Opinion
D071046
11-02-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO CARRANZA, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE339775) APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier. Affirmed in part and reversed in part. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General.
A jury convicted Mario Alberto Carranza of two counts each of murder (Pen. Code, § 187) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), and one count each of possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), and driving with a measurable amount of alcohol causing injury (Veh. Code, § 23153, subd. (b)). The jury found true certain great bodily injury and unsafe driving enhancements. The trial court sentenced Carranza to 30 years to life in prison.
Undesignated statutory references are to the Penal Code. --------
Carranza appeals, contending the trial court erred by excluding evidence of a misdemeanor vandalism conviction to impeach the testimony of former California Highway Patrol Officer Marc Geelan. We conclude that any error in the exclusion of this evidence was harmless. Carranza also asserts that (1) his convictions for driving under the influence of alcohol causing injury and driving with a measurable amount of alcohol causing injury should be reversed because they are included in vehicular manslaughter and (2) the abstract of judgment must be corrected to show that the enhancements attached to counts 3 through 6 were stayed by the trial court. The People concede these errors. Finally, Carranza asks us to independently review Geelan's sealed personnel records under Pitchess v. Superior Court (1974) 11 Ca1.3d 531 (Pitchess).
FACTUAL AND PROCEDURAL BACKGROUND
In 2007 Carranza pleaded guilty to driving under the influence (DUI). His blood alcohol concentration (BAC) was 0.18 percent. The judge who took Carranza's plea told him that "driving under the influence is very dangerous" and warned him that if he "kill[ed] someone [he] could be charged with murder." As part of his five years of probation, Carranza attended three months of DUI classes, which included six DUI education classes, 12 group sessions, and three face-to-face sessions. He also attended a Mother's Against Drunk Driving Impact Panel, where a victim advocate informed him about the dangers of drinking and driving and told him that he could be charged with murder if he killed someone when he drove under the influence in the future.
In April 2014 Carranza went to a party where he drank about six beers, a shot of tequila, and a glass of rum. He also snorted 10 or 20 "bumps" of cocaine. Carranza ultimately passed out in the bathroom from intoxication. At some point, Carranza got into his car and left with two passengers.
While driving at about 70 miles per hour in clear conditions, Carranza veered left onto the shoulder of the I-8 freeway. He swerved 90 degrees, drove across the freeway, through a chain link fence, and crashed into a concrete ramp. Both passengers died.
Geelan was the investigating officer at the scene of the accident. He followed the emergency responders who transported Carranza to the hospital. Geelan smelled alcohol on Carranza and found cocaine in Carranza's jacket pocket. Geelan also found a partially consumed bottle of rum and some beer in the trunk of Carranza's car. A blood test showed that Carranza's BAC was 0.27 percent and that he had recently used cocaine.
DISCUSSION
I. EXCLUSION OF IMPEACHMENT EVIDENCE
A. Additional Background
In January 2015 Geelan argued with his wife, broke some property in their bedroom, and then punched his wife, causing her nose to bleed. The district attorney's office charged Geelan with two misdemeanor counts: battery on a spouse (§ 273.5, subd. (a)) and vandalism (§ 594, subd. (a)(b)(2)(A)) arising out if this incident. Geelan pleaded guilty to misdemeanor vandalism and was ordered to enroll in a 52-week domestic violence recovery program.
The prosecution moved to exclude evidence of Geelan's misdemeanor vandalism conviction on the ground it did not qualify as a crime of moral turpitude. Defense counsel argued that, at a minimum, he should be allowed to ask Geelan the following questions: "(A) You are no longer a police officer?" "(B) Were you terminated?" "(C) Were you forced to resign?" "(D) Did you attend 52 weeks of Domestic Violence Recovery Program?" The trial court denied the request, finding misdemeanor vandalism was not a crime of moral turpitude, that the prejudice from the admission outweighed the probative value and that "it should [not] be admitted under prior bad acts, based on [Evidence Code section] 352."
B. Analysis
Carranza contends the trial court committed prejudicial error by refusing to allow him to impeach Geelan with Geelan's misdemeanor vandalism conviction, reasoning that the crime shares the element of maliciousness which is the basis for concluding that felony vandalism involves moral turpitude. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1492-1495 (Campbell).) He asserts the error violated his rights to due process and to confront and cross-examine witnesses against him. We conclude any error was harmless.
The California Constitution and Evidence Code allow the use of a prior felony conviction to impeach a witness in criminal cases. (Cal. Const., art. I, § 28, subd. (f)(4); Evid. Code, § 788.) Nonetheless, courts have imposed two restrictions on the use of a felony conviction for impeachment. First, the trial court may preclude impeachment with a prior felony conviction under Evidence Code section 352 if the prejudicial effect of the conviction substantially outweighs its probative value on the witness's credibility. (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) Second, to satisfy due process, the crime's least adjudicated elements must necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 314, 316-317; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.) Evidence of misconduct not amounting to a felony is less probative of immoral character than is a prior felony conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297 & fn. 7 [nevertheless allowing impeachment with uncharged misconduct].) While evidence of prior misconduct is relevant, it remains subject to the trial court's discretion under Evidence Code section 352, which "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler, at p. 296.)
Vandalism is defined as the malicious destruction or damage of any real or personal property. (§ 594, subd. (a).) A conviction for felony vandalism evinces moral turpitude, and thus can serve as the basis for impeachment subject to exclusion under Evidence Code section 352. (Campbell, supra, 23 Cal.App.4th at pp. 1492-1496.) The Campbell court reasoned that the state of mind to maliciously destroy property suggests the " 'general readiness to do evil' " which constitutes moral turpitude. (Id. at p. 1493.) Section 594 requires maliciousness for both misdemeanor and felony vandalism. Accordingly, under Campbell's reasoning, misdemeanor vandalism would also be a crime of moral turpitude that is admissible for impeachment subject to the court's discretion under Evidence Code section 352. Assuming without deciding that the trial court improperly excluded Geelan's misdemeanor vandalism conviction under Evidence Code section 352, we conclude any error in excluding this impeachment evidence was harmless even under the Chapman beyond-a-reasonable-doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.)
Whether error in excluding impeachment evidence " 'is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' " (People v. Hernandez (2012) 53 Cal.4th 1095, 1108.) Here, Geelan testified that he smelled alcohol on Carranza, found cocaine in Carranza's jacket pocket, and found a partially consumed bottle of rum and some beer in the trunk of Carranza's car. Carranza, however, told investigators that he drank beer and rum at the party and snorted several lines of cocaine. Geelan opined that Carranza was intoxicated at the time of the crash. Tests on Carranza's blood after the accident confirmed the presence of alcohol and cocaine. Thus, Geelan's testimony was merely cumulative of other evidence. Moreover, Geelan's testimony was not relevant to the main issue in the case—whether Carranza acted with malice aforethought so as to be guilty of murder. (§ 187, subd. (a).) On this record, any error in excluding the impeachment evidence was harmless.
II. LESSER INCLUDED OFFENSES
Carranza asserts that counts 5 and 6 for driving under the influence of alcohol causing injury and driving with a measurable blood alcohol causing bodily injury must be reversed because these crimes are lesser included offenses of counts 3 and 4 for gross vehicular manslaughter while intoxicated. The People concede the argument and we agree.
A defendant cannot be convicted of "two offenses arising from a single criminal act when one is a lesser offense necessarily included in the other." (People v. Montoya (2004) 33 Cal.4th 1031, 1033.) "If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed." (People v. Moran (1970) 1 Cal.3d 755, 763.) Here, a violation of either subdivisions (a) or (b) of Vehicle Code section 23153 is a part of the definition of vehicular manslaughter in Penal Code section 191.5, subdivision (a). Accordingly, driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subd. (a), count 5) and driving with a measurable blood alcohol causing bodily injury (Veh. Code, § 23153, subd. (b), count 6) are lesser included offenses of vehicular manslaughter while intoxicated (§ 191.5, subd. (a), counts 3, 4). (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1148-1151; People v. Miranda (1994) 21 Cal.App.4th 1464, 1466.) Carranza's convictions on counts 5 and 6 must be reversed.
III. ABSTRACT OF JUDGMENT
At the sentencing hearing, the trial court ordered counts 3 through 6 be stayed under section 654. The abstract of judgment correctly shows counts 3 through 6 were stayed, but shows the imposition of 16 years for the enhancements attached to these counts. Carranza asserts, and the People concede, that the abstract of judgment must be corrected to show that the sentence on the enhancements for counts 3 through 6 are also stayed. We agree.
"[O]ne cannot be punished for the enhancement separately from the underlying offense." (People v. Smith (1985) 163 Cal.App.3d 908, 914.) Thus, if the sentence on a count is stayed, the sentence for the enhancement attached to the count must also be stayed. (Ibid.)
IV. PITCHESS REVIEW
A. Additional Background
Before trial, defense counsel filed a Pitchess motion requesting discovery of any evidence or complaints of racial or ethnic prejudice, dishonesty, false arrest, any act involving morally lax character, unnecessary acts of aggressive behavior, acts of violence or attempted violence, acts of excessive force, or attempted excessive force by Geelan. Carranza also sought any evidence of moral turpitude or disciplinary action. After conducting the review, the trial court concluded that there was no discoverable material.
B. Analysis
Carranza asks us to independently review the materials the trial court reviewed during the in camera hearing to determine if additional material should have been provided to his trial counsel. The People agree that such review is appropriate.
On appeal, we are required to review the record of the documents examined by the trial court and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records pursuant to Pitchess. (People v. Hughes (2002) 27 Cal.4th 287, 330.) The transcript of the trial court's confidential in camera hearing and the confidential materials reviewed by the court have been transmitted to this court under seal. We have reviewed the entirety of the record under seal and independently conclude the trial court did not abuse its discretion when it denied Carranza's Pitchess motion.
DISPOSITION
Carranza's convictions on counts 5 and 6 for driving under the influence of alcohol causing bodily injury and driving with a measurable blood alcohol causing bodily injury (Veh. Code, § 23153, subd. (a) & (b)) are reversed. The abstract of judgment must be corrected to show the enhancements on counts 3 through 6 are stayed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. DATO, J.