Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR025574. Edward P. Moffat II, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Antonio Preciado Palaminos stole a vehicle, collided with another vehicle and killed five people. He was convicted by the trial court of second degree murder, gross vehicular manslaughter while intoxicated, vehicle theft and various other offenses. On appeal, he contends (1) there was insufficient evidence he was intoxicated, (2) there was insufficient evidence he harbored implied malice and (3) the prosecution utilized improper hypothetical questions. We will affirm.
PROCEDURAL SUMMARY
On January 22, 2007, defendant was charged with five counts of murder (Pen. Code, § 187, subd. (a); counts 1-5); five counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); counts 6-10); hit and run (Veh. Code, § 20001, subd. (a); count 11); two counts of vehicle theft (Veh. Code, § 10851, subd. (a); counts 12-13); attempted vehicle theft (§ 664; Veh. Code § 10851, subd. (a); count 14); grand theft (§ 487, subd. (a); count 15); and driving without a license (Veh. Code, § 12500, subd. (a); count 16). As to the five vehicular manslaughter counts, the information also alleged defendant had fled the scene (Veh. Code, § 20001, subd. (c)).
All statutory references are to the Penal Code unless otherwise noted.
Following a court trial, the court found defendant guilty of all charges and found the enhancement allegations true. The court sentenced defendant to 75 years to life (five consecutive terms of 15 years to life) on the murder counts (counts 1-5), plus a determinate term of four years on the theft and hit-and-run counts. The court stayed five 6 year terms for the vehicular manslaughter counts, plus five 5-year enhancements for fleeing the scene.
FACTS
On July 3, 2006, 36-year-old Celia Berber and her family were visiting Celia’s mother in Modesto. They left Modesto in their Toyota at about noon and headed for home in Lindsay. Celia was driving and her husband, Balentin Llerenas, sat in the front passenger seat. Their three children, sixteen-year-old Sulema Alvarez, 10-year-old Andoney Llerenas and four-year-old Brian Llerenas, were in the back seat.
A., an equipment driver with a special license to pull heavy equipment, decided to stop by his father’s house on Road 29. A. was driving a Chevy heavy-duty pickup truck pulling a bulldozer on a trailer (together, the rig). A. was the only person who drove the truck, and he had attached the trailer and bulldozer himself. The trailer was a “fifth wheel” or gooseneck trailer that sat over the truck’s rear axle. The bulldozer was tied down to the trailer with binders and chains in both front and back, as required by law. When the truck was pulling weight, it was harder to stop, but the brakes on the truck and the trailer were regularly maintained and serviced. That day, A. had set the truck’s brake controller to 7.5 out of 10 to accommodate the load he was pulling and the brakes were working well with the load.
Shortly before A. arrived at his father’s house, his relative, B., was outside the house. B. noticed a man across the street, about 45 feet away, looking into the neighbor’s car. The man was thin and in his twenties. He was wearing a dark shirt and pants and was carrying some type of black bag. B. paid little attention because she thought the man was one of the neighbor’s friends. She went back inside the house. Later, the neighbor’s car was found in disarray.
When A. arrived at his father’s house, he parked the rig on the side of Road 29. He left the keys in the ashtray and the doors unlocked. He went in to check on his father and returned in 10 minutes to find the rig gone. He had not given anyone permission to take it. He looked down the road and saw the rig in the distance.
C., a contractor in heavy equipment, was driving a full-sized pickup truck on Road 29 when he saw the rig about one-half mile away and approaching in the wrong lane. The rig rode on the shoulder of the wrong lane, crossed back to the other side of the road, and then almost ran off the shoulder on that side. The trailer was “sliding.” Dust from the shoulder flew up from the back of the truck and the trailer. The rig then traveled in the proper lane as it approached C.’s truck. C. had slowed to about 25 miles per hour as he watched the rig. The rig again drifted completely into the wrong lane, traveling at a “pretty fast pace,” and the vehicles were about one hundred yards apart. C. took evasive action, driving his truck entirely off the road and onto the shoulder. If he had not done so, the rig would have hit him head-on. As he drove off the road, C. thought the truck was going to hit his door panel directly, but then the truck drifted back into its lane, and C. thought the trailer and bulldozer would sideswipe his truck. C. looked directly at defendant because C. wondered if he knew the driver and if the driver even saw him there. Defendant’s eyes were open wide and he “looked like he was absolutely scared to death.” The trailer did not swerve, but it missed C.’s truck by about 12 inches. C. was grateful he had not been killed. C. continued to watch the rig as it passed and he saw no brake lights. He also heard no sound of the trailer braking, a distinctive sound with which he was very familiar. He watched the rig in his rearview mirror until it went over a hill and out of sight.
D., a painting contractor, was painting the interior of a building on Road 29. At about 1:00 p.m., he went out to his van to start cleaning up. As he stood in the parking lot, he noticed the rig traveling at a “pretty good rate of speed” on Road 29. He was concerned because he knew there was a stop sign up ahead at Avenue 12. After the rig went by, D. heard brakes lock up, followed by a crash. He looked up from his van and saw a car in flames. D. called 911 and drove toward the crash.
Defendant had driven through the stop sign. The truck collided with the Toyota carrying Celia and her family and pushed it into the bridge rail. As the truck ran into the bridge rail, the trailer jackknifed and hit the car a second time. The car caught fire.
E. was driving on Avenue 12, preparing to turn, when he suddenly saw the rig pushing the Toyota up against the rail. E. parked in front of D.’s van and got out. He saw defendant running away from the scene and in his direction. Defendant looked anxious and scared. E. told him he should go back to the accident. Defendant got angry and asked E. who he was and why he (defendant) had to answer to him. Defendant took off his shirt and cleaned some blood off his arms and shoulders. He said something nonsensical about his sister being there and he continued past E.
E. ran to the scene and saw Celia on the ground beside the Toyota, which was in flames. E. and two other men pulled her away from the car. E. saw four burning figures still inside. Celia asked for water and someone poured water on her face. Celia told them her name, and the name and telephone number of her mother.
D. saw defendant flag down a pickup truck with his shirt. Defendant got in the truck and it drove away.
When F., a paramedic, arrived, the Toyota was still on fire and Celia was on the pavement. Celia was completely alert and oriented. She was aware of what was going on. She had a broken ankle and arm, and about 70 or 75 percent of her body had second and third degree burns. She told F. that “some bastard had hit her with the … white truck and that he took off running and that the car caught on fire and everybody was still inside.” She said the truck had cut in front of her. She told F. her name and told her to go help her children and husband. She said she could not believe what was happening; she was aware that her husband and children were still in the burning car. She kept telling F. not to help her, but to go help her children. She told F. she wanted to die. F. transported Celia to University Medical Center in Fresno.
Celia’s husband and three children, who had incurred various injuries in the collision, burned to death in the car. Later, Celia also died from her burns.
An officer arrived to find the Toyota crushed against the rail and burned. Four burned figures remained inside. Celia had been taken to the hospital. A black T-shirt was hanging on the gooseneck portion of the trailer. In the debris field around the truck, the officer found a black CD case and various papers in the name of the neighbor who lived on Road 29. The papers included the neighbor’s car registration.
The accident investigation team determined that the truck hit the Toyota and pushed it sideways in the direction the truck was traveling and into the bridge rail. The truck was rated to carry 22,000 pounds and it was 8,467 pounds overweight at the time. This had a detrimental effect on its braking ability, as though the rig had been going 10 miles per hour faster than it was, but there was still ample distance (751 feet) for the rig to stop between the stop ahead sign and the stop sign. The approach to the sign was inclined and slightly curved. If defendant had merely taken his foot off the throttle at that point, the rig would likely have come to a stop at the sign.
The speed limit on Road 29 was 55 miles per hour. Two digital security cameras on a nearby business allowed officers to calculate defendant’s speed on Road 29 as between 61 and 65 miles per hour.
The sensing and diagnostic module in the truck revealed that about five seconds before the air bags were deployed, the truck was going 61 miles per hour and the brakes were not in use. About three seconds before deployment, the truck was going 52 miles per hour and the brakes were activated. About two seconds before deployment, the truck was going 44 miles per hour and the brakes were still activated. Thus, defendant had attempted to stop the truck.
More precisely, these events were recorded in relation to the activation of the air bag system, not the deployment of the air bags, which occurred about 0.12 seconds after activation.
At about 6:20 p.m. on the same day, an officer was dispatched to Mearl’s Market. A male had reported being assaulted, but had hung up on the dispatcher without giving his name or any other information. When the officer entered the market, he could locate no victim and the clerk was aware of none. The officer exited and saw a blue Chevy van parked nearby. Defendant was sitting in the driver’s seat. The officer asked him if he knew of any assault victims in the vicinity. Defendant said he had seen the victims walking down a particular street. The officer searched for the victims, then returned to the blue van where defendant was still sitting. Defendant was looking around inside the van. He was sweating and appeared nervous. He smelled strongly of alcohol, which was consistent with having consumed alcohol within the last hour or two. Defendant never told the officer he had been attacked, that he was running from anyone or that he was scared. The officer noticed some wires hanging underneath the steering column area and he thought defendant was trying to hot-wire the van.
The officer recalled being briefed on a hit-and-run accident earlier in the day. The suspect had tattoos, scratches on his arms and was wearing Adidas shoes. The officer observed tattoos on defendant and asked him to lift up his sleeve. Defendant had long scratches on his left arm. When defendant removed his shirt, the officer saw a bruise on his neck and left chest area, which the officer recognized as the type sustained when wearing a seat belt during a vehicle collision. Defendant was wearing Adidas shoes. The officer arrested defendant, but did not inform him he was suspected of being involved in an accident in which people had died.
The owner of the van, who lived near Mearl’s Market, had not given defendant permission to be inside his van.
F., the paramedic, was dispatched to Mearl’s Market regarding an assault. When she arrived, two or more officers were present. F. administered medical aid to defendant, who claimed he had been beaten up by three men. He had multiple abrasions and bruising to his arms and chest. He had an abrasion to the left clavicle that was consistent with a seat belt mark and an automobile accident. Defendant was very rude. He made several remarks, even though no one was speaking to him. He said he did not understand why he was under arrest because he had not killed anyone and had not done anything. Defendant was slurring his speech, he smelled of alcohol and his eyes were red and glossy. F. asked him if he had been drinking or taking drugs, and he said he had not. Defendant was transported to the hospital by ambulance.
An officer also observed that defendant smelled of alcohol and was unsteady on his feet. The officer believed defendant was under the influence of alcohol.
An officer rode along in the ambulance. Defendant was smiling and appeared to be under the influence of alcohol. The officer saw no sign that defendant was under the influence of a stimulant or a narcotic. When defendant was informed at the hospital about the death of the three children and their father, he smiled and laughed.
A nurse in the emergency room spoke Spanish and was able to translate for the other nurses and the officers. When the nurse spoke to defendant, he told her that “he had four tall beers, the 40 ounces, and that he had used meth that morning.”
On cross-examination, the nurse explained more specifically that she asked defendant “[D]o you drink today[?]” and “Do you use drugs[?]” Defendant said he drank four tall beers—his actual words were “‘Cuatro cervezas de la botella grande’”—and used methamphetamine. The nurse could not recall if she had asked him when he drank the beers. She did ask him when he used methamphetamine and he said he had used it that morning.
A nurse’s note in the medical records stated that defendant “admit[ted] to drinking and methamphetamine use today[.] $20 bag of meth ingested by smoking and 4 tall beers[.]”
Defendant’s blood was drawn at 9:17 p.m. It contained 0.14 percent alcohol and 100 nanograms methamphetamine per milliliter.
A criminalist testified as an expert on the effects of alcohol. The prosecutor presented the expert with a hypothetical question regarding a 150-pound male who started drinking at approximately 4:00 a.m. and finished drinking at approximately 11:00 a.m., consumed four 40-ounce malt liquors at six percent alcohol, and had a 0.14 percent blood-alcohol level at 9:17 p.m. The prosecutor asked the expert for his opinion regarding the male’s blood-alcohol percentage at 1:00 p.m. The expert worked back from the 9:17 p.m. percentage and opined that the percentage at 1:00 p.m. would have been between 0.14 and 0.31. The prosecutor then asked the expert to consider the same question, but without considering the 9:17 p.m. percentage. The expert worked forward from the alcohol consumed and answered that the percentage at 1:00 p.m. would have been 0.18. The prosecutor asked the expert variations on these hypothetical questions.
A toxicologist testified that defendant’s blood would have contained about 200 nanograms per milliliter at about 1:00 p.m. The toxicologist testified that methamphetamine can impair a person’s ability to drive, but the toxicologist could not form an opinion regarding whether defendant was impaired at the time he was driving because the toxicologist did not know when defendant ingested the methamphetamine, how much he ingested, how often he ingested it or any facts regarding his physical or mental performance that day. The toxicologist explained that the effect of methamphetamine in general is “to rev your body up for action [like] the fight or flight reaction ….” It can make a person more alert and can counteract some of the effects of a central nervous depressant, such as alcohol.
A few months before the collision, on May 11, 2006, at about 11:10 p.m., an officer stopped defendant after witnessing him back a van into the wrong lane of traffic. The officer observed that defendant had a strong odor of alcohol, slurred speech and red, watery eyes. Furthermore, defendant did not have a license. He said he had consumed two beers at about 6:30 that evening. The officer arrested defendant for driving under the influence and took him to jail.
Defense Evidence
Defendant testified that on July 3, 2006, he drank three 16-ounce King Cobra beers between about 8:00 and 9:00 a.m. He explained he was carrying a black CD case when he realized he was being followed by four gang members. He ran to the truck and drove away to save his life. He tried to brake before he got to the curve ahead of the stop sign, but the brakes did not work.
After the collision, he ran to where he saw a friend, who drove him to a store and gave him ten dollars to buy beer. He bought two 40-ounce King Cobra beers and began to drink them. He saw the four gang members again and called the police to report that he was being beat up. He hid inside the van so the men would not find him. He tried to start the van so he could flee if necessary.
On cross-examination, defendant admitted not having a driver’s license. He did not remember telling officers that he did stupid things when he was drunk.
Rebuttal Evidence
An officer testified that when he interviewed defendant after his arrest, defendant first claimed that a friend named Jose had been driving the truck. Then defendant admitted crashing the truck. He admitted he was drunk at the time of the crash and he said he did stupid things when he was drunk. He said he drank four 16-ounce beers the morning of the collision. He said he got in the truck and adjusted the radio to his favorite station. Prior to the collision, he was traveling approximately 65 miles per hour. He did not mention being chased by anyone. He said he braked late going into the curve. After the collision, he was afraid of the fire and feared the truck would explode.
DISCUSSION
I. Motion for Judgment of Acquittal
At the conclusion of the prosecution’s case-in-chief, defense counsel unsuccessfully moved for a judgment of acquittal on counts 1 through 10, pursuant to section 1118, which provides:
“In a case tried by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”
Section 1118.1 provides for the same motion in a jury trial.
On a motion for judgment of acquittal under section 1118, the trial court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient to find the defendant guilty beyond a reasonable doubt. (See People v. Harris (2008) 43 Cal.4th 1269, 1286 [§ 1118.1]; People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) The sufficiency of the evidence is tested at the point the motion is made. (§ 1118; see People v. Stevens (2007) 41 Cal.4th 182, 200; People v. Cole, supra, at p. 1213.)
Appellate review following the denial of a section 1118 motion requires examination of evidence on the record up to the time of the motion to determine if the evidence was legally sufficient at that point to sustain a verdict of guilty. (People v. Trevino (1985) 39 Cal.3d 667, 695 [§ 1118.1 motion; where motion is made at the close of prosecution’s case-in-chief, reviewing court tests sufficiency of the evidence “as it stood at that point”; discussing the policies underlying that rule of law], overruled on other grounds in People v. Johnson (1989) 47 Cal.3d 1194; People v. Ringo (2005) 134 Cal.App.4th 870, 880 [§ 1118 motion; “reviewing court must view the evidence as it stood at the end of the prosecution case”]; People v. Smith (1998) 64 Cal.App.4th 1458, 1464 [§ 1118.1 motion; reviewing court considers only the evidence in the record at the close of the prosecution’s case].) The question is one of law, subject to independent review. (People v. Cole, supra, 33 Cal.4th at p. 1213.)
Thus, California does not apply the federal waiver rule, which holds that “where a defendant testifies after the denial of a motion to dismiss and that testimony supplies any deficiency in the prosecution’s case, he may not complain on appeal of the erroneous denial of the motion ….” (In re Anthony J. (2004) 117 Cal.App.4th 718, 730.)
We therefore examine the record up to the point of defendant’s motion to determine the sufficiency of the evidence—that is, “‘whether [the record] contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We view the record in the light most favorable to the prosecution and we draw all reasonable inferences in support of the judgment. (Ibid.; People v. Wader (1993) 5 Cal.4th 610, 640.)
II. Sufficiency of the Evidence—Gross Vehicular Manslaughter
Defendant was convicted of five counts (counts 6-10) of gross vehicular manslaughter while intoxicated. Defendant contends the evidence was insufficient to support those convictions when he made his motion for acquittal because there was insufficient evidence to establish that he was impaired by alcohol or drugs at the time of the collision. We disagree.
A conviction under section 191.5, subdivision (a) requires “(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed.” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, italics added.) A person is “intoxicated” or “under the influence,” for purposes of section 191.5, “‘when as a result of [drinking an alcoholic beverage or ingesting drugs] his physical or mental abilities are impaired so that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances.’” (People v. Gallardo (1994) 22 Cal.App.4th 489, 492-493.)
Here, the prosecution presented in its case-in-chief evidence of defendant’s erratic driving immediately before the collision. Defendant drove over the speed limit, swerved all over the road, nearly drove off the side of the road, almost hit a truck head-on, and failed to brake in time to stop for a stop sign. This evidence supported a reasonable inference that defendant was impaired when he was driving. In addition, the nurse’s testimony that defendant told her he drank four beers and ingested methamphetamine that morning provided additional support for the inference that he was intoxicated.
In light of this evidence, we conclude there was substantial evidence at the end of the prosecution’s case to prove that defendant was intoxicated when he drove the rig and collided with the Toyota. Thus, the trial court properly denied defendant’s section 1118 motion for acquittal on counts 6 through 10.
III. Sufficiency of the Evidence—Second Degree Murder
Defendant also contends there was insufficient evidence of implied malice to support the second degree murder convictions in counts 1 through 5. He argues there was insufficient evidence that he was subjectively aware that his conduct endangered the lives of others. He again points to missing evidence of intoxication. We find these contentions without merit.
“Murder is the unlawful killing of a human being... with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) Stated another way, “[m]alice is implied when the killing is proximately caused by ‘“an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’ [Citation.] In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143; see also People v. Taylor (2004) 32 Cal.4th 863, 868.) This is a subjective standard: the defendant must have actually appreciated the risk involved. (People v. Watson (1981) 30 Cal.3d 290, 297.)
We conclude there was also sufficient evidence on the record at the end of the prosecution’s case to support the finding of implied malice. Ample evidence established defendant was put on notice that his driving was dangerous to the lives of those around him and he continued to drive despite his awareness of the risk he posed. He drank alcohol and ingested methamphetamine that morning. He previously had been arrested for driving under the influence. He drove a stolen truck attached to a piece of heavy equipment, the handling and braking of which would naturally be different than an ordinary vehicle. He not only had no special license to operate the vehicle, he had no driver’s license at all. He was in fact unable to control the rig, to the point that he could not keep it in the correct lane or even on the road. He nearly collided head-on with an oncoming driver, who had to take evasive action to prevent a potentially fatal collision. Defendant’s fearful expression as he drove indicated he was aware of his inability to drive the rig safely. But, instead of slowing down or stopping the rig, he proceeded at a high speed, knowing he was unable to control the rig. He finally attempted to brake, but it was too late. He ran the stop sign and killed an entire family. We have no reservations regarding the quantum of evidence supporting the five murder convictions in this case.
IV. Drinking Hypothetical
Defendant lastly contends the trial court erred by allowing a prosecution expert to offer opinions based on improper hypothetical questions regarding alcohol consumption. Defendant argues there was no evidence to support the facts of the hypothetical questions and therefore they constituted prosecutorial misconduct. Alternatively, he contends the expert’s opinions in response to the questions were inadmissible because they lacked adequate evidentiary foundation or because they were unreliable and irrelevant.
We believe any error resulting from the prosecutor’s hypothetical questions was harmless. (See People v. Boyette (2002) 29 Cal.4th 381, 448-453 [prosecutor’s hypothetical question based on facts not in evidence constitutes misconduct, which is subject to harmless error analysis]; People v. Dean (2009) 171 Cal.App.4th 1252, 1264 1265 [erroneous admission of expert testimony is subject to harmless error analysis].) As we concluded above, there was substantial evidence that defendant was intoxicated while driving, even without the evidence obtained through the hypothetical questions (upon which we did not rely to reach that conclusion). Moreover, the allegedly improper testimony produced with the hypothetical questions was elicited in a court trial without a jury, and absent a contrary showing, we will presume the court disregarded irrelevant matters and followed the law. (See, e.g., Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 606 [presumption court considered only admissible evidence]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [presumption court followed proper standard]; People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [court presumed to have considered only relevant evidence].) In sum, it is not reasonably probable defendant would have received a more favorable verdict had the trial court prohibited the prosecutor from asking the hypothetical questions. (People v. Watson (1956) 46 Cal.2d 818, 836.) Because we do not believe any error here rose to federal constitutional dimensions, we need not apply the higher standard of Chapman v. California (1967) 386 U.S. 18.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.