Opinion
F073119
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CESAR DUARTE, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF154455A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Cesar Duarte was found guilty of second degree murder (Pen. Code, § 187, subd. (a) [count 1]) and gross vehicular manslaughter while intoxicated (id., § 191.5, subd. (a) [count 2]). He was sentenced to 15 years to life on count 1. On appeal, defendant contends his conviction on count 1 should be reduced from second degree murder to involuntary manslaughter because the evidence did not establish he killed with malice aforethought. We conclude substantial evidence established implied malice and affirm the judgment.
Defendant was also charged with driving under the influence of alcohol (DUI) and causing bodily injury to another person (Veh. Code, § 23153, subd. (a) [count 3]; all subsequent statutory references are to this code unless otherwise indicated) and driving with a blood alcohol concentration (BAC) of or in excess of 0.08 percent and causing bodily injury to another person (id., subd. (b) [count 4]). After close of evidence, the trial court instructed the jury that these crimes are lesser included offenses of gross vehicular manslaughter while intoxicated. Prior to deliberations, at the prosecution's request, the court dismissed counts 3 and 4 in the interest of justice.
Pursuant to Penal Code section 654, the trial court stayed execution of punishment on count 2.
STATEMENT OF FACTS
I. The prior incident.
On April 11, 2009, a pedestrian walking her dog next to Norris Middle School in Bakersfield saw a white pickup truck abruptly brake at the stop sign on Manhattan Drive and then reverse into a car parked on the street, causing the car to "hit another car, [which] hit another car." As the truck rounded the corner, the pedestrian noticed the male driver "seemed to be smiling." She called 911. Thereafter, Officer McCarthy of the Bakersfield Police Department (BPD) pulled over a white pickup truck with body damage. Defendant, the driver, "had a strong odor of an alcoholic beverage emitting from his breath and person." He was subsequently arrested.
On May 5, 2009, defendant pled guilty to DUI (§ 23152, subd. (a)) and hit and run (§ 20002, subd. (a)). Pursuant to section 23593, the trial court warned him:
"You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder."Defendant acknowledged the admonition. He was placed on probation and, inter alia, ordered to enroll in a licensed alcohol education program.
Starting May 15, 2009, defendant participated in a program for first offenders at Special Treatment, Education, and Prevention Services (STEPS). He completed the program on October 13, 2009. At trial, Linda Eviston, the executive director of STEPS, described the topics addressed by the counselors:
"Well, there are a couple of things. One is the counselors need to address the fact that if you have a second DUI and end up killing somebody you can be charged with murder of some kind. I'm not sure what it is. But the consequences are quite severe if you have a DUI with a fatality or an injury. We also talk about if you have a child in the vehicle with you."Yolanda Segoviano, a STEPS counselor, testified:
"Mostly we discussed about their drinking behaviors, how much they drank, how long, and the negative consequences that it has cost them because of the drinking. And we discuss about their legal issues, the probation, because the majority of them, the first offenders, are on probation for three years. We explain to them the needs that they have to be in compliance with us and the Court."Segoviano stated the "negative consequences" of drinking and driving included "the impact it can have on the community" and "the dangers to not only the offenders but to everyone else." In addition, she was familiar with section 23593 and spoke to program participants about the admonition:
"I . . . mention it to them on a one-to-one individual [basis]. Some of the clients even bring their sheet [with] their paperwork, . . . their court papers.
And I see that sheet, and I pull it out and show it to them and say you signed this in court, you know what the consequence is if anything happens. And also I bring it up without the sheet, I mean, in a group setting, to the whole group, saying that the majority of them have signed this paper here at the court and they are going to hold them accountable for it."
II. The incident at issue.
On November 6, 2013, at about 4:00 a.m., a male pedestrian walking on Harris Road saw a white vehicle and a red Mercedes sedan "traveling [westbound] at a[n] unusually high rate of speed." The Mercedes "[a]ppeared to" be "chasing" or "pursuing" the white vehicle and was approximately "a car length or two" behind. The vehicles crossed the Old River Road-Harris Road intersection and "seemed to elevate" "into the air." However, the Mercedes "lost control" "as it came down," skidded, crashed into a block wall twice, and ended up lying on its roof. At some point, it knocked over a light pole. The white vehicle "drove through [the scene] slowly and then sped away." The pedestrian called 911.
By 4:37 a.m., several members of the Bakersfield Fire Department (BFD) and Kern County Fire Department were at the crash site. BFD Captain Mullich inspected the Mercedes. There were two occupants in the vehicle: defendant and Iman Badia Amin. Defendant was "seated in the driver's seat" and "held into the seat by his seat belt." Amin "was hanging out the driver's side door window" "underneath [defendant]'s legs." Her arm was "pinned underneath the vehicle." "[T]he door on the passenger's side was crushed in approximately 16 inches from its normal position," likely "generated by the light pole that was sheared off down the street." By contrast, "there was minimal, if any, damage to the driver's side of the vehicle." "[T]here was also . . . significant damage to the front . . . of the vehicle," but "there wasn't a lot of intrusion into the engine compartment." Firefighters extricated defendant and Amin; the latter was already deceased. An autopsy concluded Amin died due to blunt force trauma.
BPD Officer Diederich arrived on the scene at 5:35 a.m. He noted the posted speed limit for vehicles traveling westbound on Harris Road toward the Old River Road-Harris Road intersection is 50 miles per hour. Diederich observed "several skid marks in the westbound [lanes] . . . crossing over into the eastbound lanes of the roadway leading up to [the Mercedes's] point of rest"; "two areas in th[e] brick wall where holes had been knocked through the wall by the [Mercedes] colliding with it"; "one of the [Mercedes's] tires" "in the dirt field on the north side of the roadway"; "[a] streetlight pole" "in the roadway"; and "numerous pieces of debris and evidence of the collision in the roadway." Diederich, who has received extensive training in traffic collision reconstruction, examined the Mercedes's "critical speed scuff" and determined the car had been traveling between 93 and 108 miles per hour.
Diederich described "critical speed scuff":
"[C]ritical speed scuff . . . is a distinct type of skid mark. And, when located, that is extremely useful and accurate in depicting a vehicle's minimum velocity or speed at the time they began to lay that skid mark, if that makes sense.
". . . [G]enerally, a critical speed scuff is actually going to be before the vehicle crashes into an object, or things of that nature, which gives us a very accurate depiction of the speed the vehicle was at when it began to lose control before entering the actual crash."
BPD Officer Gospich, the lead investigator, also arrived on the scene at 5:35 a.m. He found "a vodka bottle . . . just west of the [Mercedes]" and noticed "a fresh fluid trail . . . leading from the vehicle towards the bottle of alcohol." Gospich, who has received extensive training in traffic collision reconstruction, concurred with Diederich's calculation of the Mercedes's speed. He opined the accident resulted from unsafe speed and, to a lesser extent, an unsafe turning movement. Later, Gospich confirmed defendant was the registered owner of the Mercedes.
At 6:00 a.m., defendant's blood was drawn at Kern Medical Center. An analysis of the sample showed a BAC of 0.17 percent. At trial, Richard Maykoski, a Kern Regional Crime Laboratory criminalist, opined a person with a BAC of 0.17 percent "would be unable to safely operate a motor vehicle."
DISCUSSION
I. Standard of review.
"Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, ' "an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' [Citations.]" (In re George T. (2004) 33 Cal.4th 620, 630-631.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.]" (People v. Tripp (2007) 151 Cal.App.4th 951, 955, italics omitted.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
"This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" (People v. Tripp, supra, 151 Cal.App.4th at p. 955.)
II. Substantial evidence established implied malice.
" 'Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.' [Citations.] 'Malice may be either express or implied.' [Citation.] It is express 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.] It is implied 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his [or her] conduct endangers the life of another and who acts with conscious disregard for life.' [Citations.]" (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358; see People v. Olivas (1985) 172 Cal.App.3d 984, 988 ["[T]he state of mind of a person who acts with conscious disregard for life is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' "].)
" 'Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his or her actions.' [Citation.] 'It is not enough that a reasonable person would have been aware of the risk.' [Citations.] 'It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.' [Citations.]" (People v. Jimenez, supra, 242 Cal.App.4th at p. 1358.)
Numerous courts have recognized an accused's prior DUI conviction and participation in a mandatory education program on the dangers of drunk driving are probative of implied malice. (See, e.g., People v. Covarrubias (2015) 236 Cal.App.4th 942, 948; People v. Diaz (2014) 227 Cal.App.4th 362, 378; People v. Ortiz (2003) 109 Cal.App.4th 104, 115; People v. David (1991) 230 Cal.App.3d 1109, 1115; People v. Murray (1990) 225 Cal.App.3d 734, 744; People v. Brogna (1988) 202 Cal.App.3d 700, 709; People v. McCarnes (1986) 179 Cal.App.3d 525, 532.) Division Four of the First Appellate District reasoned in an earlier case:
"[A] motor vehicle driver's previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum." (People v. Ortiz, supra, 109 Cal.App.4th at pp. 112-113.)
The record—viewed in the light most favorable to the prosecution—shows defendant pled guilty to DUI on May 5, 2009, and was placed on probation. As a condition of his probation, he participated in a licensed alcohol education program at STEPS starting May 15, 2009. Defendant was counseled on the negative consequences of another DUI, including a possible murder charge if the DUI results in a fatality. He completed the program on October 13, 2009. "There can be no doubt [defendant] knew from [this] prior experience that driving under the influence of [alcohol] is dangerous to life." (People v. David, supra, 230 Cal.App.3d at p. 1115.) "Even if we assume defendant did not realize after his conviction[] that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his . . . exposure to the driver's educational program. To argue otherwise is little short of outrageous." (People v. McCarnes, supra, 179 Cal.App.3d at p. 532, italics omitted.)
Defendant argues his prior DUI conviction and participation in the STEPS program was not probative of implied malice because they occurred a little over four years before the November 6, 2013, collision. Nothing in the case law insinuates the probative value of an accused's prior DUI conviction and participation in a mandatory education program on the dangers of drunk driving diminishes over time. (See People v. Batchelor (2014) 229 Cal.App.4th 1102 1104-1107, 1115 [the defendant was arrested and convicted of DUI in April 2003 and completed a first offender drinking program in October 2003; almost five-and-a-half years later, in March 2009, he drove while intoxicated and struck a tree, killing his passenger], overruled in part by People v. Hicks (2017) 4 Cal.5th 203, 214, fn. 3.)
In addition, at the plea hearing, the court gave an admonition pursuant to section 23593, which is intended to facilitate proving an accused was aware of the risk involved in impaired driving in murder prosecutions under People v. Watson (1981) 30 Cal.3d 290 (Watson). (Levenson & Ricciardulli, Cal. Criminal Law (The Rutter Group 2017) § 11:77; see People v. Doyle (2013) 220 Cal.App.4th 1251, 1265 ["If the intoxicated killer drove while aware of the risk to life and consciously disregarded that risk, then the killer committed second degree murder [citation], a Watson murder." ].) Defendant was specifically told—and acknowledged—"being under the influence of alcohol . . . impairs [his] ability to safely operate a motor vehicle"; "it is extremely dangerous to human life to drive while under the influence of alcohol"; and "[i]f [he] continue[s] to drive while under the influence of alcohol . . . , and, as a result of that driving, someone is killed, [he] can be charged with murder." (Accord, § 23593, subd. (a).) Furthermore, during the STEPS program, at least one counselor (Segoviano) reminded him of this admonition, which is also known as a Watson advisement. (See, e.g., In re Dean W. (2017) 16 Cal.App.5th 970, 975.)
Yet, despite the prior DUI arrest and conviction, the court's Watson advisement, completion of the STEPS program, and an awareness of the risks and consequences of drinking and driving, defendant "consumed enough alcohol to raise his [BAC] to a level which would support a finding that he was legally intoxicated" (Watson, supra, 30 Cal.3d at p. 300) and elected to drive his Mercedes with a passenger onboard on November 6, 2013. He traveled westbound on Harris Road toward the Old River Road-Harris Road intersection at between 93 and 108 miles per hour, well above the posted speed limit of 50 miles per hour, "an act presenting a great risk of harm or death." (Watson, supra, at p. 301; see id. at pp. 293-294 [84 miles per hour in a 35-mile-per-hour zone]; People v. Canizalez (2011) 197 Cal.App.4th 832, 837, 843 [80 to 87 miles per hour in 30-mile-per-hour zone]; People v. Moore (2010) 187 Cal.App.4th 937, 941 [70 miles per hour in a 35-mile-per-hour zone].) Defendant was not the only irresponsible driver involved: he closely trailed a white vehicle that was moving at the same excessive speed. The two vehicles traversed the intersection and "seemed to elevate" "into the air," but only defendant lost control upon landing. After the Mercedes crashed, the white vehicle "drove through [the scene] slowly and then sped away." In view of the circumstances, a rational jury could logically infer defendant knew the driver of the white vehicle and purposely chased him or her. (Cf. People v. Contreras (1994) 26 Cal.App.4th 944, 947-948, 952 [two tow trucks racing at 60 to70 miles per hour to an accident scene "hit a dip" at an intersection and "went airborne"; the truck driven by Contreras landed and rear-ended a car, killing one and injuring two others].)
On appeal, defendant does not dispute he drove under the influence of alcohol.
Defendant contends "[t]he prosecution failed to meet its burden to present substantial evidence of implied malice" because (1) there was no evidence of a pre-drinking intent to drive, i.e., "there was nothing presented to support a finding that he intended to drink knowing that he would later have to drive"; (2) "there was no evidence of anything about [his] driving, up until just a moment before the fatal accident, that provided substantial evidence that [he] knew his driving posed a risk to others or that he acted with conscious disregard of that risk," e.g., continued speeding in spite of earlier near-collisions; and (3) "there was no evidence . . . that anyone warned [him] that night about the dangers of drinking and driving before he got in the car and drove." He cites a litany of cases in which appellate courts highlighted these factors to support a finding of implied malice. While "[i]t is true . . . the cases [defendant] relies on . . . have factors not present here" (People v. Moore, supra, 187 Cal.App.4th at p. 942), "none of those cases hold that implied malice could not be found in the absence of those facts" (ibid.). "The question of implied malice is to be decided in light of all the circumstances." (Ibid., italics added; see People v. Olivas, supra, 172 Cal.App.3d at p. 989 ["Watson . . . deliberately declin[ed] to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach."].)
Therefore, we conclude any rational jury could find—beyond a reasonable doubt—defendant subjectively knew drinking and driving endangered the lives of others but still acted with conscious disregard for life.
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.