Opinion
G053969
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSICAH LOUISE COWAN, Defendant and Appellant.
Law Offices of Dennis P. O'Connell and Dennis P. O'Connell for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF1907) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg Prickett, Judge. Affirmed. Law Offices of Dennis P. O'Connell and Dennis P. O'Connell for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
While speeding down a busy street one morning, appellant ran a red light and hit a woman and her two children as they were crossing the street. The collision killed one of the children, seriously injured the other two victims and severely damaged appellant's car. Despite this, appellant did not pull over until another motorist chased her down and blocked her car. Appellant told the police she had not been drinking that day, but her blood alcohol content (BAC) was three times the legal limit. She was ultimately convicted of multiple crimes, including implied malice murder and hit and run. On appeal, she challenges her convictions for those offenses on the grounds there is insufficient evidence she acted with conscious disregard for human life or that she realized she had struck the victims. She also contends her statements to the police should have been suppressed as being involuntary, and the exclusion of certain statistical evidence rendered her trial unfair. We reject appellant's claims and affirm the judgment against her.
FACTS
At the time this case arose in 2012, appellant was a 33-year-old mother of two and had a serious drinking problem. Her own mother had warned her about the dangers of driving under the influence and how it can harm others, but appellant was not deterred. On St. Patrick's Day, she called her mother from a liquor store, sounding so drunk that after the call was over her mother called 911 and asked that an officer be dispatched to the store to prevent her from driving. As it turned out, appellant drove home on that occasion without incident.
The next day, appellant again wanted to drive after she had been drinking, but her boyfriend refused to give her the keys to her car. Angered by this, appellant punched her boyfriend in the face, so he called the police. Appellant told the responding officer she was okay to drive because she had not had anything to drink since the previous evening. However, the officer could plainly see appellant was drunk and in no condition to get behind the wheel of a car.
These episodes set the stage for the events that transpired in this case three months later, starting on June 22, 2012. That evening, appellant spent the night with her boyfriend at a hotel in Alameda. She had six or seven drinks and smoked marijuana before going to sleep around 11:00 p.m. Early the next morning, she caught a flight out of the bay area and drank two alcoholic beverages before arriving in Burbank around 9:00 a.m. Then she drove to a liquor store, where she purchased two mini bottles of vodka. Thirty minutes later, she stopped at another liquor store before heading south on the I-5 toward Orange County.
Appellant exited the I-5 in Santa Ana and headed west on 17th Street just before 11:00 a.m. At the first intersection she came to, she stopped for a red light, but before the light changed, she accelerated rapidly. Although the speed limit in that area is 40 M.P.H., witnesses estimated appellant was going 70 M.P.H. when she entered the next intersection at Spurgeon Street against a red light. At the same time, Eloise Magna was walking across 17th Street with her young daughters Grisea and Osmara. As they were about halfway across the street, appellant struck them head on, killing Osmara and leaving Eloise and Grisea seriously injured. Appellant was not hurt, but the windshield and front of her car were badly damaged. Following the crash, she hit the curb on 17th Street but continued driving west at a high rate of speed.
Beatriz Jimenez witnessed the collision in her car. When she realized appellant was not going to pull over, she chased her down and blocked her car two intersections away, at 17th and Main. She then approached appellant in her car. She asked appellant if she knew what she just had done, and appellant seemed indifferent. When Jimenez told her she had run over three people with her car, appellant replied, "Who cares?"
The police and paramedics were on the scene within minutes. Officer Adrian Capacete spoke to appellant momentarily while she was still in her car, and during that exchange, appellant was crying and confused. When Capacete asked her what happened, she said she did not know. Capacete directed her over to the sidewalk and continued their conversation. While appellant admitted smoking pot and drinking four beers and two shots the previous night, she insisted she did not smoke or drink that morning. However, her speech was slurred and her breath smelled of alcohol. In addition, the police found the two vodka bottles (both empty) in her car, along with a pipe and some marijuana.
Police Officer Luis Galeana was also with appellant during this time. At trial, he testified appellant's demeanor fluctuated wildly, in that she "would go from being calm to giggling, laughing, to crying, back to serious, back to calm, back to crying." Although appellant appeared disoriented at times, there were also times when she was attentive and fully responsive to what was being asked of her.
At 11:55 a.m., roughly one hour after the collision, officers took appellant into the lobby of a nearby office building for further observation. After she registered a .24 BAC on a preliminary screening test and botched her field sobriety tests, they arrested her for driving under the influence and took her into custody. Subsequent blood testing confirmed appellant's BAC was .24 percent at the time of her arrest. In addition, she had six nanograms of THC in her system, which indicated she had smoked marijuana on the morning of the crash.
At five o'clock that evening, investigators interviewed appellant at the Santa Ana Police Station. She had been crying and throwing up, but once the interview started she was able to comport herself appropriately. While she did not seem to fully comprehend what she had done and why she was being detained, she was coherent and able to answer questions clearly. At the outset of the interview, the investigators advised her of Miranda rights, and she said she understood them. When they requested permission to ask her a few questions, she said, "Absolutely."
See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During the interview, appellant admitted drinking five beers and smoking marijuana the night before. She also acknowledged it is pretty serious to drive under the influence and that she was aware of the dangers of doing so. However, she claimed she did not drink or smoke anything that day, nor did she speed or run any red lights on 17th Street. Asked why she didn't stop after hitting the victims, she said she had "no excuse" and could not explain why she reacted the way that she did. She also expressed concern for the victims and was distraught when told one of them had died.
The investigators were skeptical of appellant's claim she had not been drinking that day. They told her that did not make any sense given the results of her breath and blood tests. They also told appellant that while their testing equipment is calibrated weekly, if it was not working properly that day, there was a chance she would not have to face any charges. Hearing that, appellant asked, "How could this case not get filed if I killed [someone]?" The investigators told her, "[I]t doesn't change the fact that you screwed up, but the degree of how this is filed may change depending on how this is played out." The investigators then asked appellant if she had anything else to say, and she said no.
At that point, after roughly 30 minutes of questioning, they walked appellant next door to the Santa Ana Jail and booked her for vehicular manslaughter. During the booking process, she was asked if she knew what can happen when a person drives under the influence of alcohol. She said the "scenario of what happened today." She also admitted there had been times in the past when she drove after she had been drinking and then realized in hindsight that was a foolish thing to do because she could have killed someone.
At trial, appellant presented testimony from a forensic toxicologist who stated that people with a BAC over .18 percent can enter a dissociative, trance-like state in which they become oblivious to their surroundings. He said drinking to that level can also impair a person's memory. However, even if impairment occurred during a drinking episode, the person's memory would likely start to come back within a few hours.
The jury convicted appellant of second degree implied malice murder, gross vehicular manslaughter, two counts of hit and run causing injury or death, four counts of drunk driving causing injury, and one count of possessing marijuana. It also found appellant inflicted great bodily injury on multiple victims and had a BAC of .20 percent or more. The trial court sentenced her to 22 years in prison for her crimes.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support her convictions for murder and hit and run. In particular, she claims the trial record is devoid of substantial evidence she acted in conscious disregard for human life or was aware she hit anyone with her car. We disagree.
In addition to challenging the sufficiency of the evidence at trial, appellant also contends there was insufficient evidence at the preliminary hearing to bind her over on the murder and hit and run charges. Because we find the jury's verdict is supported by substantial evidence, appellant's challenge to the preliminary hearing evidence is moot. (People v. Lightsey (2012) 54 Cal.4th 668, 730; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990-991; Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1170; People v. Chambers (1980) 108 Cal.App.3d 985, 990-991.) --------
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence of the defendant's guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) In so doing, we do not reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial; rather, "'[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "If the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]'" (Ibid.)
The same standard of review applies when the defendant's conviction is based primarily on circumstantial evidence, as opposed to direct evidence. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) In either situation, the defendant "bears an enormous burden" to prevail on a sufficiency-of-the-evidence claim. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
The crime of second degree implied malice murder has two components. The objective component is satisfied when the defendant commits an act that would naturally and probably result in danger to human life, and the subjective component requires proof the defendant knew the act was dangerous to human life but did it anyway. (People v. Knoller (2007) 41 Cal.4th 139, 152.) Appellant challenges the sufficiency of the evidence to support the subjective component. She admits she knew driving under the influence can be dangerous and unsafe in a general sense. However, she claims she had no idea it could actually lead to death.
The claim is weak at best. Before this case arose, appellant's mother had repeatedly warned her that drunk driving can cause harm to others, and appellant said she understood this. In the context of a conversation about drunk driving, "harm to others" naturally implies the risk of death. Moreover, appellant admitted to the police that she knew driving under the influence could lead to what happened in this case, i.e., death and serious injury to innocent victims. She also admitted there were times in her past when she drove under the influence and later looked back and realized she could have killed someone by doing so. Based on this evidence, the jury could reasonably infer appellant knew that driving under the influence can be dangerous to human life.
Appellant also contends that because she was able to drink and drive in the past without killing anyone, she did not subjectively believe her drunk driving would result in death in this case. Rather, her experience had taught her that she was going to reach her destination without hurting anyone. However, the record does not contain any specific information about appellant's past experiences, so we have no way of comparing them to her conduct in this case. Her conduct here was particularly egregious. She drove 70 M.P.H. through a red light at a busy intersection while grossly intoxicated. This evinces a wanton disregard of the high probability of death. Because anyone would know this, the jury could reasonably infer appellant did, too. (People v. Moore (2010) 187 Cal.App.4th 937, 940-942 [extreme recklessness of the defendant's driving amply established the subjective element of implied malice murder].)
Appellant's challenge to the sufficiency of the evidence to support her hit and run convictions also fails. Pointing to the evidence she was confused and disoriented in speaking with the police after the collision, appellant contends she "had no idea that she [had] been involved in an accident." (See generally People v. Harbert (2009) 170 Cal.App.4th 42, 53 [awareness of accident is prerequisite for hit and run driving].) However, while appellant exhibited some confusion at the scene, she was also calm and responsive at times. Officer Capacete testified appellant answered a variety of his questions in a clear and coherent fashion.
Moreover, the circumstances surrounding the collision were such as to alert appellant to the mayhem she had caused. She hit the victims head on, and the impact from the crash not only sent the victims flying into the air, it caused major damage to the front end and windshield of her car. Drunk as she was, it's hard to imagine appellant did not realize she had been involved in some sort of accident. (See People v. Harbert, supra, 170 Cal.App.4th at pp. 55-56 [defendant's knowledge of accident could be inferred from the damage to his vehicle].) Certainly we cannot quarrel with the jury's inference to that effect.
Finally, appellant's own statements demonstrate she knew she had been involved in a crash. At the scene, she told the police she did not know what had happened. However, when Jimenez told her she had just run over three people with her car, appellant didn't express surprise or disbelief. Instead, her response was "who cares," indicating she knew what she had done but was indifferent to it. Likewise, when the police asked appellant at the station house why she did not pull over after the collision, she did not say she was unaware of what had occurred. Rather, she said had no excuse for failing to yield, another indication she was aware she had been involved in a collision. Thus, despite her confusion at the scene, the jury could reasonably find she knowingly fled the scene of an accident. There is substantial evidence to support the jury's finding in that regard.
Admissibility of Appellant's Statements
Appellant contends the trial court erred in denying her request to exclude her statements to the police as being involuntary. Again, we disagree.
"A statement is involuntary if it is not the product of '"a rational intellect and free will."' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' [Citation.] '"The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined.' [Citation.]" [Citation.] In determining whether or not an accused's will was overborne, "an examination must be made of 'all the surrounding circumstances - both the characteristics of the accused and the details of the interrogation.' [Citation.]" [Citation.]' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404; accord, Colorado v. Connelly (1986) 479 U.S. 157.)
Appellant contends the statements she made at the police station were involuntary because she was still confused and intoxicated, and the investigators made her an implied promise of leniency. There is no question appellant was still woozy and under the influence when she was interviewed six hours after the collision. However, appellant's own expert admitted that even people who enter a dissociative state from drinking excessively can recover their memory a few hours after they stop drinking. And while the primary investigator testified appellant did not seem to be fully aware of what she had done and why she was being detained, she was able to answer his questions clearly and coherently. It does not appear appellant's faculties were so impaired that she was unable to exercise her free will during the interview.
As for the alleged promise of leniency, the record shows appellant was told that if the equipment used to test her BAC was not working properly, there was a chance she would not be charged. When she asked how this could be, given the fact she had killed someone, the investigators told her "the degree of how this is filed may change depending on how this is played out." Appellant construes this exchange as an implied promise she would be treated leniently if she confessed. However, viewed in context, it appears the investigators were simply telling her that the strength of their case depended on the reliability of their testing equipment, which of course was true. In any event, appellant did not confess after the exchange occurred, so it obviously did not undermine her free will. (See People v. Tully (2012) 54 Cal.4th 952, 985-986 [due process does not require suppression of a confession that was allegedly induced by an implied promise of leniency unless the promise and the confession are causally connected].)
In assessing the voluntariness of appellant's statements, it is also significant she was advised of and waived her Miranda rights at the beginning of the interview. Although this circumstance is not determinative of the voluntariness issue, "giving [Miranda] warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. [Citation.]" (Missouri v. Seibert (2004) 542 U.S. 600, 608-609.) Appellant does not contend her Miranda waiver was invalid. In light of this, as well as all of the other circumstances surrounding her interview, we find her statements were voluntarily rendered and properly admitted into evidence at her trial.
Admissibility of Statistical Evidence
During trial, appellant moved to present evidence on the probability of a drunk driver killing someone on the roadway. Appellant argued the evidence was relevant to the issue of implied malice, but the trial court denied her motion on the basis her proffered evidence had no logical bearing to the facts of this case. We uphold the trial court's decision as a reasonable exercise of discretion.
Appellant's proffered statistical evidence was based on data provided by the Centers for Disease Control and Prevention (CDC). The data, which was included as part of appellant's new trial motion, shows that in 2014 there were 121 million "self-reported episodes of alcohol-impaired driving" and that 9,967 people were killed in alcohol-impaired driving crashes. Broadly speaking, this suggests the odds of a person killing someone while driving under the influence are less than 1 in 12,100.
Appellant contends this evidence was relevant to whether "an objectively reasonable person would foresee death as a natural consequence of drinking and driving and whether [she] subjectively believed that her act of drinking and driving [would] cause death." However, the CDC data does not shed any light of the probability of a person being killed under the circumstances in which appellant drove in this case. If all of the self-reported episodes of alcohol-impaired driving reflected in the data involved situations where the person drove in a highly-dangerous fashion after smoking marijuana and drinking to perilous excess, our conclusion might be different. But because very few people have the tolerance to drink as much as appellant did without passing out, the proffered statistical evidence did not accurately reflect the risk appellant created by virtue of her actions. Therefore, the evidence was irrelevant and misleading, and the trial court did not err in excluding it. (Gandarilla v. Hill (C.D.Cal. 2015) 2015 U.S. Dist. LEXIS 7477; Jaime v. Tilton (E.D.Cal. 2007) 2007 U.S. Dist. 90452.) That ruling did not render appellant's trial unfair or infringe her rights in any respect.
New Trial Motion
Lastly, appellant contends the trial court erred in denying her motion for a new trial on the basis there was insufficient evidence to support her convictions for implied malice murder and hit and run. For the reasons explained above, we cannot agree. As there was abundant evidence to support the charges, the trial court did not abuse its discretion in denying appellant's request for a new trial.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.