Opinion
C079410
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ARIAS GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF14606)
Defendant Armando Arias Gonzalez was convicted by jury of second degree murder, gross vehicular manslaughter, and perjury stemming from two traffic accidents. (Pen. Code, §§ 187, subd. (a), 192, subd. (c)(1), 118, subd. (a)). Sentenced to 15 years to life plus three years eight months, defendant appeals contending the trial abused its discretion in admitting evidence of four prior collisions to establish his knowledge of the risk and the court erred in imposing separate restitution fines for each count and imposing a fine for a count which was stayed. We shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise designated.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with murder, count 1; gross vehicular manslaughter, count 2; hit and run with death, count 3; and perjury, counts 4 and 5. It was further alleged as to count 2 that defendant fled the scene. (Veh. Code, § 20001, subd. (c)). A jury trial followed.
Defendant's Medical History
Defendant, an epileptic, received medical care to manage his condition. Although receiving treatment, defendant still suffered from periodic seizures in 2005, 2006, 2009, 2010, 2011, and 2012. Defendant reported suffering seven seizures between May 2012 and April 2013.
A driver who suffers from seizures may be allowed to drive if he or she has been seizure free for a period of time. Once the Department of Motor Vehicles (DMV) identifies a driver as suffering from seizures, the DMV determines, with input from physicians, if the person is safe to drive.
Defendant received warnings from physicians not to drive if he was suffering from unprovoked seizures. On July 31, 2013, defendant told his doctor he had not had a seizure for a year, but was not currently driving. Defendant saw a neurologist for treatment for seizures in August and November 2013. During the August appointment, defendant told his physician his last seizure was in November 2012. Based on defendant's statement that his seizures were under control, defendant was permitted to drive.
At work, defendant's fellow employees noticed he would occasionally stare off into space and fail to respond. Six times, over three months, defendant's co-workers noticed he would have "episodes" where "he kind of wasn't all there." Defendant would tremble and rock back and forth for several minutes. Defendant's co-workers worried about his safety.
DMV Records
The DMV is required to investigate a driver if law enforcement issues a priority re-examination notice. Depending on the outcome of the investigation, a driver with a history of seizures may have a license suspended or revoked for between three and 12 months.
The DMV records reveal three priority re-examination forms from law enforcement. On July 3, 2002, defendant was issued a priority re-examination form and had his driving privileges revoked on August 26, 2002, for a medical condition. Defendant's driving privileges were reinstated on November 26, 2002.
On May 4, 2010, DMV received a priority re-examination from law enforcement. DMV suspended defendant's driver's license from May 9, 2010, through December 16, 2010.
DMV received a third priority re-examination notice on August 31, 2011. No action was taken at that time.
The Accidents
The First Accident
On February 1, 2014, defendant had two episodes of staring, trembling, and becoming nonresponsive, and left work early. A few miles from defendant's work place, defendant hit Ruth Morales's Chevy sedan. Morales lost control of her car which spun into a streetlight which fell over. Her car then crashed into a tree.
Defendant's car suffered extreme front end damage. However, he drove quickly away from the accident.
Responding paramedics found Morales "squished" and panicked inside her car. Six or seven responders spent 20 minutes freeing Morales, who was taken to the hospital. Morales died as a result of her injuries.
The Second Accident
Approximately a half a mile away, defendant collided with Julie Mohr's Jeep Wrangler. Defendant's car did not slow or brake before hitting the Jeep. The impact forced the Jeep into the intersection. Defendant got out of his car, inspected the damage and then tried to drive away.
The Aftermath
A police officer, Frank Tenedora, responding to the first collision, came upon the scene of the second collision. Defendant stood next to his car, which had major damage. Defendant appeared disoriented and had trouble answering Tenedora's questions. Initially, defendant said he did not know what had happened. Upon further questioning, defendant said he might have hit something. Defendant did not seem to have trouble understanding Tenedora, but he appeared "out of it." Tenedora thought defendant might be under the influence of alcohol, so he authorized a field sobriety test.
Carleen Mendiola, a nurse, examined defendant the day of the accident after his arrest. Defendant told her he had epilepsy and that his last seizure was that day. He told Mendiola he fell asleep at the wheel.
The emergency room physician, Dr. Abram Levin, treated defendant after the accident. Defendant stated he lost consciousness while driving. He had a history of seizures, suffered from insomnia, and woke up after the collision. Defendant did not say he had a seizure. His last seizure occurred two weeks before. During his seizures defendant lost consciousness and believed he had done so on this occasion as well. Defendant stated he had taken his medication that day and Dr. Levin requested a blood test to determine whether the medication dosage needed to be increased.
Dr. Levin reported the collision and defendant's condition to the DMV. He told defendant he could not drive until he had been cleared by a doctor. Dr. Levin believed defendant suffered a "break-through" seizure that caused him to lose consciousness. However, Dr. Levin could not state with certainty that defendant had fallen asleep or lost consciousness due to a seizure.
The Investigation
California Highway Patrol officer Darrell Nishimi investigated the accident and examined the air bag control modules for both Morales's and defendant's car. The speed limit at both collision sites was 35 miles per hour. Morales's air bag indicated the collision did not cause the air bags to deploy, which is typical when a car is rear ended. The driver's seat belt was not fastened and the car was traveling at 37 to 38 miles per hour before the first collision. When the second collision took place, the car's speed increased to 53 miles per hour, then decreased to 48 and 43 miles per hour. The sudden increase in speed was caused by the vehicle being rear ended. The module from defendant's car did not provide any precollision data.
After examining maps, diagrams, collision scene photos and the vehicles, Nishimi determined that when defendant rear ended Morales's car, it spun and jumped the curb, striking a street light and then a tree. He calculated the speed of defendant's car at the time of impact to be between 71.8 and 80.3 miles per hour.
Officer Joshua Helton, who evaluated defendant for possible driving under the influence, spoke with him 25 minutes after the collision. Defendant's speech was slow, but he was cooperative. He did not know how the collision occurred. According to defendant he fell asleep and during that time there was a bump. Helton agreed that the bump might have been the second collision. Helton did not detect any signs defendant had been drinking. Defendant admitted he was on anti-seizure medication and that before and after a seizure he felt sleepy and suffered memory loss and uncertainty about what had happened.
Previous Accidents
To establish his awareness of the risk, the prosecution presented evidence under Evidence Code section 1101, subdivision (b) that defendant had been in prior accidents,
First Collision
In June 2002 defendant accelerated his car through a stop sign and hit a fence, parked cars, and a building. Prior to the accident, defendant felt a seizure coming on and pulled to the side of the road. An investigation revealed that a seizure caused defendant to crash his car. The accident was reported to the DMV for a priority re-examination of his driver's license.
Second Collision
Defendant suffered a seizure while driving in July 2004 and ran his car into a concrete wall at a high rate of speed. He was air lifted to a local hospital for emergency medical care. Defendant stated the accident resulted from his falling asleep at the wheel.
Third Collision
In May 2010, while driving, defendant hit a parked car. After the collision he appeared disoriented and said something hit his car. Defendant told officers he might have suffered a seizure while driving and blacked out. An officer reported the incident to the DMV and issued defendant a priority re-examination notice.
Fourth Collision
In August 2011 defendant drove erratically before failing to stop at an intersection, striking another vehicle. Defendant appeared dazed and confused after the accident and stated he fell asleep while driving. He told the responding officer he had a history of seizures and was taking medication to treat them. Officers issued a priority re-examination notice and reported defendant to the DMV as an unsafe driver.
Perjury Convictions
Count 4
The DMV held a hearing on October 14, 2010, based on a priority re-examination notice to determine whether defendant's seizures prevent him from safely driving. Defendant swore to tell the truth. He admitted he had a seizure while driving which caused the accident. According to defendant, prior to the May 3, 2010, seizure, he had not had a seizure since 2005.
Count 5
On December 5, 2011, defendant applied for a driver's license and declared under penalty of perjury he had not experienced any medical conditions in the last five years. These conditions included the loss of consciousness.
Verdict and Sentence
The jury found defendant guilty on counts 1, 2, 4, and 5. The jury found defendant not guilty on count 3 and found the enhancement associated with count 2 to be not true.
The trial court sentenced defendant to an aggregate term of 15 years to life for count 1, plus three years for count 4, plus a consecutive term of eight months (one-third the middle term) for count 5. The court stayed imposition of sentence for count 2 pursuant to section 654. Defendant filed a timely notice of appeal.
DISCUSSION
I
Evidence of Prior Collisions
The prosecution filed a motion to admit evidence of defendant's four prior collisions that were likely caused by seizure-related activity pursuant to Evidence Code section 1101, subdivision (b). The prosecution argued the evidence was relevant to prove implied malice by showing defendant's knowledge that driving with epilepsy was dangerous to human life and gross negligence.
Following argument on the motion, the trial court held: "[O]n the issue of malice aforethought as alleged in Count 1 for the murder allegation, as well as the gross negligence, the Court finds that this information is probative for both of those issues, and the Court has concluded based on an [Evidence Code section] 352 analysis that the probative value is not substantially outweighed by prejudicial impact."
Defendant concedes that knowledge of the risk was an essential element of the murder and manslaughter charges, and acknowledges that some evidence of his driving history was admissible to prove that element. He argues, however, that the trial court abused its discretion and violated his constitutional rights when it admitted evidence of four prior collisions involving seizures. According to defendant, "the volume and detail of the testimony devoted to those prior instances of conduct all but overwhelmed the proof of the current charges." Defendant contends the trial court should have limited the prosecution to one or two prior collisions.
Discussion
Evidence Code section 1101, subdivision (b) allows the admission of evidence that the defendant committed a crime when relevant to prove some fact other than disposition to commit the crime charged, such as knowledge. Because of the risk of prejudice that always inheres in other crimes' evidence, a trial court must insure that the probative value of the evidence is substantial and not greatly outweighed by the potential for undue prejudice. (Evid. Code, § 352; People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Thompson (1980) 27 Cal.3d 303, 318.) In this context, prejudice means the evidence would evoke an emotional bias against the defendant. (People v. Rucker (2005) 126 CalApp.4th 1107, 1119.) If the evidence is "merely cumulative with respect to other evidence which the People may use to prove the same issue," its value is marginal and it should be excluded under a rule of necessity. (People v. Schader (1969) 71 Cal.2d 761, 774-775, fn. omitted.)
There is no precise measuring rod for prejudice or probative value and, ultimately, we review the trial court's decision to admit evidence of prior crimes for an abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.) The trial court abuses its discretion when it acts in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, defendant argues, the prosecution had a wealth of evidence apart from defendant's prior accidents to prove the risks of driving when he was in a state that made him prone to seizures. He points to the medical testimony regarding his history of seizures and his driving history through DMV records which showed his awareness that his condition made it unsafe for him to drive. Given this evidence, defendant contends, there was no need to present the lengthy testimony from eight witnesses regarding four separate incidents.
We disagree. Defendant underestimates the heft of the prosecution's burden of proof on the issue of implied malice while exaggerating the prejudice of the evidence admitted. In a vehicular homicide case, evidence of a defendant's previous incidents of dangerous and reckless conduct is far more compelling in demonstrating a defendant's awareness of his unfit condition than antiseptic medical and DMV records. People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz) is a case in point.
In Ortiz the defendant drove a truck into oncoming traffic and collided with another vehicle, killing two people. The defendant, who was convicted of second degree murder, was not intoxicated at the time of the accident. (Ortiz, supra, 109 Cal.App.4th at pp. 106-110.) The trial court admitted evidence of seven prior traffic accidents, some of which involved alcohol, under Evidence Code section 1101, subdivision (b). The prior accidents were admitted for the limited purpose of proving the knowledge component of implied malice. (Id. at pp. 108-109, 111.)
The defendant appealed, arguing the prior accidents were irrelevant to the charged offense and were unduly prejudicial. (Ortiz, supra, 109 Cal.App.4th at pp. 116-119) The appellate court found the prior accidents relevant: "[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." (Id. at p. 112.) Accordingly, the "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 the conduct must impart a knowledge and understanding of the personal and social consequences of such behavior." (Id. at p. 115.)
The Ortiz court also considered the balancing of probative value versus prejudicial impact under Evidence Code sections 352 and 1101. The previous accident evidence was highly probative: " '[W]hen a person repeatedly violates the law while driving a motor vehicle, and is repeatedly apprehended for those offenses, and convicted of those offenses, and presumably becomes more and more aware of the danger of that activity as time goes by, that that evidence can support a finding of implied malice.' " (Ortiz, supra, 109 Cal.App.4th at p. 118.) Conversely, the appellate court found any potential prejudicial impact low because the prior offenses were less inflammatory than the crime charged; the defendant had been punished for the past offenses through his convictions; the jury was instructed to consider the evidence only for a limited purpose; and the trial court admitted only that the evidence was highly probative on the issue of mens rea. (Id. at pp. 118-119.)
Defendant argues Ortiz is distinguishable. He notes that in Ortiz the prior accidents were far less serious than the charged offense, resulted in convictions, and did not involve collisions. This, according to defendant, "contrasts sharply" with the prior incidents admitted in the present case in which all four previous incidents resulted in collisions. Therefore, "these accidents carried the potential for far greater prejudice since all of them involved damage or injury and appellant never suffered a criminal conviction for any of them. This importantly distinguishes Ortiz from this case."
Not so. Here, as in Ortiz, defendant's prior traffic collisions were relevant to prove the knowledge component of implied malice. In these four collisions, defendant either fell asleep or suffered a seizure prior to impact. During the episodes, defendant drove unsafely and ran afoul of traffic laws prior to each collision. Previous acts of reckless driving sensitize the driver to the dangerousness of his conduct. As in Ortiz, the jury may infer that defendant's apprehension and prosecution for reckless driving "must impart a knowledge and understanding of the personal and social consequences of such behavior." (Ortiz, supra, 109 Cal.App.4th at p. 115.) Indeed, the number of such collisions made the evidence all the more compelling. Knowledge can be fleeting. A single collision could be dismissed as a mere warning of danger, soon forgotten, but four collisions are a clarion call that no reasonable person could ignore or forget.
Nor did the possible prejudicial effect substantially outweigh the probative value of the four prior collisions, despite defendant's protestations to the contrary. The prior collisions resulted in no injury to third parties, although defendant sustained injury in the July 2004 accident. In the prior collisions, defendant was issued priority re-examination notices, but he was not charged with any crime. The trial court instructed the jury to consider the evidence of the prior collisions only for the limited purpose of evaluating defendant's knowledge of the dangers of driving with excessive speed. Defendant finds potential prejudice from the fact that defendant's prior collisions did not result in a criminal conviction, allowing one to speculate that the jury might have been moved to convict as a way of redressing a failure to hold defendant accountable for his past actions rather than his actions on the occasion charged. Certainly one can imagine circumstances where this fear might be rational as, for example, when a person is charged with a relatively minor offense but evidence is introduced of a far more serious offense for which the person escaped punishment. But not in this case, where the damage wrought by defendant's earlier collisions pales in comparison to the devastation inflicted by the collision underlying his current charges.
In sum, we find the evidence of prior collisions was highly probative and not unduly prejudicial. The court did not abuse its discretion in admitting the evidence pursuant to Evidence Code section 1101.
II
Calculation of Restitution Fines
Defendant contends the trial court erred in imposing separate restitution fines for each count and in imposing a restitution fine for count 2, which was stayed. The People argue any error was not prejudicial.
The trial court at sentencing imposed a fine of $300 for each count for a total restitution fine of $1,200 pursuant to section 1202.4, subdivision (b). Section 1202.4, subdivision (b)(1) provides that the court shall impose a separate and additional restitution fine in the amount of at least $300 if the person is convicted of a felony. The court also imposed the same fine pursuant to section 1202.45.
A section 1202.4 restitution fine may be imposed only once on charges tried together in a single proceeding. (People v. Sencion (2012) 211 Cal.App.4th 480, 483 (Sencion).) The People agree the court erred in calculating defendant's restitution fine for each count. Instead, the court should have imposed a single fine of $1,200. In addition, the court imposed a restitution fine for four counts, including count 2, despite staying that count pursuant to section 654. The People also agree this was error.
Discussion
Defendant requests that we remand the matter for reconsideration. Under section1202.4, subdivision (b)(1), the trial court must set a restitution fine "commensurate with the seriousness of the offense," but not less than $300 or greater than $10,000. The trial court may not consider a count that was stayed under section 654 in setting a restitution fine, but doing so will not result in prejudice if the court sets the fine within the statutory range of $300 to $10,000. (Sencion, supra, 211 Cal.App.4th at p. 483.)
In Sencion, the appellate court found no prejudice where the trial court erred by imposing a restitution fine as to multiple counts, including some stayed under section 654. The total amount of the restitution fine was $1,100, well under the maximum $10,000 fine and therefore did not prejudice the defendant. Because it found no prejudice, the court concluded the abstract of judgment need not be amended. (Sencion, supra, 211 Cal.App.4th at p. 483.)
Defendant acknowledges the decision in Sencion, but contends: "[T]he court in Sencion did not hold that remand is never proper in any case. It merely did not remand in that case. And the situation in Sencion is distinguishable. Unlike this case, the trial court in Sencion did not impose the minimum amount for each count. Rather, it imposed $500 as to count one and $200 as to each of the remaining counts. [Citation.] Thus, there was less reason to find that the trial court in Sencion might have chosen to impose a lesser fine if given the opportunity. [¶] Here, the trial court imposed the minimum allowed by statute as to each count. This indicates that it might well have imposed a total fine of $300 had it known that the fine should only be imposed once per case - not once per count."
We disagree. Here, as in Sencion, the trial court imposed a restitution fine on a count stayed under section 654. In the present case the total amount of the fine amounted to $1,200, well under the $10,000 maximum fine. Under similar facts, Sencion found no reason to amend the abstract of judgment. We decline to remand the matter.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: MURRAY, J. RENNER, J.