Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HF0007 Dan McNerney, Judge.
Richard Schwartzberg for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Janene Kathleen Johns challenges her conviction for gross vehicular manslaughter while intoxicated. She contends the court violated her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) by admitting into evidence two sets of her incriminating statements. She further contends the court erred by barring her from examining a witness as to his possible bias.
We affirm. Defendant was not in custody when she made her first set of incriminating statements. She impliedly waived her Miranda rights before making her second set of statements. And while the court should have allowed defendant to examine the witness as to his possible bias, the error was not prejudicial.
FACTS
The Crash
Defendant was driving her car down Pacific Coast Highway in Newport Beach at around 7:30 p.m. She suddenly turned right onto the sidewalk, destroyed a parking meter, struck a woman on a bicycle, sheared off a fire hydrant, and crashed into a parked car. The bicyclist, Candace Tift, died of severe head trauma caused by the crash.
A Newport Beach Police Officer spoke to defendant for two minutes after she had been loaded into an ambulance. Defendant was lethargic and had bloodshot eyes. She told the officer she had taken two half-pills of Xanax, an anti-anxiety drug. Defendant initially asserted the bicyclist swerved in front of her, then claimed a car cut in front of her, and finally stated she was confused and not sure what happened. The officer asked if it was possible she had fallen asleep, and defendant answered, “yes.”
Police officers eventually searched defendant’s car and purse. They found two prescription bottles for Xanax and one prescription bottle for Ambien, a sleeping aid. Each bottle had a label warning against driving while taking the medication.
Defendant’s Challenged Statements to the Police
At the hospital, a Newport Beach Police Officer and drug recognition evaluator, Mario Montero, questioned defendant. Defendant was on a bed in a large, open area of the emergency room. There were partitions between the beds, but no walls. Defendant had not been arrested and was not in handcuffs or otherwise restrained. Montero was wearing his uniform and badge. Two other police officers were present initially; another officer later arrived and the other two left.
Montero questioned defendant for about 20 minutes at the hospital. Defendant told him a car cut in front of her, forcing her to swerve and hit the bicycle. She also stated she had taken one Ambien at 2 a.m. that morning, one-half of a Xanax in the morning, another one-half Xanax in the afternoon, and a decongestant. Her physical symptoms were consistent with being under the influence of central nervous system depressants like Ambien and Xanax. Montero arrested defendant and drove her to the Newport Beach police station.
At the police station, Montero informed defendant of her Miranda rights by reading from a preprinted advisement card. As Montero read each individual right, he asked defendant whether she understood. Defendant acknowledged each right by saying, “yes.” Montero asked defendant whether she wanted to read the card; defendant declined. Montero began questioning defendant. She did not indicate she wanted to remain silent or speak to an attorney. Defendant instead answered the questions calmly, cooperatively, and responsively. Defendant told Montero she had taken one Ambien at 3 a.m., one full Xanax later that morning, another one-half Xanax at 12:30 p.m., and yet another one-half Xanax at 3:30 p.m. She stated she may have blacked out while driving.
A police detective arrived and began questioning defendant. The detective asked defendant whether Montero had read her Miranda rights to her; she answered “yes, he did.” The detective asked, “Do you need me to read them again? Do you understand those right[s]? Okay? Do you want to talk to me? I’d like to ask you some questions.” Defendant replied “yes” and began answering questions.
Defendant told the detective she had taken one Ambien at 2 a.m., one Xanax in the morning, one-half Xanax at 3:30 p.m., and another Ambien at 6:00 p.m. — only 30 minutes before she started driving. While she was driving, she felt sleepy, sick to her stomach, and not “okay to drive.” She noticed she was having “odd” interactions with other drivers, as they were either trying to get her attention or staying away from her. She was struggling to drive and thought to herself, “I should stop the car.” She conceded, “I’ve driven enough to know that I was driving erratic[ly].”
The Trial and Dr. Barke’s Testimony
The People filed an information charging defendant with one count each of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and driving under the influence causing bodily injury. (Veh. Code, § 23153, subd. (a).) It also alleged defendant personally inflicted great bodily harm in regard to the driving under the influence count. (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise stated.
Defendant moved before trial to exclude the statements she made to Montero at the hospital and the police station. The court held an evidentiary hearing, at which Montero testified to the circumstances of the questioning. The court denied the motion. It found defendant was not in custody when she made the statements at the hospital. It further found defendant had impliedly waived her Miranda rights by answering Montero’s questions at the police station.
The People essentially conceded the detective had not obtained an express waiver before questioning her.
The prosecution moved in limine to bar defendant from cross-examining one of her physicians, Dr. Barke, about being sued by the victim’s family. The prosecution made an offer of proof that Dr. Barke would testify he had prescribed the Xanax and Ambien and warned defendant a week before the accident about the dangers of driving while taking her prescription medication. The prosecution also intended to offer medical records showing Dr. Barke had given defendant a warning. The defense contended the lawsuit was relevant because it would supply a motive for Dr. Barke to lie about having warned defendant. The defense did not contend Dr. Barke had fabricated the medical records — just that he might falsely testify about what exactly he had told defendant.
The court granted the prosecution’s motion to limit the cross-examination. It found the lawsuit was irrelevant because Dr. Barke prepared the medical records before the lawsuit. It further found testimony about the lawsuit would be unduly prejudicial and time consuming because it would “open the floodgate of evidence... as to all the reasons why that lawsuit may be filed.”
Dr. Barke testified he prescribed Xanax and Ambien for defendant. When asked whether he warned defendant about driving while taking Xanax and Ambien, he testified: “I can tell you it is my routine to do so when I prescribe to patients, specifically with [defendant], again, this was now a couple years ago, so the details of each conversation, et cetera, I don’t recall perfectly. But I do remember in general that type of a conversation for sure.” Dr. Barke reviewed the medical records and testified: “Q: And does that help refresh your memory whether you had a particular conversation with the defendant on August 15th, 2006 concerning the dangers of driving and using the drugs that you were prescribing to her? [¶] A: Yes, that’s what I documented. [¶] Q: And what would your normal advisement be? [¶] A: Well, I mean it would — you know, in general it would be just to be careful because they have a potential depressant effect, of course, and depending on what other medications somebody is taking or whether they are using alcohol, et cetera, it can have a magnified [e]ffect. So, in general, when I prescribe such medications I will have a conversation with the patient about how to take it properly and what are the, you know, guidelines and what are some of the precautions, et cetera.”
The jury found defendant guilty of both counts and found the sentence enhancement true. The court dismissed the driving under the influence count and the related enhancement on the prosecution’s motion. On the gross vehicular manslaughter while intoxicated count, the court sentenced defendant to the midterm of six years in state prison.
DISCUSSION
The Court Properly Admitted Defendant’s Statements
Defendant asserts the court violated her Miranda rights by admitting the statements she made to Montero at the hospital and at the police station. The familiar holding of Miranda is that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Miranda, supra, 384 U.S. at pp. 478-479.)
Thus, the need to give Miranda warnings is triggered by a custodial interrogation. A custody determination “presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. (Pilster, supra, 138 Cal.App.4th at pp. 1403-1404, fn. omitted.)
First, no Miranda warnings were required when Montero questioned defendant at the hospital because she was not in custody. Defendant had not been arrested or handcuffed, she was in a public and open emergency room, and the questioning lasted only 20 minutes. Defendant notes up to four officers were present during the questioning, but nothing suggests any but Montero participated in the questioning. The officers were not “‘aggressive, confrontational, and/or accusatory’” and did not draw their weapons or do anything to pressure defendant. (Pilster, supra, 138 Cal.App.4th at p. 1404.) Defendant also asserts she could not leave the emergency room, but any limitation on her freedom of movement was due to the medical care she was receiving, not the police presence. (Cf. People v. Mosley (1999) 73 Cal.App.4th 1081, 1091 [defendant not in custody while “being treated by paramedics in the ambulance”]; accord State v. Tucker (N.H. 1989) 557 A.2d 270, 272 [defendant not in custody at hospital room; “the restraint contemplated by Miranda is that interference with the defendant’s freedom which is imposed by the police”; the “consensus of American case law is that questioning of a suspect who is confined in hospital but not under arrest is not custodial interrogation”]; State v. Lapp (Mont. 1983) 658 P.2d 400, 403 [defendant not in custody in emergency room].) Based on the totality of these circumstances, a reasonable person would not consider defendant’s situation in the hospital “as tantamount to a formal arrest.” (Pilster, supra, 138 Cal.App.4th at p. 1403.)
Second, Miranda warnings were given as required when Montero questioned defendant at the police station, but she impliedly waived her rights. Miranda itself contemplates defendants “may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” (Miranda, supra, 384 U.S. at p. 478.) “[A]n express waiver is not required where a defendant’s actions make clear that a waiver is intended.” (People v. Whitson (1998) 17 Cal.4th 229, 250 (Whitson).) “‘[I]n at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.’” (Id. at p. 246, italics omitted.) “[A] court analyzing the [waiver] question must consider two distinct components: ‘First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’” (Id. at p. 247.)
“‘In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda... we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we “‘give great weight to the considered conclusions’ of a lower court that has previously reviewed the same evidence.”’” (Whitson, supra, 17 Cal.4th at p. 248.)
Substantial evidence supports the finding defendant voluntarily and knowingly waived her Miranda rights by answering Montero’s questions. Nothing suggests Montero intimidated, coerced, or deceived defendant into talking. The questioning was neither lengthy nor abusive, and defendant was calm and cooperative. Defendant claims she was unfamiliar with the criminal justice system and did not understand her Miranda rights, but Montero informed her of each one. He read her Miranda rights to her from a preprinted advisement card. After each right, Montero asked defendant whether she understood; she consistently answered “yes.” Defendant does not claim the card or Montero’s reading of it were inadequate. She thus made a voluntary and knowing waiver of her Miranda rights.
The Court’s Error in Sustaining the Objection Was Not Prejudicial
Defendant contends the court violated her right to confrontation and committed evidentiary error by barring her from examining Dr. Barke on the lawsuit against him. She challenges the court’s findings that the lawsuit was irrelevant, unduly prejudicial, and would consume too much time.
The court erred by limiting defendant’s examination of Dr. Barke. Whether the victim’s family had sued Dr. Barke for negligently failing to warn defendant against driving (presumably) is relevant to whether he would testify truthfully about what he told defendant about the medications. Asking Dr. Barke about the existence of the lawsuit would not open any “floodgates” about the family’s reasons for filing it, contrary to the court’s concern. And the subject would not consume an undue amount of time, given the six-day trial and the seriousness of the charges.
But the error was harmless under any standard. The strongest evidence that Dr. Barke warned defendant came from the medical records, which indicated Dr. Barke had given the warning to defendant. Defendant does not challenge the authenticity of those medical records. Dr. Barke’s testimony added little, if anything, to the probative value of the medical records. He discussed only his “routine” and “general” practice to give his “normal advisement.” He did not claim he expressly warned defendant — he did not remember any of the “details” of what he told her. Defendant does not show how impeaching this vague testimony would be material, given the unrebutted medical records indicating defendant was warned.
A confrontation violation is reviewed under the standard set by Chapman v. California (1967) 386 U.S. 18, 24. (People v. Geier (2007) 41 Cal.4th 555, 608.) Evidentiary error is reviewed under the standard set by People v. Watson (1956) 46 Cal.2d 818. (People v. Alcala (1992) 4 Cal.4th 742, 791.)
Defendant nevertheless contends that evidence suggesting Dr. Barke had a motive to lie about his lack of specific recall, falling back instead on his general practice, was critical to the determination of whether defendant acted with gross negligence. According to defendant, “the People were obligated to prove beyond a reasonable doubt that [she] subjectively appreciated the risk.” And at oral argument, defendant’s counsel argued that subjective appreciation of the risk is the “key element” that distinguishes the charged crime of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) from the lesser crime of vehicular manslaughter with ordinary negligence while intoxicated (§ 191.5, subd. (b)). Counsel contended the question for the jury was whether defendant knew “that she shouldn’t have been driving because she was taking the medication. That’s what the upper count is all about.” We disagree. Defendant’s argument glosses over the true standard by which gross negligence is determined. Gross negligence is measured by an objective, not a subjective, standard. And while actual knowledge of the risk is relevant, it is not dispositive.
Evidence of an express warning is unnecessary to show gross negligence. Gross negligence “has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson).) “A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.” (Ibid.) True, an express warning can be a factor in determining whether a “reasonable person in defendant’s position would have been aware of the risk involved” in driving after taking the medication. (Ibid.; accord People v. Costa (1953) 40 Cal.2d 160, 166 [gross negligence where defendant was warned not to speed]; People v. Von Staden (1987) 195 Cal.App.3d 1423, 1428 [gross negligence where defendant was warned not to drive while intoxicated].)
But no express warning is required to show defendant objectively acted with “so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” (Watson, supra,30 Cal.3d at p. 296.) “[W]hat the phrase ‘conscious indifference’ is intended to express is the concept that ‘gross negligence requires an objective level of awareness of the risk involved.’” (People v. Hovda (2009) 176 Cal.App.4th 1355, 1358.) “If a person acted in a way that a reasonable person would have known would create a high risk of death or great bodily injury, then that person acted with conscious indifference to the consequences.” (Ibid.)
If anything, actual subjective awareness that his or her conduct risks death renders a defendant liable for second degree murder. Murder is an unlawful killing with malice, which may be express or implied. (§§ 187, 188.) “[M]alice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.” (Watson, supra,30 Cal.3d at p. 296.) In contrast to the objective standard required to find gross negligence, “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (Ibid.)
And even then, an express warning is not required to find a subjective appreciation of the risk; i.e., implied malice. In Watson, supra, 30 Cal.3d 290, the court held probable cause existed to charge second degree murder where the defendant was “presumed” to be “aware of the hazards of driving while intoxicated” (id. at p. 300), “drove at highly excessive speeds through city streets,” avoided a near-accident “only by skidding to a stop,” and “belatedly again attempted to brake his car before the [fatal] collision... suggesting an actual awareness of the great risk of harm he had created.” (Id. at p. 301.)
“[T]he finding of gross negligence required to convict a defendant of gross vehicular manslaughter while intoxicated may be based on the overall circumstances surrounding the fatality.” (People v. Bennett (1991) 54 Cal.3d 1032, 1040 (Bennett).) The jury may “‘determine gross negligence from the level of the defendant’s intoxication, the manner of driving, or other relevant aspects of the defendant’s conduct resulting in the fatal accident.” (Id. at p. 1039; see also id. at p. 1040 [the “defendant’s high level of intoxication” showed gross negligence].)
Ample evidence here showed any reasonable person in defendant’s position would have been aware of the risks posed by her driving, even without an express warning. (See Watson, supra,30 Cal.3d at p. 296.) Defendant had been prescribed Ambien to help her sleep. Her Ambien and Xanax bottles had labels warning against driving while taking the medication. Defendant had slept poorly that night, if at all. She had taken two Ambien and one and one-half Xanax in the past 18 hours — and had taken the second Ambien only 30 minutes before she got in her car. Despite her condition, defendant drove down Pacific Coast Highway in Newport Beach at 7:30 p.m., on a Friday night. As she drove, she felt sick and sleepy. She noticed other drivers were trying to get her attention or avoiding her. She knew she was “driving erratical[ly],” not “okay to drive,” and “should stop the car.”
In sum, defendant knew or should have known she was exhausted, heavily medicated on drugs that cause drowsiness, and driving dangerously — but continued to drive down a busy highway on a Friday night. She then swerved onto the sidewalk at a high enough speed to knock over a parking meter and a fire hydrant, in addition to killing the victim. This is abundant evidence of gross negligence. (See Bennett, supra, 54 Cal.3d at p. 1039 [gross negligence shown by “the level of the defendant’s intoxication, the manner of driving, or other relevant aspects of the defendant’s conduct”]; cf. Cooper v. Kellogg (1935) 2 Cal.2d 504, 509-510 [grossly negligent to fall asleep while driving when driver “should have known[] that sleep would overtake him”]; People v. Leffel (1988) 203 Cal.App.3d 575, 583-584 [gross negligence where intoxicated defendant had not slept for three nights before accident, speeded at 75 to 85 miles per hour, and crossed center line]; People v. Roerman (1961) 189 Cal.App.2d 150, 159 [gross negligence where defendant drove through heavily trafficked area with cast on her right foot].) Thus, any error in restricting her from exploring Dr. Banke’s possible motive to lie about an express warning was harmless.
The evidence arguably supported a second degree murder charge. (Cf. Watson, supra, 30 Cal.3d at pp. 300 [second degree murder properly charged where intoxicated defendant speeded though city streets and narrowly avoided an accident before fatal crash]; People. v. Contreras (1994) 26 Cal.App.4th 944, 957 [malice implied where defendant “knew [his] truck’s brakes were defective at the time of the fatal crash and... drove recklessly, racing at high speed in a residential area, anyway”]; People v. Olivas (1985) 172 Cal.App.3d 984, 989 [malice implied where intoxicated defendant “drove at extremely high speeds through city streets for a relatively lengthy period of time” and kept driving after having collision and near-collision with other cars].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.