Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB049975. Arthur Harrison, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) (count 2) and leaving the scene of the accident resulting in the death of another person (Veh. Code, § 20001, subd. (b)(2)) (count 3). The jury also found true that after committing count 2, defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)). After waiving his right to a jury trial, defendant admitted that he had suffered a prior strike conviction (Pen. Code, § 1170.12). Defendant was sentenced to a total term of 17 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction on count 2, and (2) the trial court violated his constitutional rights by imposing an upper term on count 2. We reject these contentions and affirm the judgment.
The jury acquitted defendant of gross vehicular manslaughter while intoxicated (count 1). (Pen. Code, § 191.5, subd. (a).)
I
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of May 15, 2005, Jesus Toro was driving an 18-wheel truck on Highway 30 near the Waterman exit in San Bernardino; his brother Martin was in a second semi-trailer truck. At one point, Jesus’s truck was struck by a passing car, causing the brothers to pull onto the shoulder of the freeway and out of lanes of traffic. Martin parked his truck in front of Jesus’s truck, and the brothers placed red triangular warning reflectors on the shoulder behind Jesus’s truck as required by law. The two then went to the damaged area of Jesus’s truck to inspect the damage. The left rear tire and bumper had been damaged. At about this time, California Highway Patrol Officers Kevin Monday and Ruben Rios, Jr., arrived on the scene. Once they stopped, they spoke with the brothers, took a brief report, and then departed.
When the officers left, Jesus crawled under the truck and began working on it. Martin squatted near Jesus, facing the left side outer rear tire, with his back to the roadway, about six inches inside the white shoulder line, assisting Jesus in removing the damage from the tires. Suddenly, Martin was struck by an oncoming car.
Jesus did not see exactly what had happened, but within a matter of seconds, Martin “was there next to me and then I didn’t see him.” Jesus immediately got out from under the truck and saw his brother’s body somewhere between 30 or 40 feet away. Jesus ran over to where his brother’s body was lying and called 911. Jesus saw that Martin was dead; he had suffered a severed arm, and his stomach and head were both split open. Jesus took out his flashlight and waved it to keep the traffic from hitting his brother’s body.
Jesus saw the vehicle he believed to be the one that had struck his brother in front of the trucks. The car had sustained damage to its front tire and had skidded sideways about 600 feet from his location before coming to a stop on the freeway.
Officers Monday and Rios were dispatched to the scene sometime between 4:00 and 5:00 a.m., about an hour to an hour and half after the officers’ initial contact with the brothers. Upon arriving at the scene, Officer Monday noticed the two trucks parked on the shoulder and a car farther up the freeway. Officer Monday took measurements at the scene and measured the width of the shoulder at 10 feet and the width of Jesus’s truck at seven and a half to eight feet. He determined that there was two and a half to three feet between the left side of Jesus’s truck and the white shoulder line. Officer Monday noted the damage to the left side step of Jesus’s truck caused by the collision. Jesus also later noticed that defendant’s car had damaged the left side tractor step assemblage of his truck.
Officer Monday also noted that defendant’s car was several hundred feet up the freeway from the trucks. The car had damage to its right front area and bloodstains and bodily fluid along the right side of the car; there was a trail of debris and friction marks from skidding sideways on the road. The car was registered to Thomas and Dorothy Scott. Based on his observations and measurements, Officer Monday determined that that vehicle was the one that had caused the fatal collision and that no brakes had been applied in the car prior to the collision. He also determined that the car had crossed the edge of the shoulder line, “sandwich[ing]” Martin between it and Jesus’s truck; sideswiped Jesus’s truck; and then veered left for about 500 feet before coming to a stop. Officer Monday could not opine how fast the car was traveling.
Around the time of the collision, Tracey Ramos was driving to work as a cocktail waitress at the San Manuel casino when she saw a car at the bottom of the Waterman on ramp on Highway 30, which looked as if it had been in an accident. Nearby, defendant was waving his arms for her to stop. When she stopped her car, defendant said to her, “Oh, I wrecked my mom’s car. Can you please call Triple-A?” At some point, defendant got into the passenger seat of Ramos’ car uninvited. Ramos saw that defendant was bleeding from one of his arms. She also noticed that defendant had red eyes, smelled of “hard liquor,” was slurring his words and repeating himself over and over, and appeared fidgety. Based on her observations, training, and experience, Ramos believed defendant was under the influence. Ramos asked defendant if he had been drinking, and defendant responded that he had had “five fifths.”
As a condition of her employment as a cocktail waitress, Ramos was required to take annual training classes on recognizing the signs of intoxication; at the time of this incident, she had taken two such classes.
Defendant begged Ramos to take him to Rialto, claiming his mother would be mad at him for wrecking the car. She refused but offered to take him to the next exit to wait for the tow truck or his parents. Defendant at first agreed but then asked her to take him back to the wrecked car.
As they approached the accident scene, Ramos saw two big rigs parked on the side of the road. She also saw several police cars and officers putting up cones and flares. As she drove closer, she saw a body between the two big rigs. Ramos exclaimed, “Oh, my God, you killed somebody.” Defendant responded, “No, I didn’t. I couldn’t have done that.” Ramos put her car in park, got out, and ran toward the officers. She looked back and saw defendant running up the embankment on the on ramp. She told the officers about defendant. When she returned to her car, she found a white shirt defendant had been wearing.
Defendant was apprehended about seven to eight hours later. At that time, Officer Rios administered an alcohol screening test on defendant; no alcohol was detected. Officer Rios noticed defendant had abrasions on the inside of his right arm. Officer Rios opined that the abrasions were the result of an automobile air bag deploying on the driver’s side, as it had in defendant’s car earlier that morning. Blood samples from that car’s air bag matched defendant’s blood.
II
DISCUSSION
A. Insufficient Evidence of Gross Vehicular Manslaughter
Defendant contends the evidence was insufficient to support the jury’s finding that he acted with gross negligence as opposed to ordinary negligence when he committed the vehicular manslaughter.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
Penal Code section 192, subdivision (c)(1) and (2) divides the crime of vehicular manslaughter into the categories of “with gross negligence,” a felony (§ 193, subd. (c)(1)) and “without gross negligence,” a misdemeanor (§ 193, subd. (c)(2)). The courts have construed “without gross negligence” to mean ordinary negligence. (In re Dennis B. (1976) 18 Cal.3d 687, 696.) Vehicular manslaughter without gross negligence is a lesser included offense of vehicular manslaughter with gross negligence. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165-1166.)
All future statutory references are to the Penal Code unless otherwise stated.
The parties agree on the definition of gross negligence: “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don’t care what happens.”’ [Citation.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1204.)
“[G]ross negligence can be shown by the manner in which the defendant operated the vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law violation. For many years California’s appellate courts have relied on such evidence as substantial evidence of gross negligence. [Citations.]” (People v. Von Staden (1987) 195 Cal.App.3d 1423, 1427-1428.) In other words, “gross negligence may be shown from all the relevant circumstances, including the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct.” (People v. Ochoa, supra, 6 Cal.4th at p. 1207; see also People v. Leffel (1988) 203 Cal.App.3d 575, 584 [evidence that the defendant had not slept for three nights]; People v. Roerman (1961) 189 Cal.App.2d 150, 159 [evidence that the defendant drove to heavily trafficked area with cast on her right foot].) Thus, the job of the trier of fact was to determine whether, considering all of the relevant circumstances, the manner of defendant’s driving evidenced a conscious indifference to the consequences of his actions. The jury found gross negligence, and our job is to determine whether substantial evidence supports that conclusion.
Considering all of the relevant circumstances, we find that there is substantial evidence here to support the jury’s conclusion that defendant acted with gross negligence. The evidence showed that defendant was driving when it was light enough to see; by his own admission to Tracey Ramos, he had been drinking and was, in Ramos’s opinion, under the influence of alcohol. The roadway was straight, and there were no obstructions. The testimony adduced at trial and the exhibits admitted into evidence demonstrate that defendant drove his car out of normal traffic lanes and across a significant width of asphalt shoulder. He then crossed the demarcation white shoulder line and plowed into the lawfully parked front portion of the semi-truck rig, despite the red triangular warning markers. Defendant did not brake before or after hitting the victim or Jesus’s truck. Defendant’s car carried the victim’s body 40 feet down the freeway. The car itself skidded sideways for nearly 500 feet because of the damage it had sustained in hitting Jesus’s truck.
Defendant’s conduct following the fatal collision also demonstrated his conscious indifference to the consequences. The record shows that defendant cared more about his own welfare and getting away from the scene of the crime. After he left his own car abandoned on the freeway and flagged down Ramos’s vehicle, he begged Ramos to drive him to Rialto. When Ramos smelled a strong odor of alcohol emanating from defendant and suspected him of being under the influence, she asked defendant whether he had been drinking alcohol. Defendant admitted that he had consumed “five fifths.” Later, when Ramos drove defendant back to the scene of the accident, defendant denied he harmed anyone. When Ramos ran to the police, defendant shed his shirt and ran away. From all of the above circumstances, the jury reasonably could conclude that defendant acted with gross negligence — that is, defendant acted with a conscious indifference to the consequences and did not care what happened.
Defendant argues that because the jury did not find him guilty of vehicular manslaughter while intoxicated, the evidence of defendant’s intoxication cannot be considered as evidence in support of the finding of gross negligence because “the jury necessarily rejected the prosecutor’s evidence of intoxication.” Defendant is mistaken. The jury’s acquittal on the vehicular manslaughter while intoxicated charge simply shows that the jury could not find beyond a reasonable doubt that defendant committed that crime or that defendant’s level of intoxication met the legal definition of driving “under the influence,” as they were instructed. Our Supreme Court has specifically stated that “[t]he jury should... consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. [Citations.]” (People v. Bennett, supra, 54 Cal.3d at p. 1038.) “Intoxication is one of those circumstances and its effect on the defendant's driving may show gross negligence.” (Id. at p. 1040.)
Defendant also argues that the People “failed to produce substantial evidence of reckless driving on the part of the defendant prior to the moment of the accident itself.” He notes that the only legal violation he committed was a failure to maintain his vehicle within a lane (Veh. Code, 21658, subd. (a)) and that such a violation requires only a “momentary lapse of attention.” (Italics omitted.) Again, defendant’s argument is flawed. Case law demonstrates that the jury should consider “all relevant circumstances” (People v. Bennett, supra, 54 Cal.3d at p. 1038), not just at the moment of the accident. In addition, courts have held that the underlying “unlawful act,” i.e., the Vehicle Code violation, does not itself need to be inherently dangerous to establish the vehicular manslaughter offense. (People v. Wells (1996) 12 Cal.4th 979, 982, 984, 988.)
In Wells, the California Supreme Court concluded that the unlawful act referenced by the statute need not be an offense inherently dangerous in the abstract; rather, the act must be dangerous under the circumstances of its commission, and “[a]n unlawful act committed with gross negligence would necessarily be so.” (People v. Wells, supra, 12 Cal.4th at p. 982.) As stated in Von Staden, “gross negligence can be shown by the manner in which the defendant operated the vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law violation.” (People v. Von Staden, supra, 195 Cal.App.3d at p. 1427.) Based on the overall circumstances in this case, we find that there was substantial evidence to support the jury’s conclusion that defendant acted with gross negligence. In other words, the jury, sitting as the trier of fact, could properly apply “the objective test for gross negligence, [and find that] any reasonable person in defendant’s position would have been aware of the risks presented by his conduct. [Citation.]” (People v. Ochoa, supra, 6 Cal.4th at p. 1208.) Defendant cites several cases that involved much more egregious and reckless behavior on the part of the drivers than the actions of defendant here. However, we cannot say as a matter of law that the jury was unreasonable in finding that defendant’s actions constituted gross negligence. As such, we reject defendant’s insufficiency claim and also reject that the charge should be reduced to a misdemeanor.
B. Upper Term Sentence
The trial court conducted a lengthy analysis in denying defendant’s motion to strike his prior strike conviction for robbery. In sentencing defendant to the upper term of six years for gross vehicular manslaughter, it reasoned as follows: “The reason for selecting the aggravated term is the recidivist aspects, defendant’s background, the fact that he was on probation and not for a very long period of time prior to the occurrence of the instant case.”
Relying on Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), defendant contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by defendant or found true by the jury beyond a reasonable doubt.
At the time defendant was sentenced, on January 24, 2008, the sentencing scheme in effect was the version of the determinate sentencing law (DSL) that the Legislature amended effective March 30, 2007 (§ 1170, as amended by Stats. 2007, ch. 3, §§ 2, 7) in response to Cunningham. The amendment makes three basic changes to the procedure for imposing a term of imprisonment. First, the middle term is no longer the presumptive term. Second, the trial court has broad discretion to impose the lower, middle, or upper term based upon a specified standard, i.e., that which “best serves the interests of justice.” Third, the trial court need only set forth its reasons, but not facts, for imposing the lower, middle, or upper term. (§ 1170, subd. (b).) The trial court’s “sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
Defendant acknowledges that the trial court had the discretion to impose the upper term under the amended statutory scheme. Here, pursuant to Sandoval, the trial court properly sentenced defendant to the upper term. We do not find the court acted in an arbitrary or capricious manner, but exercised its discretion consistent with the “spirit of the law.” (Sandoval, supra, 41 Cal.4th at p. 847.) The court gave valid reasons for imposing the upper term and properly considered the public safety involved, the offense, and the offender.
Defendant acknowledges that we are bound by Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nonetheless raises as an issue the legitimacy of the holding and rationale of Sandoval to preserve those issues for further review. He argues that applying the amended DSL to him would violate the due process and the ex post facto clauses of the federal Constitution.
In Sandoval, supra, 41 Cal.4th at pages 853-857, our Supreme Court held that imposition of sentence under the 2007 amendment to the DSL for a crime committed prior to the effective date of that amendment did not violate federal constitutional due process and ex post facto principles. Therefore, defendant’s ex post facto claim is without merit.
We note Sandoval also indicates that there is no due process problem with sentencing a defendant under the amended DSL, even if the defendant committed the crime before the amendment. Sandoval explains that where the criminal statute at issue specifies the maximum sentence that may be imposed, such notice affords a defendant sufficient warning for due process purposes. (Sandoval, supra, 41 Cal.4th at p. 857.) At the time, defendant committed his crimes in 2005, gross vehicular manslaughter carried a sentencing range of two, four, or six years in state prison. (§ 192, subd. (c)(1).) Defendant was therefore on notice that he could be sentenced to six years for the crime.
Moreover, even if, as defendant argues, the trial court, in sentencing defendant, was required to comply with the law in effect prior to the effective date of the 2007 amendment to the DSL, there was no Cunningham error. Even under the former DSL, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (People v. Black (2007) 41 Cal.4th 799, 813.) In Black, the court held the right to a jury trial does not apply to the determination that a defendant’s prior convictions are numerous or of increasing seriousness. (Id. at pp. 818-820.) And in People v. Towne (2008) 44 Cal.4th 63, the court held the right to a jury trial does not apply to determinations of whether the defendant served prior prison terms, whether the subject crime occurred while the defendant was on parole or probation, and (when it can be determined from the record of convictions) whether the defendant’s performance on parole or probation was unsatisfactory. (Id. at pp. 79, 82.)
As indicated above, the court essentially cited three circumstances in aggravation in imposing the upper term: defendant had a prior conviction for a violent felony, his prior performance on probation had been unsatisfactory, and he was on probation when he committed the current offenses. As is also indicated above, under Black and Towne, there is no constitutional right to jury trial on determinations of any of these matters. Therefore, even under the former DSL, defendant’s constitutional challenge to the imposition of the upper term is without merit.
Defendant argues that Black and Towne were wrongly decided. He acknowledges that this court is bound by Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) but makes this argument to preserve it for further review.
III
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.