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People v. Mabrey

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 6, 2012
D056486 (Cal. Ct. App. Jan. 6, 2012)

Opinion

D056486 Super. Ct. No. SCD218851

01-06-2012

THE PEOPLE, Plaintiff and Respondent, v. ALAN LESTER MABREY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Driving under the influence of alcohol, Alan Lester Mabrey struck and killed a young woman attempting to cross a street. Mabrey then parked the truck he was driving, entered a fast food restaurant immediately adjacent to the scene of the accident, and purchased a hamburger before he returned to speak with police. A jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), and hit and run with injury or death (Veh. Code, § 20001, subd. (b)(2)). On the vehicular manslaughter charge, the jury also found true the allegation Mabrey fled the scene of the crime after committing the violation.

All further statutory references are to the Vehicle Code unless otherwise specified.

Mabrey now appeals, claiming: (1) there was insufficient evidence of implied malice to support his second degree murder conviction; (2) there was insufficient evidence of gross negligence to support his vehicular manslaughter conviction; (3) there was insufficient evidence he fled the scene to support his hit and run conviction or the flight enhancement on his vehicular manslaughter conviction; and (4) his trial was tainted by admission of a photo of the deceased. We find sufficient evidence to support his convictions and no prejudice in admission of the ante-mortem photograph.

FACTUAL BACKGROUND

Mabrey moved to San Diego from Colorado with his friend Terry Floor in February 2009. By the time Mabrey arrived in San Diego he had suffered seven convictions for various grades of driving under the influence (DUI) or while intoxicated (DWI), was on probation in Colorado for a DUI offense committed in 2008, and his license to drive had been revoked. Mabrey had also served two separate terms in Texas state prisons for DWI.

Mabrey's most recent Colorado arrest came about when he backed his truck into a parked car, then left the scene of the accident. He was arrested shortly thereafter by Officer Wendy Liggitt, who counseled Mabrey that if he continued to drive drunk "some day he was going to kill someone." In a meeting with an alcohol evaluator following his conviction for that offense, Mabrey admitted he should not have been driving.

When Mabrey and Floor arrived in San Diego they were broke, and slept in Floor's truck while looking for work. On the pair's second day in San Diego, February 7, 2009, they found employment remodeling a liquor store. To celebrate and unwind after a day of hard labor, Mabrey and Floor picked up a 12-pack of beer and headed to Pacific Beach to shower at Campland, a recreational vehicle park. On the way, however, the two got lost, ending up in Solana Beach. Floor took the opportunity to get out of the truck and walk around for an hour, while Mabrey sat in the passenger seat and drank the entire 12-pack of beer.

When Floor returned, he drove the pair to Campland. They showered, then headed to Mission Boulevard in Pacific Beach to "check out the beach and the bars." Floor parked the truck on Reed Street east of Mission Boulevard, and they visited Lahaina Beach House and Open Bar, splitting a pitcher of beer at each establishment. Mabrey drank the equivalent of six more beers during these visits.

Around 7:00 p.m., Mabrey and Floor left Open Bar, intending to drive to yet another bar, In Cahoots. Mabrey, despite his intoxication, decided to drive. As Mabrey turned left from Reed Street onto northbound Mission Boulevard, he accelerated very quickly, causing items on the dashboard of the truck to fall to the floor.

During this turn, Mabrey struck Emily Dowdy, a pedestrian in the crosswalk. Upon realizing he had hit Dowdy, Mabrey got out of the truck and told a witness he "just didn't see her step out." The witness asked Mabrey to find Dowdy some blankets; however, rather than find blankets, Mabrey went to a nearby Burger King fast food restaurant to get a hamburger.

Dowdy suffered severe head trauma and was taken to a hospital where, shortly after being examined, an emergency room physician concluded her brain had ceased functioning and she was clinically dead.

Police arrived on the scene and initially detained Floor. Floor informed officers Mabrey had been driving the truck and that he had gone into the Burger King. One officer entered the Burger King to find Mabrey, but could not locate him. Mabrey did not come forward at the time to identify himself as the driver.

Approximately one-half hour later, Floor noticed Mabrey walking around outside the Burger King and pointed him out to officers. Officer Aaron Frodente stopped Mabrey, who identified himself and admitted driving the truck.

Officer Frodente noticed a strong odor of alcohol coming from Mabrey's breath. At that time, Officers Blake Cheary and James Zirpolo also approached Mabrey. Officer Cheary asked Mabrey why he had entered the Burger King, and Mabrey responded, "Get a burger." Officer Cheary also noticed the odor of alcohol coming from Mabrey, and that Mabrey's eyes were red and his speech noticeably slurred. Later, blood tests revealed Mabrey's blood alcohol content (BAC) to be approximately .25 at the time of the accident, over three times the legal limit.

The following day, Dowdy's physicians performed a nuclear brain flow study which confirmed that Dowdy's brain had stopped functioning and that she had clinically expired.

TRIAL COURT PROCEEDINGS

Following a jury trial, Mabrey was found guilty of one count of murder (Pen. Code, § 187, subd. (a), count one), one count of gross vehicular manslaughter while intoxicated (Pen. Code § 191.5, subd. (a), count two), and one count of hit and run resulting in death (§ 20001, subd. (b)(2).) In addition, with respect to the vehicular manslaughter conviction, the jury found Mabrey had two prior driving under the influence convictions and that he fled the scene after the crime had been committed within the meaning of section 20001, subdivision (c).

The trial court sentenced Mabrey to 15 years to life on the manslaughter conviction, which the trial court chose as the principal term. The court also imposed a consecutive five-year enhancement under section 20001, subdivision (c). The court imposed a 15-year-to-life sentence on the murder conviction and a four-year sentence on the hit and run conviction and stayed both sentences under Penal Code section 654.

DISCUSSION


I


Second Degree Murder

Mabrey contends the evidence was insufficient to support the verdict of second degree murder. Mabrey claims the accident was caused by inadvertence rather than malice. Mabrey argues that he was unable to see Dowdy in the crosswalk, and that the accident was thus attributable merely to horrific chance.

Our case law is well settled in the area of DUI murder. The act of physically striking Dowdy itself is not what lends Mabrey's actions their malice; rather, it was Mabrey's conscious decision to take the wheel despite his subjective understanding of the risk involved. (People v. Watson (1981) 30 Cal.3d 290, 296; People v. McCarnes (1986) 179 Cal.App.3d 525, 533-534.) Mabrey's decision to drive in a state of high intoxication, after he had been warned of the deadly nature of drunk driving, subjected to criminal sanction for it no fewer than seven previous times, and lost the legal ability to operate a motor vehicle, was the act " ' " 'deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' " . . . .' " (People v. Watson, supra, 30 Cal.3d at p. 300, quoting People v. Phillips (1966) 64 Cal.2d 574, 587.)

In this latter vein, we note there was ample evidence to support the necessary inference Mabrey subjectively appreciated the risks of operating the truck while intoxicated. The jury heard Officer Liggitt's testimony of how she specifically warned Mabrey he would kill someone if he continued to drive drunk. They heard evidence that Mabrey had been arrested and incarcerated numerous times for drunk driving. Finally, they heard evidence of how Mabrey himself admitted to an alcohol evaluator that he should not have been driving during one drunken episode. Together, these support the inference Mabrey subjectively understood the risk to human life of driving while intoxicated. In everyday language, Mabrey's state of mind was " ' "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed." ' " (People v. David (1991) 230 Cal.App.3d 1109, 1114, quoting People v. Olivas (1985) 172 Cal.App.3d 984, 988.) This dangerous and wanton conduct met the threshold of implied malice, and Dowdy's tragic death was the consequence.

Mabrey attempts to distinguish his offense from the circumstances in other DUI murder cases by pointing out no evidence exists he planned to drive before becoming intoxicated or drove at a high rate of speed before striking Dowdy. Once again, his argument is unpersuasive. While many cases include these factors in determining whether implied malice was present, those that do have made it clear these factors are not, by themselves, determinative. (People v. Watson, supra, 30 Cal.3d at p. 301; People v. Talamantes (1992) 11 Cal.App.4th 968, 973; People v. David, supra, 230 Cal.App.3d at p. 1114.) Rather, the cases make clear that no precise formula exists to determine implied malice, which must instead be approached on a case-by-case basis. (People v. Olivas, supra, 172 Cal.App.3d at p. 989, citing People v. Watson, supra, 30 Cal.3d 290.) The critical question is whether the record shows the " 'defendant was aware of the hazards of driving while intoxicated.' " (People v. Talamantes, supra, 11 Cal.App.4th at p. 972.) Here, Mabrey's lengthy drunk driving history, his intoxication level three times the legal limit, and his conscious decision to drive Floor's truck fully support a finding he was aware of the risks and wantonly ignored them. Thus there was ample evidence of malice.

II


Vehicular Manslaughter

Mabrey next argues his conviction for vehicular manslaughter should also be overturned for lack of substantial evidence. While second degree murder requires implied malice and therefore a subjective understanding of the risk involved, involuntary manslaughter only requires gross negligence, which is determined objectively. (See People v. Watson, supra, 30 Cal.3d at p. 296.) The requisite mental state is met when a reasonable person in the defendant's position would have been aware of the risk involved. (People v. Bennett (1991) 54 Cal.3d 1032, 1036.)

Mabrey argues that, despite his intoxication, his operation of the truck was not sufficiently reckless or unreasonable. In support of this position, he relies on a line of case law suggesting the " 'mere fact of driving under the influence and violating the traffic laws' " cannot constitute gross negligence. (People v. Bennett, supra, 54 Cal.3d at p. 1037, quoting People v. Von Staden (1987) 195 Cal.App.3d 1423, 1427.)

Mabrey's argument fails on two fronts. First, Bennett itself distinguishes the line of case law Mabrey offers, and holds that a driver's level of intoxication in a vehicular manslaughter case "is an integral aspect of the 'driving conduct.' " (People v. Bennett, supra, 54 Cal.3d at p. 1038.) Thus, the court in Bennett recognized the substantial difference between a driver barely above the legal limit of intoxication and one, such as Mabrey, at triple the limit. The latter factor is a circumstance a reasonably prudent person would appreciate carries a high risk of death, particularly if, like Mabrey, the person had been arrested and jailed many times previously for driving while intoxicated.

Mabrey's argument also fails in light of his actual conduct while making the turn. The jury heard evidence Mabrey accelerated so quickly that items from the truck's dash fell onto the floor, and that he failed to see Emily Dowdy in the crosswalk. The jury could determine a reasonably prudent person would not have accelerated as Mabrey did through the intersection, or would have more carefully looked at the crosswalk, the area most likely to be occupied by pedestrians. In sum, between Mabrey's actual driving and the circumstances of his intoxication, there is substantial evidence to support the verdict Mabrey was grossly negligent.

III


Hit And Run

Mabrey argues his conviction for hit and run, as well as the hit and run enhancement on his vehicular manslaughter conviction, must be overturned for insufficient evidence. We disagree.

A. Section 20001, subdivision (a)

As a substantive crime a hit and run offense is governed by section 20001, subdivision (a) and it commands that a driver "involved in an accident resulting in . . . the death of a person . . . immediately stop the vehicle at the scene of the accident" and "fulfill the requirements of Sections 20003 and 20004." (§ 20001, subd. (a).) Sections 20003 and 20004 in turn require the driver to identify himself to any injured parties or police officer at the scene of the accident, render reasonable assistance to any person injured in the accident, and report the accident "without delay" to officers. (§§ 20003-20004.)

There is ample evidence Mabrey failed to comply with his duties under sections 20003 and 20004. Although he stopped the vehicle immediately at the scene of the accident, Mabrey offered no assistance to Dowdy despite bystander requests, and instead went to get a hamburger. Mabrey also declined to report the accident without delay to officers, and did not identify himself to police until approximately one-half hour after they had arrived on the scene. Once he did so, it was only after being identified to officers by Floor. A reasonable jury could have determined Mabrey's failure to assist Dowdy and his half-hour delay in contacting police constituted a violation of his affirmative duties under sections 20003 and 20004, thus rendering him guilty of hit and run. Accordingly, we affirm his conviction of violating section 20001, subdivision (a).

B. Enhancement

The hit and run enhancement to Mabrey's vehicular manslaughter conviction is governed by section 20001, subdivision (c), which provides an additional five-year sentence enhancement for "[a] person who flees the scene of the crime after committing a violation of Section 191.5 . . . ." (§ 20001, subd. (c), italics added.)

Mabrey argues he discharged his responsibility under section 20001, subdivision (c), by stopping the truck after striking Dowdy. Mabrey relies on CALCRIM No. 2160, which states: "1. The defendant knew that (he/she) had been involved in an accident that injured another person . . . ; [¶] AND [¶] 2. The defendant willfully failed to immediately stop at the scene of the accident."

However, the court in People v. Odom (1937) 19 Cal.App.2d 641, 647, defined "immediately stop," as used in a predecessor to section 20001, subdivision (a) as requiring more than simply stopping a vehicle: "This phrase should receive a reasonable construction. It means that he should promptly stop at the scene of the accident for the purpose of rendering assistance to the injured person." (Ibid., italics added.) This construction undermines Mabrey's narrow definition of "immediately stop," as the requirement to render assistance requires that the driver not only stop his car, but remain at the scene.

We note a driver under the influence of alcohol who immediately stops his vehicle but leaves on foot will preclude the timely gathering of DUI evidence, effectively forestalling successful prosecution. For that reason alone, a statute which penalizes "fleeing" should be read as not only requiring that the driver stop, but also requiring that the driver remain at the scene. Here, Mabrey did not render aid and left the scene to eat, an act which would absorb the alcohol in his stomach.

In sum, Mabrey may have stopped the truck, but he did not remain on scene, and was fully is culpable under section 20001, subdivision (c).

Mabrey further claims any construction reading a requirement to remain on the scene into section 20001, subdivision (c) violates due process. He argues the jury instructions define the elements of the offense, and any deviation from those elements explicitly contained within the instructions denied him proper notice of the charges and hence an ability to mount a complete defense.

In general, Mabrey's due process rights were fully protected by the express terms of the statute itself, which prohibit flight from the scene of a manslaughter. The statute's reference to someone who "flees" plainly encompassed a driver, such as Mabrey, who stops his or her car and flees on foot. Moreover, the use note to the jury instruction Mabrey relies upon, CALCRIM No. 2160, cites People v. Odom for its definition of "immediately stopped." Thus Mabrey cannot make a convincing claim that at trial his counsel was unaware that as used in the jury instructions "immediately stop" required that he stay at the scene.

IV


Ante-Mortem Photograph

Mabrey asserts the admission of a photograph of Dowdy sitting cross-legged in the park constituted reversible error. He argues the photograph should not have been introduced to prove Dowdy's identity, which was not in dispute at trial and was therefore irrelevant. While, like the Attorney General, we acknowledge admission of a photograph may be considered error if irrelevant to any disputed issue in the case, the overwhelming evidence against Mabrey renders any error here harmless. This was hardly a " ' "close case" in which the jury's sympathy for the victim may have led it to improperly convict ' " Mabrey. (People v. Hendricks (1987) 43 Cal.3d 584, 594-595.) On the contrary, Mabrey's admission he was driving the truck, the physical evidence of his intoxication, and his callous disregard for Dowdy's well-being established his culpability far more forcefully than any sympathetic photograph.

DISPOSITION

The judgment of conviction is affirmed.

___________________________

BENKE, Acting P. J.
WE CONCUR:

___________________________

MCDONALD, J.

___________________________

IRION, J.


Summaries of

People v. Mabrey

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 6, 2012
D056486 (Cal. Ct. App. Jan. 6, 2012)
Case details for

People v. Mabrey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALAN LESTER MABREY, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 6, 2012

Citations

D056486 (Cal. Ct. App. Jan. 6, 2012)