Opinion
C041118.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. NAZARIO L. TEJEDA, Defendant and Appellant.
Defendant Nazario Tejeda was convicted by a jury of one count of failing to stop at the scene of an injury accident (Veh. Code, § 20001, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). Sentenced to two years in state prison, defendant appeals, arguing the court erred by admitting evidence of several of his prior convictions. For the reasons stated below, we shall conclude the priors were properly admitted, and therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The charges in the present case stemmed from an accident that occurred on February 22, 2001, at approximately 3:00 p.m., near the 59th Street exit to Highway 50 in Sacramento. It had been raining intermittently throughout the day and the pavement was wet. Leo Travis was taking the 59th Street exit when his Volvo ran out of gas. The Volvo came to rest near the intersection of the 59th Street exit and 59th Street itself.
Kirtan Sorgen, who was driving with her mother, Mary Morris, passed Traviss Volvo on the exit. Morris, who had worked at a Volvo service center in the past, decided to assist Travis. They made a U-turn onto the adjacent 59th Street entrance to Highway 50, and Morris used her cell phone to call a tow truck. Morris asked Travis if he would like to wait with her and Sorgen in Sorgens car. Travis declined. After directing traffic for a while, Morris walked back to where her daughter had parked the car.
While Morris and Sorgen were waiting, they saw a burgundy car resembling a Firebird or a LeMans turn from 59th Street onto the entrance to Highway 50. As it turned, it spun out of control on the wet pavement, crossed into the 59th Street exit lanes, and slammed into the drivers side of Traviss Volvo. After coming to a stop, the driver of the burgundy car made a quick U-turn and sped away onto Highway 50.
The accident knocked Travis unconscious for a moment, and he was transported to a hospital in an ambulance.
Gary Bertsch was taking the 59th Street exit from Highway 50 when he saw the accident. Rather than exiting, Bertsch made a U-turn and chased the burgundy car. Bertsch made a valiant effort to keep up with the burgundy car as it passed several cars on the shoulder and later, after it had exited the freeway, on a sidewalk. Bertsch gave up the chase after the burgundy car ran a red light, but not before he had obtained the complete license plate number, which he provided to a 911 operator. Bertsch then returned to the scene of the accident, where he passed the license information on to a California Highway Patrol (CHP) officer.
Morris, Sorgen, and Bertsch testified there were two people in the burgundy car: a Latino male, who was driving, and a female passenger. Morris and Sorgen had both gotten a good look at the driver, whom they identified at trial as defendant.
Another witness to the accident, Verna Guess, testified that there was only one occupant in the burgundy car, a male driver with reddish hair or with reddish highlights. Guess believed the driver resembled defendant but she was uncertain it was him, perhaps due to glare from the sun obstructing her vision. Regarding his hair color, defendant testified it has always been black. Defendant admitted he had shaved his head after the accident. He did so because he had lost a bet on a soccer game and not because he was sought by the police.
The defense called Dr. Bruce Behrman, a psychologist, who testified concerning the difficulties of eyewitness identification. Behrman explained that the wrong person is selected in at least one-third of live lineups, and that even those who are confident about their identifications are wrong 10 percent of the time.
The CHP matched the license plate number obtained by Bertsch to a 1989 burgundy Trans Am owned by Marsha Marshall, who was defendants girlfriend. The day after the accident, CHP officer Edward Persijn went to Marshalls home, told her about the accident, and asked to see the Trans Am. Persijn and Marshall went to defendants apartment, but could not locate defendant or the Trans Am. Marshall located the Trans Am the following day, and noticed the passenger side had been badly damaged.
Marshall testified she never let defendant drive the Trans Am because his license had been suspended. Marshall testified that she drove the Trans Am to defendants apartment and left it there the day before the accident so that he could work on the engine.
Roger Chipman, a neighbor of defendant, testified he saw defendant waxing the Trans Am in front of his apartment around noon on the day of the accident. He saw a "for sale" sign in the window of the car. The Trans Am and defendant were no longer there by 2:00 p.m. The following morning Chipman saw the Trans Am and noticed its passenger side was damaged. Chipman testified he had never seen defendant drive.
Defendant testified he had cleaned the Trans Am on the morning of the accident because he planned to show it to a Latino couple who was interested in buying it. About 2:00 p.m., he drove the car to his friend Robert Moodys house, where he permitted the couple to test drive it. Defendant had met the couple while he was playing soccer in a park. All he knew about the couple was that the males first name was Vincente; he did not know either of their full names, their address or their telephone number. The couple drove away in the Trans Am while defendant stayed with Moody and drank beer. Some two hours passed before Vincente, now alone, returned with the Trans Am. Defendant did not notice any damage to the vehicle, which he drove back to his apartment. Defendant never saw the couple again.
Robert Moody testified he had known defendant for three years because they worked together at the Carrows Restaurant on 28th and J Streets in Sacramento. Moody and defendant were friends; defendant would "hang out" at Moodys house a couple of times per week. On the day of the accident, Moody testified he left work between 1:00 and 3:00 p.m., took about 15 minutes to get home, and received a telephone call from defendant about 20 minutes later. Defendant arrived at Moodys house about an hour afterward, driving Marshalls Trans Am and carrying a 12-pack of beer.
About half an hour later, Moody saw a Latino couple park in front of his home, speak to defendant in Spanish for a while, and then drive away in the Trans Am. The Trans Am was not returned until one or two hours later.
In order to rebut Moodys testimony, the People called Walter Finigan, the district manager for Carrows Restaurants, and whose area of responsibility included the Carrows where defendant and Moody worked. Finigan testified that the restaurants records indicated Moodys shift was scheduled to end at 2:00 p.m. that day, and that he most likely completed his shift at 1:53 p.m.
If Moody completed work around 2:00 p.m., defendant would not have arrived at his house until sometime after 3:00 p.m., and the Latino couple would not have taken the Trans Am until nearly 4:00 p.m., which was one hour after the accident occurred.
The parties stipulated that defendant could not legally drive on the date of the accident because his drivers license had been suspended based on a 1986 conviction for driving under the influence.
The court informed the jury that defendant had served a term of imprisonment for a 1989 conviction for driving under the influence with three prior misdemeanor convictions of the same offense (Veh. Code, §§ 23152, subd. (b), 23175), and for a 1991 conviction for causing bodily injury to another while driving under the influence of alcohol (Veh. Code, § 23153, subd. (b)).
The court immediately admonished the jury that the evidence "may be considered by you only for the limited purpose of determining if it tends to show a motive for the commission of the crime charged in this case, which is specifically fleeing the scene of a vehicular accident in which he may have been involved and in which injuries were allegedly sustained."
DISCUSSION
Defendant contends the trial court erred in admitting the evidence of prior uncharged convictions under Evidence Code section 1101, subdivision (b). The People respond that the trial court properly admitted defendants prior convictions to show motive for committing the current offense of hit and run. The People have the better argument.
"[T]the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 146 (Catlin); see also People v. Thompson (1980) 27 Cal.3d 303, 315, disapproved on another ground in People v. Rowland (1992) 4 Cal.4th 238, 260.) "Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a persons character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), fn. omitted.) Evidence of uncharged misconduct is admissible to prove facts such as motive, intent, or knowledge. (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels); Evid. Code, § 1101, subd. (b).)
In this case, the challenged evidence served the appropriate evidentiary purpose of establishing motive. Motive is a cause, reason, or inducement that leads or tempts the mind to indulge in a criminal act. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) Motive is not generally an element of a criminal offense, but is an intermediate fact which may be probative of such ultimate issues as intent, identity, or the commission of the criminal act itself. (Id. at pp. 1017-1018.)
Defendant proposes that motive was not really an issue in this case because the act of flight itself established motive. In defendants words, "[i]f the person fled, he must have had some motive to do so." Defendant also notes "there is a built-in motive to flee in this type of case, since the person causing the accident will always have some motive to avoid being held financially responsible for the accident."
Defendants premises are legally and factually unsupported. A defendants plea of not guilty places every element of the crime at issue for purposes of admitting evidence under Evidence Code section 1101, unless the defendant has taken some action to narrow the prosecutions burden of proof. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4; Daniels, supra, 52 Cal.3d at pp. 857-858.) Here, defendant took no action to narrow the prosecutions burden of proof; thus, it was the Peoples burden to establish flight. By establishing the preliminary fact of motive to flee, the People advanced their case.
Defendants argument that there is a "built-in" motive to flee assumes that most individuals seek to avoid responsibility for their actions, regardless of fault, when it is in their financial interest to do so. This premise is contrary to human experience. Many, if not the vast majority of, individuals stop when they are in an accident, exchange information, and check for injuries. Flight is the exception rather than the rule. Thus, when an individual flees the scene of an accident, motive will always be an issue, making evidence pertaining to it highly relevant. In the present case, the witnesses to the accident saw a burgundy car turn quickly onto the 59th Street entrance to Highway 50 and swerve out of control, due both to speed and the slick conditions of the roadway. Upon striking the Volvo, the driver did not stop to inquire and assist, but instead sped away at a high rate of speed, driving recklessly to avoid the pursuit initiated by Bertsch. In such circumstances, if the People could establish that defendant had a motive to flee, it explained his conduct, and inferentially reduced doubt that Morris and Sorgen had mistakenly identified defendant as the driver.
Anticipating our conclusion, defendant contends that the trial court still should have excluded the priors under Evidence Code section 352 on the ground that the prejudice caused by the admission of the priors outweighed their probative value. We are not persuaded. The trial court has discretion under Evidence Code section 352 to exclude the evidence if "`its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Shoemaker (1982) 135 Cal.App.3d 442, 448.) We review Evidence Code section 352 rulings under the abuse of discretion standard (People v. Hillhouse (2002) 27 Cal.4th 469, 496), reversing only if the trial courts ruling was "`arbitrary, capricious or patently absurd" and caused a "`manifest miscarriage of justice" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124). In assessing whether an Evidence Code section 352 ruling caused a miscarriage of justice, we apply the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cunningham (2001) 25 Cal.4th 926, 999; People v. Cudjo (1993) 6 Cal.4th 585, 611.)
The trial court did not abuse its discretion in admitting evidence of defendants priors. The probative value of the priors was high because they showed that defendant was aware that he could be imprisoned simply for driving under the influence as well as for driving under the influence and causing injury to another. As noted above, proof of motive tended to show that Morris and Sorgen had accurately identified defendant as the driver of the burgundy car. The jury also was admonished (and later instructed) that the defendants prior convictions were introduced solely to establish motive.
In any event, defendant has failed to demonstrate prejudice. The Peoples case was strong. The burgundy car belonged to defendants girlfriend, who entrusted it to his possession on the date of the accident; defendant admittedly drove the car that day, even though his license was suspended; defendant had been drinking (which would account in part for the reckless driving); defendant was positively identified by two eyewitnesses (the third eyewitness, Guess, was equivocal, perhaps due to glaring sunshine); defendant changed his appearance after the accident by shaving off his hair; and defendant and the damaged Trans Am were missing the next day when Marshall and Officer Persijn went to defendants apartment.
The defense case hinged on an alibi that would have required the jury to engage in a complete suspension of common sense. Starting from the factually supported premise that Marshall wanted to sell her Trans Am, defendant asked the jury to believe that he entrusted it to two virtual strangers to test drive, and that he did not notice substantial damage to the car upon its return some two hours later. The only corroboration for this dubious story came from defendants coworker and drinking buddy, Moody, whose chronology of events was shown to be fabricated with the rebuttal testimony that he left work around 2:00 p.m. the date of the accident, a mere one hour before the accident, but two hours before he allegedly saw the Latino couple initially drive off in the Trans Am.
Defendant nonetheless insists the case was a close one, based on the length of the deliberations (five hours), the jurys request for a read-back of the testimony of Morris, Bertsch and Marshall, and the jurys request that the court clarify the burden of proof required for a conviction of a violation of Vehicle Code section 20001. Defendant is mistaken. Considering the jury heard testimony over the better part of three days, a five-hour deliberation (including the read-back of testimony) was relatively quick. The testimony the jury requested be read back emanated from prosecution rather than defense witnesses, and the jury instruction went to the burden of proof rather than a defense. These facts more reasonably support the inference that the jury was taking care to ensure that the prosecution had met its burden. We conclude the admission of the prior convictions was harmless.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J. and ROBIE, J.