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People v. Cummings

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G039391 (Cal. Ct. App. Apr. 30, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 05NF4622, Frank F. Fasel, Judge.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Eric Swenson and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

ARONSON, J.

A jury convicted defendant Mark Lee Cummings of second degree murder (Pen. Code, § 187, subd. (a)), driving under the influence of alcohol with two or more prior convictions for the same offense (Veh. Code, § 23566), hit and run causing injury (Veh. Code, § 20001, subd. (a)), misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), and possession of an open container of alcohol while driving (Veh. Code, § 23222, subd. (a)). Challenging only the murder conviction, defendant contends the trial court prejudicially erred by admitting evidence of his prior convictions and his attendance at an alcohol-education school to prove the element of knowledge for implied malice murder. He also argues the trial court’s instruction on voluntary intoxication causing unconsciousness (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 626) erroneously listed certain requirements as elements of the offense, and placed the burden on him to disprove certain elements of murder. For the reasons expressed below, we affirm the judgment.

All statutory references are to the Penal Code unless noted.

I

Factual and Procedural Background

Around 2:45 in the afternoon of November 25, 2005, defendant ran over bicyclist Rudy Mora with his van near the corner of Palm and Tanglewood in the City of Brea. A witness to the incident testified defendant “had a ghost look on his face. [H]e looked at [the witness], [] smirked, and [] sped away.” Mora died four days later from his injuries.

The owner of a La Habra automotive shop, Riyad Itmaiza, testified defendant frequently sat in his van drinking alcohol while parked in front of Itmaiza’s store. Defendant lived in his van, which he kept stocked with food, blankets, beverages, and music. On the morning of the homicide, defendant appeared to be intoxicated when he first emerged from his van. Defendant was still intoxicated when Itmaiza saw him around noon. Shortly before 3:00 p.m., he saw defendant almost strike an occupied parked car as defendant pulled his van out of the lot and drove in the direction of a liquor store.

About an hour after the homicide, officers found defendant asleep in the back of his van, parked near Itmaiza’s shop in an alley where it could not be viewed from the street. According to Itmaiza and another employee from the automotive center, defendant had never before parked in the alleyway. Officers smelled alcohol on his breath, his speech was slurred, and he appeared extremely intoxicated. The police found a half-full bottle of beer in the center console, several unopened bottles of beer, a few empty beer cans, and two open bottles of vodka in the vehicle.

Defendant spoke with Brea Police Officer Robert Haefner at the Brea police station. Defendant claimed he had not driven his van in the previous five years, and asserted he had no idea how the van ended up in the alley, but speculated “he was being set up for money....” He admitted he had a drinking problem and that he had started drinking at 6:00 that morning. He sobbed several times during his interview and often provided nonresponsive answers to the officer’s questions. He refused to perform coordination and breath alcohol tests. A forced blood test taken at 6:15 p.m. revealed a.32 blood alcohol content, four times the legal limit for driving.

Defendant had suffered at least six driving under the influence (DUI) convictions since 1990. The trial court admitted into evidence the four most recent convictions, occurring in July 2000, July 2001, September 2003, and March 2004. In at least three of the cases, the court had ordered defendant to attend an 18-month education program on the dangers of driving under the influence of alcohol. Defendant failed to regularly attend the sessions, however, and he had been terminated from one program after showing up smelling of alcohol. He failed to complete any of the three programs. Defendant’s driver’s license was revoked after his March 2004 conviction and at the time of the current offenses he did not have a valid driver’s license.

Defendant called two experts in addiction medicine to testify that drinking alcohol to excess may result in blackouts that affect short-term memory. They explained that people suffering an alcoholic blackout may still perform “automatic” tasks, like driving a car, but they lose the ability to retain memories of their activities. Both experts interviewed defendant, determined he lacked any memory of events occurring on the day of the crimes, starting from about 11:00 a.m. until officers awakened him, and concluded defendant had suffered an alcoholic blackout. One expert provided a definition of consciousness that depended on “three things.... [Y]ou have to be awake... your brain has to be active[] and you... have to be able to process information.” The other defined “consciousness” as “[a]wareness of the input, memory and cognitive abilities to discern between making a positive or negative response,” and testified a person in a blackout state is not conscious because the person cannot get information that he can rationally process. The expert explained that excessive alcohol impairs a person’s awareness by compromising perceptions, reactions and the ability to judge.

Following a trial in May 2007, the jury convicted defendant of the charged offenses. The court imposed a term of 15 years to life for second degree murder and imposed concurrent or stayed (§ 654) terms for the other offenses.

II

Discussion

A. The Trial Court Did Not Err in Admitting Defendant’s Prior Convictions and DUI School Referrals

Defendant contends the trial court abused its discretion in admitting evidence of his prior convictions and court-ordered DUI education programs. (Evid. Code, § 352.) He argues the prejudicial effect of the evidence outweighed its probative value because the prosecutor did not provide specific evidence defendant received instruction on the dangerousness of driving while under the influence of alcohol.

After the court overruled his objections, defendant stipulated to the fact he had suffered four prior convictions for driving under the influence.

A person who kills another as a result of driving while intoxicated may be convicted of second degree murder if the jury finds the person acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 296.) Implied malice may exist when a person “knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.” (Ibid.)

As explained in People v. Brogna (1988) 202 Cal.App.3d 700, prior convictions for DUI and evidence of attendance at education programs on the dangers of driving while intoxicated are admissible (Evid. Code, § 1101, subd. (b)) to prove a defendant’s knowledge of the life-threatening dangers of drinking and driving. (Brogna, at p. 707.) As observed in People v. McCarnes (1986) 179 Cal.App.3d 525, “[T]he reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe [citation] is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers. [¶] Moreover, included in the evidence of two of defendant’s [four] convictions, as shown to the jury, was the sentence that he enroll in and complete a drinking driver’s education program. Even if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver’s educational program. To argue otherwise is little short of outrageous.” (Id. at p. 532, original italics; see also People v. Talamantes (1992) 11 Cal.App.4th 968, 973; People v. David (1991) 230 Cal.App.3d 1109, 1115; People v. Murray (1990) 225 Cal.App.3d 734, 744.)

The court in People v. Johnson (1994) 30 Cal.App.4th 286 rejected the identical argument defendant raises here. The court explained that even if there was no evidence the defendant attended a DUI program and received detailed information about the risks of driving while intoxicated, evidence of previous drunk driving convictions alone was admissible to establish the defendant subjectively appreciated those risks. (Id. at p. 291.) “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.” (Id. at p. 292, original italics.)

Here, the evidence disclosed defendant was ordered to complete 18-month (see Health & Saf. Code, § 11837.4) DUI education programs as a consequence of his DUI convictions. Attendance records reflected he attended orientation and various sessions and classes following the 2000, 2001, and 2003 convictions. He also attended Alcoholics Anonymous meetings. The jury could infer, despite his sporadic attendance, defendant received information concerning the life-threatening dangers of drinking and driving. Whether defendant gained the requisite knowledge of these dangers goes to the weight of the evidence, not its admissibility. We therefore conclude the court did not abuse its discretion in admitting evidence concerning defendant’s prior DUI convictions and court-ordered DUI education programs. Similarly, we find no due process violation. (People v. Partida (2005) 37 Cal.4th 428, 431-432.)

B. The Trial Court Did Not Err Prejudicially in Giving CALCRIM No. 626

Defendant attempted to persuade the jury he was guilty only of involuntary manslaughter because he drove his vehicle while suffering an alcoholic blackout, rendering him unconscious, and therefore unaware he had struck the victim. Based on this defense, the trial court instructed the jury on involuntary manslaughter as a lesser included offense of second degree murder. (CALCRIM No. 580.) The court also instructed the jury that defendant may be entitled to an involuntary manslaughter verdict based on evidence of voluntary intoxication causing unconsciousness. (CALCRIM No. 626.) This instruction read as follows: “Voluntary intoxication may cause a person to be unconscious of his actions. A very intoxicated person may still be capable of physical movement but may not be aware of his actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his own intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary manslaughter has been proved if you find beyond a reasonable doubt that: [] 1. The defendant killed without legal excuse; [¶] 2. The defendant did not act with the intent to kill; [¶] 3. The defendant did not act with a conscious disregard for human life; [¶] AND [¶] 4. As a result of voluntary intoxication, the defendant was not conscious of (his) actions or the nature of those actions.... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of (murder). [¶] However, voluntary intoxication causing unconsciousness does not negate implied malice, which is an element of second degree murder and reduce that crime to the lesser charge of involuntary manslaughter if: [¶] 1. The person is aware of the dangerous nature of driving while intoxicated, and; [¶] 2. The person anticipates operating a motor [vehicle] while intoxicated at the time he commences to become voluntarily intoxicated.” (Italics added.)

Defendant contends the italicized portion of the instruction erroneously informed the jury that to return an involuntary manslaughter verdict it must find beyond a reasonable doubt defendant did not act with conscious disregard for human life. According to defendant, this directive placed the burden on him “to prove beyond a reasonable doubt that he did not have the mental state required for second degree murder.” (Original italics.) Defendant also complains that acting without a conscious disregard for human life or lacking an intent to kill are not elements of involuntary manslaughter. Completing his attack on CALCRIM No. 626, defendant further maintains that “[n]either voluntary intoxication nor lack of consciousness is an element of involuntary manslaughter.” We do not find defendant’s argument persuasive.

We find no support for defendant’s contention CALCRIM No. 626 saddled him with the burden to show beyond a reasonable doubt he lacked the requisite mental state for second degree murder in order to obtain an involuntary manslaughter verdict. The instructions expressly placed the burden of proof on the prosecution. The trial court instructed the jury they must presume defendant innocent, explaining “[t]his presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.” (CALCRIM No. 220, italics added.) Per CALCIUM No. 580, the court emphasized that, “In order to prove murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with conscious disregard for human life. If the People have not met this burden, you must find the defendant not guilty of murder.” The court gave CALCRIM No. 3425, which explained that “[s]omeone is legally unconscious when he is not conscious of his actions. Someone may be unconscious even though able to move. [¶]... [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when he acted.” The court also instructed the jury defendant was guilty of murder if he acted with malice aforethought (CALCRIM No. 520) and explained that a defendant acts with implied malice if he intentionally and knowingly committed a dangerous act with conscious disregard for human life. (Ibid.; CALJIC No. 8.31.) The court directed the jury to acquit defendant if they had a reasonable doubt whether the prosecution had proved the requisite elements of implied malice for second degree murder.

Per CALCRIM No. 626, the trial court expressly directed the jury to acquit defendant of murder if the prosecution failed to prove beyond a reasonable doubt he was conscious. In other words, the prosecution bore the burden to show defendant acted with conscious awareness while driving his vehicle when it struck the victim. Thus, the instructions as a whole placed the burden of proof on the prosecution for the charged offense of murder and the lesser offense of involuntary manslaughter. True, the prosecutor urged the jury to reject an involuntary manslaughter verdict and convict defendant of second degree murder. But the prosecution’s argument for a murder conviction does not alter the fact the court’s instructions placed the burden of proof on the prosecution for all criminal offenses submitted to the jury. We therefore conclude it is not reasonably likely the jury misunderstood or misapplied the foregoing instructions and placed the burden on defendant.

Defendant also attacked CALCRIM No. 626 by claiming the instruction erroneously listed as elements the requirement that a defendant not act with conscious disregard for human life or with an intent to kill, and that defendant’s unconsciousness was the result of voluntary intoxication. Defendant relies on case authority to support his claim the requirements listed in CALCRIM No. 626 are not elements of involuntary manslaughter. The cases defendant cites rely on the statutory definition of involuntary manslaughter found in section 192, subdivision (b). For instance, People v. Garcia (2008) 162 Cal.App.4th 18, 27, relies on section 192, subdivision (b), in defining involuntary manslaughter as “the unlawful killing of a human being without malice ‘in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ (Pen. Code, § 192, subd.(b).)” But section 192, subdivision (b), expressly states it “shall not apply to acts committed in the driving of a vehicle.” (See also Garcia, at p. 27 [section 192, subdivision (b), does not apply “for acts committed while driving a vehicle”].) Indeed the cases defendant relies on concern the applicability of section 192, subdivision (b), to conduct other than driving a vehicle. (Garcia, at pp. 22-23 [victim died after defendant delivered blow to the head with the butt of a shotgun]; People v. Parras (2007) 152 Cal.App.4th 219, 222-223 [victim beaten to death]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 450-451 [defendant’s horse escaped corral and killed victim in conclusion].) Consequently, defendant’s argument fails to show CALCRIM No. 626 incorrectly listed the elements for involuntary manslaughter based on unconsciousness from voluntary intoxication.

In raising the defense of unconsciousness, defendant received an involuntary manslaughter instruction as a lesser included offense to murder. Ordinarily unconsciousness is a complete defense to a crime. (§ 26, Four; People v. Boyer (2006) 38 Cal.4th 412, 469.) “‘If the state of unconsciousness results from intoxication voluntarily induced, however, it is not complete defense. (Pen. Code, § 22.)... Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness....’” (People v. Ochoa (1998) 19 Cal.4th 353, 423.) Involuntary manslaughter “is ordinarily a lesser offense of murder” if there is evidence defendant’s voluntary intoxification produced unconsciousness. (People v. Abilez (2007) 41 Cal.4th 472, 515-516, italics added.) Although involuntary manslaughter does not apply to vehicular homicides per section 192, subdivision (b), the trial court and the parties agreed to give the jury the option of returning a verdict on involuntary manslaughter. To that end, the trial court instructed the jury on involuntary manslaughter generally (CALCRIM No. 580) and modified CALCRIM No. 626 so it would fit within the facts of a vehicular homicide.

In any event, defendant cannot show any prejudice stemming from the trial court’s decision to instruct the jury with CALCRIM No. 626. Defendant complains CALCRIM No. 626’s inclusion of the element requiring a defendant act without conscious disregard for human life thwarted his bid for an involuntary manslaughter conviction. He argues that “if the jury was in equipoise as to whether or not [defendant] acted with conscious disregard, or if it was leaning one way or the other but could not conclude beyond a reasonable doubt either that he did or that he didn’t have that mental state, the jury could not convict [defendant] either of second degree murder or, under the erroneous CALCRIM [No.] 626 instruction, of involuntary manslaughter.” Defendant is correct that under this scenario the jury could not return a guilty verdict for murder or for manslaughter as described in CALCRIM No. 626. But under defendant’s hypothetical, the jury would acquit him altogether because the prosecution failed to prove either crime beyond a reasonable doubt. Accordingly, defendant suffered no prejudice from an instruction affording him an opportunity to obtain an acquittal under the scenario he describes.

Moreover, use of CALCRIM No. 626 did not, as defendant claims, deprive him of “the possibility of an involuntary manslaughter verdict” in the event the jury concluded defendant was mentally conscious of his actions but lacked conscious disregard for human life. To the contrary, the court’s general instruction on involuntary manslaughter, CALCRIM No. 580, covered this scenario. CALCRIM No. 580 specifically informed the jury: “The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act [i.e., one committed while the defendant was conscious] committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.” (Italics added.) Accordingly, under CALCRIM No. 580, the jury could, as defendant acknowledges, “properly convict [defendant] of involuntary manslaughter even if they believed that he might have been conscious at the time of the accident, which the prosecutor forcefully argued he was.”

The trial court did not err in giving both the general instruction on involuntary manslaughter, CALCRIM No. 580, and, as requested by defendant and the prosecutor, the more specific instruction covering voluntary intoxication to the point of unconsciousness, CALCRIM No. 626. The latter was a proper pinpoint instruction concerning the legal effect of voluntary intoxication (People v. Saille (1991) 54 Cal.3d 1103, 1119), responsive to defendant’s theory his voluntary intoxication rendered him unconscious. And CALCRIM No. 580, which defendant concedes was correct, covered the eventuality the jury might reject his version of the facts that intoxication rendered him unconscious, but also reject the prosecutor’s theory defendant acted with conscious disregard for human life, resulting in a verdict for involuntary manslaughter. The jury’s verdict reflects it determined neither CALCRIM No. 580, nor CALCRIM No. 626 were factually applicable, but rather that defendant acted with the implied malice necessary for murder. Because “[w]e assume jurors are intelligent persons capable of understanding and correlating jury instructions” (People v. Martin (1983) 150 Cal.App.3d 148, 158), we discern no basis to disturb the jury’s verdict.

III

Disposition

Judgment affirmed.

WE CONCUR: SILLS, P. J., FYBEL, J.


Summaries of

People v. Cummings

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G039391 (Cal. Ct. App. Apr. 30, 2009)
Case details for

People v. Cummings

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK LEE CUMMINGS, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 30, 2009

Citations

No. G039391 (Cal. Ct. App. Apr. 30, 2009)