Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F08475.
SCOTLAND, P.J.
While fleeing from a pursuing peace officer, defendant Brandon Williams crashed the stolen car he was driving, killing a passenger in the car. Defendant was convicted of second degree murder and causing the death of another while fleeing in a vehicle from a pursuing peace officer. He appealed. For reasons stated in People v. Williams (2005) 130 Cal.App.4th 1440, this court reversed the second degree murder conviction.
In a retrial on that charge, defendant was again convicted of second degree murder. He was sentenced to 15 years to life in state prison for that conviction. The sentence for causing death while fleeing from a peace officer (Veh. Code, § 2800.3) was stayed pursuant to Penal Code section 654.
The abstract of judgment does not reflect that the trial court stayed defendant’s conviction for violating Vehicle Code section 2800.3. We shall order the trial court to correct the abstract accordingly.
On appeal, defendant contends the trial court erred in allowing the prosecutor to introduce evidence of defendant’s two prior offenses of fleeing from a peace officer. (Veh. Code, § 2800.2.) We disagree and shall affirm the judgment.
FACTS
While on patrol in a marked police car on October 20, 2001, Officer Linda Matthew observed defendant driving a silver Audi that Matthew suspected was stolen. After a dispatcher confirmed the Audi was stolen, Matthew requested assistance and began to follow defendant.
When defendant noticed Officer Matthew, he ran a red light, causing cars in the intersection to slam on their brakes to avoid a collision. Turning on her sirens and overhead lights, Matthew pursued defendant, who “gunned” the Audi as he drove onto the freeway. Matthew followed, driving up to 120 miles per hour, but she could not keep up with defendant, who was going about 140 miles per hour. Defendant was 10 to 12 car lengths ahead of Matthew when he turned off the Audi’s lights and continued down the freeway.
At the Sheldon Road off-ramp, Officer Matthew saw the Audi’s brake lights go on and off quickly, so she knew that defendant was leaving the freeway. She estimated he was driving about 80 to 100 miles per hour at the time. Matthews then observed a cloud of dust near the very sharp “20-mile-an-hour turn” on the off-ramp and saw the Audi in flames. A witness testified the Audi was unable to make the turn, hit the curb, and flipped, rolled over, and landed 15 to 20 feet on the other side of a culvert.
Jamar Smith, Venus Foster, and Kamika Beasley were passengers in the stolen Audi. Beasley crawled out through the back window of the car and screamed for Officer Matthew to help Foster, who was in the car. Smith was lying on the ground near the vehicle. Before Matthew could assist Foster, flames fully engulfed the car, killing the young woman. Defendant was discovered hiding on the side of the road and taken into custody.
Over defense counsel’s objection, the trial court allowed the prosecution to introduce evidence of defendant’s two prior offenses for evading a police officer in violation of Vehicle Code section 2800.2.
On January 14, 1999, defendant was driving a truck erratically at a high rate of speed in heavy traffic on the freeway, “making quick lane changes without signaling . . . causing traffic in the area to slam on the brakes and swerve to avoid causing collision.” Officer Martin Ziebarth and another police officer began pursuing defendant with their patrol car lights and sirens activated. Defendant eventually slowed to about 50 miles per hour, hit the brakes, and jumped from his moving truck while it was still going around 30 miles per hour. He initially landed on his feet, but then flipped in the air and fell onto his back, incurring a deep laceration to his head. He was transported to a hospital for treatment of his injuries.
On November 18, 1999, Officer Jole Contreras, who was in a marked patrol car, saw defendant driving a vehicle, running stop signs, and speeding at 60 miles per hour in a residential area where the speed limit was 25 miles per hour. Contreras followed, with lights and sirens activated. Defendant fled at a high rate of speed, continuing to run stop signs until he crashed into several unoccupied parked cars and a school bus.
Defense
Defendant testified as follows: He did not know the Audi was stolen. He fled from Officer Matthew because there was a warrant out for defendant’s arrest and he did not want to go to jail. He was unaware of any near collisions with other drivers while he was fleeing, and it did not occur to him that driving 140 miles per hour with the lights off could result in someone getting killed. As he was driving, the steering wheel started to shake, and the car began to drag to one side. When he approached the turn on the Sheldon Road exit, he pulled on the emergency brake to slow down. The steering wheel would not turn, and the car “jumped off the curb.” He “bailed” out of the car and ran away, assuming everyone else in the car did so too.
DISCUSSION
In defendant’s view, the trial court erred in permitting the prosecutor to use evidence of defendant’s two prior offenses for eluding a peace officer (Veh. Code, § 2800.2) to establish that defendant killed Foster with implied malice. We disagree.
Implied malice exists when an intentional act naturally dangerous to human life is committed “‘by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684; Pen. Code, § 188.) “It is the ‘“‘conscious disregard for human life’”’ that sets implied malice apart from gross negligence. [Citations.]” (People v. Contreras (1994) 26 Cal.App.4th 944, 954.) Implied malice is determined by examining the defendant’s subjective mental state to see if he actually appreciated the risk of his actions. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217; People v. Watson (1981) 30 Cal.3d 290, 296-297.) It is unnecessary that implied malice be proved by an admission or other direct evidence of defendant’s mental state; like all other elements of a crime, implied malice may be proved by circumstantial evidence. (People v. James (1998) 62 Cal.App.4th 244, 277.)
In this case, the prosecution sought to introduce evidence of defendant’s two prior offenses for violating Vehicle Code section 2800.2, which elevates to a felony the crime of fleeing from a pursuing peace officer if the defendant drives the pursued vehicle “in a willful or wanton disregard for the safety of persons or property . . . .”
Although subdivision (a) of Evidence Code section 1101 generally prohibits the use of character evidence to prove a defendant’s conduct on a specified occasion, an exception is created under subdivision (b), which permits evidence that a defendant has committed a crime, civil wrong or some other act to prove a material fact “such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . .”
The prosecutor argued that evidence of defendant’s prior acts tended to show he was subjectively aware of the dangerous consequences that can occur as a result of recklessly fleeing from the police, and that his repetition of this behavior demonstrated a conscious disregard for the lives of others. The trial court agreed and ruled the evidence was admissible because it was relevant to the issue of defendant’s knowledge (Evid. Code, § 1101, subd. (b)) and its probative value was not outweighed by its prejudicial effect (Evid. Code, § 352).
Defendant does not challenge the trial court’s exercise of discretion under Evidence Code section 352. His sole contention is that the prior acts evidence was inadmissible under Evidence Code section 1101, subdivision (b) because, he claims, it lacked any substantial probative value at all regarding his knowledge and subjective awareness of the risk to human life created by his conduct. This is so, he contends, because he had not been required to take any post-conviction classes warning him of possible life-threatening danger created by high-speed police pursuits, and because the prior incidents had not resulted in any potentially fatal injuries.
Relying on United States v. Perez (2d Cir. 2003) 325 F.3d 115 and United States v. Peterson (2d Cir. 1987) 808 F.2d 969, 974, he argues that the uncharged acts must be sufficiently similar to permit a rational factfinder to draw the inference of knowledge advocated by the proponent of the evidence, and that the chain of inferences necessary to connect the evidence to the ultimate fact to be proved cannot be unduly long. Defendant maintains there was “no sufficient similarity between the prior acts of evasion and the conduct on the night of the incident to support an inference that the prior incidents provided [him] with knowledge that his conduct on the night of the incident was dangerous to life.” According to him, the prior acts were too dissimilar to be relevant because no one was seriously injured; at most, his prior conduct made him aware that he could injure himself if he jumped from a moving vehicle and that he could cause damage to parked cars. He views the issue too narrowly.
The admissibility of prior acts evidence “turns largely on the question whether the uncharged acts are sufficiently similar to the charged offenses to support a reasonable inference of the material fact they are offered to prove.” (People v. Erving (1998) 63 Cal.App.4th 652, 659-660; see also People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
As with intent, the contours of the “knowledge” exception in Evidence Code section 1101 are not so restricted that identical consequences from identical conduct must be established before the evidence is admissible. (People v. Ortiz (2003) 109 Cal.App.4th 104, 112 (hereafter Ortiz).)
In Ortiz, the appellant, who was convicted of second degree murder arising out of a head-on vehicular collision, claimed that his prior acts of driving under the influence of alcohol (DUI) should not have been introduced at trial to establish he possessed the requisite implied malice because the current offense did not involve driving under the influence of an intoxicant. (Ortiz, supra, 109 Cal.App.4th at pp. 110-111.) The Court of Appeal rejected this contention, observing: “[C]ourts have recognized repeatedly that 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. This is so because apprehensions for drunk [or reckless] driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum.” (Id. at pp. 112-113.) “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 wilful irresponsibility--the driver’s subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” (Id. at p. 115.)
Here, defendant argues he was not made aware of the life-threatening nature of his conduct because he was not required to attend any classes regarding the dangers of his driving conduct, and because his prior incidents did not result in any fatal or near-fatal injuries. The argument is not persuasive.
Attendance at educational classes following a DUI conviction might be necessary in order to draw an inference of implied malice in a subsequent vehicular homicide where, for example, the prior conviction resulted from the person being stopped at a sobriety checkpoint without any evidence of reckless or dangerous driving. Such attendance supports the inference that the person learned from those programs about the risks of driving recklessly or while intoxicated. (People v. Murray (1990) 225 Cal.App.3d 734, 746; People v. Brogna (1988) 202 Cal.App.3d 700, 705; People v. McCarnes (1986) 179 Cal.App.3d 525, 532.) However, where the prior incident involved reckless driving, collisions, near collisions or injuries, then it becomes less important whether the person attended classes warning him of the dangers of such driving conduct. Under such circumstances, the attendance at an educational class enhances the probative value of the prior incident; but it is not a prerequisite to admissibility. The person’s behavior alone and the resulting consequences are sufficient to alert the person of the risk he is voluntarily creating in conscious disregard of the lives of others.
As explained in People v. Eagles (1982) 133 Cal.App.3d 330: “Evidence of excessive speed resulting in a near collision is relevant to knowledge of risk, ‘an actual awareness of the great risk of harm’ of excessive speed. [Citations.] [Eagles’s] prior driving conduct occurred on the same day and some nine hours before the killings. Although it took place on a freeway with speed limits different than on [the public street on which the current offense occurred], it involved driving at excessive speeds, resulting in a near accident. We agree with the prosecutor at trial that it is a permissible inference that ‘[w]hen you’re driving around . . . at a high rate of speed, almost cause an accident, you must see what the risk of harm is that can follow it.’” (Id. at p. 340.)
Here, defendant’s prior acts involved (1) reckless speeding on public streets to escape from pursuing peace officers; (2) running red lights and stop signs, which nearly caused collisions with other drivers but for their quick reactions; (3) collisions with parked cars and a school bus, which fortuitously did not contain any people; and (4) an injury to defendant. Evidence that in the past defendant had repeatedly fled from the police or driven in a careless manner, with destructive and injurious results, raised the reasonable inference that he must have recognized the palpable risk of serious harm associated with the same egregious conduct on the date of the charged offense. From his prior offenses, defendant learned that high-speed chases can result in car crashes, and that one can be injured if ejected from a vehicle, even when the car has slowed to a speed of 30 miles per hour. Such knowledge logically leads to the conclusion that car crashes at even greater speeds can result in even greater injures, i.e., fatal injuries.
Thus, the prior offenses tended to show that defendant was subjectively aware of the dangerous consequences that can occur as a result of recklessly fleeing from the police on public streets, and that his persistent repetition of this behavior evidenced a conscious disregard for the lives of others. Hence, the trial court did not err in allowing the prosecutor to introduce the challenged evidence.
In any event, it is not reasonably probable that defendant would have obtained a more favorable result if the prior acts evidence had not been introduced. (People v. Watson (1956) 46 Cal.2d 818, 836; Ortiz, supra, 109 Cal.App.4th at p. 119.) On the night Foster died, defendant drove in an extremely dangerous manner while evading Officer Matthew. He ran a red light, causing other drivers to swerve and slam on their brakes to avoid collision; traveled approximately 140 miles per hour on the freeway with other vehicles present; turned off the car’s lights while still driving at an extremely high rate of speed; and left the freeway at 100 miles per hour on an off-ramp with a speed limit of 20 or 25 miles per hour. Common sense and life experience would apprise a person of reasonable intelligence of the potential danger to human life resulting from this conduct. Defendant’s claim that he did not understand the risks was not credible; indeed, it was absurd. He was 22 years old at the time of the homicide, thus not a new and inexperienced driver. There is no evidence that he was of below-average intelligence or had a brain disorder that affected his ability to perceive and comprehend the patently obvious risk to the lives of the people in his car or in the other cars on the public streets and freeway where he traveled.
Furthermore, the trial court gave a limiting instruction, advising the jurors that they could not consider the evidence of defendant’s prior offenses to prove that he was a person of bad character who had a disposition to commit crimes. It informed the jury the evidence could be considered only on the existence of implied malice and defendant’s subjective knowledge of whether the natural consequences of high-speed pursuits are dangerous to human life. And the court apprised the jurors that they were the sole judges of whether the evidence tended to prove the existence of implied malice.
Simply put, the evidence of implied malice was overwhelming, the jurors were appropriately advised of the limitations placed on their use of defendant’s prior acts, and it is not reasonably probable that defendant would have obtained a more favorable result if the prior acts evidence had been excluded.
DISPOSITION
The judgment is affirmed. The trial court is directed to (1) amend the abstract of judgment to reflect that defendant’s conviction for violating Vehicle Code section 2800.3 was stayed pursuant to Penal Code section 654, and (2) send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, J., BUTZ, J.