior when she was arrested for that prior offense. Finally, defendant contends she was convicted in counts III and IV of lesser included offenses of count II.
We will agree with the People’s concession that counts III and IV must be reversed as lesser included offenses of count II. We will otherwise affirm.
FACTS
Defendant’s prior conviction for driving under the influence
Before we address the facts of the instant case, we will review evidence about defendant’s prior conviction for driving under the influence. As we will discuss post, the court permitted the prosecution to introduce this evidence as relevant and probative to establish defendant’s knowledge under Evidence Code section 1101, subdivision (b).
Around 9:00 p.m. on May 27, 2007, Jared Thompson was driving on Highway 119, a two-lane road just outside of Taft. Thompson noticed a black car in his rearview mirror. Defendant was later identified as the driver of the black car. Defendant drove behind Thompson’s car very quickly and almost hit him. Defendant tried to pass Thompson but she was almost hit by an oncoming vehicle in the opposite lane. Defendant swerved the black car back behind Thompson. About two minutes later, defendant passed Thompson, drove around a curve, slid sideways, and almost swerved out of control.
Thompson called 911 and got the black car’s license plate number. He continued to follow the black car as it turned off the highway and headed into Taft. Defendant drove into an intersection, suddenly stopped, and abruptly backed up and nearly hit Thompson’s car. Thompson honked his horn and realized the driver knew he was following her. Defendant pulled to the side of the street and allowed Thompson to pass. As Thompson drove by, defendant displayed her middle finger and cursed him. Thompson passed the black car but watched in his rearview mirror as it turned into a fast food restaurant. Thompson kept watching until a police car arrived and the officer contacted the driver.
Taft Police Officer Kevin Altenhofel arrived at the fast food restaurant and encountered defendant sitting in the driver’s side of a black Honda. A female passenger was also in the car. Defendant smelled of the strong odor of alcohol. Defendant’s speech was slightly slurred and her eyes were watery and bloodshot. Altenhofel asked defendant to get out of the car. She complied with his instructions but she slightly staggered, displayed a balance problem, and walked with an unsteady gait. Defendant was barefoot. Altenhofel asked if she wanted to put on her shoes before she went through the field sobriety tests, but defendant said no. Defendant failed the sobriety tests. Altenhofel believed she was under the influence of alcohol and placed her under arrest.
There was one empty beer can and one half-full beer can on the front floorboard of defendant’s car. An ice chest in the back seat contained several unopened beer cans.
Altenhofel testified that defendant was initially cooperative when he encountered her. After he arrested her, however, defendant’s demeanor suddenly changed. She became very argumentative, called Altenhofel a “bitch, ” and threatened to sue him. At the police station, Altenhofel asked defendant if she would take a blood or breath test and read the standard admonishments. Defendant refused and said, “I’m not taking your f... test.”
Defendant’s no contest plea and admonishments
It was stipulated that as a result of the May 27, 2007, incident in Taft, defendant pleaded no contest on June 26, 2007, to driving under the influence of alcohol. Defendant was not present in court that day and her attorney entered the plea.
It was also stipulated that defendant’s driving privileges were suspended for her prior conviction for driving under the influence, and she had knowledge of that suspension.
It was further stipulated that on June 5, 2007, defendant signed a series of documents as part of her no contest plea. The first document acknowledged that she had been advised, understood, and waived her constitutional rights in entering the no contest plea. She signed this document in her attorney’s office.
The second set of documents consisted of the terms and conditions of defendant’s three-year probationary period, including the suspension of her driver’s license. She could not indulge in the use of intoxicants, or drink and drive with any measurable amount of alcohol or drugs in her blood. She was ordered to participate in a licensed alcohol education program.
This set of documents included a form entitled: “Sentences for Violation of Vehicle Code Section 23152.” The form stated:
“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 will be charged with murder.
“I HAVE READ THE ABOVE CONSEQUENCES OF BEING CONVICTED OF A DRIVING UNDER THE INFLUENCE CHARGE WITHIN THE NEXT SEVEN YEARS.” (Emphasis in original.)
Defendant signed this document on June 5, 2007, in her attorney’s office.
The instant offenses
We now turn to the facts of the instant case, where defendant was convicted of second degree murder and gross vehicular manslaughter while intoxicated for causing the death of Robert Morrison.
The McKittrick Hotel is located on Highway 33, at the intersection of D Street, in McKittrick, a small town near Taft. Lucinda Braswell, a hotel employee, frequently saw Morrison in the hotel’s bar. Morrison lived near the hotel and Braswell often saw him walking in the area. Braswell described Morrison as an older gentlemen who walked slowly. Morrison “kind of took his time” when he walked, “but he could move when he needed to.” Morrison occasionally used a cane.
Around 9:00 p.m. on July 28, 2007, Braswell walked out of the hotel’s front door and dumped out ice in the street. Braswell saw Morrison lying in the street in front of the hotel. Morrison was not moving, his body was “all twisted, ” and there was blood around his body.
Braswell testified Morrison was lying directly in front of a car that was stopped in the middle of the street. Defendant was standing outside the open driver’s door. Braswell recognized defendant from her previous visits to the bar, but she had not seen defendant earlier that night. Braswell testified defendant was “[k]ind of hysterical” and yelling something like “‘I didn’t see him.’” No one else was in the car or with defendant. Braswell did not see defendant’s adult daughter, Nikki Brinkman (Nikki), anywhere in the area.
Since they share the same last name, we will refer to defendant’s daughter as “Nikki” for the sake of clarity; no disrespect is intended.
Braswell ran back to the hotel and told the owners that Morrison had been hit. When Braswell returned outside, the vehicle had been moved to the side of the road and other people were trying to help Morrison. Defendant was no longer at the collision scene.
Defendant arrives at Nikki’s apartment
Brandon Edwards lived near the hotel with his girlfriend, Nikki, who was defendant’s daughter. Around 9:00 p.m., defendant suddenly arrived at the apartment. Defendant was crying and panicked. Nikki testified that defendant yelled for help and said she “did something really bad. I just hit somebody.” Edwards testified defendant repeatedly screamed that she had hit someone in front of the hotel.
Nikki testified that she did not notice that defendant had been drinking. However, Edwards testified he could smell alcohol on defendant and he thought defendant had been drinking. Edwards also saw blood on her arms and shirt.
Edwards told defendant to call the police and go back to her car. Edwards thought someone called 911, and they left the apartment within two minutes of defendant’s arrival. Nikki had not been drinking that night.
Edwards followed defendant and Nikki as they left the apartment and walked to defendant’s car. Edwards could hear them talking. Edwards testified that defendant asked Nikki “if she would tell them that [Nikki] was driving the car” because defendant “had been drinking.” Defendant wanted Nikki to “cover” and take “the blame” for her. Edwards testified that Nikki seemed scared when defendant made this request.
Once Edwards realized what defendant and Nikki were talking about, he kept his distance from them. They arrived at the collision scene, and Edwards recognized Morrison lying in the street.
Defendant’s initial statements to the officers
Around 9:05 p.m. or 9:10 p.m., California Highway Patrol Officer Michael Bently arrived at the collision scene. He saw Morrison lying in a pool of blood on Highway 33 and D Street. Highway 33 was the two-lane road in front of the hotel. Emergency responders were already working on Morrison, but he died from multiple blunt force injuries.
Bently testified everything in the immediate area of the collision was illuminated. There were overhead streetlights and lights from nearby buildings, which provided enough light to see into the intersection without any obstructions.
A black Honda had been moved to the side of the road. The Honda had extensive damage to the left front bumper and hood, and the driver’s side windsheld was shattered. Bently testified the car had a layer of dust over it. There was a distinctive brushing pattern which had cleared away the dust on the top of the hood leading to the damaged windshield.
Bently testified that defendant and Nikki were sitting on the curb near the damaged car. Nikki was crying and upset, and defendant was comforting her. Bently approached defendant and Nikki, and he asked who had been driving. Bently testified that Nikki did not respond. However, defendant pointed to Nikki and said Nikki had been driving and defendant was the passenger. Bently testified defendant was very calm and cool, and Nikki continued to cry.
Officer Taylor arrived at the scene. Bently advised him that Nikki was the driver of the vehicle based on defendant’s statement. Defendant and Nikki were still sitting on the curb and they could hear Bently’s conversation with Taylor. Taylor approached Nikki and asked if she was the driver. Nikki said she was driving and defendant was a passenger. Taylor testified defendant was less than five feet away when Nikki made the statement. Defendant did not say anything, and she kept looking at the victim in the road.
Taylor separately spoke with Nikki and conducted the investigation based on the belief that she was the driver. Bently made small talk with defendant, who was still sitting on the curb. Bently smelled the strong odor of alcohol from defendant’s breath and person. Defendant’s eyes were watery, noticeably red, and bloodshot. Bently had not seen her crying.
Taylor finished his interview with Nikki and started talking to defendant. Defendant told Taylor that she was the passenger and Nikki was driving. Defendant was not crying and she did not act remorseful.
Taylor testified defendant’s eyes were red and watery, her speech was slurred, and he could smell alcohol on her breath. Defendant stood up from the curb without assistance and she was not swaying. However, she had a hard time staying focused on Taylor’s questions and kept looking at the victim.
Braswell reports her observations
Braswell testified she saw defendant and Nikki arrive at the accident scene, sit by the car, and speak to the officers. Braswell heard the officers interview Nikki and defendant, and she heard Nikki say that she was driving the car. Braswell realized what was going on. She walked over to Nikki and sat next to her. Braswell kissed Nikki and “told her don’t you dare take the blame for what your mom did.”
Officer Taylor testified that about 10 minutes after he started the investigation, Braswell approached him and interrupted his interview with defendant. Braswell told Taylor that she heard what was going on, and she knew things did not happen that way. Braswell reported that she was in front of the hotel immediately following the collision. Braswell said she saw defendant standing over the victim, and defendant had run over the victim. Braswell said defendant ran to a nearby apartment and returned to the scene with Nikki.
Taylor testified defendant was present when Braswell reported her observations. Defendant’s demeanor did not change at all. Taylor left defendant with Bently and conducted another interview with Nikki. Nikki admitted she was not in the vehicle and she had been at her boyfriend’s apartment. Nikki said defendant arrived at the apartment and asked her to say that she was the driver. Nikki said defendant was actually the driver.
Based on the information from Braswell and Nikki, Taylor turned his attention back to defendant and treated her as the suspect. He noticed glass fragments on defendant’s chest and arms. Taylor administered one field sobriety test, which defendant failed. Taylor was unable to administer additional tests because defendant had become very distracted and emotionally upset, and she kept looking at the victim in the road. Taylor asked defendant to walk to the patrol car to take a Preliminary Alcohol Screening (PAS) breath test. Defendant had an unsteady gait and slightly stumbled. Taylor believed she was under the influence of alcohol.
Taylor administered the PAS tests, and defendant’s blood alcohol level was 0.125 percent at 9:58 p.m. and 0.124 percent at 10:00 p.m. Taylor believed defendant had been under the influence at 9:00 p.m., the approximate time of the collision, based on her red and watery eyes, unsteady gait, slurred speech, failure of the field sobriety test, and the PAS test results.
Defendant’s admission
Taylor testified that while they were still at the scene, defendant finally admitted that she had been driving the car and hit the victim. Defendant said when she arrived in McKittrick, she looked down at her speedometer to make sure she was driving within the speed limit. She noticed that she was going 45 miles per hour, which was the posted limit. Defendant said that when she looked up and focused again on the road, the victim was crossing the street and already in her lane. Defendant said it was too close for her to either turn or brake the car.
Defendant said that after the accident, she went to the hotel and asked someone to call for help. Defendant then ran to Nikki’s nearby apartment, and defendant and Nikki ran back to the scene. Defendant said as they were running to the scene, defendant asked Nikki to admit being the driver. Defendant did so because she would get in more trouble since her driver’s license was suspended.
Taylor testified defendant started acting remorseful when she realized that she was going to be arrested. She started crying and was very upset.
Defendant’s statements at the hospital and jail
At 11:30 p.m., defendant’s blood was drawn at a hospital, and two blood alcohol tests were performed. The results were 0.097 percent and 0.099 percent. Defendant’s blood was negative for drugs. Defendant’s blood sample was later sent to Central Valley Toxicology, which conducted multiple tests and obtained results of 0.110 percent, 0.091 percent, and 0.088 percent.
Taylor testified defendant cried during the drive to the hospital. She was remorseful and kept saying that she did not see the victim. Defendant’s speech was still slightly slurred. Defendant slept most of the time they were at the hospital.
Around 2:50 a.m., defendant was booked at the jail, and her eyes were pink and bloodshot.
The investigation
Officer Bently testified the area of impact was in the northbound lane of Highway 33, four feet east of the double yellow line. Bently did not find any tire friction or skid marks on the road. Bently determined the vehicle’s speed was no more than 45 miles per hour, which was the posted speed limit at that section of Highway 33. Bently also determined the vehicle was within the northbound lane of Highway 33 at the point of impact. Bently believed the victim walked across the southbound lane, and proceeded about four feet into the northbound lane when he was hit by the vehicle. The victim was hit by the front left driver’s side of the car.
Officer Taylor later observed the autopsy of the victim. The victim suffered a fracture on his lower right leg. Taylor determined the distance between the bottom of the victim’s boot and the top of the leg fracture was 15½ inches. Taylor subsequently examined the damaged black Honda at the tow yard. There was a scuff mark on the left front bumper, and the windshield was shattered on the left driver’s side. Taylor determined the distance from the ground to the top of the scuff mark on the bumper was 15½ inches.
Based on these measurements, Taylor believed that the Honda was traveling in a steady line at the time of the collision and the driver did not apply the brakes. “Had the brakes been applied, the [car’s] front end would have dipped down, I would estimate, six inches.… [¶ ] At the time of impact, the left front corner of that Honda struck [the victim’s] lower right leg and the brakes were not being applied.” The brakes on the Honda were in working order.
Robert Kane, a state criminalist, testified that based on the results of defendant’s PAS and blood tests, her blood-alcohol level could have been between 0.122 percent and 0.147 percent at 9:00 p.m., the approximate time of the fatal collision. Either percentage would have been just under double the legal limit of 0.08 percent. Kane calculated these percentages were based on an alcohol burn-off rate of 0.02 percent per hour. Kane testified defendant would have been under the influence and impaired for driving purposes even at the lowest estimated blood-alcohol level.
Kane testified a person could build up a tolerance to alcohol based on chronic use. A person with some alcohol tolerance could perform rudimentary physical tasks, but that person would still be mentally impaired and unable to safely drive.
Additional trial evidence
At trial, Nikki testified defendant did not say anything to her at the apartment, or as they ran from the apartment to her car, about taking responsibility for the collision. Nikki testified that when they arrived at the scene, she saw a man lying in the middle of the road. They sat down and waited for the police. Nikki testified that as they waited, Nikki told defendant that she was going to take the blame for the accident. Nikki testified that defendant said Nikki could not do so because it was defendant’s responsibility.
Nikki testified that she told the officers that she was the driver. She made the claim “[a]utomatically to save [defendant] because it’s my mom.” Nikki testified that defendant was standing nearby, and said, “[B]aby, you can’t take the blame.” Nikki panicked as she talked to the officers and changed her story about 20 minutes later. Nikki told the officers that she could not take the blame, and finally told them that defendant was driving the car.
Nikki admitted that when she later talked to the officers that night, she said that defendant asked her to take the blame. Nikki testified that she made that statement to the officers because she was scared, and her boyfriend and others at the scene “made me believe that I was doing such a wrong thing [to take the blame], so I tried to change my story saying that she said it, but she really didn’t.”
Defense evidence
Scott Naramore, an accredited accident reconstruction expert, testified that he examined defendant’s car and visited the collision scene in April 2009. He believed defendant’s car was traveling at approximately 39 to 40 miles per hour at the time she hit Morrison. Naramore reviewed studies about how fast people walk when they are over the age of 65 years old. He determined that the victim was walking about four and one-half feet per second, or 2.8 miles per hour, as he crossed the street.
Naramore testified that an unimpaired driver, between the ages of 40 and 50 years old, driving at night and in low illumination, would have had a response time of approximately two seconds. The two-second reaction time was based on an unimpaired driver responding to an unexpected event. Naramore conceded that he did not make any calculations based upon an impaired driver’s reaction time.
Naramore testified that if defendant’s car was going 40 miles per hour, it would have taken 80 feet to stop the car. Naramore believed defendant was applying the brakes when she hit the victim. He acknowledged the investigating officers did not see any skid marks on the street that night, but insisted the skid marks must have been there and the officers just missed them.
Dr. Darrell Clardy, a toxicologist, offered several different opinions regarding defendant’s blood-alcohol level. Clardy believed defendant’s blood-alcohol level was decreasing at the time her blood was drawn, so that it could have been 0.14 percent at 9:00 p.m. Clardy also believed defendant’s blood-alcohol level was less than 0.08 percent at 9:00 p.m. based on “fermentation” of her blood sample in the test tube; he was unable to provide an exact figure.
Clardy further believed that defendant drank alcohol just before the accident, so that there was alcohol residue in her mouth, which would have explained the higher PAS test result of 0.125 percent. Under those circumstances, her blood-alcohol level would have been 0.06 percent at 9:00 p.m. Clardy admitted that he was unable to determine which of his numerous assumptions were accurate.
DISCUSSION
I. Substantial evidence of second degree murder
Defendant contends her conviction in count I for second degree murder is not supported by substantial evidence. Defendant argues there is no evidence of implied malice because she was not driving recklessly, she was driving within the speed limit, and the collision occurred only because she briefly looked down at her speedometer and failed to see the victim as he crossed the street. Defendant further asserts that her prior conviction for driving under the influence, and the admonishment she received at the time she entered her plea, fail to prove her subjective awareness of the risk to others if she drove while intoxicated.
A. Substantial evidence
We begin with the well-settled rules of substantial evidence. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
This court may not reverse a conviction for insufficient evidence 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. Vehicular homicide
“Murder is the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.)
“Manslaughter by contrast is the unlawful killing of a human being without malice. [Citations.]” (People v. Contreras (1994) 26 Cal.App.4th 944, 954 (Contreras).) Vehicular manslaughter is the unlawful killing of a human being without malice while driving a vehicle, either with or without gross negligence or some form of intoxication. (§ 191.5, subds. (a) & (b); § 192, subd. (c).)
The required level of culpability for gross vehicular manslaughter while intoxicated is gross negligence. (§ 191.5, subd. (a); People v. Watson (1981) 30 Cal.3d 290, 296 (Watson).) “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) A finding of gross negligence “is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]” (Watson, supra, 30 Cal.3d at p. 296, italics in original.)
“On the other hand, malice may be implied when a person, knowing that his [or her] conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.] Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.]” (Watson, supra, 30 Cal.3d at p. 296, italics in original.)
C. Second degree vehicular murder
“At least since 1981, when our Supreme Court [in Watson] affirmed a conviction of second degree murder arising out of a high speed, head-on automobile collision by a drunken driver that left two dead, California has followed the rule in vehicular homicide cases that ‘when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awarenessof the risk created, malice may be implied....’ [Citation.] In such circumstances, ‘a murder charge is appropriate.’ [Citation.]” (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110 (Ortiz), quoting Watson, supra, 30 Cal.3d at p. 298.)
As the California Supreme Court explained in Watson, “second degree murder based on implied malice has been committed when a person does ‘“‘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’”.…’ [Citations.] Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]” (Watson, supra, 30 Cal.3d at p. 300.) A finding of implied malice “‘depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.’ [Citation.]” (Ortiz, supra, 109 Cal.App.4th at p. 110.)
Watson clarified that it “neither contemplate[d] nor encourage[d] the routine charging of second degree murder in vehicular homicide cases.” (Watson, supra, 30 Cal.3d at p. 301.) Since Watson, however, “numerous cases have upheld drunk driving murder convictions. [Citations.] [T]hese cases have relied on some or all of the following factors in upholding such convictions: (1) blood-alcohol level above the.08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.” (People v. Autry (1995) 37 Cal.App.4th 351, 358 (Autry).) “A finding of implied malice must be based upon ‘consideration of the circumstances preceding the fatal act. [Citations.]’ [Citation.]” (Contreras, supra, 26 Cal.App.4th at pp. 954-955.)
The prosecution may rely on evidence of a defendant’s prior acts or prior convictions for driving under the influence admitted pursuant to Evidence Code section 1101, subdivision (b). Such evidence is admissible to prove the requisite mental state of implied malice, and the defendant’s subjective knowledge and actual appreciation of the risk involved in driving while intoxicated. (Ortiz, supra, 109 Cal.App.4th at pp. 111-113.) “[S]ince [Watson], more than half a dozen published opinions of the Court of Appeal have affirmed convictions of second degree vehicular murder. In each of these cases, the trial court’s admission of uncharged misconduct evidence to show the requisite mental state supporting a finding of implied malice was upheld on appeal. [¶ ] The bulk of these cases involved the use of alcohol or other intoxicants in both the uncharged misconduct and the prosecution in which it was sought to be admitted, ” to establish knowledge under section 1101, subdivision (b). (Ortiz, supra, 109 Cal.App.4th at p. 112, italics in original.)
“[C]ourts have recognized repeatedly that a motor vehicle driver’s previous encounters with the consequences of recklessness on the highway--whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator--sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum.” (Ortiz, supra, at pp. 112-113.)
D. Analysis
As applied to the instant case, there are numerous undisputed facts which support defendant’s conviction for second degree murder based on implied malice. It is undisputed that defendant was driving while intoxicated and on a suspended license when she ran over and killed Morrison. She made the decision to drink and drive just 62 days after she had been arrested for driving under the influence in the nearby town of Taft; 53 days after she signed a change-of-plea form and was admonished that she would be charged with murder if she drove while intoxicated and someone was killed as a result; and 32 days after she formally pleaded no contest to driving while intoxicated and was placed on probation.
As we will discuss in section III, post, defendant concedes the court properly admitted evidence of her prior conviction for driving under the influence, and the contents of the change-of-plea and admonishment forms, pursuant to Evidence Code section 1101, subdivision (b), as relevant to prove her knowledge for purposes of second degree murder and gross vehicular manslaughter. However, she contends the court should have excluded the details of her erratic driving, and her combative and angry reaction, when she was arrested for the prior offense. We will not rely on those particular evidentiary matters for purpose of this discussion.
It is also undisputed that the collision occurred around 9:00 p.m. While the collision occurred at night, defendant ran down Morrison in an area that illuminated by overhead street lights and lights from the buildings adjacent to the street. There was enough light to see into the intersection without any problems, and there were no physical obstructions which would have prevented defendant from seeing Morrison as he crossed the street. Morrison was 76 years old and walked slowly, he had already crossed the opposing lane, and he was four feet into defendant’s lane when she hit him.
It is undisputed that the officers who investigated the collision that night did not find any evidence that defendant applied her brakes before she hit Morrison. There were no skid marks or tire tracks indicating that the brakes had been used prior to the impact. The autopsy results showed that defendant’s car hit Morrison’s right leg at the exact height of the car’s front bumper. As explained by Officer Taylor, the vehicle’s front end would have been lower if defendant had been applying the brakes when she hit Morrison, and he determined the vehicle’s brakes were in working order. While defendant’s expert, Naramore, believed defendant applied the brakes before she hit Morrison, he admitted that he was not at the scene that night and he simply believed the officers must have missed the skid marks. However, defendant’s theory on this point was in direct conflict with her only admissible statement about the collision, when she finally admitted responsibility; she claimed she did not see Morrison in time to apply the brakes.
Moreover, while defendant was apparently driving within the speed limit at the time of the impact, her car hit Morrison with such force that his body went up on the hood, and disturbed and brushed away the heavy layer of dust on the hood. The force of his body shattered the windshield, he was thrown back on the ground, and defendant finally stopped her car.
Next, while defendant stopped her car after she hit Morrison, she did not head into the hotel or another business to call for help. Braswell saw defendant standing next to her car. Braswell ran into the hotel to ask for help; when she returned outside, defendant was gone. Defendant’s immediate reaction was to leave the scene and race to her daughter’s nearby apartment. Defendant said she had done something “really bad” and hit someone, but she did not ask her Nikki or Edwards to call for help. Instead, defendant asked Nikki to claim she was the driver, to “cover” and take “the blame” for her because she had been drinking.
When Officer Bently asked defendant and Nikki who had been driving, defendant pointed to Nikki and said Nikki was the driver and she was the passenger. Nikki was crying but defendant was very calm and cool. When Officer Taylor asked Nikki if she was the driver, Nikki said yes in defendant’s presence, and defendant did not say anything to contradict Nikki’s false claim. Defendant kept the pretense going until Braswell intervened and told the officers that defendant had been driving the car and hit Morrison.
In the face of these undisputed facts, defendant contends the distinction between second degree murder and gross vehicular manslaughter is “very subtle” in this case. Defendant’s argument is based on her statement to Officer Taylor, when she belatedly admitted that she was driving the car instead of her daughter. Defendant told Taylor that she did not see the victim because she looked down at her speedometer, and she did not have time to stop when she finally saw him in the street. Defendant argues her description of the collision only shows that she was “arguably” negligent. Defendant asserts there is no evidence that she had any “near-misses with other traffic or any similar events to put her on notice that she was not in proper condition to drive, as she obviously thought she was.” Defendant argues that aside from her inattentiveness when she looked at her speedometer, “there was nothing else to suggest recklessness in her manner of driving” that night, she did not have “a near-collision” which might have alerted her to the danger just prior to the incident, and she only had one prior conviction for driving under the influence. Defendant asserts that while these “moderate facts” might support a vehicular manslaughter conviction, second degree murder “requires something much more serious than the facts of this case.”
We first note that since defendant did not testify at trial, her version of the collision is solely based on the statement she gave to Officer Taylor when she finally admitted responsibility that night. The jury was thus faced with evaluating defendant’s credibility based on the circumstances in which that statement was made—after a lengthy and prolonged attempt, entirely orchestrated by defendant, to make the officers believe that Nikki ran over Morrison and defendant was just a passenger. As such, the jury was entitled to discount defendant’s credibility as to her version of the collision.
In any event, defendant’s contention—that there is no evidence of implied malice because she was not driving recklessly before she ran over Morrison—is similar to an argument which was rejected in Contreras, supra, 26 Cal.App.4th 944. Contreras explained that reckless driving at the time of the vehicular homicide is not required to establish implied malice to support second degree murder:
“It is the ‘“‘conscious disregard for human life’”’ that sets implied malice apart from gross negligence. [Citations.] ‘Even if the act results in a death that is accidental, as defendant contends was the case here, the circumstances surrounding the act may evince implied malice. [Citations.]’ [Citation.]
“Considerations such as whether the act underlying the homicide is a felony, a misdemeanor or inherently dangerous in the abstract, are not dispositive in assessing whether a defendant acted with implied malice. [Citation.] A finding of implied malice must be based upon ‘consideration of the circumstances preceding the fatal act. [Citations.]’ [Citation.]
“Thus, the absence of intoxication or high speed flight from pursuing officers does not preclude a finding of malice. These facts merely are circumstances to be considered in evaluating culpability. Where other evidence shows ‘a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied. [Citation.] In such cases, a murder charge is appropriate.’ [Citations.]” (Contreras, supra, 26 Cal.App.4th at pp. 954-955.)
As applied to this case, there were no witnesses who saw defendant swerving or driving recklessly immediately before the collision. The absence of this evidence, however, does not negate others factual circumstances which support implied malice, from which the jury could reasonably infer that defendant knew she was highly intoxicated and chose to drive regardless of the risk it posed to others. On June 5, 2007, defendant signed the change-of-plea forms in her prior case, and she received the admonishment that she could be charged with murder if someone was killed as a result of driving under the influence. On July 28, 2007, she drove while she was intoxicated through the small town of McKittrick. While defendant asserts there is “considerable doubt” as to her actual degree of impairment because of the variations between the PAS and blood tests, Edwards and the investigating officers smelled the strong odor of alcohol from defendant’s breath and person, and her test results were consistently above the legal limit. Defendant’s eyes were red, watery and bloodshot, her speech was slurred, she had an unsteady gait and slightly stumbled, and she failed the field sobriety test. Based on the results of the PAS and blood tests, Kane, the prosecution’s expert, testified that defendant’s blood-alcohol level could have been between 0.122 percent and 0.147 percent at the time of the accident. Kane testified that either figure would have been just under double the legal limit of 0.08 percent, and left her mentally impaired and unable to safely drive.
Defendant attacks the accuracy of the results of the PAS tests, but such tests results have been held to be reliable and admissible in the absence of evidence that the machines were not properly calibrated or functioning. (See, e.g., People v. Bury (1996) 41 Cal.App.4th 1194, 1205-1207.)
Defendant asserts that her prior conviction for driving under the influence does not establish her subjective awareness of the risks of drunk driving. Defendant asserts that she did not attend any mandatory education programs on the dangers of drunk driving as part of her plea, so that she lacked subjective awareness of the dangers to others if she drove while intoxicated.
The court admitted a documentary exhibit which stated the terms and conditions of defendant’s probation after pleading no contest to driving under the influence in her prior case. According to these documents, defendant was ordered to participate in a licensed alcohol education program at some point during the probationary period. There is no evidence she attended such a program.
Defendant’s argument on this point is based on a series of cases in which a defendant’s prior conviction for driving under the influence resulted in mandatory attendance at educational or rehabilitation programs on the dangers of drunk driving. In each case, the defendant’s attendance at these programs was found to have supported the inference that the defendant learned about the risks of driving recklessly or while intoxicated, and provided evidence of the defendant’s subjective awareness of the risks for purposes of implied malice. (See e.g., Ortiz, supra, 109 Cal.App.4th at pp. 113-115, and cases cited therein.)
In this case, however, defendant’s prior conviction for driving under the influence was relevant to establish her subjective awareness of the risks of driving while intoxicated, even though she had not attended an educational program:
“While a defendant’s conviction for drunk driving, coupled with participation in a drinking driver program, may, arguably, be more probative than a conviction without such participation on the issue of a defendant’s subjective awareness of the risks of drunk driving, a conviction alone is probative on that issue and, thus, is admissible.” (People v. Johnson (1994) 30 Cal.App.4th 286, 292, italics in original.)
“One who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.… [D]riving under the influence constitutes a criminal offense precisely because it involves an act which is inherently dangerous. [Citation.]” (People v. Brogna (1988) 202 Cal.App.3d 700, 709.) Ortiz described the impact of a prior conviction for driving under the influence on proof of implied malice in a subsequent prosecution:
“A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving--whether intoxication, rage, or wilful irresponsibility--the driver’s subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.…[¶ ] The real danger presented by drunk driving … is not intoxication itself, but its conduciveness to recklessness and the significant public threat the latter conduct presents.” (Ortiz, supra, 109 Cal.App.4th at pp. 115-116, italics in original.)
As the People have noted, even though defendant did not attend a mandatory drunk driving educational program as part of her plea agreement in the prior case, “[t]he jury could reasonably infer that the convictions alone, even without the educational programs, impressed upon [defendant] the dangers of drunk driving. [Citation.]” (Autry, supra, 37 Cal.App.4th at p. 359; People v. Moore (2010) 187 Cal.App.4th 937, 943. The fact that defendant never took a mandatory educational program about the dangers of drunk driving does not negate other evidence of implied malice.
Defendant next asserts the standard admonishment she received on the change-of-plea form in the prior case was insufficient to prove her subjective awareness of the risks of driving while intoxicated. Defendant contends the standard form language only warned of “more serious consequences to her if she later became involved in a DUI-homicide, but logically it did nothing to raise her consciousness of the danger to others if she were to drive while under the influence.” (Emphasis in original.) Defendant argues the form did not increase her level of awareness of the risks of drunk driving that she personally faced beyond the general societal warnings about drunk driving. Defendant complains the prosecution improperly relied upon this admonishment to prove implied malice and her subjective awareness.
Defendant’s arguments on these points are specious. The prosecution did not rely upon an obscure notice contained in an unimportant form received by defendant many years before the fatal collision. Instead, defendant signed the change-of-plea and admonishment forms 53 days before she decided to drink and drive again. The admonishment form expressly stated, in bold print, the consequences to defendant and to other people if she decided to drink and drive again: “[I]t 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 will be charged with murder.” (Emphasis in original.) The form also contained her acknowledgement: “I HAVE READ THE ABOVE CONSEQUENCES OF BEING CONVICTED OF A DRIVING UNDER THE INFLUENCE CHARGE WITHIN THE NEXT SEVEN YEARS.” (Emphasis in original.)
Contrary to defendant’s contentions, this admonishment is far more stark and specific than any general societal warnings about the dangers of drunk driving. As the above-quoted phrases show, defendant was specifically warned that if she decided to drink and drive again, it would be extremely dangerous to other people, she could be charged with murder if someone was killed as a result of her drunk driving, and she acknowledged that she read about the consequences if she was convicted of another drunk driving charge.
As we have explained, “[a] finding of implied malice must be based upon ‘consideration of the circumstances preceding the fatal act. [Citations.]’ [Citation.]” (Contreras, supra, 26 Cal.App.4th at pp. 954-955.) Among the factors that may be considered is whether there was evidence of highly dangerous driving. (Autry, supra, 37 Cal.App.4th at p. 358.) Defendant contends there is insufficient evidence of highly dangerous driving to support implied malice because she was driving at the speed limit, within her lane, just before she hit Morrison.
In reviewing defendant’s substantial evidence challenge, however, we are bound by the well-settled standards for appellate review. This court may not reverse a conviction for insufficient evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin, supra, 18 Cal.4th 297, 331.) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) We cannot reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931; People v. Pitts (1990) 223 Cal.App.3d 606, 884.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
We acknowledge there is no evidence as to the precise manner of defendant’s driving immediately before she ran over Morrison, aside from the obvious inference that defendant decided to consume an excessive amount of alcohol and drive a vehicle, and she did so while on probation and on a suspended driver’s license because of her recent drunk driving conviction. While the defense expert believed defendant applied the brakes before she hit Morrison, he conceded there was no physical evidence that she did so and insisted the investigating officers must have missed the skid marks on the short stretch of road leading up to the point of impact. Aside from this speculation, however, there is no physical evidence that defendant applied the brakes until she actually hit Morrison and his body slammed into her windshield. As the prosecution’s expert explained, a person with some alcohol tolerance could perform rudimentary physical tasks, but that person would still be mentally impaired and unable to safely drive. The defense expert acknowledged his opinion about a two-second response time was based on an unimpaired driver responding to an unexpected event; he did not make any calculations based upon an impaired driver’s reaction time.
Based on the well-settled rules for appellate review, we conclude there is substantial evidence of defendant’s subjective awareness that she engaged in conduct that endangered the life of others when she decided to drink and drive through McKittrick. We thus conclude that defendant’s conviction for second degree murder based on an implied malice theory is supported by substantial evidence.
II. Substantial evidence of gross vehicular manslaughter
Defendant next contends that her conviction in count II for gross vehicular manslaughter while intoxicated is not supported by substantial evidence. As we will explain, defendant raises many of the same arguments she raised in her challenge to count I.
A. Gross vehicular manslaughter
Defendant was convicted of gross vehicular manslaughter while intoxicated, in violation of section 191.5, subdivision (a). This provision states in pertinent part:
“Gross vehicular manslaughter while intoxicated is 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.”
“Vehicle Code section 23140 proscribes driving under the influence of alcohol by a person under 21 years of age. [¶] Vehicle Code section 23152, subdivisions (a) through (d), proscribe driving under the influence of alcohol or drug or the combined influence of both (subd. (a)); driving with a blood-alcohol content of.08 or more (subd. (b)); driving by a person addicted to the use of any drug (subd. (c)); and driving a commercial vehicle with a blood-alcohol content of.04 or more (subd. (d)). [¶] Vehicle Code section 23153, subdivisions (a) and (b), proscribe driving under the influence of alcohol or a drug or the combined influence of both and concurrently committing an unlawful act or omission, which, in turn, causes injury to another person (subd. (a)) and driving with a blood-alcohol content of.08 percent and concurrently committing an unlawful act or omission, which, in turn, causes injury to another person (subd. (b)).” (People v. Thompson (2000) 79 Cal.App.4th 40, 48, fn. 1.)
The elements of a violation of section 191.5 are: “(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed. [Citation.]” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159.) “[C]ommitting a lawful act in an unlawful manner simply means to commit a lawful act with negligence, that is, without reasonable caution and care. It follows, then, that in the context of vehicular manslaughter, a killing is unlawful either when one commits a misdemeanor or infraction (an unlawful act, not amounting to a felony) or when one commits a negligent act (a lawful act in an unlawful manner).” (People v. Thompson, supra, 79 Cal.App.4th 40, 53.) However, even if the prosecution “fails to prove that the defendant committed a Vehicle Code violation (i.e., unlawful act), the jury may still convict the defendant of gross vehicular manslaughter ‘if it finds that the defendant drove in a grossly negligent manner and, that this conduct was the proximate cause of a death.’ [Citation.]” (Ibid.)
“[T]he distinction between an ‘unlawful act’ and a ‘lawful act’ done in an ‘unlawful manner’ tends to disappear in the context of vehicular manslaughter [citations] … [¶ ] The act or neglect of duty which satisfies the actus reus element of the offense may in some situations also constitute gross negligence, satisfying that element as well. It is, however, established that the fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient to constitute gross negligence. [Citations.]” (People v. Hansen (1992) 10 Cal.App.4th 1065, 1075.)
Instead, “[g]ross 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. [Citation.]” (Bennett, supra, 54 Cal.3d at p. 1036; People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa).)
While the test for gross negligence is objective, the defendant’s own subjective state of mind is still relevant. “In determining whether a reasonable person in defendant’s 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. True … the defendant’s lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if 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 defendant’s position would have recognized the risk.” (Ochoa, supra, 6 Cal.4th at p. 1205, italics in original.)
“A high level of intoxication sets the stage for tragedy long before the driver turns the ignition key. ‘There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [Citation.] 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. The effect may be lethal....’ [Citation.]” (Bennett, supra, 54 Cal.3d at p. 1038.)
Thus, in determining whether a defendant acted with gross negligence, “[t]he jury should … consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]” (Bennett, supra, 54 Cal.3d at p. 1038; Ochoa, supra, 6 Cal.4th at p. 1205.) These circumstances include “the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct.” (Ochoa, supra, 6 Cal.4th at p. 1207.)
The trier of fact may conclude from a defendant’s “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 don’t care attitude’ concerning the ultimate consequences of his actions. Applying the objective test for gross negligence, any reasonable person in defendant’s position would have been aware of the risks presented by his [or her] conduct. [Citation.] … ‘[T]he finding of gross negligence … may be based on the overall circumstances surrounding the fatality. Intoxication is one of those circumstances and its effect on the defendant’s driving may show gross negligence.’ [Citation.]” (Ochoa, supra, 6 Cal.4th at p. 1208.)
B. Analysis
In challenging her conviction for gross vehicular manslaughter, defendant raises many of the same arguments that she raised when she challenged her second degree murder conviction. Defendant asserts she was driving in “an entirely safe manner preceding the collision, within her lane and under the posted speed limit, with no evidence of any unsafe actions before she failed to see a pedestrian crossing the highway at night.” Defendant further asserts that while she asked her daughter to take responsibility for the collision, such conduct merely shows defendant knew she had a problem because she was violating probation by drinking and driving. Defendant insists “this case involves nothing more than a person driving while under the influence of alcohol, an act which everyone knows is dangerous, in a perfectly safe manner until this unfortunate accident.”
Based on the entirety of the record, however, there is substantial evidence that a reasonable person in defendant’s position would have been aware of the risks of driving a vehicle while intoxicated. As we have already explained, defendant’s blood-alcohol level was significantly high. The prosecution’s expert testified that while defendant could have performed rudimentary physical tasks, she still would have been mentally impaired and unable to safely drive. Defendant still showed visible signs of intoxication nearly an hour after the collision. When defendant entered her no contest plea in the prior case, she was expressly advised that driving while intoxicated was extremely dangerous to human life. Defendant’s driver’s license had been suspended as a result of her prior conviction, she was aware of that suspension, and she disregarded that fact and drove anyway. Defendant’s attempt to blame Nikki for the collision was not based on her fear of violating probation, but on the realization that she had been drinking and driving and had run over a pedestrian. The officers testified defendant was calm and cool as Nikki took the blame for driving the car. Defendant did not show any remorse until she realized that she was going to be arrested.
While defendant insists that she was driving in an “entirely safe manner” prior to the collision, this case did not involve a “‘mere’ traffic violation while intoxicated.” (Ochoa, supra, 6 Cal.4th at p. 1207.) The undisputed evidence was that the area was illuminated, the victim had already walked across the opposite lane, and he was four feet into defendant’s lane when she hit him. Braswell, the hotel employee who knew the 76-year-old victim, testified he walked slowly. There was no evidence defendant even attempted to apply the brakes before the collision.
Given the entirety of the evidence, “the trier of fact could conclude from defendant’s course of conduct and preexisting knowledge of the risks that [s]he exercised so slight a degree of care as to exhibit a conscious indifference or ‘I don’t care attitude’ concerning the ultimate consequences of his actions. Applying the objective test for gross negligence, any reasonable person in defendant’s position would have been aware of the risks presented by [her] conduct. [Citation.]” (Ochoa, supra, 6 Cal.4th at p. 1208.)
III. Admission of evidence about defendant’s prior conviction
As set forth in the factual statement, the court permitted the prosecution to introduce evidence about defendant’s prior conviction for driving under the influence, including Jared Thompson’s testimony about her erratic and unsafe driving, and Officer Altenhofel’s testimony about her hostile and combative attitude when he arrested her in May 2007.
Defendant concedes the trial court properly admitted evidence about her prior conviction for driving under the influence, including the evidence about the change-of-plea and admonishment forms she signed as part of her no contest plea, and that the evidence was relevant to the charges of second degree murder and gross vehicular manslaughter.
However, defendant asserts the court should have excluded Thompson’s testimony about her erratic driving and that she cursed at him as he drove by her car, and Altonhofel’s testimony that she was hostile and combative when he arrested her, and refused to take a breath or blood test. Defendant argues the witnesses’ testimony about her “socially unacceptable” actions constituted inadmissible propensity evidence and should have been excluded under Evidence Code sections 1101 and 352. Defendant contends the evidence was extremely prejudicial and the jury could have convicted her of the current offenses simply based upon the “anti-social” behavior she displayed during the prior conviction.
A. Background
Prior to trial, defendant moved to exclude evidence about the underlying facts and circumstances of her prior conviction for driving under the influence and the admonishments and warnings contained in the change-of-plea forms that she signed as part of her plea. Defendant argued the prior conviction constituted inadmissible character evidence and was prejudicial.
After hearing arguments on the matter, the court held the prosecution could introduce evidence about the facts and circumstances of defendant’s prior conviction. The court stated:
“The People will be allowed to present evidence as to the May 27th, 2007, DUI, as it is relevant to the conscious disregard element of implied malice. [The People] can go into the convictions, the California driver’s license suspension, probation terms, driving pattern, and her refusal to take the mandatory test, including her statement, quote, I’m not taking your f***ing test, end quote.”
Defense counsel objected and argued the admonishment form was inadmissible since defendant signed it in her attorney’s office, and she was not verbally advised of the warnings in open court.
“THE COURT: All right. As far as the Court’s concerned, the condition of probation was that she do the following things. She did sign and date the terms of probation. Part of the terms of the probation that she not indulge in the use of intoxicants, that she not drink and drive with any measurable amount of alcohol in her blood. Both of which, apparently, based on the evidence I’ve heard here, she violated the terms of probation by doing so, number one.
“Number two, and it’s directly relevant, then, to show the implied malice, conscious disregard that the prosecution is trying to show [for the charged offenses].
“As a result, probation terms will be allowed.…”
The court also overruled defendant’s objections to the testimony of Jared Thompson, the witness who called the police on the night of defendant’s prior conviction.
“THE COURT: …I think that the observations of the witness, while they are prejudicial, are very probative. There’s very few times that probative evidence that’s allowed in … is not prejudicial. And as a matter of fact, 99 times out of a hundred it is. [¶ ] But the fact we have a civilian that sees driving that concerns him, that he then calls law enforcement who makes the stop and [defendant is] eventually arrested for DUI, I think, is relevant in this case. So it will be admitted.”
The court excluded evidence about one aspect of defendant’s conduct during the prior incident, when she drove into the fast food restaurant’s parking lot, got out of her car, and urinated.
At a subsequent hearing, defense counsel again objected to the admission of the underlying facts of the prior conviction, particularly that defendant called the arresting officer a “bitch” and threatened to sue him. The court reviewed its prior ruling and clarified the admissible evidence:
“[THE COURT]: All right. [Defense counsel], you had three points: The prior DUI, beer cans, and then from the prior DUI, apparently, your client called the officer a bitch and threatened to sue and then taking—I’m not taking your f***ing test.
“I did rule on number three, not taking your f***ing test. That’s coming in.
“As to the prior DUI, beer cans in the car, and calling the officer profanities at the scene and threatening to sue, et cetera, while it is prejudicial, I do find that based on the charges in the case it is probative to the case at hand. It does show a continuous course of conduct.
“Therefore, the prior DUI, beer cans will be allowed.
“The calling of the names to the officers and the threat to sue will be allowed, and of course her statement regarding taking the test.”
B. Evidence Code Sections 1101 and 352
Evidence that a defendant has committed crimes other than those currently charged is not admissible to show bad character or predisposition to criminality. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some material fact at issue, such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, and/or absence of mistake or accident. (Evid. Code, § 1101, subds. (a) & (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Gray (2005) 37 Cal.4th 168, 202.) The trial court’s determination of admissibility under section 1101, subdivision (b) is reviewed for an abuse of discretion. (People v. Gray, supra, at p. 202.)
Even if evidence is admissible under Evidence Code section 1101, subdivision (b), the court must still determine under Evidence Code section 352 whether the evidence has substantial probative value that is not largely outweighed by “the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.)
In making this determination, the court should consider whether defendant was convicted of the prior crime, thus removing any temptation for the jury to punish her for the prior acts. The court should also consider whether the prior offense was of a more serious nature than the currently charged crimes, thereby posing a risk of inflaming the jury. (Ewoldt, supra, 7 Cal.4th at pp. 404-405).)
“A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. [Citation.] ‘Undue prejudice’ refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’”’ [Citations.]” (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
We review a trial court’s decision to admit evidence under section 352 for abuse of discretion. (People v. Gray, supra, 37 Cal.4th at p. 204.)
C. Vehicular homicide cases
As explained ante, in a prosecution for second degree vehicular murder, the prosecution must prove the defendant acted with implied malice. (Watson, supra, 30 Cal.3d at p. 300.) Implied malice required proof the accused acted deliberately with conscious disregard for life. (Id. at p. 296; Contreras, supra, 26 Cal.App.4th at p. 954.) A finding of implied malice is based on the determination “that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Watson, supra, 30 Cal.3d at pp. 296-297; Ortiz, supra, 109 Cal.App.4th at pp. 109-110, italics in original.)
In a prosecution for gross vehicular manslaughter, a finding of gross negligence “is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]” (Watson, supra, 30 Cal.3d at p. 296, italics in original.) As we have explained, however, the defendant’s own subjective state of mind is still relevant in a gross vehicular manslaughter case: “In determining whether a reasonable person in defendant’s 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.” (Ochoa, supra, 6 Cal.4th at p. 1205, italics in original.)
As applied to the instant case, the court herein properly found defendant’s prior conviction for driving under the influence, the probationary terms, and the admonishment on the plea form, were admissible and relevant to show defendant’s subjective awareness of the life-threatening risks of driving under the influence, in order to prove defendant’s knowledge for the implied malice element of second degree murder. (Ortiz, supra, 109 Cal.App.4th at pp. 111-113.) Such evidence was also relevant for the gross vehicular manslaughter charge, for the jury to consider all relevant circumstances and determine whether defendant acted with a conscious disregard of the consequences rather than mere mistake or inadvertence. (Ochoa, supra, 6 Cal.4th at p. 1205.)
D. Analysis
While defendant concedes the fact of the prior conviction was properly admitted, she asserts the court abused its discretion under Evidence Code section 352 when it permitted Thompson to testify about her erratic driving during the May 2007 incident, and that she cursed and “flipped” him off as he drove past her. Defendant further asserts the court should have excluded Officer Altenhof’s testimony about her hostile and combative attitude when he arrested her for driving under the influence, and her refusal to take a breath or blood test.
As applied to the instant case, the court herein properly found defendant’s prior conviction for driving under the influence, the probationary terms, and the admonishment on the plea form, were admissible and relevant to show defendant’s subjective awareness of the life-threatening risks of driving under the influence, in order to prove defendant’s knowledge for the implied malice element of second degree murder. (Ortiz, supra, 109 Cal.App.4th at pp. 111-113.) Such evidence was also relevant for the gross vehicular manslaughter charge for the jury to consider all relevant circumstances and determine whether defendant acted with a conscious disregard of the consequences rather than mere mistake or inadvertence. (Ochoa, supra, 6 Cal.4th at p. 1205.) The evidence about defendant’s erratic driving, and the beer cans found in her car, was also relevant to her knowledge and intent in the prior case.
In addition, the court properly admitted defendant’s refusal to submit to a blood or breath test when she was arrested in the prior case. A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing, and a drunken driver has no right to resist or refuse such a test, notwithstanding statutory sanctions for a driver’s refusal to submit to chemical tests. (People v. Thompson (2006) 38 Cal.4th 811, 826, fn. 2.) Defendant’s refusal to comply with the implied consent law during the May 2007 incident was admissible and more probative than prejudicial.
Defendant’s personal behavior during the May 2007 incident -- when she made an obscene gesture at the eyewitness, and used profanities when confronted by the arresting officer -- may have been “socially unacceptable, ” and her words may have been “anti-social.” But her erratic driving, her demeanor, and her statements on May 27, 2007, were not as dramatic or inflammatory as her actions on July 28, 2007, when she ran over Morrison and inflicted his fatal injuries -- defendant was driving while intoxicated, ran over Morrison without applying the brakes, immediately ran from the scene to her daughter’s apartment, convinced her daughter to lie to the officers about driving the car, calmly sat by while her daughter told the officers that she was driving the car that hit Morrison, and maintained the pretense until a witness came forward.
As the court explained in Ortiz:
“‘The testimony describing defendant’s uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offenses. This circumstance decreased the potential for prejudice, because it was unlikely... that the jury’s passions were inflamed by the evidence of defendant’s uncharged offenses.’ [Citation.] Moreover, defendant had been punished--via convictions--for the prior bad acts introduced before the jury, a circumstance courts have acknowledged lessens its prejudicial impact. For, ‘[a]lthough such evidence is always prejudicial, the impact was minimized by proof of the [prior] conviction. It validated the evidence and minimized the chance a jury would punish [the defendant] for the prior offense, for which he had already been punished.’ [Citation.]” (Ortiz, supra, 109 Cal.App.4th at p. 118.)
As applied to the instant case, evidence of defendant’s conduct and statements during the prior incident “pales in comparison” to the evidence in support of the convictions in this case. (See, e.g., People v. Moore, supra, 187 Cal.App.4th 937, 943.)
Even if such testimony should have been excluded as prejudicial, any error was harmless because there is no reasonable probability that defendant would have obtained a more favorable result if such evidence had been excluded. (People v. Welch (1999) 20 Cal.4th 701, 749-750.) The testimony about the prior incident was relatively brief compared to the facts of the substantive offenses. More importantly, the jury was instructed on the limited admissibility of the evidence surrounding defendant’s prior conviction for driving under the influence.
“This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or she has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan, or scheme in the commission of a criminal act similar to the method, plan, or scheme used in the commission of the offense in this case, which would further tend to show the existence of the intent, which is a necessarily element of the crime charged. [¶ ] For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpose.”
The court’s instructions reduced “the potential for any untoward effects of the evidence.” (Ortiz, supra, 109 Cal.App.4th at p. 118; People v. McDermott (2002) 28 Cal.4th 946, 999.)
IV. Lesser included offenses
Among the numerous charges in this case, defendant was convicted of count II, gross vehicular manslaughter while intoxicated; count III, driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)); and count IV, driving with a blood-alcohol level of 0.08 percent or higher and causing bodily injury (Veh. Code, § 23153, subd. (b)). As to counts III and IV, the court found true the special allegation that defendant had a prior conviction for driving under the influence.
Defendant contends, and the People concede, that counts III and IV are lesser included offenses of count II, and that her convictions in counts III and IV, and the true findings on the enhancements, must be stricken. Defendant’s sentence will not be affected since the court stayed the terms imposed for counts III and IV.
DISPOSITION
Defendant’s convictions for counts III, driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)) and count IV, driving with a blood-alcohol level of 0.08 percent or higher and causing bodily injury (Veh. Code, § 23153, subd. (b)) are reversed, the enhancements found true as to those counts are stricken, and the sentences imposed and stayed as to those counts are vacated. In all other respects, the judgment is affirmed.
WE CONCUR: Kane, Acting P.J., Detjen, J.