Opinion
G045048
05-23-2012
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY DAVID KIRBY, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09HF0445)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
Just before 1:00 a.m. on March 11, 2009, a white Porsche driven by Jeffrey David Kirby collided with a red Ferrari driven by Charles Lewis, Jr. The collision caused Lewis' death and his passenger, Lacy White, suffered serious injuries. Kirby and his passenger, Lynn Nabozny, were unscathed.
On September 21, the Orange County District Attorney's office filed an information charging Kirby with vehicular manslaughter with gross negligence while intoxicated and driving at an unsafe speed (Pen. Code, § 191.5, subd. (a), Veh. Code, § 22350). The information further alleged Kirby fled the scene of the accident (Veh. Code, § 20001, subd. (c)), caused great bodily injury (§§ 12022.7, subd. (a), 1192.7, 667.5), and had two prior convictions for driving under the influence. One of these priors was a 2002 conviction from Orange County.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found Kirby guilty of vehicular manslaughter with gross negligence and found true the great bodily injury enhancement, but concluded Kirby had not fled the accident scene. The trial court sentenced him to nine years in state prison, consisting of the middle term of six years for vehicular manslaughter with a consecutive three-year term for great bodily injury.
On appeal, Kirby contends the court erroneously admitted experimental evidence used by the accident reconstructionist to calculate the speed of the cars prior to collision. He also challenges the sufficiency of the evidence to support the vehicular manslaughter conviction, arguing the prosecution failed to prove he caused the accident. We find neither contention meritorious and affirm.
FACTS
In March 2009 Katy McCaffrey lived in a third-story apartment with a view of Jamboree Road. Jamboree is a six-lane road with sidewalks on both sides and a raised center median with trees and grass. The posted speed limit is 50 miles per hour.
A few minutes before 1:00 a.m. on March 11, McCaffrey looked out the window of her apartment and saw two fast-moving cars driving on southbound Jamboree. McCaffrey also heard both cars' engines make extremely loud high-pitched revving noises.
At the same time Newport Beach Police Officer Jonathan Sunshine was traveling northbound on Jamboree. He noticed two sets of car headlights approaching him from the southbound direction. Suddenly he saw a cloud of dust and watched as a red Ferrari veered off the road and into a cement light pole. A white Porsche stopped at the accident scene for a few seconds and then drove away. Sunshine got out of his police van and approached the Ferrari. He saw Lewis trapped in the driver's seat and concluded he was dead. White had been ejected from the car and was found breathing but unresponsive on the sidewalk.
Newport Beach Police Officer Todd Hughes searched for and found the white Porsche parked on Bison Avenue. He saw Kirby and Nabozny walking away from it. Kirby explained he had been driving his Porsche southbound on Jamboree when he saw a red Ferrari pass him. He decided to catch the Ferrari to prove something to Nabozny and lost control of his car in the process. The Porsche spun out, hit a curb, bounced across all three southbound lanes and ended up facing in the direction of travel. After the car came to a stop, Kirby noticed his car "was driving a little funny" and he decided to make a right turn onto Bison and park. Then he admitted Nabozny "told him to pull over, that he was driving too crazy, [and] that she wanted to get out of the car."
During his conversation with Kirby, Hughes noticed signs of intoxication, including a moderate odor of alcohol on Kirby's breath, slurred speech, and bloodshot and watery eyes. He also appeared unsteady on his feet. Kirby denied drinking any alcohol that night and said he had eaten a salad at about 5:00 p.m. Hughes asked Kirby if he was taking any medication, and Kirby admitted taking an unknown medication for poison oak and some type of pain killer for his back. Hughes decided to have Kirby perform field sobriety tests. Kirby did not fall down, but he was unsteady and did not precisely follow Hughes's directions. Hughes believed Kirby was under the influence of alcohol and could not safely operate a motor vehicle.
Newport Beach Police Investigator Jason Blakely talked to Nabozny. She said she was on a date with Kirby that began with dinner and drinks at a club in San Juan Capistrano. They left San Juan Capistrano at approximately 10:00 p.m. and drove to a wine bar in Irvine. They arrived at around 11:00 p.m., drank two or three glasses of wine, and left the bar at about 12:45. Nabozny did not think Kirby looked intoxicated when they left the wine bar. She remembered driving on Jamboree and seeing the Ferrari, but she did not remember details of the collision. She did remember getting out of the car once it stopped on Bison. She was upset at the time, but did not realize another car had been involved. Nabozny was later arrested for public intoxication.
Newport Beach Traffic Investigator Todd Bush and another officer walked the accident scene, noted the debris pattern, visually inspected both cars, and identified and measured skid marks. Using generally accepted methods of accident reconstruction, he created a diagram of the collision using a computer-aided program (CAD). Based on this information and the skid marks, Bush testified the Porsche spun out in a clockwise direction across the southbound lanes before it struck the left rear tire of the Ferrari with its left front bumper. There were no pre-collision skid marks from the Ferrari. After the point of impact, skid marks indicated the Ferrari spun clockwise, jumped up and over the curb, crossed the sidewalk, and slammed into a reinforced concrete light pole. The force split the Ferrari into three major components and caused the ejection of the right front passenger. The driver's compartment collapsed around the pole.
Bush calculated the speed of the cars before impact by using the combined speed or slide-to-stop method. Under this methodology, Bush estimated a minimum speed for the Porsche between 101 and 116 miles, and 73 to 77 miles per hour for the Ferrari. In an effort to validate the speed ranges for Kirby's car, Bush also conducted an experiment using a 1978 Porsche 911 SC, which was similar but not identical to Kirby's 1977 Porsche 911. He testified the purpose of using the test car was to establish a medium drag factor in roadway design, which is important when estimating the effect of roadway design and friction values. Although Bush had failed to find a vehicle identical to Kirby's, he nevertheless felt he had obtained a "very accurate" coefficient of friction using the test car.
A forensic blood technician testified Kirby's blood alcohol content was 0.132 at 3:00 a.m. According to a senior forensic scientist at the Orange County crime lab, alcohol consumption first leads to cognitive impairment and then physical impairment, and even at lower levels of consumption, a person is more apt to take risks and have a slow reaction time. When there is physical impairment, basic driving skills such as steering, braking, and turning are affected. The scientist testified the American Medical Association considers all individuals impaired for purposes of driving at a 0.05 blood alcohol level, but she believed a blood alcohol level of 0.08 or above constitutes impairment. Taking into account Kirby's weight, the time he reported his last meal, and well-known rates of alcohol absorption, the scientist opined Kirby had a blood alcohol level of 0.16 at the time of the accident.
Henry Greenberg, the owner and director of a California State Department of Health Services approved forensic alcohol laboratory, twice retested Kirby's blood sample and found the blood alcohol level to be 0.11 percent. He testified he gets different results on retest about 50 to 60 percent of the time, and a blood alcohol content of 0.13 percent in the same sample would be within normal limits. Greenberg did not believe Kirby's last drink of alcohol had fully metabolized at the time of the accident. Consequently, in his opinion, Kirby's blood alcohol concentration would have been between 0.09 and 0.11 percent at the time of the accident, then increased to a maximum plateau of 0.12 to 0.13 percent after the accident, dropping to 0.11 percent at the time of the blood draw.
The parties stipulated Kirby had a prior conviction for driving under the influence in 2002, and he had been granted three-years probation with various terms and conditions, including one term prohibiting him from driving with any measurable amount of alcohol in his blood stream. Vicki Maciha, a victim advocate for Mothers Against Drunk Driving (MADD), testified Kirby attended a MADD victim impact panel on April 25, 2002. According to Maciha, attendees of this class received education about the dangers of drinking alcohol and driving, and they were advised that proof of attendance at the MADD victim panel might be used as evidence at a future trial.
Lacy White, the passenger in Charles Lewis' Ferrari, remembered nothing about the collision. In an attempt to repair the injuries caused by her ejection from the Ferrari, doctors had inserted 16 screws and 2 plates into her left elbow. She does not have complete range of motion in her elbow and suffered damage to her ulnar nerve. The accident also broke two vertebrae in her lower back and fractured her hip and pelvis. White continues to suffer from dizziness, has short-term memory loss, and impaired depth perception.
DISCUSSION
Kirby argues dissimilarities between the 1978 Porsche 911SC Bush used to verify his speed calculations and his 1977 Porsche 911 rendered inadmissible any evidence of the experiment at trial. We disagree.
"It is settled that a trial court has discretion to admit 'experimental' evidence. The proponent of such evidence bears the burden of production and proof on the question whether such evidence rests upon an adequate foundation. 'Admission of such evidence depends upon proof of the following foundational items: (1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury.' [Citations.]" (People v. Bradford (1998) 15 Cal.4th 1229, 1326.) The trial court's decision as to the sufficiency of the foundational evidence for admission of experimental evidence is reviewed under the abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1120.) After reviewing the record, we do not find an abuse of discretion.
Kirby limits his challenge to the second factor listed above, namely the similarity of the test car to his own. At the pretrial Evidence Code section 402 hearing, Hughes explained he conducted a test with a 1978 Porsche because Kirby's car was inoperable. He also testified the purpose of the test was to establish a coefficient of friction or drag factor, which can be determined by using "any vehicle on the roadway because the drag factor on vehicles isn't specific unless it's a commercial vehicle or sports car . . . ." As he explained, the drag factor is "roadway specific" not car specific and depends on whether the car is spinning, stopping, or moving forward with "all four wheels locked up." And, he calculated a range of speeds in an attempt to account for various differences between the two cars.
On the other hand, Bush acknowledged the differences between Kirby's 1977 Porsche 911 and the 1978 Porsche 911SC he used in the test, including the spacers on Kirby's rear wheels, slightly different engines sizes, and condition of the tires. But he also testified "the suspension, the braking, [and] mechanical components" of both cars were similar. Kirby complains these differences were substantial, but no testimony contradicts Bush's expert opinion to the contrary. Furthermore, Kirby does not assert the test conditions varied substantially from the actual conditions in the early morning hours of March 11. In short, the trial court correctly ruled the differences between the cars went to the weight of the evidence, not the admissibility.
Furthermore, the results of Bush's experiment were in addition to, not exclusive of, drag factor values from accident reconstruction literature, which is a well- recognized and admissible procedure to determine speed. Thus, even assuming the court erred by admitting evidence of the experiment, we would find it harmless. Had this evidence been excluded the prosecution would have continued to rely on Kirby's blood alcohol level, the fact he knew what a danger this posed from his prior DUI conviction, and the posted speed limit for this particular stretch of Jamboree Road (50 miles an hour). Under speed estimates using standard calculations, which Kirby does not challenge, Kirby's speed was at least twice the posted limit. Consequently, we do not find the jury's verdict constitutes a miscarriage of justice. (Evid. Code, § 353.)
Kirby also challenges the sufficiency of the evidence to establish causation. Reciting section 191.5, subdivision (a) and Vehicle Code section 22350, he argues the prosecution failed to prove the accident was a proximate result of the commission of an unlawful act. He relies on the absence of eyewitness testimony as to the cause of the collision and discounts Bush's expert testimony because it was based on accident reconstruction and not direct evidence.
On appeal, this court reviews the record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt (People v. Castaneda (2011) 51 Cal.4th 1292, 1322), including substantial evidence of every element of the crime charged (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89).
Just because Lewis died, White and Nabozny have no memory of the collision, and no one else saw the cars touch does not mean the prosecution failed to prove causation. Bush's expert testimony was based on unchallenged and generally-accepted methods of accident reconstruction. He found an area in which debris from both cars had been scattered. Considering the tire marks from the Porsche before the collision, which indicated the car had started to spin out of control due to excessive speed, the debris field, the tire marks made by the Ferrari after the collision, and complementary damage to both cars, Bush opined the accident occurred when the left- front bumper of the Porsche collided with the Ferrari's left-rear wheel. Kirby contends Bush's calculations and conclusions do not fill the evidentiary gap and claims the Ferrari could have veered into the Porsche. However, a reviewing court does not reweigh evidence. (People v. Albillar (2010) 51 Cal.4th 47, 60.) In light of the expert testimony, Kirby's statements and his estimated speed and blood alcohol level, a rational juror could have found he was the cause of the accident. Substantial evidence supports the judgment.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.