Opinion
D073965
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS RUBEN RAMIREZ, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS290571) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed as modified. Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Nicholas Ramirez was driving while highly intoxicated when he lost control of his vehicle and drove onto the sidewalk, killing a man who was sitting on a bus bench. Before this incident, Ramirez had twice been convicted of driving under the influence (DUI) and had been specifically warned he could be charged with murder if his DUI resulted in a death.
The jury found Ramirez guilty of second degree murder (Pen. Code, § 187, subd. (a)), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), felony hit-and-run (Veh. Code, § 20001, subds. (a) & (b)(2)), and several additional DUI-related charges. On the murder and manslaughter counts, the jury found true an alleged fleeing-the-scene enhancement. (§ 20001, subd. (c).)
All unspecified statutory references are to the Penal Code.
On the murder count, the court sentenced Ramirez to 15 years to life, plus a consecutive five-year term on the fleeing-the-scene enhancement. On the manslaughter count, the court imposed the same term (15 years to life, plus five years), but stayed the sentence under section 654. On the felony hit-and-run count, the court imposed three years, but stayed the sentence under section 654. The court dismissed two of the other counts, and imposed two concurrent six-month terms on the remaining counts.
Ramirez contends (1) the prosecutor committed misconduct in eliciting a statement that had been previously suppressed and/or in inaccurately describing the court's pretrial rulings; (2) the court improperly excluded evidence that other family members suffer from his mental health condition (panic disorder); (3) the court failed to instruct the jury on the effect of his panic disorder on the knowledge element of the hit-and-run count and fleeing-the-scene enhancement; and (4) the court erred in sentencing him on the fleeing-the-scene enhancement. Ramirez also argues his counsel provided ineffective assistance by failing to raise objections to some of the claimed errors.
We determine the court erred in imposing the fleeing-the-scene enhancement on the murder charge because that enhancement applies only to a manslaughter conviction. We conclude the appropriate disposition for this sentencing error is to modify the judgment. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution Case
In December 2016 at about 3:30 p.m., 28-year-old Ramirez went to a bar in a Chula Vista strip mall to watch football. His Mitsubishi sedan was parked in the parking lot. During the next three hours, Ramirez drank at least six alcoholic beverages. As he was leaving the strip mall in his car at about 6:35 p.m., he loudly struck a parked vehicle that belonged to a security guard at one of the nearby establishments. After he drove away, the security guard called 911 to report the incident.
About six minutes later, Ramirez drove back into the strip mall parking lot. At least 10 men were standing outside having heard the initial crash. Ramirez then exited the strip mall at a fast rate of speed as several of the men chased after his vehicle. Within a minute or two, he drove westbound about 30 to 40 miles per hour on a four-lane street when he came to a heavily-trafficked intersection. He ran a red light and almost hit a vehicle that was turning left to the northbound lanes. Ramirez then turned right, veering into the traffic lanes on the opposite side, lost control of his vehicle, and drove onto the sidewalk on the east side of the street. He struck a bus bench and the man sitting on the bench, and nearly struck a woman who managed to jump out of the way. Ramirez's car stopped when it hit a pole or tree. There were no brake marks on the pavement.
The man sitting at the bus stop (William Gerling) was thrown 20 to 30 feet. He suffered serious injuries (including partial amputation of his legs), and died about an hour later at the hospital.
Immediately after the collision, Ramirez exited his car, and walked or ran across the road. Coincidentally, his brother (Brother) was driving by with his wife and young children on their way to a fast food restaurant, and Ramirez entered Brother's car in the backseat. Within a minute or two, Brother drove into a nearby library parking lot and called their father (Father), who lives a few miles away. Brother told Father that Ramirez had been in an accident and asked him to pick them up so they could return to the accident site. Brother testified that Ramirez told him at some point (either before or after they reached the library) that he had been in an accident and he may have hurt someone or someone may have been hurt.
Although one prosecution witness thought Ramirez got out of the car and briefly looked toward the victim, other prosecution witnesses saw him leave the scene immediately and walk or run into the street.
When Father arrived at the library shortly after, Ramirez said he had been in an accident. Father testified that Ramirez said, " 'Take me back. I think I might have hurt somebody. I got in an accident.' " Father then drove Ramirez and Brother back to the accident scene.
When they arrived, Ramirez approached police officer Lamar Barrett (now Sergeant Barrett), who was coordinating law enforcement efforts at the scene. Ramirez told Sergeant Barrett he was the driver of the Mitsubishi car. According to Sergeant Barrett, Ramirez said "he is 5150 and be careful with him." Sergeant Barrett understood that to mean Ramirez "suffers from some sort of mental illness." Sergeant Barrett took him into custody.
At about 7:30 p.m., Officer Raul Naranjo arrived to evaluate Ramirez's intoxication level. He testified at trial that as he was beginning his DUI evaluation, Ramirez "blurted out on his own," the question, " 'Is he dead? I'm ready to deal with it.' " Defense counsel objected based on the court's pretrial Miranda rulings. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) After a lengthy discussion outside the jury's presence (detailed in Discussion, part I), the court overruled the objection.
Officer Naranjo then testified that after conducting the field sobriety tests, he concluded Ramirez was under the influence of alcohol and arrested him. By the time his blood was drawn at the police station, Ramirez's blood alcohol concentration was .217 percent. A criminalist opined that Ramirez's blood alcohol level when he was driving was between .20 and .28 percent.
The district attorney charged Ramirez with implied-malice second degree murder, gross vehicular manslaughter, and felony hit-and-run (among other offenses). To establish the conscious-disregard element for second degree murder, the prosecution presented evidence that Ramirez had two prior DUI convictions arising from two separate incidents in 2009, one of which involved a rollover accident. When Ramirez was convicted for each of these offenses, the court advised him about the dangers of drinking and driving, including that he could be charged with murder if he committed a DUI and someone was killed. Ramirez also attended mandatory education classes, during which he was given specific information about the dangers of drinking and driving, and was told he could be charged with murder if someone died as a result of his DUI.
Defense Case
Ramirez's main defense at trial was that he suffers from a panic disorder and he experienced a continuing panic attack or separate panic attacks the night of the incident, including: (1) after he first hit the security guard's vehicle in the strip mall parking lot; (2) after he returned to the strip mall parking lot and several men began to chase his car; (3) as he drove away from the strip mall parking lot and lost control of the vehicle; and (4) immediately after the collision when he ran or walked into the street and was found by his brother.
Defense counsel argued this defense negated the implied-malice element of murder and thus reduced Ramirez's culpability for Gerling's death to manslaughter. The court gave a requested pinpoint instruction on this defense as applied to murder. (CALCRIM No. 3428.)
Defense counsel also sought to argue Ramirez's panic disorder negated the "willfully" leaving-the-scene element in the hit-and-run charges (both the substantive hit-and-run count and the enhancement). But as discussed below, the court declined to give a pinpoint instruction on this issue and precluded defense counsel from arguing Ramirez's mental impairment was relevant to the willfulness element of these hit-and-run charges.
Ramirez did not testify at trial. But to factually support his mental impairment defense, he called an expert witness, Dr. Clark Clipson, a clinical and forensic psychologist, who opined that Ramirez suffers from a panic disorder, causing panic attacks. Dr. Clipson testified a panic attack is a "sudden intense onset of anxiety" in which the "person feels overwhelmed." He said the typical symptoms are "rapid heartbeat, . . . shallow breathing, . . . feeling of nausea, sweaty palms . . . during which time the person feels that they're just going to explode or be killed or they've just got to get out of where they are, this overwhelming drive to escape wherever they are." Dr. Clipson said that a panic attack can last from a few minutes to an hour.
Dr. Clipson testified that a panic attack can be triggered by a stressful event. In response to a hypothetical question, Dr. Clipson said a person could suffer from a panic attack if he returned to an area where he had struck one or more cars and it appeared that various people were directing angry emotions toward him. He also testified it is consistent for someone who had a panic attack to run away after an accident and when being confronted by potentially angry people "because . . . with the flood of emotion, the impulse is to get out of there and to escape the situation."
Dr. Clipson acknowledged that Ramirez had never before been diagnosed with a panic disorder or treated for any other mental health condition, but said it is common for people to have serious mental disorders without any history of treatment.
As discussed below, the court sustained the prosecutor's objection to evidence or argument that there is a family history of panic disorder in Ramirez's family. But the court allowed family members to testify to their observations of Ramirez's actions consistent with a panic attack.
Father testified when he first saw Ramirez at the library parking lot shortly after the incident, Ramirez looked scared and was shaking. Father said Ramirez's "body posture was like moving around a lot . . . shaking . . . . Terrible shaking and pale and he was sweating." Father also testified to several incidents during the previous 15 years during which Ramirez reacted in a similar panicked fashion after someone yelled at him or threatened him. Brother testified that shortly after the collision, he saw several angry men yelling and cursing at Ramirez, and chasing him into the street.
Verdict
The jury found the prosecution met its burden to prove the murder, gross vehicular manslaughter, and hit-and-run counts, and found true the fleeing-the-scene enhancement. The jury found the prosecution did not meet its burden on enhancement allegations that he had injured another bystander and that he failed to provide identification information to law enforcement officers.
DISCUSSION
I. Claimed Prosecutorial Error
Ramirez contends the prosecutor erred by eliciting testimony from Officer Naranjo (who conducted the field sobriety tests) about the statement made to him by Ramirez: " 'Is he dead? I'm ready to deal with it.' " He argues this was misconduct because the court had previously suppressed these statements as violating Miranda. He notes the prosecutor repeatedly referred to these statements during closing arguments to support both the murder and hit-and-run charges.
To properly evaluate this contention, it is necessary to describe the court's pretrial rulings in some detail.
A. Background Facts
1. Preliminary Hearing
At the preliminary hearing, Officer Naranjo testified that when he first contacted Ramirez, Ramirez began "volunteering some statements to me," including asking, " 'Is he dead?' " and " 'I'm ready to deal with it.' " Officer Naranjo said he then "proceeded with my standard DUI evaluation." He said during this evaluation, Ramirez voluntarily made statements about the fact he had been drinking at a bar and had lost control of the vehicle. Officer Naranjo acknowledged Ramirez was not advised of his Miranda rights until he was taken to the police station.
2. Pretrial Motions and Ruling
Several months later, in a motion in limine, the prosecutor sought permission to admit three of Ramirez's statements made to (unspecified) law enforcement officers. The prosecutor identified these statements as follows:
"a. 'Is he dead. I'm ready to deal with it.'For ease of reference, we initially refer to these statements as the A, B, and C statements.
"b. 'I ran that way. Out of fear because I knew I hit somebody. Whoever that was I hope that guy is alive.'
"c. 'If he is dead I swear to God that I will go to jail for the rest of my life. I will do my time.' " (Italics added.)
At the first in limine hearing, defense counsel objected to the admission of each of the three (A, B, and C) statements as violating Miranda. The court then asked the parties to file written briefing on the Miranda issue. In her papers, the prosecutor argued that when he made the three statements, Ramirez was not in custody and/or the statements occurred in the context of the DUI evaluation. In his papers, defense counsel argued the statements violated Miranda because Officer Naranjo was the "interrogating officer" and he knew Ramirez had been arrested and was in custody when he was asking him questions about the incident.
At the continued hearing, the prosecutor noted that Ramirez's statements were captured on an officer's body-worn camera, but she was not seeking to admit the video into evidence because the video was confusing to watch as it captured various radio calls and other activities at the scene. She also described that Ramirez had contact with three different officers when he returned to the scene: Sergeant Barrett (the coordinating officer whom Ramirez first approached); Officer Lopez (who then placed Ramirez in handcuffs in the police vehicle awaiting an intoxication evaluation); and Officer Naranjo (who conducted the intoxication evaluation).
The prosecutor said that when Officer Lopez was placing Ramirez in his vehicle, Ramirez asked him about the victim's condition. The prosecutor argued this statement was admissible because it was made voluntarily to Officer Lopez. The prosecutor said Officer Naranjo came to the scene about 18 minutes later and conducted the field sobriety tests and analysis of Ramirez's intoxication level. She then summarized the 30-minute interaction between Officer Naranjo and Ramirez, and said Officer Lopez videotaped this interaction using his body-worn camera. The prosecutor asked the court to watch the video for purposes of ruling on Ramirez's Miranda motion.
In response, defense counsel argued he had never before received any information that Ramirez asked Officer Lopez about the victim's condition, and thus objected to the admission of this statement. The court said it would watch the video to view the context of Ramirez's challenged statements to properly rule on the Miranda issues.
At the next hearing, the court indicated it had watched two of the body camera videos provided by the prosecutor (identified as Officer Lopez's second and third video clips, which we also viewed). The second video clip depicts Officer Lopez placing Ramirez into the officer's vehicle. At about minute four of the clip, Officer Lopez asks Ramirez whether he has any weapons, and Ramirez then spontaneously asks Officer Lopez, "Is he alive?" The third video clip shows Officer Naranjo obtaining identifying information from Ramirez and then performing field sobriety tests. Before performing the field sobriety tests, Officer Naranjo asked Ramirez, "What happened?" and extensively questions him about his drinking and what he did before and after the collision. During this portion of the third video clip, Ramirez makes the B and C statements identified in the prosecutor's motion.
The court and counsel then had the following discussion:
"THE COURT: [I]t's the second video clip . . . that has the defendant being contacted by one of the officers. And at approximately four minutes in on that clip, the officer questions the defendant as to whether he had a gun or not. [¶] [T]hat is the video where the defendant does apparently spontaneously ask if the victim is alive. [¶] So that was the statement that you wanted to introduce; is that correct?
"[PROSECUTOR]: Correct. . . .
"THE COURT: That statement alone?
"[PROSECUTOR]: Yeah. I want the officer to be able to say, you know, when I was talking to him, this is one of the things that he asked me.
"THE COURT: The third video clip is the clip of Officer Naranjo conducting the field sobriety tests and asking all those questions.
[¶] . . . [¶]
"[W]e already know that he's been arrested. . . . They've already determined they're going to arrest him for something. And [the prosecutor] conceded that he was in custody at the time that these questions were being asked. [¶] So my concern is: . . . can you sprinkle in a bunch of other non-FST [field sobriety test] questions with your FST questions? And that appears to be what the officer is doing here. And I'm concerned about the admissibility of the[se] statements if [they] go[ ] beyond just the [initial questions about contacting an individual]." (Italics added.)
After additional discussion, the court continued the hearing to allow defense counsel to file additional written briefing. At the next hearing, the court stated its ruling as follows:
"[On] the Miranda issue. And I'll just cut to the quick. [¶] I've watched the video, I've thought a lot about the timing of the FST questions and I've also reviewed the motion that [defense counsel] has filed today. . . . [¶] And I agree with the defense. By the time that the interview had occurred, the defendant was in custody. He was arrested and he was suspected of various crimes, . . . [¶] And the questions, although they're typical pre-FST questions, are sprinkled throughout a discourse that the officer has with the defendant. [¶] And given the totality of the questioning, I do find that it was more than just [pre-FST] questions and it was an interrogation.
"So I am going to grant the motion to suppress the defendant's statements.
"Now, there are some spontaneous statements that appear, and if you would like to further address those specifically, we can."
The prosecutor responded by reasserting that the A, B, and C statements identified in her motion in limine were voluntary and made spontaneously. After defense counsel again objected, the court stated: "[A]s I was viewing . . . video [clip] two on the disk you gave me, [Ramirez] does spontaneously ask [Officer Lopez] if the victim is alive . . . [and] it was not in response to a question." When the court continued to discuss this issue, it then mistakenly referred to the "Is he alive" statement on the Lopez second video clip as the "Is he dead, I'm ready to deal with it" statement, but the prosecutor then clarified for the court: "For the Court's information, . . . the first [A statement], Your Honor, the defendant is in . . . Officer Lopez's vehicle. [¶] The officer initially is questioning the defendant about whether or not there's a firearm and the defendant then asks [Officer Lopez], 'Is he alive?' " (Italics added.)
The court and counsel then discussed that the B and C statements on Officer Lopez's third video clip were distinguishable from the A statement made to Officer Lopez because the B and C statements were made following Officer Naranjo's "What happened" question:
"THE COURT: Let's confirm who these statements are being made to. [¶] It's Officer Lopez.
"[PROSECUTOR]: The first one [the A statement] is to Officer Lopez and the last two are to Officer Naranjo.
"THE COURT: And they're made—statements B and C are made at the same time as statement A? Is that made around the same time?
"[PROSECUTOR]: Statement A is made actually when he's still in the back of Officer Lopez's patrol vehicle and Officer Naranjo has not yet arrived on-scene.
"THE COURT: I see a difference between statements B and C [on the one hand] and A. [¶] . . . B and C are in response to the officer's question as to what happened. [¶] With A, the officer is asking [Ramirez] about a firearm and it appears to be a separate subject from the driving and the DUI or the vehicular homicide. It's a question regarding whether there's a weapon and the statement is not in response to . . . the weapon question. [¶] I'm inclined to suppress B and C. They're not spontaneous. But A . . . I will find is.
"[¶] . . . [¶]
"THE COURT: As to A, you may introduce that statement into evidence, the spontaneous statement to Officer Lopez. [¶] Are you going to simply have Officer Lopez testify that he made that statement?
"[PROSECUTOR]: Yes.
"THE COURT: [Ramirez's] [m]otion to suppress statements B and C [identified] on page nine, section five of the People's motion in limine is granted." (Italics added.)
3. Trial Testimony
Officer Lopez did not testify at trial, but Officer Naranjo testified on the fourth day. Outside the jury's presence and before Officer Naranjo's testimony, the prosecutor asked for clarification of the pretrial Miranda ruling. She said she told Officer Naranjo "the only statement of the defendant that he would be allowed to testify to was the very first statement," and Officer Naranjo had responded by asking if he was permitted to testify about a statement made by Ramirez during the field sobriety tests concerning the sidewalk being uneven. The court replied that the "earlier statement I allowed in because I ruled it was a spontaneous statement," and the uneven sidewalk statement appeared to be a similar permissible statement. Defense counsel said he had no problem with the uneven sidewalk statement, but did not address any issues or ask for clarification regarding the "first" statement.
Officer Naranjo then testified before the jury that after he arrived at the scene at about 7:30 p.m., he contacted Ramirez and began to conduct a DUI evaluation. The following questioning then occurred:
"[PROSECUTOR]: When you were beginning your DUI evaluation did the defendant make any sort of spontaneous statement to you as you were beginning your investigation?
"[OFFICER NARANJO]: Yes, he did.
"[PROSECUTOR]: What did he say to you?
"[OFFICER NARANJO]: One of the first statements that he blurted out on his own was, 'Is he dead? I'm ready to deal with it.' "
Defense counsel immediately asked for a sidebar, and raised an objection:
"[DEFENSE COUNSEL]: That statement was made to Officer Barrett. There has been no testimony that Officer Naranjo was present when that statement was made.
"THE COURT: That's not my recollection of the video. My recollection of the video was that there was another officer who was recording [Officer] Naranjo's interaction with the defendant.
"[PROSECUTOR]: That's Officer Lopez. [¶] . . . [¶] There was a statement that was . . . in Officer Naranjo's report as a statement that the defendant made to him. [¶] This was something that [Ramirez] had also said . . . to Officer Lopez. [¶] . . . [¶] [T]his was one of the initial statements he made to Officer Naranjo, which the court had ruled, upon reviewing all of the videotape, that this was something that could come in.
"THE COURT: And it's on the video. [¶] Am I correct . . . that the disk that you provided the Court and the basis for my ruling was I
was looking at Lopez's video/body-worn camera of the interaction with Naranjo and the defendant?
"[PROSECUTOR]: You had both, Your honor. You had both of Naranjo's videos with the defendant. [¶] And it does show up on both Lopez's body-worn camera of the interaction between the two of them as well as Officer Naranjo's video of the two of them as well. [¶] . . . [¶] You looked at both.
"[DEFENSE COUNSEL]: My recollection is somewhat different, that this . . . statement, which we've already let in—I'm not necessarily objecting to the statement itself. But there's been no foundation. [¶] And if, in fact, it's the same statement but made later, it's covered. [¶] [And] I believe [this statement] has already been testified to by Sergeant Barrett.
"[PROSECUTOR]: My recollection is that we had extensive pretrial regarding the statement of the defendant. [¶] I laid out the three statements that I was seeking to get and this was the exact statement that the Court allowed me to get in through this witness.
"THE COURT: Yes, Counsel, that's my recollection. [¶] Now did Officer Barrett testify to this statement?
"[PROSECUTOR]: No.
"[¶] . . . [¶]
"[DEFENSE COUNSEL]: The truth is I can always be wrong. But I do try to pay attention. [¶] And my recollection is [Sergeant] Barrett testified to this statement already.
"[¶] . . . [¶]
THE COURT: There was no statement elicited from [Sergeant] Barrett yesterday regarding the substance of what has just been testified, 'Is he dead?' [¶] And yes, I completely agree with [the prosecutor] that the subject of the pretrial rulings dealt with [those] statements. [¶] I looked at the video. The video that is on my mind is the video that is from Agent Lopez's perspective because I can see both of them in there and I believe that's the video I'm referencing. [¶] But regardless, my ruling allowing in the statement 'Is he dead' is what the witness has just testified to. [¶] And the witness said he blurted it out. The witness didn't say he told me or he told that
person. The witness said that's what he heard him say." (Italics added.)
When defense counsel continued to argue the point, the court reiterated that it had previously "ruled specifically that that statement was a spontaneous statement and that it was admissible. [¶] The rest of the DUI questions regarding how much he had to drink and all those other issues I ruled were in violation of Miranda and . . . you [defense counsel] won that battle. [¶] [The prosecutor] has elicited one of the statements that I have ruled was admissible."
Although the prosecutor referred in her argument to Officer Naranjo's body-camera videos, the pretrial record shows the court relied only on Officer Lopez's videos in ruling on the Miranda motion.
After a recess, the court expressed concern to defense counsel about his relitigating issues already decided, and defense counsel responded: "My recollection was that that statement was made . . . to . . . Sergeant Barrett. I was only objecting to it on that basis." (Italics added.)
When Officer Naranjo resumed testifying, his testimony was as follows:
"[PROSECUTOR]: Mr. Naranjo, as you were . . . introducing yourself at the beginning part of your DUI evaluation, did the defendant make any statements to you?
"[OFFICER NARANJO]: Yes he did.
"[PROSECUTOR]: What statement did he make?
"[OFFICER NARANJO]: A voluntary statement that he made was to me was 'Is he dead? I'm ready to deal with it.' "
B. Legal Standard for Prosecutorial Error
" 'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.' " (People v. Rangel (2016) 62 Cal.4th 1192, 1219 (Rangel).) Generally, a defendant must object at trial on the same ground to preserve the error for appeal. (Ibid.) A prosecutor's error can result in reversal even if the error was unintentional and in good faith. (People v. Potts (2019) 6 Cal.5th 1012, 1036; People v. Crew (2003) 31 Cal.4th 822, 839; People v. Alvarez (1996) 14 Cal.4th 155, 213.)
C. Analysis
Ramirez contends the prosecutor committed misconduct by eliciting Officer Naranjo to testify that Ramirez asked him, " 'Is he dead? I am ready to deal with it.' " Ramirez argues this was misconduct because the statement "had been suppressed as violative of Miranda" during pretrial proceedings. (Capitalization omitted.)
Before addressing this contention, we note that Ramirez did not argue at trial, and does not argue in his appellate brief, nor would we find, the admission of this spontaneous statement violated Miranda. When the prosecutor asked Officer Naranjo whether Ramirez had made any spontaneous statements when he first began his investigation, Officer Naranjo said, "One of the first statements that he blurted out on his own was, 'Is he dead? I'm ready to deal with it.' " (Italics added.) Even if a suspect is in custody, Miranda does not preclude the admission of a voluntary statement that was not in response to a question by an officer. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1086-1087.)
Ramirez does not challenge this point. Instead, his sole appellate argument is that the prosecutor engaged in wrongful conduct because she elicited a statement that had been suppressed and/or misled the court to believe it had previously ruled the statement was admissible. The argument is unavailing.
First, with respect to Ramirez's assertion that the court had previously suppressed the " 'Is he dead? I am ready to deal with it' " statement, this argument is factually unsupported. The court's ruling granting Ramirez's motion to suppress the B and C statements—which were made after Officer Naranjo asked "What happened?"—did not encompass statements made before that time. Officer Naranjo testified at trial that Ramirez made the " 'Is he dead? I'm ready to deal with it' " statement to him before the field sobriety tests began. Defense counsel was on notice of this testimony because it is identical to Officer Naranjo's testimony at the preliminary hearing. Although defense counsel referred to this testimony at the in limine hearing, he never obtained a ruling that this statement was inadmissible.
Regarding the prosecutor's assertions at trial that the court had already ruled admissible the "Is he dead? I am ready to deal with it" statement, there was clearly confusion as to the court's pretrial rulings. Although the court and the prosecutor apparently believed the court had already ruled this statement was admissible, it had not. The record shows Officer Naranjo testified to this statement during the preliminary hearing and the prosecutor identified this statement in her initial in limine motion as the "A" statement. But after the court watched Officer Lopez's two video clips, the prosecutor's reference to the "A" statement morphed from the "Is he dead? I am ready to deal with it" statement to the "Is he alive" statement made to Officer Lopez. The court specifically ruled only that this A statement made to Officer Lopez was admissible as a spontaneous statement, and that the B and C statements made after Officer Naranjo asked, "What happened" were inadmissible. The court did not rule on the "Is he dead?" statement made to Officer Naranjo.
But this mistake in recalling the earlier ruling is not material because in response to defense counsel's objection at trial, the court made clear that even if it had not previously ruled that the statement was admissible, it would make that finding based on its reasoning that voluntary statements before the field sobriety test began were admissible, and Officer Naranjo testified that Ramirez "blurted out" the statement before he began the field sobriety test. Ramirez does not challenge the propriety of this ruling.
Additionally, immediately before calling Officer Naranjo as a trial witness and outside the jury's presence, the prosecutor said she wanted to clarify the court's pretrial Miranda rulings and that she intended to ask Officer Naranjo about a "first" spontaneous statement made by Ramirez. Defense counsel did not object, and the court then permitted the prosecutor to ask the question. A prosecutor does not engage in improper trial tactics when he or she gives notice of an intention to ask a particular question, defense counsel does not object, and the court expressly grants the prosecutor permission to do so. There was nothing about the prosecutor's conduct concerning Officer Naranjo's testimony that "infect[ed] the trial with . . . unfairness" or reflected a "deceptive or reprehensible" trial tactic. (Rangel, supra, 62 Cal.4th at p. 1219.)
For similar reasons, we reject Ramirez's alternative argument that his counsel provided ineffective assistance because he created confusion, including by arguing incorrectly that Officer Barrett had already testified to the "Is he dead? I am ready to deal with it" statement and/or by failing to accurately describe the court's pretrial rulings at trial. To prevail on an ineffective assistance claim on appeal, the defendant has the burden to show a reasonable probability that but for counsel's deficient performance, the outcome of the proceeding would have been different, i.e., a "probability sufficient to undermine confidence in the outcome." (People v. Johnson (2016) 62 Cal.4th 600, 653; see People v. Mai (2013) 57 Cal.4th 986, 1010.)
Ramirez did not meet this standard. First, there is no showing the "Is he dead? I am ready to deal with it" statement had been suppressed or that there was a valid basis for suppression. Additionally, the statement was cumulative of the other unchallenged evidence that Ramirez had already told Brother and Father he believed he might have hurt someone in the accident. The fact that the statement to Officer Naranjo referenced the victim's possible death did not materially prejudice his case.
We likewise reject Ramirez's argument that the court erred by failing to "recall and know its own pretrial rulings," and thus by "allowing suppressed evidence violative of Miranda to be used to prove [his] guilt." The trial court never suppressed the challenged statement during the pretrial proceedings, nor was there any basis for doing so. Although there was confusion among the court, prosecutor, and defense counsel regarding the precise statement that had been ruled admissible, this confusion did not affect the propriety of the court's trial rulings. Additionally, the challenged discussions about the pretrial rulings occurred outside the jury's presence and thus could not have negatively impacted the jury's consideration of the issues.
II. Evidence of Mental Health Records of Sister and Aunt
Ramirez contends the court erred when it precluded his expert, Dr. Clipson, from relying on the medical records of his sister (Sister) and aunt (Aunt) to bolster Dr. Clipson's opinion that Ramirez suffers from a panic disorder.
A. Background
At trial, Ramirez's main defense to the murder charge was that he did not act with implied malice when he lost control of his vehicle because he was suffering from a mental impairment (a panic attack), triggered when the group of men chased him from the strip mall after he returned to the mall. His counsel also argued he suffered or was still suffering from a panic attack immediately after the collision, and this attack negated the willfulness element in the hit-and-run count and fleeing-the-scene enhancement.
As discussed in part III, the court instructed on this defense pertaining to the murder count, but refused to instruct or permit him to argue his claimed mental impairment had relevance to the willfulness element of the hit-and-run count or the fleeing-the-scene enhancement. For the reasons discussed, we find the latter instructional rulings did not constitute prejudicial error.
To enhance the credibility of this defense, Ramirez sought to show he suffered from a panic disorder and that other family members (Sister and Aunt) also suffered from a panic disorder. His counsel argued the family history evidence was highly relevant to undermine arguments that he manufactured this mental condition for purposes of trial (he was first diagnosed with panic disorder when he was evaluated by Dr. Clipson after his arrest for the current offenses).
The prosecutor countered the evidence of his claimed panic disorder and the family history of the condition was irrelevant and should be excluded. The court conducted numerous hearings on this issue outside the jury's presence. Eventually, the court held an Evidence Code section 402 hearing to allow the court to evaluate the proposed evidence (including the testimony of Dr. Clipson, Brother, Father, and Mother) to determine the admissibility of the panic disorder diagnosis and family history evidence.
Of relevance to the family history issue, at the Evidence Code section 402 hearing, Dr. Clipson testified he had diagnosed Ramirez with a major depressive disorder, a panic disorder, and generalized anxiety disorder. He testified there is a strong likelihood that other family members suffer from similar disorders because they are "highly heritable." He testified that "for panic disorder, . . . there's a lifetime risk of developing panic disorder of 41 percent if you have a first-degree relative, meaning a parent or sibling, who also has panic disorder."
After learning that Sister and Aunt suffer from mental health issues, Dr. Clipson reviewed their medical records to determine whether there was any hereditary link. Based on that review, Dr. Clipson testified that Sister had been diagnosed with schizophrenia. Defense counsel asked Dr. Clipson, "based on your training, experience and knowledge of the statistical evidence . . . do you see any connection between the diagnoses of my client and the diagnoses of his . . . sister? Dr. Clipson responded, "Yes. [¶] . . . [T]here is a strong genetic component to both their diagnoses. [¶] There's also—particularly when you consider this is true with the aunt as well. [¶] They all three are being treated with Celexa. The fact that . . . a psychiatrist has a variety of choices when it comes to choosing an antidepressant and, in all three cases, are choosing to treat them with Celexa. That tells me that there's something about the genetic makeup of this family that's responsive to the chemical aspects of Celexa."
After defense counsel completed his Evidence Code section 402 examination, the prosecutor said she had never received Sister's or Aunt's medical records upon which Dr. Clipson relied for his opinions. Defense counsel responded he thought he had produced those records. The court tentatively ruled that if the records had not been produced, it would exclude any testimony regarding Dr. Clipson's review of Sister's and Aunt's medical records, including any testimony about prescribed medications.
The prosecutor then conducted an Evidence Code section 402 cross-examination of Dr. Clipson. During this questioning, Dr. Clipson testified he had learned independently (not from the medical records) that Sister suffers from schizophrenia. In response to the prosecutor's question as to whether there is any genetic connection between schizophrenia and panic disorder, Dr. Clipson said he was unaware of "any research talking about a connection between those two conditions." Based on that response, the prosecutor argued Sister's diagnosis was not relevant and should be excluded.
On redirect, Dr. Clipson reconfirmed it is an accepted scientific fact that mood disorders (identified as depression, bipolar disorder, and anxiety disorder) are inheritable. But Dr. Clipson testified, "[t]he only diagnosis the sister had at [the hospital] was schizophrenia," which is not a mood disorder.
After Brother, Mother, and Father testified at the hearing about their observations of Ramirez pertaining to panic attacks symptoms, the court ruled on the prosecutor's objections to the panic disorder evidence.
First, over the prosecutor's objections, the court said it would allow Dr. Clipson to testify about Ramirez's panic disorder diagnosis, and would permit testimony by Father, Mother, and Brother regarding their prior observations of Ramirez exhibiting physical manifestations of panic disorder, including Father's testimony about Ramirez's conduct in the library parking lot after the collision.
But the court granted the prosecutor's motion to exclude Dr. Clipson's reliance on the Aunt's and Sister's medical records (including the information about the Celexa prescriptions) because defense counsel had confirmed he did not provide the documents to the prosecution (which counsel said was an inadvertent mistake). The court stated that with respect to information learned outside the record regarding Sister's schizophrenia diagnosis, Dr. Clipson's testimony did not support a link between schizophrenia and a panic disorder, so the evidence of Sister's schizophrenia was not relevant. The court thus ruled all family history evidence was inadmissible.
B. Analysis
Ramirez contends the court erred in excluding Dr. Clipson's reliance on the medical records of Sister and Aunt as a discovery sanction for failing to timely provide those records to the prosecutor before trial. The Attorney General concedes "[t]o the extent that the trial court excluded the evidence as a discovery sanction, . . . the exclusion would have been improper," but argues the court's ruling was proper on other grounds.
We agree the court erred by imposing the exclusion sanction without first relying on lesser sanctions, particularly without any finding that the failure to produce the records was in bad faith. (See § 1054.5, subd. (c); People v. Edwards (1993) 17 Cal.App.4th 1248, 1261-1263.) But we also agree with the Attorney General that Dr. Clipson's proposed testimony was improper on other grounds. Most important, his testimony about his review of the medical records was properly excluded because it was inadmissible hearsay. (People v. Sanchez (2016) 63 Cal.4th 665, 684 (Sanchez).) When an expert relates to the jury "case-specific" out-of-court statements, and treats the content of those statements as true and accurate to support the expert's statement, the statements are hearsay. (Id. at pp. 682-684, 686.)
The prosecutor objected on this basis at trial. Although the court did not discuss the hearsay issue when it made its final ruling, the prosecutor had raised the Sanchez hearsay objection earlier in the proceedings in response to defense counsel's discussion of the medical records, and the court had indicated it believed this to be a valid objection. Defense counsel's sole response was that the California Supreme Court's Sanchez decision is invalid because it violates federal law (an issue he did not reassert at trial or on appeal). This novel argument is without merit. The Sanchez decision is binding in California, and fully consistent with federal law.
Additionally, even if Dr. Clipson was permitted to testify about the information in the medical records, there is no reasonable probability of a more favorable outcome. There was no information in the records that either the Sister or Aunt had been diagnosed with a panic disorder or any other type of mood disorder. To the contrary, Dr. Clipson acknowledged that Sister's medical records show she had been diagnosed only with schizophrenia, and he admitted the scientific literature does not show a genetic link between schizophrenia and a panic disorder. There was no testimony about Aunt's diagnosis, and Dr. Clipson testified that the genetic connection pertaining to a panic disorder is generally with a first-degree family member such as a parent or sibling.
The sole basis of Dr. Clipson's opinion regarding a family history of panic disorder was the fact that Ramirez, Sister, and Aunt had each been prescribed the same antidepressant medication (Celexa). However, there was no information as to the basis for this prescription, for what condition it was prescribed, or whether there was any connection between this drug and a panic disorder.
On this record, any error was harmless. There is no reasonable probability the jury would have reached a different verdict if Dr. Clipson had been permitted to testify about Aunt's and Sister's medical records. (People v. Gallardo (2017) 18 Cal.App.5th 51, 76; see People v. Page (2008) 44 Cal.4th 1, 42.)
III. Pinpoint Instruction on Hit-and-Run and Fleeing-the-Scene Offenses
Ramirez contends the court erred in failing to give a pinpoint instruction informing the jury that his mental health condition (panic disorder) was relevant to negate the knowledge element in the hit-and-run charges (the substantive count and the enhancement). (See CALCRIM No. 3428.)
A. Background
Vehicle Code section 20001 contains two types of penalties for leaving the scene of a vehicular accident when someone is injured or dies; one is a substantive offense (felony hit-and-run; Veh. Code, § 20001, subds. (a) & (b)) and the other is an enhancement for vehicular manslaughter (Veh. Code, § 20001, subd. (c)). On the substantive crime, a driver involved in an accident resulting in injury or death to another person must "immediately stop the vehicle at the scene of the accident" and fulfill specified duties pertaining to identification, reporting, and rendering aid. (Veh. Code, §§ 20001, subd. (a), 20003, 20004.) On the enhancement, a five-year additional sentence may be imposed if the defendant "fle[d] the scene of the crime after committing" vehicular manslaughter. (Veh. Code, § 20001, subd. (c).)
Under settled law, felony hit-and-run is a general intent crime, but actual or constructive knowledge of the injury is an essential element. (People v. Holford (1965) 63 Cal.2d 74, 79-80 (Holford); People v. Nordberg (2010) 189 Cal.App.4th 1228, 1237 (Nordberg).) "[C]riminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." (Holford, at p. 80, italics added; People v. Harbert (2009) 170 Cal.App.4th 42, 53.) This same knowledge element also applies to the fleeing-the-scene enhancement. (Nordberg, at p. 1238.)
It is undisputed the jury was properly instructed on these principles. As to the felony hit-and-run count, the court instructed the jury that the People must prove Ramirez "willfully failed to . . . immediately stop at the scene of the accident" and he "knew that he had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person had been injured." (Italics added; see CALCRIM No. 2140.) On the enhancement allegation, the court instructed the jury with identical language on the actual or constructive knowledge element and told the jury the defendant must have "willfully fled the scene of the accident." (See CALCRIM No. 2160.) Each of these instructions also informed the jury that, "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage." (Italics added.)
In addition to these instructions, Ramirez requested the court to give a pinpoint instruction (CALCRIM No. 3428) that evidence of his mental disorder could be considered on the murder and hit-and-run charges. (See People v. Larsen (2012) 205 Cal.App.4th 810, 830.) On the murder count, defense counsel argued Ramirez's panic disorder was relevant to whether the People met its burden to prove the implied malice element. On the hit-and-run charges, defense counsel argued Ramirez's impaired mental state was relevant on the issue whether the People met its burden to show his leaving the scene was "willful." Defense counsel asserted that the evidence showed Ramirez left the scene solely as a result of his panic attack, and therefore the jury could find he did not leave "willingly or on purpose."
The court agreed to give the pinpoint instruction pertaining to malice on the murder count, but declined to give it on the hit-and-run charges concerning the willfulness issues. After reviewing the Bench Notes to CALCRIM No. 3428, the court reasoned that Ramirez's mental state was irrelevant to these charges because they were general intent offenses. The court also barred defense counsel from arguing that the jury could consider his mental state when considering whether the prosecution met its burden on the willfulness element of the hit-and-run charges.
Thus, on the mental-impairment pinpoint issue, the court instructed the jury with CALCRIM No. 3428 as follows:
"You have heard evidence that the defendant may have suffered from a mental disease or defect or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder."
B. Contention
On appeal, Ramirez contends the court erred in failing to include in the CALCRIM No. 3428 instruction that the jury could consider his mental health condition (panic disorder) when determining whether the People met its burden on the hit-and-run count and fleeing-the-scene enhancement. However, instead of reasserting that his panic disorder was relevant to the "willfulness" element on these charges, his appellate counsel now argues the need for the pinpoint instruction was triggered by the knowledge element. He argues that reasonable jurors could have found he did not have "actual or constructive knowledge that the vehicle collision had injured Gerling because he was disoriented and confused about what actually happened when his panic attack propelled him to flee from this stressful event."
C. Legal Principles
Generally, a defendant's mental disorder is admissible to show the prosecution has not met its proof burden on a mental state required for the charged offense. (Pen. Code, § 28.) Thus, if the crime requires specific intent, the jury is permitted to consider evidence of the defendant's mental impairment on the issue of whether the defendant possessed this intent, and a pinpoint instruction should be given if requested. (See People v. Coddington (2000) 23 Cal.4th 529, 582, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Thiel (2016) 5 Cal.App.5th 1201, 1209; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1404-1411.) But for a general intent crime, the defendant's mental impairment is irrelevant and thus no pinpoint instruction is warranted, unless the prosecution must prove a specific mental state, such as actual knowledge, and the mental impairment is relevant to show the absence of that mental state. (People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 (Reyes); see People v. Mendoza (1998) 18 Cal.4th 1114, 1131-1134; Thiel, at p. 1209; People v. McGehee (2016) 246 Cal.App.4th 1190, 1204-1205.) This exception to the general rule is explicitly set forth in the CALCRIM No. 3428 Bench Notes, which states: "Evidence of mental impairment may not be considered for general-intent crimes, unless there is an element, such as knowledge, that requires a specific mental state."
Under these principles, although second degree murder requires only an intent to perform the act, a defendant's mental disorder is admissible to negate implied malice because the implied malice element " 'requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life . . . .' " (Reyes, 52 Cal.App.4th at p. 984; see People v. Whitfield (1994) 7 Cal.4th 437, 450 (Whitfield).) Similarly, as this court held more than 20 years ago, evidence of a defendant's mental disorder is relevant to the general intent crime of receiving stolen property to show the defendant lacked the required element of knowledge that the property had been stolen. (Reyes, supra, 52 Cal.App.4th at pp. 982-986.)
Whitfield involved a voluntary intoxication defense. (Whitfield, supra, 7 Cal.4th at p. 446.) After Whitfield, the Legislature amended the statutes to provide voluntary intoxication is not admissible on the implied malice issue, thus superseding Whitfield's precise holding. (§ 22; Stats. 1995 ch. 793, § 1.) This amendment did not affect the admissibility of mental impairment evidence on the implied malice issue. --------
D. Analysis
Relying on these authorities, Ramirez argues the court should have included the hit-and-run and fleeing-the-scene charges in the CALCRIM No. 3428 pinpoint instruction because his mental impairment was relevant to show he did not know that someone was injured in the collision before he left the scene. (See Reyes, supra, 52 Cal.App.4th at pp. 983-986.) The Attorney General does not challenge that the CALCRIM No. 3428 mental impairment instruction potentially applies to these charges on the knowledge element, but contends there was no reversible error because (1) Ramirez forfeited the claim as he did not seek the CALCRIM No. 3428 pinpoint instruction on the knowledge issue; (2) there was insufficient evidence to support the giving of the instruction on the knowledge element; and (3) there was no prejudicial error because of the strength of the evidence that Ramirez knew or should have known a person was likely injured in the accident.
Because we agree there was no prejudicial error, we do not reach the first two arguments. Even assuming Ramirez preserved the error and there was sufficient evidence to show Ramirez suffered a panic attack sufficient to preclude his immediate awareness of the victim's injury, the pinpoint instruction on the knowledge-of-injury issue would not have changed the outcome of the trial under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
"In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled." (People v. Tate (2010) 49 Cal.4th 635, 696.) Here, the jury was told that knowledge of injury was an essential element of the hit-and-run count and enhancement allegation, and that it could not find Ramirez guilty of these charges unless the People established beyond a reasonable doubt he knew or should have known it was likely an injury had occurred. Further, as given, CALCRIM No. 3428 informed the jury that the evidence of Ramirez's mental disorder could be considered "for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime." Although the instruction then referred to the murder count without reference to the hit-and-run charges, neither this instruction, nor any other instruction, suggested to the jury that it could not consider Ramirez's panic disorder on the issue whether he knew an injury had likely resulted from the collision.
Moreover, the prosecution was required to prove actual or constructive knowledge, which could be established if the accident was of such a nature that "it was reasonably likely to result in an injury to another person." (Holford, supra, 63 Cal.2d at pp. 79-80; Nordberg, supra, 189 Cal.App.4th at pp. 1237-1238.) It was undisputed Ramirez was aware he was in a horrific accident. He lost control of his vehicle after he ran a red light traveling at about 30 to 40 miles per hour and then crashed (without braking) into a bus bench on the sidewalk. This accident occurred in the early evening in a busy intersection where one would reasonably expect pedestrians, particularly at or near a bus stop. There was a person sitting on the bench and several people walking near the bench. Brother and Father both testified that within minutes of the collision Ramirez admitted that he thought he had "hurt" someone, even though he was purportedly still suffering from the panic attack. Father said Ramirez was shaken, sweaty, and had trouble breathing when he referred to a victim. This evidence overwhelmingly established that Ramirez had actual or at least constructive knowledge of the possibility of an injury triggering a duty to stay at the scene under the circumstances.
Further, Dr. Clipson's expert testimony about panic disorder focused on the issue of why a person who is experiencing a panic attack would have a compulsion to leave the scene of the accident. He never opined that a panic attack would preclude a person's awareness of his or her surroundings. Although it is reasonable to conclude that a panic attack could affect a person's ability to fully appreciate external events, Dr. Clipson never stated or suggested this would mean a person would have no ability to understand a major incident had just occurred, such as an injury following a high-speed collision with a bus bench.
In evaluating prejudice, it is additionally relevant that the jury was instructed with the pinpoint instruction on the murder count but rejected Ramirez's argument that his panic disorder precluded him from forming the requisite state of mind for second degree murder (implied malice). Although Ramirez argues the jury could have found he did not suffer a panic attack when he was being chased from the strip mall but did suffer a panic attack after the bus-bench collision, it is much more likely the jury would have reached a similar conclusion on both crimes because the two events occurred within two or three minutes and were highly similar in that they both involved a collision and Ramirez allegedly being threatened and chased by several men.
On this record, we are fully confident the jury would not have decided differently had it been specifically told in the CALCRIM No. 3428 pinpoint instruction that it could consider Ramirez's mental state for purposes of evaluating whether the prosecution met its burden on the knowledge element of the hit-and-run charges.
We reject Ramirez's related argument that the claimed instructional error was "compounded" when the court failed to include in the CALCRIM No. 252 instruction (Union of Act and Intent) that with respect to the hit-and-run charges Ramirez " 'must not only intentionally commit the prohibited act' he 'must do so with a specific mental state.' " Even assuming the court had a sua sponte duty to add this language, the jury was specifically instructed on the knowledge element applicable to the hit-and-run count and the enhancement. On the record before us, there is no possibility that including the identified language in the CALCRIM No. 252 instruction would have affected the jury verdict.
Although not explicitly asserted, we would reject Ramirez's additional contention that his counsel provided ineffective assistance because he did not argue to the jury that his panic attack negated the knowledge element of the hit-and-run charges (the court denied only defense counsel's request that he be permitted to argue his mental impairment defense on the willfulness issue). The record does not affirmatively disclose that counsel had no rational tactical purpose for omitting this mental impairment argument on the knowledge element. (See People v. Carter (2003) 30 Cal.4th 1166, 1223.) Given the overwhelming evidence showing Ramirez's actual and/or constructive knowledge of the injury, counsel could have reasonably concluded that such argument would weaken the overall defense.
IV. Alleged Cumulative Error
Ramirez contends that even if we find harmless error when evaluating his contentions individually, the cumulative errors denied him due process. We disagree. Considered together, the court's challenged rulings did not affect the fairness of the trial. Ramirez had the full opportunity to present his case and to defend against the prosecution's evidence. A criminal defendant is entitled to a fair trial, not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
Ramirez also contends that even if we reject each of his individual ineffective assistance arguments, he was deprived of effective assistance of counsel when these arguments are considered together. We disagree. Viewed collectively, Ramirez's contentions do not establish there was no reasonable tactical basis for counsel's actions and/or that it is reasonably likely the result would have been different had his attorney made proper objections.
V. Sentencing Error
Ramirez contends the court erred in imposing the five-year fleeing-the-scene enhancement (Veh. Code, § 20001, subd. (c)) on the murder conviction.
The jury found true the fleeing-the-scene enhancement alleged on both the murder and the gross vehicular manslaughter counts. On the murder count, the court sentenced Ramirez to 15 years to life, plus a consecutive five-year term on the enhancement. On the manslaughter count (§ 191.5, subd. (a)), the court imposed the same term with the five-year enhancement (15 years to life, plus five years), but stayed the sentence under section 654.
The fleeing-the-scene enhancement statute provides for a five-year additional sentence for a manslaughter conviction under section 191.5 (gross vehicular manslaughter while intoxicated) or section 192, subdivision (c)(1) (vehicular manslaughter). (Veh. Code, § 20001, subd. (c).) By its terms, the enhancement does not apply to murder.
The court thus erred by imposing the five-year enhancement on the murder count. The Attorney General agrees this was error, but asks this court to modify the judgment by (1) striking the enhancement on the murder count; (2) staying the murder count under section 654; and (3) imposing the 15 year to life sentence on the manslaughter count, along with the consecutive five-year Vehicle Code section 20001, subdivision (c) enhancement.
Ramirez counters that because the court had the discretion whether to impose the Vehicle Code section 20001, subdivision (c) enhancement, the proper remedy is to remand for resentencing for the court to reexercise its discretion.
We conclude the Attorney General's approach is correct under the circumstances. When sentencing on the murder count, the court said it understood it had the discretion to strike the fleeing-the-scene enhancement in the interests of justice, but declined to do so based on the particular circumstances of Ramirez's conduct and his prior DUI history, which included his twice fleeing the scene of an accident, and repeated warnings about the consequences of drinking and driving. The court then stated it would impose the five-year enhancement on the gross vehicular manslaughter count "under the same rationale as stated above for [the murder count]," but stayed the imposition of this sentence under section 654. (Italics added.)
On this record, we are satisfied that on remand, the trial court would impose the five-year enhancement on the gross vehicular manslaughter count, and stay the murder count. Thus, a remand for resentencing would not benefit Ramirez and would waste judicial resources. Under our inherent authority to correct an unauthorized sentence and for judicial economy purposes, we modify the judgment rather than remand for the court to do so.
DISPOSITION
We order the judgment modified by (1) striking the Vehicle Code section 20001, subdivision (c) enhancement on count 1 (murder); (2) staying the 15 years to life sentence on count 1 (murder) under section 654; (3) removing the section 654 stay on the sentence on count 2 (vehicular manslaughter) and the enhancement; and (4) imposing the 15 year to life sentence on count 2 (vehicular manslaughter), along with the consecutive five-year Vehicle Code section 20001, subdivision (c) enhancement. The superior court shall amend the abstract of judgment accordingly and send the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.