Opinion
G044560
06-27-2012
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO OROZCO, Defendant and Appellant.
Ron Boyer, 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, Peter Quon, Jr. and Lilia E. Garcia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09NF0232)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.
Ron Boyer, 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, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Alleging evidentiary and instructional error, Osvaldo Orozco appeals from a judgment sentencing him to prison for committing vehicular manslaughter and inflicting great bodily injury. We affirm.
FACTS
On the night of January 10, 2009, appellant and Andrew Martinez attended a house party in La Habra. At around 3:00 a.m., Martinez received a phone call from his former girlfriend. She said she was being harassed by a guy in Orange, and Martinez agreed to come help her out. However, Martinez did not want to get behind the wheel, so he asked if anyone at the party was sober enough to drive. Although appellant had been drinking, he said he was "fine" and agreed to give Martinez a ride. Appellant also agreed to take along Jesus Colin and Louis Mendez when he left the party, which was around 4:00 a.m.
That morning, Esther Carroll was driving to work on the 57 Freeway. At roughly 4:40 a.m., an "old Chevy Nova," appellant's car, came up from behind and passed her in the number one lane. According to Carroll, the car was going about 70 to 75 m.p.h. She testified "it didn't pass too quickly. It was just a regular [pass], you know, maybe five, ten miles [per hour faster] than I [was] going."
Not noticing anything unusual about the Nova, Carroll lost sight of it following the pass. As she explained it, "[T]hat particular part of the freeway [where the pass occurred] curves to the right quite a bit for a long period of time, so as we were driving, we were all . . . kind of going to the right, and the car just disappeared." At first, Carroll did not know what happened to the Nova. When asked if she ever saw it leave the road, she said no. However, about a quarter mile up the road, she noticed the car had veered off the right side of the road and was totally ablaze. Upon seeing the wreck, she immediately pulled over and called 911.
Police and fire crews responded to the scene at about 4:50 a.m. After the fire was extinguished, they found Colin and Martinez inside the Nova, dead from traumatic and thermal injuries. Investigators determined the car had hit a tree after leaving the roadway. Skid marks were found where the car left the road, but there were no signs of any obstructions on the roadway in that area. Nor were weather or visibility a problem at the time.
Appellant and Mendez survived the crash and made their way to a rock pile about 500 feet from the car. Between 4:52 a.m., the time of the crash, and 5:13 a.m., appellant made 11 cell phone calls to friends. Then, at 5:16 a.m., he called 911 and reported he had been involved in an accident.
At 5:24 a.m., CHP Officer Todd Kovaletz found appellant and Mendez by the rock pile. Mendez had numerous cuts and scrapes, fractured ribs and a broken arm, and appellant had head wounds (including a possible concussion), a fractured vertebrae and leg pain. Appellant told Kovaletz a blue Chevy Malibu had cut him off the road, causing him to lose control of his car. He said he was going about 70 m.p.h. at the time.
At 6:00 a.m., CHP Officer Brandon Marshall arrived on the scene and spoke with appellant in the back of an ambulance. Appellant told him a Chevy Chevelle had cut him off. He also claimed he had only consumed two beers that evening. However, blood testing revealed appellant's blood-alcohol level was .07 percent at 7:00 a.m. That indicated appellant probably had closer to 10 beers that night, and his blood-alcohol level would have been about .10 percent at the time of the accident.
The prosecution presented evidence appellant attended a victim impact program presented by Mothers Against Drunk Drivers (MADD) in May 2005. That same year, appellant also completed a three-month alcohol education and treatment program entitled Driver Benefits. Both programs detailed the dangers of drinking and driving, as well as the possible criminal consequences of such.
Appellant was charged in a single count information with negligent vehicular manslaughter while intoxicated. Colin was named as the victim, and it was also alleged appellant fled the scene of the crime and caused great bodily injury to Martinez and Mendez. The jury convicted appellant on the manslaughter charge and found the injury allegation true, but it found the fleeing allegation not true. The court sentenced appellant to seven years in prison.
I
Appellant contends his conviction must be reversed because there is insufficient evidence Colin's death was caused by the commission of a driving infraction. We disagree.
In reviewing the sufficiency of the evidence to support a criminal conviction, we do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) If, in so doing, the record "'discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt,'" we must affirm. (People v. Stuedemann (2007) 156 Cal.App.4th 1, 5, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"'" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) We may only "reverse a conviction for insufficiency of the evidence [if] it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
Appellant was charged with committing negligent vehicle manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (b).) More particularly, it was alleged that, while driving under the influence, appellant committed a driving infraction that proximately caused Colin's death. (Ibid.; Pen. Code, § 191.5, subd. (f); CALCRIM No. 3404.) As predicate infractions, the prosecution alleged appellant drove at an unsafe speed, made an unsafe turn, and failed to stay within his lane. (Veh. Code, §§ 22350, 22107 & 21658.)
Appellant argues there is insufficient evidence Colin's death was the proximate result of any one of those infractions. In so arguing, he posits, "There are any number of events, human and mechanical, that could have transpired inside the car or out that could have caused his car to leave the roadway." That is true, of course. Nevertheless, the circumstances of the accident were such that the jury could reasonably conclude that Colin's death was proximately caused by the commission of the alleged driving infractions.
The record shows appellant was driving after a long night of partying that swelled his blood-alcohol level over the legal limit for operating a motor vehicle. Although he was not driving in an overtly reckless fashion when he passed Carroll shortly before the crash, she did estimate that he was driving about 70-75 m.p.h., which is above the posted speed limit for that area. Even appellant admitted to the police that he was speeding at the time of the accident.
Driving over the speed limit does not necessarily constitute unsafe driving. But the jury could reasonably have concluded that appellant's speed was excessive given his intoxication, and caused him problems when he tried to negotiate the winding stretch of roadway where the accident occurred. Because traffic was light, and there was no evidence that weather, visibility or road conditions were a problem at the time, the jury could reasonably conclude the accident was caused by appellant driving in an unsafe manner. Certainly we cannot say that was an unreasonable hypothesis on these facts. Other causes were possible, to be sure, but the jury obviously did not believe appellant's story that another driver cut him off the road, and we are not at liberty to second-guess the jury's finding in that regard. In fact, as we have explained, we are powerless to reverse appellant's conviction unless it appears that upon no hypothesis whatsoever is there substantial evidence to support it. Based on the totality of the evidence, we are convinced there is substantial evidence to support the prosecution's theory Colin's death was proximately caused by the commission of a driving infraction. Therefore, we reject appellant's challenge to the sufficiency of the evidence.
II
Citing remarks the trial judge made during voir dire, appellant argues the judge "confused and diminished the presumption of innocence and the burden of proof." We agree the challenged remarks were improper, but we do not believe they are cause for reversal.
Rather than trying to defend the trial court's remarks, the Attorney General claims appellant waived his right to challenge them by failing to object at the time they were made. However, because the alleged errors implicate appellant's fair trial rights, the lack of an objection is not a bar to appellate review. (Pen. Code, § 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
During voir dire, the trial judge described the presumption of innocence as "a procedural presumption" and suggested it has no bearing once the prosecution has presented some evidence of guilt. However, the presumption of innocence applies throughout the presentation of evidence at trial; it serves as an important constitutional safeguard until such time as the jury actually comes to a final decision that the defendant's guilt has been proven beyond a reasonable doubt. (People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190.) Thus, it was error for the trial court to suggest otherwise.
The judge also strayed in his remarks regarding reasonable doubt. Attempting to explain that concept, the judge told the prospective jurors that reasonable doubt exists when "after you heard all the evidence, it's left your mind in the kind of state where you can't say you feel an abiding conviction of the truth of the charge. Whatever that means. [¶] This could mean different things to different people . . . ." (Italics added.) The judge also stated that if the prosecution failed to prove its case beyond a reasonable doubt, that would mean the defendant was technically not guilty.
We agree with appellant that the trial court should have stuck to the script and avoided the italicized language. (See generally People v. Garcia (1975) 54 Cal.App.3d 61, 63 [noting that appellate courts have not been receptive to well-intentioned efforts by trial court judges to "clarify" and "explain" the concept of reasonable doubt].) Still, we cannot lose sight of the fact the judge's comments were only intended as an overview of the law. The judge made clear he would be providing formal legal instructions to the jury at the conclusion of the evidence and that those would be the controlling instructions in the case.
Moreover, there is no dispute that the standard jury instructions applicable in criminal cases which the trial judge gave at the conclusion of the case were accurate and complete in terms of explaining the presumption of innocence and the prosecution's burden of proof. In instructing the jury, the judge also reiterated that his formal instructions constituted "all of the potentially applicable law in the case." Under these circumstances it is not reasonably likely that, in deciding the case, the jury harkened back to the comments the judge made days earlier during jury selection. (See People v. Elguera (1992) 8 Cal.App.4th 1214, 1223 [jury could not reasonably be expected to remember particular instructions that were given during voir dire].)
Given that the jury was correctly instructed on the presumption of innocence and burden of proof at the conclusion of the evidence, and the jury did in fact acquit appellant of one of the allegations against him, we are convinced the jury properly understood and applied the law in this case. No cause for reversal has been shown.
III
Appellant also contends the trial court erred in admitting evidence suggesting he had previously been involved in one or more drunk driving incidents. Although there was evidence suggesting as much, the jury was instructed: 1) It could only consider that evidence for the limited purpose of showing appellant was aware of the dangers of drunk driving; and 2) appellant had never been previously convicted of driving under the influence. In light of these instructions, the challenged evidence was not, as appellant contends, unduly prejudicial or violative of his due process rights.
Before trial, the court denied the prosecutor's motion to admit evidence that appellant was convicted in 2004 of a "dry reckless," i.e., reckless driving not involving the consumption of alcohol. (Veh. Code, §§ 23103, 23103.5.) Since the prior conviction was adjudicated as a nondrinking offense, the court determined it was not relevant to this case and would only serve to impugn appellant's character.
Nevertheless, the prosecution did present evidence appellant attended two alcohol treatment programs in 2005, one administered by MADD and another called Driver Benefits. Explaining the MADD program, Tina Pasco testified that at the end of the program, the attendees are given a proof of attendance sheet and "instructed to put their case information on it, and return it back to either their attorney or the courts." There was also testimony that during the Driver Benefits program, attendees are advised of the criminal consequences of getting a "subsequent DUI."
Defense counsel objected to this evidence and moved for a mistrial on the basis it improperly suggested appellant had previously engaged in driving under the influence. The trial court denied the motion, but with defense counsel's consent, it did admonish the jury that it could only consider the treatment program evidence for the "limited purpose of deciding whether or not defendant knew that . . . driving under the influence of alcohol creates a high risk of reasonably foreseeable harm." The court also admonished the jury it could not consider the evidence "for any other purpose."
In addition, the court told the jury the treatment program evidence "could have the inference that the defendant has a prior driving under the influence conviction. Now, at this point not only are you being instructed that the defendant does not have a prior driving under the influence conviction, to diffuse [sic] that inference, but I'm telling you that this is in fact true, that he does not have a prior driving under the influence conviction. This is not he has one, but we won't tell you this. He does not have one."
Appellant argues this instruction was insufficient to overcome the suggestion created by the treatment program evidence that he was a repeat offender. Although the court told the jury appellant had not been previously convicted of drunk driving, it did not tell the jury he had not been previously arrested for drunk driving. Appellant fears that if the jury suspected he had been arrested for, but not convicted of, drunk driving in the past, it would have been inclined to convict him in the present case simply to punish him for his prior conduct, irrespective of whether he actually committed the charged offense.
The answer is two-fold. First, appellant did not object to the court's limiting instruction in any respect. Having acquiesced to the wording of the instruction below, he cannot be heard to complain now that it did not go far enough in terms of curing the alleged harm caused by the treatment program evidence. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [trial court's response to jury's note could not be challenged on appeal where defense counsel consented to the wording of the response].)
Second, the court's instruction made it clear the treatment program evidence was offered for the limited purpose of showing appellant's awareness of the risks of drinking and driving. The prosecution did not attempt to use the evidence for any improper purpose, such as to disparage appellant's character or show his propensity for drunk driving. Although appellant speculates the jury may have misused the evidence to punish him for his past conduct, there is nothing in the record to suggest that happened. Under these circumstances, we may presume the jury considered the subject evidence solely for the limited purpose for which it was offered. (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Hollie (2010) 180 Cal.App.4th 1262, 1277.) In light of the court's limiting instruction, we do not believe the evidence infringed appellant's fair trial rights so as to warrant a reversal of his conviction.
IV
In a related argument, appellant goes a step further and contends the treatment program evidence should have been excluded altogether because whether he had previously been made aware of the risks and consequences of drunk driving was simply not germane to any of the issues in the case. Again, we disagree.
Appellant's argument is premised on our Supreme Court's decision in People v. Ochoa, supra, 6 Cal.4th 1199. Charged with grossly negligent vehicular manslaughter while intoxicated, the defendant in that case challenged the admission of evidence showing he had attended an alcohol awareness class after being convicted of drunk driving. The Supreme Court rejected the challenge, stating:
"In determining whether a reasonable person in defendant's position would have been aware of the risks [of his behavior, so as to support a finding of gross negligence], the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True, . . . the defendant's lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant's position would have recognized the risk." (People v. Ochoa, supra, 6 Cal.4th at p. 1205, italics omitted.)
Appellant takes this to mean that when a defendant like himself is charged with negligent vehicular manslaughter while intoxicated, as opposed to grossly negligent vehicular manslaughter while intoxicated, evidence showing awareness of the risks of drunk driving is not admissible. But that reads too much into the above quotation. In distinguishing gross negligence from simple negligence, the Ochoa court was merely distinguishing the type of evidence that elevates a defendant's conduct from one form of negligence to another. It did not say evidence bearing on the issue of gross negligence is irrelevant to the issue of ordinary negligence. It merely discussed the facts before it in a gross negligence case. We decline appellant's invitation to interpret Ochoa any other way.
Like gross negligence, the issue of ordinary negligence turns on an assessment of the defendant's knowledge of the danger involved in the undertaking in question and whether his conduct measured up to that which would be expected of a reasonable person in like circumstances. (Jeffs v. La Gore (1955) 131 Cal.App.2d 181, 186-187 [discussing driver's duty to exercise ordinary care in the operation of a motor vehicle].) Therefore, in the context of a negligent drunk driving case, it stands to reason that evidence reflecting on the defendant's awareness of the dangers of driving under the influence would have a logical bearing on the issue of negligence. We see no reason to disturb the trial court's determination in this regard. Since the treatment program evidence was offered for the sole purpose of showing appellant's mental state and was not used to impugn his character, its admission was proper.
V
Lastly, appellant argues the trial court should have instructed the jury to determine whether Martinez and Mendez were accomplices because that was a critical issue with respect to the great bodily injury allegation. We do not believe there was sufficient evidence to justify accomplice instructions in this case.
As alleged in the information, the jury found appellant inflicted great bodily injury on Martinez and Mendez within the meaning of Penal Code section 12022.7. That section calls for a sentence enhancement when the defendant personally inflicts great bodily injury in the commission of a felony. However, it only applies when the victim is not an accomplice. (Pen. Code, § 12022.7, subd. (a); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168.)
Appellant argues there was sufficient evidence from which the jury could find Martinez and Mendez were accomplices, thereby rendering the enhancement inapplicable. Thus, the trial court should have instructed the jury on the law regarding accomplice liability. But in order to warrant accomplice instructions, there must be evidence showing the alleged accomplice is liable for the same offense for which the defendant is on trial. (People v. Lewis (2001) 26 Cal.4th 334, 368-369.) The evidence in this regard must be substantial, not speculative. (Ibid.)
Here, appellant posits that Martinez and Mendez could have been liable for the charged offense of vehicular manslaughter under the natural and probable consequences doctrine. Particularly, he claims the evidence showed that Martinez and Mendez aided and abetted appellant in the target offense of driving under the influence, which naturally and probably led to the charged offense. However, in order to be liable for aiding and abetting driving under the influence, Martinez and Mendez would have had to assist appellant in carrying out that offense with the specific intent to aid its commission. (People v. Lewis, supra, 26 Cal.4th at p. 369.) The record does not contain substantial evidence that they did so.
While it is clear appellant had been drinking before the accident, there is no evidence showing how he was behaving at the party or whether Martinez and Mendez knew he was intoxicated when they got into his car with him. Nor is there any evidence they intended to aid, or actually did aid, appellant in driving while he was under the influence. (Compare People v. Verlinde, supra, 100 Cal.App.4th 1146, 1167-1168 [victim actually helped the defendant drive while intoxicated, making him an accomplice and thereby rendering the great bodily injury enhancement inapt].) Rather, all Martinez did was ask if anyone at the party was sober enough to give him a ride, and all Mendez did was get in the car with the others. That is not substantial evidence they aided and abetted appellant. Accordingly, the trial court was not remiss for failing to instruct on accomplice liability. No instructional error has been shown.
Appellant also contends cumulative error compels reversal. However, in our view, none of the alleged errors, whether considered individually or combined, warrant a reversal of the judgment.
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DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.