Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County No. JCF15544, William D. Lehman, Judge.
BENKE, J.
Sergio J. Davalos was found guilty of second degree murder, gross vehicular manslaughter while intoxicated, leaving the scene of an accident, driving under the influence of alcohol with a prior conviction for driving under the influence, and driving while his driver's license was suspended. Davalos was sentenced to a term of 15 years to life. He appeals, arguing there was insufficient evidence to support the verdict of second degree murder and the trial court erred in allowing his prior conviction for driving under the influence to be offered as evidence of malice.
FACTS
A. Prosecution Case
On February 4, 2005, while on probation from an earlier driving under the influence conviction, appellant was arrested for driving under the influence. It was determined appellant's blood alcohol level was .12.
From December 2004 to March 2005 appellant attended and completed a program concerning the dangers of driving under the influence, the law related to drinking and driving and the effects of alcohol consumption on the ability to drive safely.
On the evening of April 4, 2005, appellant, whose driver's license was suspended, drove Esmeralda Rodriguez and Elaine Castillon in his pickup truck to an orchard in Imperial County. Rodriguez estimated that between 10:00 p.m. on April 4 and 1:30 a.m. on April 5 appellant consumed at least 12 cans of beer. At approximately 1:30 a.m. on April 5, 2005, the three left the area on a dirt road. Appellant, still drinking beer, and driving too fast, was unable to negotiate a turn. The truck rolled over, Castillon was ejected from the vehicle and died at the scene.
After the crash, appellant made a cell call to his friend Joseph Flores. Flores drove to the scene. Appellant, appearing "wasted" and smelling of alcohol, got into Flores's truck and the two men drove off. Appellant repeatedly told Flores, "I fucked up." As they drove, appellant called the police to report the rollover. When Flores and appellant neared the Calipatria police station, appellant got out of the truck and fled. Flores contacted the police and led rescue personnel to where Castillon was dying.
A criminalist concluded that based on appellant's reported consumption of beer at the time he lost control of his truck, his blood alcohol level was .19.
C. Defense Case
Appellant testified in his own defense. While admitting the truth of most of the prosecution's evidence, he testified that the night Castillon died he consumed only two beers.
DISCUSSION
A. Sufficiency of Evidence
Appellant argues the evidence was insufficient to convict him of second degree murder. He argues that while he might have been drunk, was on probation from a prior conviction for driving under the influence and might have been driving unsafely, he was not driving recklessly, had tried to stop and after Castillon was injured tried to assist her. He argues the evidence might have been sufficient to convict him of vehicular manslaughter but not murder.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
"Murder is the unlawful killing of a human being . . . with malice aforethought." (Pen. Code, § 187, subd. (a).) Malice is implied when the circumstances of the killing show "an abandoned and malignant heart." (§ 188.) Implied malice may be found in a vehicular homicide when the defendant's conduct demonstrates both a wanton disregard for life and a subjective awareness of the risk created by his or her behavior. Implied malice murder involves a degree of risk and an element of wantonness that is absent in vehicular manslaughter. The mental elements also differ. Vehicular manslaughter requires only a showing of gross negligence, i.e., would a reasonable person in the defendant's position have been aware of the risk involved? Murder based on implied malice requires the defendant actually appreciate the risk. (People v. Watson (1981) 30 Cal.3d 290, 296-298.) It is this conscious disregard for human life that distinguishes implied malice from gross negligence. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 109.)
All further statutory references are to the Penal Code unless otherwise specified.
In a vehicular homicide case, the actual appreciation of risk and conscious disregard for human life may be shown by the circumstances of the particular homicide. It may also be shown by the defendant's history of drunk driving convictions and participation in educational programs, both of which can support a finding that a defendant actually appreciated the risk of drinking and driving. (People v. Autry (1995) 37 Cal.App.4th 351, 359.)
The jury could reasonably conclude appellant acted wantonly and with an actual appreciation of the risk his behavior created. Appellant was not new to driving or to drinking and driving. He was convicted of driving under the influence in the past, and he drove drunk while on probation from that conviction. As part of his probation, he attended and completed a lengthy education program that emphasized the dangers and consequences of drunk driving. Appellant clearly appreciated the risks of driving under the influence. Nonetheless, appellant purchased beer, consumed a large quantity of it in a relatively short period, and then, while still drinking, and with a blood alcohol level twice the legal limit, drove in an unsafe manner on a dirt road. The evidence was sufficient to convict appellant of second degree murder.
B. Prior Conviction
Appellant notes his prior conviction for driving under the influence was introduced as evidence of his appreciation of the risk of driving under the influence of alcohol. That conviction was based on appellant's plea of guilty. He argues, for the first time on appeal, and without supporting authority, that because at the time he entered his plea he was not advised his conviction could be used in the future to prove him guilty of second degree murder, his plea was defective and should not have been used as evidence in this case.
Before entering a plea of guilty, a defendant, among other things, must be advised of the direct but not the collateral consequences of the plea. In People v. Gurule (2002) 28 Cal.4th 557, 633-634, the defendant argued his prior second degree murder conviction could not be used as a basis for a prior murder special circumstance because at the time of his plea to the prior murder, he was not advised his conviction could be used in the future to support a special circumstances allegation. The court in Gurule concluded such use of the defendant's prior conviction was a collateral and not direct consequence of his plea. That being the case, it is inescapable that the use of appellant's prior drinking and driving conviction in this case was not a direct consequence of his plea. The trial court at the time of his plea was not required to advise him his conviction might be used later to prove malice. The fact of appellant's prior conviction was properly admitted in this case.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.