Opinion
G042966 Super. Ct. No. 08ZF0048
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. DANNY CALVIN RUIZ, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Meagan J. Beale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ruiz of two counts of second degree murder in the death of his girlfriend and passenger, Andrea Gerdon (Pen. Code, § 187, subd. (a); count 1), and Gerdon's unborn child (§ 187, subd. (a); count 2). The trial court denied Ruiz's motion for a new trial and his oral motion to strike prior convictions for sentencing purposes under People v. Superior Court (Romero)(1996) 13 Cal.4th 497 and then imposed a term of 55 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Ruiz claims the trial court abused its discretion by failing to grant midtrial continuance motions to investigate anonymous communications regarding one of the prosecution's witnesses and by denying his motion for a new trial on grounds of prosecutorial misconduct (§ 1181, subd. (5)), Brady error (Brady v. Maryland (1963) 373 U.S. 83 (Brady)),and a violation of California's reciprocal discovery statutes (§ 1054 et seq.). We find none of his contentions to be meritorious and therefore affirm the judgment.
Section 1181 provides, in pertinent part, "When a verdict has been rendered or a finding made against the defendant, the court may upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury."
I
FACTS
On the afternoon of May 3, 2008, Ruiz and Gerdon decided to drive Ruiz's Chevy Blazer from Gerdon's home in Anaheim to a wedding reception in San Clemente. Ruiz was unfamiliar with this part of San Clemente, and Gerdon read directions while he drove. They attended the reception for a few hours and Ruiz had several alcoholic drinks before they decided to head home.
A short time later, four witnesses heard squealing brakes and saw Ruiz's Blazer speeding westbound on a San Clemente street. They watched the Blazer swerve to one side of the road, cross through an intersection, jump a curb, collide with a fire hydrant, flip on its passenger side, and crash into a palm tree. The impact crushed the Blazer, and the palm tree impaled the front passenger's seat. The engine collapsed into the dashboard and onto the front seat. Gerdon and her unborn child were crushed and died shortly after the accident. Ruiz suffered a fractured and dislocated hip, facial lacerations, and intercranial bleeding. Hospital personnel drew Ruiz's blood at 11:33 p.m., approximately two hours after the accident. An Orange County Crime Lab forensic scientist later testified his blood sample yielded a blood-alcohol level of 0.17 percent.
The Orange County Sheriff's Department dispatched Sergeants Paul Wade and Jerry Brittain, and Deputies Stan Blaszak and Matthew Johnson to investigate. Pertinent to this appeal, the officers measured the "centrifugal" or "yaw" tire marks left by Ruiz's truck to determine his speed at the time of the crash. Wade, the prosecution's expert witness at trial, explained that centrifugal marks are created when a car turns and a "tire starts to slide out from underneath the vehicle and starts to leave a mark on the road." He said the right rear tire leaves a mark in the direction the driver attempted to go, and horizontal striations show the centrifugal force.
After this investigation but before trial, Wade was promoted to supervisor of the Orange County Sheriff's Department's Major Accident Reconstruction Team. He has taught several classes on determining speed from centrifugal tire marks at various law enforcement agencies.
According to Wade, one needs the correct measurements of the centrifugal mark to estimate crash speed. He explained, "We take two measurements on this tire mark. One is called a chord. The second measurement is a mid-ordinate, and that's the process that was used in this crash." He directed Johnson and Blaszak to take these measurements with a standard 50-foot tape measure, but he later realized Johnson had incorrectly extended the tape measure too far back -- to a point where Wade "couldn't actually see that tire mark." Nevertheless, using a calculator application on his cell phone, Wade plugged these measurements into two physics equations and calculated an estimated a crash speed of 78 miles per hour.
Wade informed the deputies that they "did it wrong" and promptly remeasured the marks. Based on these measurements, Wade estimated the crash speed at 68 miles per hour. The posted speed limit in that area was 35 miles per hour. Wade's measurements were not written down and Wade admitted he could not confirm his measurements because the tire marks were no longer present. Nevertheless, he testified that his calculations and the 68 miles per hour estimate "were correct." He referred to exhibit 17 throughout his testimony, which is a diagram of the skid marks. His testimony and the testimony of the eyewitnesses are consistent with the photographic evidence presented at trial, exhibits 5 through 8. Exhibit 5 is depicted below:
The Attorney General claims the diagram and "raw computer data of the measurements" were produced pretrial and as exhibit 17. Ruiz argues exhibit 17 is not the same information produced posttrial, alternatively referring to this information as the "AutoCAD," the "computerized measurements," or the "total station diagram." We acknowledge that his expert claimed to have received some type of document from an unidentified governmental agency in his declaration in support of Ruiz's motion for a new trial, but the referenced document was not attached to the new trial motion and Ruiz provides no other record references that might help explain what was purportedly withheld. Ultimately, we conclude this information does not affect the validity of the judgment.
The Defense Case
Ruiz testified on his own behalf. He admitted drinking some beer and "a couple of" rum and Cokes at the reception, but said he could not remember exactly how much alcohol he consumed. He denied ever feeling intoxicated, and stated no one told him to stop drinking or not to drive home. Ruiz admitted he may have "black[ed] out" because he "barely" remembered leaving the reception and did not remember the crash. He also explained that Gerdon could not have driven his Blazer because she did not know how to drive a stick shift, and she had not appeared apprehensive when he decided to drive home.
Ruiz admitted having a 2009 misdemeanor conviction after his 2007 arrest for driving under the influence. He represented himself during the legal proceedings that followed. At trial, he claimed not to have read the plea form, although his initials appear in all the appropriate boxes, including the box next to the following admonition: "I have been advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can be charged with murder." (Italics added.)
He also admitted completing a 90-day alcohol education class that concluded just four days before the accident. Initially, he claimed the classes did not touch on the dangers of driving while intoxicated, but eventually conceded that it was "possible" the class covered the topic. In any event, he did not believe drinking and driving was dangerous unless you were drunk.
II
DISCUSSION
The Trial Court Properly Denied Ruiz's Motions to Continue the Trial
In Ruiz's pretrial motion to dismiss under section 995, defense counsel pointed to Wade's initial speed calculations, which Wade admitted had been based on erroneous measurements, and the fact none of the investigators made a written record of either set of measurements to argue insufficiency of the evidence and a violation of Ruiz's constitutional right to confront adverse witnesses. Following the court's denial of his motion to dismiss, Ruiz filed a pretrial in limine motion to exclude any expert testimony regarding the speed estimate calculations, which was also denied.
The first court day after the jury had been selected and sworn, defense counsel requested an in camera hearing regarding an anonymous communication he had received over the weekend. According to counsel, the communication alleged Wade did not fail to record the measurements used to estimate Ruiz's crash speed, but he "lost them" because they did not agree with other speed indications at the scene and the computerized diagrams he later generated for the trial. Counsel sought a continuance motion to investigate the claim and a mistrial. The court denied both motions and defense counsel's request for a recess to prepare and file a written motion to continue. Counsel filed a written motion for a continuance after the lunch break, requesting a two-week continuance to identify the source of the communication and to further investigate the claim. The court denied the motion without prejudice, citing the anonymous nature of the communication and its uncertain origin, and because a jury had already been empanelled.
The next day, defense counsel filed a second motion to continue the trial, which included another anonymous communication from the same source. This communication claimed Wade's calculations were worthless due to several errors, and challenged the validity of a computer generated diagram the prosecutor planned to introduce at trial. Defense counsel argued "there can be no question the combination of yesterday's [communication] and now the source's response in which the information is concrete, detailed, provides specific evidence material to the defense theory of the case." Counsel was vague in terms of the length of continuance needed and the court responded, "I can't think of the last time that I've had a request for, initially of a continuance of two weeks, and now a vague reference to a continuance of many more weeks." In denying the motion, the court explained counsel had other options to consider if a subsequent investigation demonstrated the trial had produced a miscarriage of justice, such as a motion for new trial.
On appeal, Ruiz argues the court abused its discretion by denying his motions to continue. When making such a decision, the trial court "must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." (People v. Laursen (1972) 8 Cal.3d 192, 204.) However, the determination of whether a defendant has affirmatively demonstrated that justice requires a continuance is a factual matter and will not be disturbed on appeal in the absence of a clear abuse of discretion by the trial court. (People v. Bethea (1971) 18 Cal.App.3d 930, 937.) Furthermore, an appellate court looks to the circumstances of each case and to the reasons for the request to determine if the denial was arbitrary and capricious to the point of denying the defendant his constitutional right to due process of law. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.)
Ruiz claims the court's denial of his continuance motions impaired his attorney's ability to adequately cross-examine Wade, thus rendering his attorney's performance ineffective and violating his rights under the Sixth and Fourteenth Amendments. He argues a defense continuance would have enabled counsel to confront Wade at trial, prove Wade perjured himself, and result in a not guilty verdict. Ruiz believes Wade's measurements were crucial to the prosecution's ability to prove Ruiz acted with a "conscious disregard" for the safety of others. We disagree strongly.
With respect to the first continuance, defense counsel would not commit to a particular time frame, although he said, "probably longer than two weeks." Under the circumstances, the court correctly concluded a two-week continuance was unreasonable. As to the second request to continue the trial, counsel said, "I would estimate my time longer than that [two weeks]. I feel there's more tha[t] needs to be done now." As the court noted, "a vague reference to a continuance of many more weeks" does not qualify as good cause to inconvenience a sworn jury and disrupt the court's schedule. In truth, counsel failed to demonstrate any material evidence would be unearthed in a reasonable time.
Furthermore, nothing prevented counsel from continuing to investigate the allegations even without a continuance, and the record reflects defense counsel ably cross-examined Wade by pointing out that the initial measurements were inaccurate and neither set of measurements had been preserved. Counsel forced Wade to agree the photographs of the centrifugal marks in exhibits 10 through 15 did not provide a means to review his estimate. In addition, counsel pointed out that exhibit 17 clearly demonstrated the centrifugal mark was less than 50 feet in length and how this conflicted with Wade's testimony. As the prosecutor stated, exhibit 17 showed a tire mark that was "obviously not 50 feet in length." Consequently, other evidence produced by the prosecution discredited Wade's testimony.
Finally, even assuming error, it was harmless. Ruiz admitted he was at the wheel and probably in an alcohol-induced blackout when the crash occurred, and he had a prior conviction for driving under the influence. In the plea form for his prior conviction, Ruiz acknowledged, by initialing the appropriate box, that he understood he could be "charged with murder" if he continued driving "under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed." Furthermore, one condition of Ruiz's three-year probation was a prohibition against driving "with a measurable amount of alcohol" in his blood system. Ruiz had just completed a 30-hour class about the effects of alcohol on the body and the legal consequences of driving while under the influence, and several eyewitnesses reported Ruiz was driving his car "way too fast" when it crashed. Ruiz acknowledged, albeit reluctantly, his awareness of the risk to human life posed by drinking and driving. Notwithstanding this awareness, Ruiz voluntarily consumed multiple alcoholic drinks at the reception and took the wheel. Consequently, the prosecution provided sufficient evidence without regard to Wade's speed estimates to support the elements of implied malice. The anonymous e-mail continuance was a red herring.
2. The Trial Court Did Not Err by Denying Ruiz's New Trial Motion
Following his conviction, Ruiz filed a new trial motion (§ 1181), alleging prosecutorial misconduct (§ 1181, subd. (5)), Brady error, and a violation of California's reciprocal discovery statutes (§§ 1054 et seq.) Essentially, he argued the prosecution failed to timely disclose exculpatory evidence, a failure exacerbated by the court's denial of his continuance motions to investigate the source and circumstances of the anonymous communications.
According to Ruiz, the information revealed posttrial to his expert witness had been available before trial and would have helped him "impeach Wade's testimony about his on-scene observations, personal measurements, and expert conclusions." The defense expert concluded Wade could not have accurately calculated Ruiz's speed from the measurements taken. From this, Ruiz concludes, "it is probable that a result more favorable to the defendant would have occurred had the district attorney turned over the exculpatory evidence. [The prosecutor's] conduct was so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process." We disagree.
In the new trial motion, Ruiz's counsel stated, "After trial, defense counsel requested the
computerized measurements from the total station held by the Orange County Sheriff. This request was presented to Orange County Deputy District Attorney Susan Price. Ms. Price forwarded the request to the Sheriff's Department and the records were delivered to the defense. [¶] Defense counsel obtained the services of Dale Stephens, a qualified accident reconstruction expert.... [¶] Mr. Stephens received the CAD files obtained from the Orange County Sheriff Department." However, Stephens wrote, "The diagram does not indicate which department or deputy/officer created the drawing," nor did counsel attach a copy of whatever had been provided and relied on by his expert.
"'In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "'1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at trial; and 5. That these facts be shown by the best evidence of which the case admits.'"'" (People v. Howard (2010) 51 Cal.4th 15, 43; People v. Delgado (1993) 5 Cal.4th 312, 328.) Materiality requires the defendant to "'show a "reasonable probability of a different result."'" (People v. Salazar (2005) 35 Cal.4th 1031, 1043, quoting Banks v. Dretke (2004) 540 U.S. 668, 699.) The trial court's determination on a motion for new trial "'rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" (People v. Delgado, supra, 5 Cal.4th at p. 328.) The court did not abuse its discretion.
Relying on People v. Jordan (2003) 108 Cal.App.4th 349, 359, Ruiz contends the information provided posttrial to his expert was "material" to his defense. He contends Wade's testimony provided the factual basis for the "conscious disregard" element of implied malice, and that none of the other prosecution witnesses had the same impact on the jury. However, "'The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.' [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 829.) As Ruiz acknowledged in his new trial motion, "'[e]vidence is "material" "only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different." [Citations.] The requisite "reasonable probability" is a probability sufficient to "undermine [ ] confidence in the outcome" on the part of the reviewing court. [Citations.]'" (In re Sodersten (2007) 146 Cal.App.4th 1163, 1226.)
As demonstrated above, Wade's estimation of Ruiz's speed was not critical to the jury's consideration of whether Ruiz committed homicide under a theory of implied malice especially in light of exhibit 5, supra. The evidence demonstrates Ruiz had a prior conviction for driving under the influence and was well aware of the dangers posed by this activity. Notwithstanding his prior experiences and knowledge, Ruiz voluntarily consumed sufficient alcohol to have caused an alcohol induced blackout with full knowledge his passenger could not drive his Blazer. Under these circumstances, there is no reasonable probability of a more favorable result on retrial, hence the evidence was not material for purposes of Brady disclosure. (People v. Verdugo (2010) 50 Cal.4th 263, 282.)
With respect to claimed statutory violation, "Section 1054.1 (the reciprocal-discovery statute) 'independently requires the prosecution to disclose to the defense, . . . certain categories of evidence "in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies."' [Citation.] Evidence subject to disclosure includes . . . '[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged' [citation], any '[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts' [citation], and '[a]ny exculpatory evidence' [citation]." (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280.)
Ruiz argues the prosecutor violated section 1054.1, subdivision (e) and (f). However, the sanctions available under section 1054.5 do not apply to posttrial proceedings and to prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right, the defendant must establish the information was exculpatory and a reasonable probability that "'"the result of the proceedings would have been different."'" (People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807, overruled on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As noted, Ruiz fails to establish that the information provided to his expert in preparation for the new trial motion was actually withheld during trial. But even assuming his assertions are true, there is no possibility of a more favorable result on retrial. Wade's testimony was thoroughly impeached at trial. The eyewitness testimony, crime scene photographs, Ruiz's blood-alcohol level, the fact of his prior conviction and the admissions made in conjunction with the prior conviction considered together provide more than substantial evidence of implied malice. Therefore, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.