Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 01CF2322 William R. Froeberg, Judge.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
After a jury convicted defendant Arturo Ortiz of two counts of second degree murder (Pen. Code § 187, subd. (a)) he made a motion for new trial, which the court denied. The court sentenced him to a 15-years-to-life term for each count, to run concurrently.
We conditionally reversed the judgment, finding the trial court used the wrong standard in ruling on defendant’s new trial motion, and remanded the matter with directions to reconsider the motion using the proper standard. (People v. Ortiz (June 30, 2004, G031530) [nonpub. opn.].) The trial court again denied the motion and reinstated the judgment after applying the correct standard.
Defendant appeals claiming that because there was insufficient evidence of implied malice, the motion should have been granted. Defendant’s contention lacks merit because there was substantial evidence supporting a finding of implied malice, including defendant’s alcohol consumption prior to the accident and his high risk driving. Therefore we affirm.
FACTS
One evening in August 2001, defendant was driving his truck home after picking up his girlfriend Elizabeth Iglesias. He had had a few drinks earlier in the afternoon. When another truck pulled up beside him at a red light, both trucks sped up. Defendant was driving between 60 and 80 miles per hour, despite the 40 mile per hour speed limit. When his girlfriend asked him why he was speeding and told him to slow down, defendant did not respond. At one point when the other driver stepped on his brakes defendant veered to the left, driving over the median into oncoming traffic and striking another car driven by Jose Estrada. Estrada and one of his passengers were killed.
Officer Alan Berg responded to the scene and spoke to defendant who stated he was driving 55 or 60 miles per hour and had been racing the other truck. Defendant was later interviewed at the U.C. Irvine Medical Center where he said he had consumed two bottles of beer after work and another 12-ounce can of beer at home, and then left to pick up his girlfriend at 5:45 p.m. Defendant’s blood was later drawn and it was determined that he had a blood-alcohol level of.07 percent.
Defendant had completed a National Traffic Safety Institute driving under the influence program after he pleaded guilty to violating Vehicle Code section 23152, subdivision (b), driving a vehicle while having a blood alcohol level of.08 or above, in August 1999. The program consisted of 10 group sessions and 10 educational sessions covering topics, including the dangers of drunk driving and the physical impact of alcohol on the body. Each session ended with a reminder not to drink and drive.
DISCUSSION
Defendant claims his motion for a new trial should have been granted because there was insufficient evidence of implied malice to support his convictions of second degree murder. We review a claim of insufficient evidence in the record in its entirety, considering the evidence most favorably to the prevailing party, and determine whether any rational trier of fact could have found the prosecution proved its case beyond a reasonable doubt. (People v. Medina (2009) 46 Cal.4th 913, 919.) We do not sit as the trier of fact to decide whether the evidence proves guilt beyond a reasonable doubt. Rather, we determine if “substantial evidence supports the conclusion of the trier of fact....” (People v. Kainzrants (1996)45 Cal.App.4th 1068, 1076.) “Substantial evidence is evidence that is ‘“reasonable, ... credible and of solid value”’ [citation]” (People v. Medina, supra, 46 Cal.4th at p. 919), and the “testimony of a single witness is sufficient evidence to support a conviction” (People v. Young (2005) 34 Cal.4th 1149, 1181).
“Murder is the unlawful killing... of a human being with malice aforethought” (Pen. Code, § 187, subd. (a)) and may be express or implied” (Pen. Code, § 188). Malice “is implied[] when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) “Implied malice requires that the defendant act with a wanton disregard of the high probability of death. [Citations.]” (People v. Moore (2010)187 Cal.App.4th 937, 941.) The defendant must “‘“know[] that his conduct endangers the life of another and... act[s] with conscious disregard for life.”’ [Citations.]” (People v. Martinez (2003) 31 Cal.4th 673, 684.)
“‘Implied malice... may be proven by circumstantial evidence. [Citations.]’ [Citation.]” (People v. James (1998) 62 Cal.App.4th 244, 277.) Malice may be found even if the act causes an accidental death. (People v. Contreras (1994) 26 Cal.App.4th 944, 954.) The rule of implied malice applies to vehicular homicide cases. When “the facts demonstrate a subjective awareness of the risk created, malice may be implied. [Citation.] In such cases, a murder charge is appropriate.” (People v. Watson (1981) 30 Cal.3d 290, 298.)
In Watson, the defendant consumed alcohol then drove recklessly, killing two people when he collided with their car. In a pretrial proceeding, the defendant argued the facts did not support the charge of second degree murder. The court concluded defendant’s conduct “reasonably viewed, exhibited wantonness and a conscious disregard for life....” (People v. Watson, supra, Cal.3dat p. 295.) This supported a finding of implied malice, in turn justifying the murder charge against the defendant. (Ibid.)
The court in Watson presumed the “defendant was aware of the hazards of driving while intoxicated.” (People v. Watson, supra, 30 Cal.3d at p. 300.) It cited the defendant’s conduct in driving through city streets at high speeds, his near collision with another car after running a red light, and his delayed attempt to brake before the fatal crash as “suggesting an actual awareness of the great risk of harm which he had created.” (Id. at p. 301.) While many cases, including Watson, involve an intoxicated defendant or a high-speed chase, “the absence of intoxication or high speed flight from pursuing officers does not preclude a finding of malice.... Where other evidence shows ‘a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied.’ [Citation.]” (People v. Contreras, supra, 26 Cal.App.4th at p. 955.)
There is ample evidence in this case showing implied malice, both from defendant’s drinking on the day of the collision and his being aware of the danger of speeding and reckless driving. Defendant contends that alcohol was not shown to be any sort of factor in this case and that he was not shown to be impaired. He also asserts it was not “shown beyond a reasonable doubt that [his] blood alcohol level was illegal or hazardous.” Regardless of the fact defendant was found not guilty of driving with a blood alcohol content of.08 percent, alcohol was a contributing factor to the incident. Officer Brett Nelson interviewed defendant at the hospital following the collision. Defendant stated he left work at 3:00 p.m., drank two bottles of beer, then drove home and had a 12-ounce can of beer 30 to 45 minutes before he went to pick up his girlfriend Iglesias at approximately 5:45 p.m. Karina Aguirre, a friend of the defendant, met him for drinks at 5:45 p.m. She saw defendant consume two mixed drinks and receive a third one.
Additionally, because of the alcohol education classes defendant had taken in the past, he knew the dangers of drinking and driving. Further he had a prior conviction for driving a motor vehicle while having a blood alcohol content of.08 percent or higher. Thereafter defendant attended a program for DUI offenders. Topics covered in the program included the laws relating to drinking alcohol and the consequences of drinking and driving. The program also included information relating to how alcohol affects the brain and body, risk taking, judgment, and loss of inhibition, and the risks to oneself and to others when one drives while under the influence. Courts have consistently looked to the driving records of the defendant and any educational programs attended in determining the existence of implied malice. (People v. Ricardi (1990) 221 Cal.App.3d 249, 254 [the defendant knew dangers of drinking and driving once he completed alcohol rehabilitation programs and participated in counseling]; People v. McCarnes (1986) 179 Cal.App.3d 525, 534.)
In addition to defendant’s drinking, the evidence supports the conclusion defendant was racing and driving at excessive speeds without regard for the safety of other drivers. Defendant argues there was no “objective indication at the time of driving that [he] was aware that his driving was such as to pose a danger to life.” This argument fails. “Whether [the defendant] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [the defendant] was aware of the risk.” (People v. Moore, supra, 187 Cal.App.4th at p. 941.) There was evidence of defendant following another truck too closely, abrupt lane changes, and reckless driving.
Three eyewitnesses presented evidence of defendant’s speeding and his racing of another truck. Eyewitness Julia Stringer saw a black truck approaching her and defendant’s truck right behind it. She stated that “[t]hey seemed to be going the same speed... [and] were bumper to bumper.” Both trucks flew past her going more than twice her speed and she estimated their speed to be at least 80 miles per hour. She then saw defendant’s truck swerve towards oncoming traffic after slamming on its brakes in response to the black truck braking.
Eyewitness Julio Cordero stated: “you couldn’t help it to see that [the trucks] were going at a high speed...” and also testified they were driving much faster than he was. The trucks were weaving and jerking between lanes, failing to signal.
Defendant’s girlfriend Iglesias, who was his passenger, stated defendant was going between 70 to 80 miles per hour where the speed limit was 40 miles per hour. She said defendant was racing a black truck. In fact, defendant himself acknowledged he was racing the other truck.
Defendant contends that at the time of the accident he was “try[ing] to prevent an accident” but he failed to present the evidence in the light most favorable to the judgment. The jury and the judge’s ruling on the motion for new trial evaluated the evidence. We do not reweigh it on appeal. (People v. Panah (2005) 35 Cal.4th 395, 487-488.) Defendant cites numerous cases that include factors showing evidence of implied malice, arguing those factors are not present in this case. While true those cases do have factors not present here, none of them holds that implied malice could not be found in the absence of those facts. The question of implied malice is to be decided in light of all the circumstances. (People v. Contreras, supra, 26 Cal.App.4th at p. 955.) Here, a properly instructed jury found implied malice and under all circumstances that finding was reasonable.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J.IKOLA, J.