Opinion
E032279.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. RAMON PEREZ PERAITA, Defendant and Appellant.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood, Supervising Deputy Attorney General, Frederick R. Millar, Jr., Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Ramon Perez Peraita of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)), during which he fled the scene (Veh. Code, § 20001, subd. (c)), and leaving the scene of an accident that resulted in death (Veh. Code, § 20001, subd. (a)), during which he inflicted serious bodily injury (Pen. Code, § 12022.7, subd. (a)). In bifurcated proceedings, he admitted having suffered four prior convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).) He was sentenced to prison for 15 years and appeals, contending his conviction for vehicular manslaughter must be reversed due to jury instruction error. We disagree and affirm both convictions, while directing the trial court to correct errors in the abstract of judgment.
FACTS
At 7:20 on a clear October 28, 2001, night, Peraita, driving at 50 or 60 miles per hour, ran a red light at a well-lit intersection in Montclair, hitting and killing a pedestrian who was crossing the street in the crosswalk. Peraita did not stop. When hit by the car, not only was the victim knocked out of his shoes, he was knocked out of his clothing. A short time later, Peraita called his sister and told her he had been going 65 miles per hour when he hit the victim. The posted speed limit was 40 miles per hour.
Peraita took the stand and denied that he was driving his car at the time of the collision. He had told a police officer the day after the collision that a mattress had fallen off a truck on the freeway and that was how his car was damaged.
ISSUES AND DISCUSSION
1. Jury Instructions on Speeding
As is pertinent here, the vehicular manslaughter instructions provided that the evidence must prove, inter alia, that Peraita "committed [¶] . . . [¶] . . . an unlawful act [¶] . . . [¶] . . . namely, a violation of [sections] 22350 and 21453(a) of the California Vehicle Code . . . ." The jury was told that the failure to stop at a red light constituted a violation of Vehicle Code section 21453, subdivision (a), but they were not instructed to what section 22350 referred. However, they were informed: "The basic speed law of this state is as follows: [¶] `No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of the highway, and in no event at a speed which endangers the safety of persons or property. [¶] A violation of the basic speed law is the commission of an act inherently dangerous to human life and safety, amounting to a misdemeanor or an infraction. [¶] The rate of speed at which a person travels, considered as an isolated fact and simply in terms of so many miles per hour, is not alone proof of a violation of the basic speed law."
"The law prescribes certain prima facie speed limits, different speeds being applicable to different areas and under different conditions. [¶] The prima facie speed limit which may be applicable to this case is as follows: 40 miles per hour. [& para;] If the evidence establishes beyond a reasonable doubt that the defendant drove a vehicle upon a highway at a rate of speed in excess of the prima facie speed limit, the defendant committed an unlawful act amounting to an infraction, unless the evidence raises a reasonable doubt as to whether his speed was greater than was reasonable or prudent, having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and a speed which endangered the safety of persons or property."
"The maximum speed law of this state on the highway involved in this case is as follows: [¶] `No person shall drive a vehicle upon a highway at a speed greater than 40 miles per hour. [¶] A violation of the maximum speed law is the commission of an unlawful act amounting to an infraction. . . ." (Italics added.)
The prosecutor made clear during her argument that Peraita was both speeding and he ran a red light.
Peraita takes issue with the italicized instruction, contending that it gave the jury the option of finding that he was speeding based merely on the fact that he was driving in excess of the posted speed law. He is correct and this was error. The Vehicle Code does not label as an infraction driving in excess of the posted speed limit. Rather, as the other two instructions reiterated above provide, it is a misdemeanor or infraction to violate the basic speed law (the first instruction), and if one exceeds the posted speed limit, that is prima facie proof of an infraction, which may be rebutted with evidence that raises a reasonable doubt as to whether the speed was "greater than was reasonable or prudent, having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and a speed which endangered the safety of persons or property" (the second instruction). The first instruction informed the jury that one cannot be convicted of violating the basic speed law merely because he or she traveled a particular number of miles per hour. Unfortunately, the jury was not told as part of the vehicular manslaughter instructions that Vehicle Code section 22350 was the basic speed law or how the second instruction given was merely a restatement of that law. Legally speaking, there remained no other basis than these two instructions for finding that Peraita was speeding, but the jury was, through the disputed instruction, given a third basis.
However, we conclude there is no reasonable probability that the jury would not have convicted Peraita of vehicular manslaughter had they not been given this disputed instruction. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) First, there was no evidence presented at trial that (1) Peraita did not drive at a speed greater than was reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property, or (2) raised a reasonable doubt about this. Second, as Peraita concedes in his argument concerning unanimity, his conviction for vehicular manslaughter could have been based on either speeding or running a red light. Because there was no error in connection with the latter instructions, that remains a legally unassailable basis for his conviction of vehicular manslaughter.
2. Unanimity Instruction
As already stated, both the instructions given and the prosecutors argument called upon the jury to convict Peraita of vehicular manslaughter if it found he was speeding and running the red light when he hit the victim. Because of this, we reject Peraitas present contention that the trial court erred in failing to give the unanimity instruction.
People v. Gary (1987) 189 Cal.App.3d 1212, which Peraita cites in support of his position, does not support it. Therein, the trial court failed to give the unanimity instruction where three different moving violations were charged as acts the defendant did which were forbidden by law, while he was under the influence and had a blood alcohol level greater than .10 percent. The defendant claimed he was not driving at the time. The appellate court found the failure to be harmless beyond a reasonable doubt, saying, "[T]he evidence was conclusive on [defendants] . . . driving the wrong way down a one-way street [which was one of the moving violations alleged], and this . . . supports the conviction." (Id. at p. 1218, last bracketed insertion added; accord, People v. Leffel (1988) 203 Cal.App.3d 575, 587.)
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect the fact that a three-year sentence was imposed for count 2 (Veh. Code, § 20001, subd. (a)) and stayed pursuant to Penal Code section 654. Also, the abstract incorrectly states that the enhancement for count 1 is pursuant to Penal Code section 20001, subdivision (c), when it is, in fact, Vehicle Code section 20001, subdivision (c). The trial court is directed to amend the abstract to correctly state the code involved. In all other respects, the judgment is affirmed.
We concur: RICHLI J. and GAUT J.