Opinion
A144919
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DENIS DEMACEDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC079923A)
While on probation for driving under the influence, Denis Demacedo chose to drive when his blood alcohol content was almost three times the legal limit. He struck a car and sped away through a residential neighborhood, reaching a speed of almost 70 miles per hour before colliding with a Toyota Tercel. The collision killed a young man, his teenage brother, and their mother. The young man's fiancée survived, but was severely injured.
Demacedo was convicted of three counts of second degree vehicular murder and related charges. He contends the court erred when it (1) excluded expert defense testimony on the general probability a drunk driver will cause a fatal collision; and (2) admitted evidence of his prior drunk driving and a prior accident to show he was aware of the dangers of drunk driving. These contentions are meritless. Demacedo also contends certain expert hearsay relied upon by a prosecution expert violated the rule announced in People v. Sanchez (2016) 63 Cal.4th 667 (Sanchez), decided after this case was tried. He is correct, but the Sanchez error was harmless by any measure. Finally, Demacedo contends the court misapplied criteria and imposed an unconstitutionally disproportionate sentence. These claims were forfeited by Demacedo's failure to raise them in the trial court. We order the abstract of judgment amended to correct clerical errors and affirm the judgment.
BACKGROUND
Demacedo typically played soccer on Saturdays and went out for beer and pizza with his teammates after their games. On the morning of March 9, 2013, Demacedo called his ex-girlfriend, Juliana Nascimiento. When he told her he was playing soccer that day she warned him not to drink and drive.
After the game Demacedo drove his BMW to a pizzeria in Daly City, where he ate and drank beer with his teammates. He was there from around 2:15 p.m. until around 7:44 p.m. An expert later estimated that Demacedo probably consumed about 16 12-ounce beers during that time.
After leaving the pizzeria, Demacedo drove west on San Pedro Road. West of Sullivan Avenue, San Pedro Road becomes Eastmoor Avenue and the neighborhood becomes residential. The speed limit is 25 miles per hour with one lane of traffic in each direction.
M.R. was driving west on Eastmoor Avenue shortly after 8:00 p.m. He was stopped at a stop sign at St. Francis Boulevard when he saw headlights approaching "very fast" in his rear view mirror. Demacedo's BMW struck M.R.'s car from behind. The impact shook M.R.'s car and knocked his phone onto the floor, but did not cause significant damage. The BMW swerved around M.R.'s car through the intersection and sped away up Eastmoor, driving in the middle of the road. M.R. briefly pursued it, hoping the driver would stop, but the BMW was going around 40 miles per hour and he quickly realized he would not be able to catch up. Then M.R. heard a collision.
Meanwhile, two blocks farther west on Eastmoor, the four victims had just gotten into Amado Osorio's Toyota Tercel. The driver was 23 year-old Amado. His brother, 15-year-old Josue, sat in the front passenger seat. Their mother Josefa, 50, sat behind him, and Amado's fiancée, Sarah Sangraw, was next to Josefa in the back seat behind Amado.
Because they share the same last name, we will refer to the members of the Osorio family by their first names. We intend no disrespect by this practice.
Amado pulled out of the parking space and started to make a legal U-turn. Demacedo drove through the intersection of Eastmoor and Zita Manor at 58 miles per hour as the Toyota was crossing Eastmoor. In the next two seconds, Demacedo accelerated to almost 70 miles per hour. The BMW struck the driver's side of the Toyota just as its front end was crossing the Botts' dots divider in the middle of the road. After impact the two cars traveled 116 feet west, sliding first into the oncoming traffic lane and then back into the right lane before coming to rest.
Prosecution expert Rudy Degger testified the BMW accelerated consistently until the point of impact, when it was traveling 67 miles per hour. Defense expert Eric Rosseter opined the BMW was traveling an average rate of 67 miles per hour over the 28 feet before impact, but had accelerated from 58 miles per hour at the intersection with Zita Manor to 69 miles per hour, then decelerated to 67 miles per hour just before impact.
Josefa was ejected through the rear windshield and landed on the windshield on the street. She, Amado and Josue died almost immediately from massive internal and head trauma and were pronounced dead at the scene. Sangraw was transported to a hospital with numerous severe injuries that included significant blood loss and numerous fractures of her pelvis, leg, shoulder, clavicle and hand. Her aorta was torn, the blood supply to her small intestine tore away from the intestine, her spleen and left kidney were injured, and she suffered an interior frontal lobe hematoma. Sangraw was in a coma for two weeks, was hospitalized for five weeks and then spent a month in a rehabilitation center. After undergoing at least six surgeries, more than a year and a half after the collision she continued to need pain medication. She will suffer disabilities for the rest of her life.
Demacedo suffered scratches and a bloody nose. Two horizontal gaze nystagmus tests administered shortly after the crash indicated he had consumed alcohol or some other depressant, and his eyes were bloodshot and watery. His blood sample drawn at 10:20 p.m. showed a blood alcohol content of 0.18 percent. According to a prosecution expert, at the time of the collision, two hours and 10 minutes earlier, his blood alcohol content was probably 0.22 percent and would not have been under 0.18 percent. He would have been far too impaired to drive.
Demacedo was charged with three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated, DUI causing injury, driving with a BAC over .08 percent, hit and run, perjury, and various special allegations. At trial he conceded his "grossly negligent" driving caused the accident, but argued he was guilty only of gross vehicular manslaughter because he did not act with the conscious disregard for life required for second degree murder. His explanation, rather, was that he was not or did not know he was intoxicated when he got behind the wheel, and that he merely acted in panic during the five to 10 seconds between hitting M.R.'s car and colliding with the Osario family's Tercel.
The defense introduced expert testimony challenging the reliability of the blood alcohol content analysis and nystagmus tests. A defense accident reconstruction expert testified that surveillance videos of the crash demonstrated Demacedo accelerated from an average speed of 58 miles per hour at the intersection of Eastman and Zita Manor to a peak of 69 miles per hour, then swerved and braked to 65 miles per hour in the last second and a half before the crash. The defense also adduced evidence of Demacedo's distress in the immediate aftermath of the crash and argued it was inconsistent with a person who acted with conscious disregard for life.
The jury convicted Demacedo of all charges and found all of the special allegations true. He was sentenced to an aggregate term of almost 50 years to life in prison. This appeal is timely.
DISCUSSION
I. Expert Testimony on The Probability Drunk Driving Will Cause a Fatal
Crash
Demacedo contends the trial court abused its discretion when it excluded expert testimony on the probability that an average drunk driver would cause a fatal collision. The ruling was within the court's discretion.
A. Background
Demacedo moved in limine to permit Dr. Alan Donelson to give expert testimony that consuming alcohol does not create a high probability of causing a fatal accident. Donelson proposed to opine based on a statistical analysis of general data from the National Highway Traffic Safety Administration (NHTSA) that, while an elevated BAC increases the risk of a fatal crash, "given the extremely low average risk of causing a fatal crash, the increased likelihood of a fatal crash for drivers who drink excessively still does not equate to a 'high probability,' nor is the resultant likelihood accurately characterized as 'very likely' or even 'more likely than not.' " According to Dr. Donelson, "[g]iven that the probability of a fatal crash is so low—for example, one fatal crash for every 3.6 million driving trips—even were a high BAC to increase that risk one hundred-fold—to 1 alcohol related fatal crash for every 360,000 'drunk-driving trips'—or increase the risk 1,000-fold - to 1 alcohol-related fatal crash for every 3,600 'drunk-driving trips'—the likelihood or odds of an alcohol-related crash would remain 'low' and 'highly improbable.' " Demacedo argued Donelson's testimony would help the jury determine "whether natural and probable consequences of [his drunk driving] were dangerous to human life[,] i.e.[,] whether there was a high probability that the act would result in death." Otherwise, he maintained, the jury could find the element of implied malice, that the natural and probable consequences of his actions were dangerous to human life, was satisfied "simply by the act of drinking and driving alone without more."
The court excluded the proposed testimony. It explained: "what [Donelson's] statistics don't know is the driving pattern. That's what they leave out. And in this instance the driving is of critical importance as to whether those elements are met. For example, the natural and probable consequences of the act are dangerous to human life. If someone is driving 65 miles an hour in a 25-mile an hour residential area, whatever the actual speed limit is there, there's a lot different than if someone is driving under the influence of alcohol at a low speed. . . . So what I find troubling about your proposal is that these statistics don't have any direct relevance to the facts of this case." The court observed that the general NHTSA statistics "don't mean anything in the abstract. And they're misleading in the abstract" because "the evidence has to be evaluated in each individual case. And this case involves certain facts that are different than, you know, other drunk driving cases that might result in some kind of an accident." The court found the proposed testimony was therefore neither relevant nor helpful to the trier of fact. "[I]t does not relate to the specific details of this accident either by way of driving pattern, speed, level of blood alcohol. And anything that occurred very unique to this case, which in this instance wherein a prior accident, albeit a minor one, it's related to the whole picture of what happened here."
B. Analysis
" 'Expert opinion testimony is admissible only if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' [Citation.] 'When expert opinion is offered, much must be left to the trial court's discretion.' [Citation.] The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 425-426; Evid. Code, § 801, subd. (a).)
Unless otherwise noted, further statutory citations are to the Evidence Code.
To prove second degree murder based on implied malice, the People must prove, inter alia, that the defendant intentionally committed an act whose natural and probable consequences were dangerous to human life. (People v. Watson (1981) 30 Cal.3d 290, 300 (Watson).) "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." (Ibid.; see People v. Johnson (2016) 243 Cal.App.4th 1247, 1285)
Here, the court found Dr. Donelson's proposed testimony was not relevant and would not assist the jury because the NHTSA statistics he relied upon showed generalizations that failed to incorporate the specific factors involved in this accident, such as Demacedo's driving pattern, speed, blood alcohol content and prior accident. We agree. The issue was not whether the hypothetical average drunk driver is highly likely to kill someone; it was whether Demacedo, with his particular experience of the dangers of drinking and driving, knew it was dangerous to human life to get behind the wheel after an afternoon of drinking and drive with an extraordinary degree of recklessness in a residential neighborhood. Moreover, "[c]onscious disregard for human life, the mental state required for implied malice, 'requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less.' [Citation.] Implied malice does not require 'a defendant's awareness that his or her conduct had a high probability of resulting in death.' " (People v. Johnson, supra, 243 Cal.App.4th at p. 1285, italics omitted.) The trial court thus reasonably concluded that Donelson's statistical estimation of the probability drunk driving will cause a fatal crash in general, with no reference to the specific facts of this case, was of minimal relevance and likely to mislead the jury as to what was required for implied malice. The court's ruling was not an abuse of its discretion.
II. Evidence of Demacedo's Knowledge of the Danger of Drunk Driving
Demacedo next contends the court abused its discretion when it admitted evidence to show he was aware of the dangers of drinking and driving. He argues this evidence was "cumulative and highly prejudicial, presenting minimal probative value to any material issue." Again, the court reasonably disagreed.
A. Background
Demacedo was convicted of driving under the influence in 2010 and was on probation for this offense at the time of the fatal collision in this case. His blood alcohol content on that occasion was .26. As a result he was required to complete a first offender program (FOP), but after a few classes was expelled for poor attendance and nonpayment of fees. Before his expulsion, Demacedo received individual counseling and attended at least one lecture about the dangers of drinking and driving.
Just 18 days before the fatal collision in this case Demacedo was pulling out of an apartment complex driveway and struck a car driven by Robyn M., causing significant damage. Demacedo stopped and admitted fault.
The prosecutor moved in limine to admit evidence about both incidents as proof of implied malice, knowledge, intent and motive. Demacedo moved to exclude the evidence under section 352. The court found Demacedo's prior DUI, including his participation in the FOP, was highly relevant and more probative than prejudicial and that the recent collision with Robyn M. was relevant to Demacedo's awareness of the risks and consequences of his actions. Testimony about both incidents was admitted at trial.
The jury was instructed with CALCRIM No. 375 that it could use evidence of the prior uncharged offenses or acts to determine whether Demacedo had a motive to commit the offense in this case, and whether he knew "1. That the act of driving in the manner that he drove was dangerous to human life and created a high risk of death or great bodily injury; and 2. He had been involved in an accident that caused property damage and that he needed to stop at the scene and provide his name and address." The jury was also instructed not to conclude from this other acts evidence that Demacedo "has a bad character or is disposed to commit crime."
B. Analysis
As we understand his argument, Demacedo asserts evidence related to his prior DUI was "utterly unnecessary" to prove the knowledge element of implied malice because his driving the night of the accident was so obviously dangerous that evidence of his intoxication and prior arrest was "utterly unnecessary to show [his] knowledge" of the risks posed by his driving. Accordingly, he argues, the evidence was nothing more than impermissible character evidence of a criminal propensity to drink and drive. The argument is meritless.
"Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant " 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act.' [Citation.] 'Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity.' [Citation.] As with other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion." (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) "The probative value of the uncharged offense evidence must be substantial and must not be 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." (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review the trial court's determination of this issue for abuse of discretion. (People v. Wisenhunt, supra, 44 Cal.4th at p. 203; People v. Kipp, supra, at p. 371.)
There was no abuse of discretion here. The challenged evidence was highly probative. Under Watson, supra, 30 Cal.3d 290, a person whose reckless driving kills another can be found guilty of second degree murder if the evidence supports a finding of implied malice. (Id. at p. 296-297.) "[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Ibid.) Since Watson, numerous courts have upheld the use of prior driving conduct to prove implied malice in vehicular second degree murder cases over objections under sections 1101, subdivision (b) and 352. (People v. Ortiz (2003) 109 Cal.App.4th 104, 112-116 (Ortiz); see, e.g., People v. Moore (2010) 187 Cal.App.4th 937, 943; People v. Brogna (1988) 202 Cal.App.3d 700, 706-710; People v. McCarnes (1986) 179 Cal.App.3d 525, 532-533.)
As Ortiz explains, "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 willful 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." (Ortiz, supra, 109 Cal.App.4th at p. 115.) Accordingly, evidence of Demacedo's prior DUI conviction and FOP experience was admissible to prove he was aware of the life-threatening risks caused by his drunk driving. The collision with Robyn M. weeks before the fatal crash bore on his awareness of the dangers of reckless driving. But it also showed he knew he was supposed to stop and exchange information if involved in an accident, and this evidence supported the prosecution's "consciousness of guilt" theory that he fled after rear-ending M.R. because he knew he was drunk.
Nor was this evidence unduly prejudicial. "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Here, evidence of Demacedo's prior DUI, attendance at the FOP and his minor collision were highly unlikely to inflame the jury in light of the evidence that Demacedo's drunk and high-speed reckless driving killed three innocent victims, severely injured a fourth, deprived a young woman of her fiancé and left a close-knit family shattered. Moreover, the trial court instructed the jury not to consider the other acts evidence as evidence of a bad character or criminal predisposition and we presume the jury followed those instructions. (People v. Williams (2009) 170 Cal.App.4th 587, 607.) Indeed, defense counsel even acknowledged in argument that the prosecutor "talked about [the other offenses evidence] appropriately."
Finally, Demacedo claims the "other acts" evidence was merely cumulative of the evidence of his recklessness on the night of the fatal collision and Nascimiento's testimony that they had discussed his drunk driving before that night. But "trial courts are not required to exclude all cumulative evidence and if evidence has substantial relevance to prove material facts which are hotly contested and central to the case, it is not 'merely cumulative.' " (People v. Lang (1989) 49 Cal.3d 991, 1016, abrogated on a different point in People v. Diaz (2015) 60 Cal.4th 1176.) The court's ruling was well within its discretion.
III. Expert Hearsay and Sanchez
Demacedo argues the court erred when it allowed prosecution crash reconstruction expert Rudy Degger to discuss another expert's opinion about Demacedo's speed. The People correctly concede the evidence violates the rule announced after the trial in this case in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) concerning hearsay used by expert witnesses, but they assert the error was harmless. We agree. There is no possibility the Sanchez error affected the verdict.
A. Background
Degger examined both automobiles, visited and photographed the scene of the collision, and reviewed the police and coroner's reports, video footage of the accident, police photographs of the scene and NHTSA data regarding the "stiffness" of both vehicles' side and end panels. He then conducted a "crush analysis" of the accident using formulas based on principles of conservation of energy and conservation of momentum. According to his analysis, Demacedo's car was traveling 67 miles per hour at the time of impact.
Degger testified his conclusion was corroborated by independent accident reconstruction analyst Craig Fries, who determined from analyzing two surveillance videos of the accident that Demacedo's BMW was traveling about 72 miles per hour at impact. However, the frame-rate for both videos appeared to vary, which affected the speed estimate. Degger used a conservative assumption of a seven frame-per-second rate, while Fries thought the rate was closer to 7.5 frames per second. That difference was said to account for the variation between their conclusions. In Degger's opinion, the results of Fries' video analysis based on his figure of 7.5 frames per second confirmed his own finding that the BMW was traveling at least 67 miles per hour. Degger also testified that, according to Fries' analysis, the BMW was accelerating at the time of impact.
Defense expert Eric Rosseter conducted a crush analysis and analyzed the surveillance videos using a seven frame-per-second rate. Like Degger, Rosseter determined the BMW was traveling an average speed of 67 miles per hour over the 28 feet before impact. However, he believed the BMW accelerated from 58 miles per hour at the intersection with Zita Manor to 69 miles per hour, then decelerated to 67 miles per hour just before impact. In his opinion, Demacedo braked and tried to swerve just before he hit the Osorios' car.
The prosecutor called Fries as a rebuttal witness to testify about the effect of distortions and blurring in the surveillance videos on Rosseter's ability to assess whether Demacedo braked before the impact. On cross-examination Fries agreed with Degger's conclusion the BMW was traveling 67 miles per hour over the last 28 feet before impact.
B. Analysis
Until recently, California broadly permitted experts to testify about the sources they relied on to form their opinions, ostensibly to show the bases for their opinions rather than for the truth of the matter. (People v. Gardeley (1996) 14 Cal.4th 605, 618, overruled by Sanchez, supra, 63 Cal.4th at p. 686 fn. 13.) In 2016, Sanchez narrowed that rule. Now, "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Id. at p. 686, 670.) Thus, "[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
In light of the constitutional confrontation principles and significant liberty interests at stake here, we assume Sanchez applies retroactively. (See Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283-1284.) In any event the People, appropriately in our view, implicitly concede its application here.
When the hearsay relied upon by the expert witness is testimonial and the declarant has not been subject to cross-examination, Sanchez error may have constitutional implications under the rule of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (Sanchez, supra, 63 Cal.4th at p. 670.) Here, Degger's testimony that Fries concluded Demacedo was driving 72 miles per hour violates the new rule in Sanchez. It is offered for the truth of Fries's conclusion. But the Sanchez error in this case does not appear to raise the constitutional issue because Fries testified in rebuttal for the prosecution, and Demacedo thus had the opportunity to cross-examine him. (Crawford, supra, 541 U.S. at p. 59, fn. 9 ["when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements"].)
Even if we were to assume Degger's testimony reciting Fries's conclusion implicated constitutional error under Sanchez, the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18; Bullcoming v. New Mexico (2011) 564 U.S. 647.) Many compelling reasons drive our conclusion. First and foremost is the most obvious. It could make absolutely no difference whether Demacedo was driving 42 or 47 miles per hour over the 25 miles per hour speed limit, or whether he braked an instant before impact. Either way, the evidence showed beyond any possible doubt that Demacedo drove with horrifying recklessness. The fatal collision occurred in a residential neighborhood with a 25 mile per hour speed limit. His own expert testified Demacedo was driving more than two and a half times that speed. His blood alcohol content was between .18 and .22, almost three times the legal limit. He committed a hit and run just before the fatal accident. He drove into the lane for oncoming traffic. His own expert testified that he accelerated to 69 miles per hour just before the crash. By the most conservative estimate his speed was just shy of that. In fact, Rosseter testified that his crush analysis indicated rates of speed between 55 and 71 miles per hour. At least equally significantly, Fries agreed on rebuttal with Degger's 67-miles-per-hour figure, and the prosecutor consistently endorsed that conclusion. Indeed, he acknowledged, "I don't think that's in real dispute." In this context there is simply no possibility Degger's improper hearsay testimony about Fries' initial 72-mile-per-hour figure could have affected the jury's verdict.
IV. Sentencing
Demacedo contends the trial court abused its discretion when it sentenced him to three consecutive 15 years-to-life terms and imposed what he asserts was an unconstitutionally excessive and disproportionate total sentence. These contentions were forfeited by Demacedo's failure to raise them in the trial court.
A. Background
The Probation Officer's Report stated, "Pursuant to [California Rules of Court] Rule 4.421, circumstances in aggravation include that the crime involved great violence, great bodily harm and a high degree of cruelty, viciousness and callousness, in that the defendant drove recklessly while under the influence of alcohol. The victims were vulnerable, as they did not expect the defendant to drive in such a reckless manner that would result in their death. The defendant engaged in violent conduct, causing the death of three victims and permanent injuries to the remaining victim, which indicates a serious danger to society. The defendant's prior conviction as an adult is of increasing seriousness. The defendant was on probation when the crime was committed. The defendant's prior performance on probation was unsatisfactory. [¶] Pursuant to rule 4.423, there appear to be no mitigating circumstances." The prosecutor recommended a sentence of 33 years and four months to life in prison, comprised of two consecutive 15-years-to-life terms and one concurrent 15-years-to-life term for the murders and another three years and four months for perjury and DUI causing Sangraw's injuries.
Demacedo had one prior conviction for DUI, one traffic conviction for failure to obey a posted sign, two prior accidents, and two outstanding arrest warrants for domestic violence cases. DMV records revealed that in 2008 Demacedo used a Puerto Rican birth certificate to obtain a license under the name of Luis Daniel Perez Vasquez. After that license was suspended due to the 2010 DUI, Demacedo used Brazilian documentation and lied about his prior license and suspension to obtain a new license under his real name.
Based on almost 28 years of experience "and having listened today with an open mind to what everyone has said and having listened to every piece of evidence and read every brief and probation report in this case," the court sentenced Demacedo to serve three consecutive 15-years-to-life terms for the murders, a consecutive eight-month term for DUI with bodily injury with a 20-month enhancement for inflicting great bodily injury resulting in a coma, and two concurrent middle terms for perjury. Other terms were imposed and stayed. The court explained:
"I rarely, a case of this magnitude think that the D.A. is not articulating perhaps the most appropriate sentence. And I understand that these are not intentional killings, but the impact that all of this has had on the Osorio family and Sarah and Dee Sangraw's family really make it difficult to do anything in my opinion other than impose pretty close to the maximum sentence.
"I have a hard time, I'm struggling with this, spent a lot of time thinking about it, I have a hard time separating out that there are three victims and their lives were of equal importance.
"And the comments that the family members have made here today show the depth and magnitude of the loss to their family. There are a number of quotes in the probation report, some of which were repeated here today, that are very compelling.
The impact on Ms. Sangraw is almost impossible to understand what this poor young woman has gone through, and what she's going to go through. There's so many aspects of this case that I find disturbing and troubling. So I want, I want everyone here to understand that there is a strong, strong argument for the maximum sentence.
"The other thing that I guess I'm concerned about is these are recognized in the law as murder counts . . . . And the sentence that [the prosecutor is] recommending is really close to if there were three vehicular manslaughters. So while I applaud you for your approach, I certainly have the highest amount of respect for you, . . . I just having lived through this case as the trial judge and now hearing the real impact that it's had on all of these family members, having seen the evidence, having seen and viewed the victims' car which was incredibly powerful evidence of how fast the defendant was going. The manner in which the victims died. The long-lasting impact on both Ms. Sangraw and her mother, everything from dealing with insurance companies to just getting up in the morning as Ms. Sangraw talked about.
"The defendant's actions in my view were the result of wanton disregard for human life, convicted of driving under the influence he was warned of the consequences of his behavior, nevertheless, he secured a new and different driver's license under a different name. And on the very morning of this horrible collision his former girlfriend warned him again not to drink and drive. He selfishly ignored her advice.
"Then while driving up Eastmoor Boulevard defendant under the influence hit [M.R.], knowing it was wrong to do so, the defendant failed to stop, speeding on to kill an entire family, the Osorios, and maimed Ms. Sangraw.
"The nature of this accident and its results were horrific. Body parts torn away internally from one victim. Another ejected from the vehicle. A third killed instantly due to severe head trauma. And Ms. Sangraw survived, fortunately, but has suffered through five major operations and continues to be in constant pain every day. Her life will never be the same.
"The probation report is replete, as were the impact statements today, with comments by the victims' family that in essence state the defendant's self-centered actions robbed the good, hardworking and caring family of a life and future together. And never know what things the two young men, Amado and Josue, could have contributed."
Demacedo did not object to the sentence or the court's stated reasons for its sentencing choices.
B. Demacedo's Objections to the Court's Sentencing Choices Are Forfeited
As noted, Demacedo argues the court abused its discretion and "ignored" or improperly applied the California Rules of Court's sentencing criteria when it imposed consecutive terms for each of the three murders. He further asserts his aggregate prison term violates state and federal constitutional proscriptions against excessive or disproportionate sentences. These contentions were forfeited, so they are not properly before this court.
In People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) the Supreme Court held that alleged defects in the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons are waived unless challenged at the time of sentencing. (Id. at pp. 348-354, & fn. 3.) "Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. [¶] Our reasoning is practical and straightforward. Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Id. at p. 353.) "In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354; People v. Gonzalez (2003) 31 Cal.4th 745, 751.) By the same token, "[a] claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court because the issue often requires a fact-bound inquiry." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247; People v. Russel (2010) 187 Cal.App.4th 981, 992-993.)
The fact-bound choices discussed in Scott are precisely the kind Demacedo is attempting to challenge for the first time in this appeal. Accordingly, his claim of error as to the imposition of consecutive sentences was forfeited by his failure to object in the trial court. (See, e.g., Scott, supra, 9 Cal.4th at pp. 354-355 [abuse of discretion in imposing aggravated and consecutive sentences waived by failure to object at trial]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [forfeiture doctrine applies where defendant complains for first time on appeal that trial court failed to consider relevant mitigating factors]; People v. Erdelen (1996) 46 Cal.App.4th 86, 90-91 [defendant's failure to object precluded appellate argument that sentencing court relied on an element of the offense to impose the upper term]; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. 6 [argument that court erred by imposing consecutive terms waived by failure to "timely and specifically object[] to that purported error"].)
Demacedo responds that Scott's forfeiture doctrine does not apply because he was not given a meaningful opportunity to object at the sentencing hearing. Not so. Scott recognizes there can be no forfeiture unless the defendant has "a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today's decision. This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Scott, supra, 9 Cal.4th at p. 356.) But here the trial court clearly explained its sentencing decision and the reasons for its discretionary choices. It then asked both counsel whether it had "left anything out." While defense counsel raised no objection, nothing in the hearing transcript suggests he could not have done so when the court invited his comments.
C. Discrepancies Between Abstract of Judgment And Court's Oral
Pronouncements
Finally, the People have identified two discrepancies between the court's oral pronouncement of sentence and the abstract of judgment. "[W]here, as here, the Attorney General identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court itself should order the trial court to correct the abstract of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 188.)
First, the court orally imposed two concurrent three-year middle terms for the perjury counts (Pen. Code, § 118, counts 9 and 10) and, as reflected in a corrected minute order, stayed the sentence on count 10. However, the clerk's minute order and the abstract of judgment indicate the sentences are consecutive "one-third" middle terms of 18 months. This is error: the court orally imposed concurrent three-year middle terms on counts 9 and 10, not consecutive subordinate one-third middle terms, and, in any event, one third of the middle term for perjury is one year, not 18 months. (See Pen. Code, § 126 [perjury punishable by imprisonment for two, three or four years].) The abstract of judgment must be amended to reflect a concurrent three-year middle term for count 9 as the principal term and a stayed concurrent 3-year term for count 10.
Second, the abstract of judgment fails to reflect that the court imposed a consecutive 20-month enhancement for great bodily injury causing coma (Pen. Code, § 12022.8, subd. (b)) on the eight-month consecutive sentence for causing bodily injury while driving under the influence. (Veh. Code, § 23153, subd. (a), count 7). This omission must also be corrected.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the corrections ordered by this court and to forward a certified copy of the abstract to the Department of Corrections. The judgment is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Pollak, Acting P.J.
/s/_________
Jenkins, J.