Opinion
G053237
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. DANILO ARTURO ROCA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CF2963) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Danilo Arturo Roca appeals from a judgment after the jury convicted him of second degree murder and driving under the influence of drugs and found true prior conviction and great bodily injury enhancements. Roca argues there was instructional and evidentiary error that violated his federal constitutional rights. None of his contentions have merit, and we affirm the judgment.
FACTS
Roca drove his Kia Soul across three lanes of traffic on the wrong side of a busy Orange County street and ran over pedestrians Joseph Watson and his three-year-old daughter Savannah, who was in a stroller. Savannah's mother, Sierra Carter, was spared because she stopped walking when her husband, Watson, suggested she fix her headband. Bystanders lifted the car off Savannah, but she did not survive; Watson suffered serious injuries, was placed in a medically induced coma, and recovered, from his physical injuries, completely.
When officers arrived, the scene was "mayhem." But Roca was sitting on a planter, "calm," holding a young boy. When Officer Jonathan Tipton asked Roca whether there were other cars involved in the accident, Roca replied, "'I don't know.'" An officer recovered a pill bottle, a medical marijuana bottle, medical marijuana, and a marijuana pipe; the pipe was Watson's. Roca picked up his prescription for Ativan about three hours before the crash. There were no skid marks on the roadway. Surveillance footage from the area showed the Kia veer onto the wrong side of the road before disappearing; the footage did not show a black sports utility vehicle (SUV).
About an hour after the crash, Officer David Barr, a drug recognition expert, went to the hospital to interview Roca. Barr was unable to conduct a drug evaluation because Roca had been given Fentanyl. Roca told Barr he took a Norco tablet for kidney pain the day before, he received a prescription for Ativan two days earlier to treat anxiety, and he smoked marijuana three days earlier but corrected himself and said five days earlier; the marijuana pipe belonged to a friend. Roca stated he veered to the left to avoid a black SUV and veered farther left to avoid an oncoming white SUV. He crashed when his car did not respond as he expected.
About two and one-half hours after the crash, Roca's blood tested positive for Ativan (in the therapeutic range), active marijuana (detectible in the blood for up to six hours), and marijuana metabolite (detectible in the blood for a few hours to a few weeks). About three and one-half hours after the crash, Roca's blood tested positive for a therapeutic level of Ativan and the marijuana metabolite, but not active marijuana.
An information charged Roca with the following: murder (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1); and two counts of driving under the influence of drugs with two or more prior convictions (Veh. Code, § 23153, subd. (a)) (counts 2 & 3). As to count 2, the information alleged Roca inflicted great bodily injury (§ 12022.7, subd. (a)), and great bodily injury to a child under five years old (§ 12022.7, subd. (d)). With respect to counts 2 and 3, the information alleged Roca suffered two prior driving under the influence convictions, one in November 2006 and one in April 2007.
Before trial, Roca filed a motion to sever counts 1 and 2 from count 3, an October 2012 arrest for driving under the influence. The prosecution opposed the motion. At a hearing, the trial court's tentative ruling was to grant the severance motion but admit evidence of the October 2012 arrest pursuant to Evidence Code section 1101, subdivision (b) (hereafter section 1101(b)). At a hearing a few days later, after counsel argued, the court granted the severance motion. The court ruled evidence of the October 2012 arrest was admissible pursuant to section 1101(b). The court reasoned the October 2012 arrest was sufficiently similar to the charged offenses because they both involved prescription drugs. The court added the October 2012 arrest was relevant on the issue of Roca's knowledge he could not take prescription drugs and drive. The court explained the probative value outweighed any prejudicial effect because evidence of the October 2012 arrest was recent and it was "benign" compared to the charged offense. The court dismissed the section 12022.7, subdivision (d), enhancement as to count 2.
At trial, witnesses testified they saw Roca veer onto the wrong side of the road without incident and they did not hear any honking or skidding.
Wesley Vandiver, a collision reconstruction expert, testified he reviewed the case file, including Roca's statements and the surveillance footage, which did not show a black or white SUV. Vandiver drove the Kia—the steering, acceleration, and braking all functioned properly. Vandiver analyzed the information from the Kia's event data recorder (EDR), which records and saves data (the vehicle's speed, change in velocity, steering wheel angle, braking, anti-lock braking system, and whether the air bags deployed) from the last five seconds before an event. Vandiver stated the EDR reflected acceleration from 23 to 36 miles per hour when the left wheel hit the curb and there was no braking or evasive driving.
Eric Franke, a 35-year police officer and drug recognition expert, testified a person can be impaired by a prescribed medication as well as by an illegal substance. Franke opined a person cannot safely operate a vehicle under the influence of Ativan, which is a central nervous system depressant that can cause a person physical and cognitive impairment. Franke added a person should not take Ativan and marijuana together because it produces a synergistic effect. Based on a hypothetical question matching the facts of the case, Franke opined the driver was "entering the hypnotic, soon-to-be sedated or sleeping state caused by the drugs."
Daniel Gromis, an emergency room doctor, testified that two days before the crash, Roca arrived at the hospital by ambulance because of a panic attack. A toxicology screen of his blood was positive for amphetamines and marijuana. Gromis administered Ativan and gave him a prescription for 15 one-milligram tablets of Ativan. Gromis advised Roca not to drive while taking Ativan because it may cause drowsiness.
Officer Joseph Nunez, a drug recognition expert, testified that on the evening of October 26, 2012, he responded to a call of a traffic collision. When he arrived, he saw the Kia had run into a street sign; the driver's side wheels were on the sidewalk. The driver's side door was open, and the gear shift was in drive, but there was no key in the ignition. Nunez saw Roca sitting on a curb next to a police officer. Roca, who was fidgety, said the Kia was his, he had been driving, and he gave the ignition key to Nunez, who started the car and put the gear shift into park. Nunez described Roca's speech as rapid and "changing directions, talking about a multitude of topics, anywhere from human trafficking to hard drives." Roca first told Nunez he believed someone was chasing him and then said someone was in his car and touched him so he jumped out of the vehicle while it was moving. Roca said he was driving to the police station because people were trying to kill him. When Nunez asked Roca if he had taken any drugs, Roca answered he had taken one 30-milligram tablet of Adderall earlier that day. Roca's eyes were dilated, his skin was clammy, his mouth was dry, and he had an elevated heart rate. After Roca failed one field sobriety test, he complained about chest pain and Nunez immediately called for an ambulance. Nunez had the Kia towed and followed Roca to the hospital. Nunez opined Roca drove under the influence, arrested him, and issued him a citation. Roca's blood was drawn. The parties stipulated Roca's blood was drawn on October 27, 2012, at 12:40 a.m., and he had 180 nanograms per milliliter of amphetamine in his blood, higher than the therapeutic range.
There was evidence Roca suffered convictions for driving under the influence of alcohol in November 2006 and April 2007. As part of those guilty pleas, Roca acknowledged he understood the dangers of driving while under the influence.
Roca's defense was he was not intoxicated. Nicholas Morrow, a private investigator and court certified expert in driving under the influence, testified he reviewed the case file and there was no indication anyone at the scene or the hospital suspected Roca was under the influence. He did not find it odd Roca appeared calm at the scene because people react differently to things. Morrow opined there was no credible evidence Roca was under the influence of anything at the time of the crash; it was not illegal to drive under the influence of Ativan.
David Bearman, a pain management expert, testified he treated hundreds of patients who have combined Ativan and marijuana and none had ever reported a synergistic effect. Bearman explained that if the emergency room doctor suspected Roca was on Ativan, they would not have administered Fentanyl because the combination could result in respiratory depression.
An optometrist who examined Roca the afternoon of the crash testified Roca was normal, answered questions appropriately, and did not smell of marijuana. A police officer who interviewed Carter at the hospital testified Carter said a witness at the scene told her another vehicle cut off Roca.
The jury convicted Roca of counts 1 and 2 and found true the enhancement allegations. The trial court sentenced Roca to 15 years to life on count 1.
DISCUSSION
Roca argues the trial court erred by admitting his October 2012 driving under the influence arrest. We disagree.
Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, section 1101(b), allows the trial court to admit "evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as . . . knowledge . . . [or] absence of mistake or accident . . .) other than his or her disposition to commit such an act." Although other acts evidence might be relevant to prove a material fact other than a defendant's criminal disposition, this evidence is subject to exclusion pursuant to Evidence Code section 352, for among other reasons undue prejudice, an undue consumption of time, or confusing the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We review a trial court's evidentiary rulings for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz), is instructive.
In Ortiz, defendant, who was not intoxicated, drove a truck into oncoming traffic and collided with another vehicle, killing two people. (Ortiz, supra, 109 Cal.App.4th at p. 106.) The trial court admitted evidence of seven prior traffic accidents, some of which involved alcohol, pursuant to section 1101(b), to prove knowledge. The jury convicted defendant of second degree murder. (Ortiz, supra, 109 Cal.App.4th at pp. 108-109, 111.) On appeal from his second degree murder conviction, the Ortiz court concluded the prior accidents were relevant, stating, "[A] motor vehicle driver's previous encounters with the consequences of recklessness on the highway—whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him to the dangerousness of such life-threatening conduct." (Id. at p. 112.) The court added: "A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving—whether intoxication, rage, or willful irresponsibility—the driver's subsequent apprehension and prosecution for the conduct must impart a knowledge and understanding of the personal and social consequences of such behavior." (Id. at p. 115.)
The Ortiz court opined the previous accident evidence was highly probative, explaining "'when a person repeatedly violates the law while driving a motor vehicle, and is repeatedly apprehended for those offenses, and convicted of those offenses, and presumably becomes more and more aware of the danger of that activity as time goes by, that that evidence can support a finding of implied malice.'" (Ortiz, supra, 109 Cal.App.4th at p. 118.) Against that, the court weighed the evidence's prejudicial effect, concluding it was low because the prior offenses were less inflammatory than the crime charged, defendant had been punished for the past offenses through his convictions, and the trial court instructed the jury to consider the evidence only for a limited purpose. (Id. at pp. 118-119.)
Here, the trial court did not abuse its discretion by admitting evidence of Roca's October 2012 arrest. Like in Ortiz, the October 2012 arrest was relevant to the issue of Roca's knowledge of the consequences of driving under the influence. Evidence Roca drove while under the influence, and was arrested and cited, was relevant to prove implied malice. Roca claims the evidence was not relevant because he did not dispute the knowledge element. That is beside the point because the prosecution had the burden to prove implied malice beyond a reasonable doubt. Roca also claims the evidence was not relevant because he did not learn the results of the October 2012 drug test until after the crash at issue here. We are not persuaded. Roca did not need the results to know he was under the influence. His heart was racing, his skin was clammy, and his mouth was dry—then the chest pains set in. He thought both that someone was chasing him to kill him and that someone touched him so he jumped out of a moving vehicle, which resulted in the Kia running into a street sign. Thankfully, there were no pedestrians on that road.
Additionally, the evidence's probative value was not outweighed by any prejudicial effect. (Evid. Code, § 352.) Similar to Ortiz, the circumstances of the October 2012 incident were relatively minor, and far less inflammatory than the charged offenses. Jurors would not prejudge the case against Roca because of the October 2012 incident. (People v. Heard (2003) 31 Cal.4th 946, 976 [prejudice means evidence that tends to evoke emotional bias against defendant while having only slight probative value].) Because Nunez arrested and cited Roca, it was unlikely the jury believed Roca went unpunished for the incident. Testimony concerning the October 2012 incident consumed only about 65 pages of the 1,182 pages of the reporter's transcript. Additionally, the evidence was not likely to confuse the jury because it was a discrete event occurring about five months before the charged offenses. Finally, the trial court instructed the jury it could only consider the evidence on the issue of Roca's knowledge of the dangers of driving under the influence and for no another purpose. We presume jurors follow the trial court's instructions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 448.) Thus, the trial court properly admitted evidence of the October 2012 incident. Finally, because the court properly admitted the evidence, Roca's federal due process rights were not implicated. (People v. Gurule (2002) 28 Cal.4th 557, 656.) II. Jury Instructions A. Involuntary Manslaughter
Roca contends the trial court erred by failing to instruct the jury sua sponte on the following two lesser included offenses to murder: involuntary manslaughter due to unconsciousness; and involuntary manslaughter due to voluntary intoxication. Not so.
In his reply brief, Roca's appellate counsel states, "the evidence unquestionably showed that he was intoxicated at the time of the shootings." (Italics added.) There were no shootings in this case.
A trial court has a sua sponte duty to instruct on all theories of a lesser included offense that find substantial support in the evidence. (People v. Landry (2016) 2 Cal.5th 52, 96 (Landry).) This duty exists even when the lesser included offense is inconsistent with the defendant's own theory of the case and the defendant objects to the instruction. (People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) We review the correctness of jury instructions de novo. (People v. Simon (2016) 1 Cal.5th 98, 133.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Sanchez (2001) 24 Cal.4th 983, 989, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) However, involuntary manslaughter is not a lesser included offense of murder in a case involving a vehicle.
Section 192 states the three types of manslaughter are voluntary, involuntary, and vehicular. Section 192, subdivision (b), provides as follows: "Involuntary-in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle." (Italics added.)
Because Roca caused Savannah's death while driving a vehicle, Roca could neither be charged nor convicted of involuntary manslaughter. As stated above, a defendant has a due process right to a jury instruction on a lesser included offense only when the evidence would support a conviction on the lesser included offense. (Landry, supra, 2 Cal.5th at p. 96.) Given that Roca could not be convicted of involuntary manslaughter, he had no due process right to an instruction on involuntary manslaughter as a lesser included offense. Moreover, because section 192, subdivision (b), excludes "acts committed in the driving of a vehicle" from involuntary manslaughter's definition, involuntary manslaughter is not a lesser included offense to implied malice murder committed while driving a vehicle.
Additionally, this court has held unconsciousness caused by voluntary intoxication is not a defense to implied malice murder. (People v. Carlson (2011) 200 Cal.App.4th 695, 705 (Carlson); People v. Turk (2008) 164 Cal.App.4th 1361, 1374-1375 [in murder case voluntary intoxication inadmissible to negate implied malice]; § 29.4.) We find Carlson well-reasoned and decline Roca's invitation to reconsider it.
Finally, Roca claims he had a constitutional right to instructions on lesser included offenses so he could present to the jury an alternative to murder other than an outright acquittal. "It has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged." (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.) Thus, the court did not err by failing to instruct the jury sua sponte with the involuntary manslaughter instructions.
In a related claim, Roca asserts section 29.4, formerly section 22, violated his due process right to present a defense. Again, we disagree.
The court in Carlson, supra, 200 Cal.App.4th 695, rejected the identical claim, and we again find Carlson instructive and decline Roca's invitation to reconsider it. After discussing the holding in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff) [plurality decision rejecting due process challenge to state law barring evidence of voluntary intoxication to establish absence of required mental state], the Carlson court stated California courts have followed Egelhoff and rejected due process attacks on former section 22. (Carlson, supra, 200 Cal.App.4th at pp. 707-708; see People v. Timms (2007) 151 Cal.App.4th 1292, 1300 [§ 22 appears in preliminary provisions of Penal Code, not in Evidence Code].) These cases stand for the proposition the Legislature's 1995 amendments to section 22 represent its determination that for public policy reasons evidence of voluntary intoxication is strictly limited, a point Roca concedes. Therefore, section 29.4 did not prevent Roca from presenting a defense. B. CALCRIM No. 362
Roca claims CALCRIM No. 362 created an impermissible inference of guilt in violation of his due process rights. The Attorney General responds the issue is forfeited and meritless. We agree with the Attorney General on both fronts.
Roca does not dispute he failed to object to CALCRIM No. 362. "'Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.]'" (People v. McGehee (2016) 246 Cal.App.4th 1190, 1203.) Because Roca did not object, the issue is forfeited. In any event, his claim is meritless because the instruction is constitutionally sound.
The trial court instructed the jury with CALCRIM No. 362 as follows: "If [the] defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
In People v. Howard (2008) 42 Cal.4th 1000, 1021, the California Supreme Court rejected the contention CALCRIM No. 362, and its predecessor CALJIC No. 2.03, "invite the jury to draw irrational and impermissible inferences with regard to a defendant's state of mind at the time the offense was committed." We are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, the trial court properly instructed the jury with CALCRIM No. 362.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. IKOLA, J.