Opinion
A155288
12-06-2019
THE PEOPLE, Plaintiff and Respondent, v. JENNIE ZHU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco Superior Ct. No. SCN 228077)
Defendant Jennie Zhu drove her Mercedes-Benz SUV at high speed into the back of an occupied vehicle stopped at an intersection in San Francisco, killing a 16-year-old boy and injuring his mother and sister. Nearly five years later, a jury convicted Zhu of one count of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) and two counts of reckless driving causing specified injury (Veh. Code, § 23105, subd. (a)). The trial court sentenced her to a total term of six years in prison, composed of one six-year term for vehicular manslaughter and two concurrent 16-month terms for the other convictions. Zhu's sole claim on appeal is that the trial court wrongly denied her a continuance of the trial date to secure an expert on sudden unintended acceleration (SUA) of a vehicle. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The facts are largely undisputed. On the morning of September 27, 2013, Zhu was speeding westbound on Pine Street, a one-way, three-lane street with parking on both sides. The speed limits on the relevant stretch of the street range from 25 to 30 miles per hour, but Zhu was travelling at a speed between 40 to 75 miles per hour. Police officers in a patrol car saw Zhu speeding through the Polk Street intersection, and they followed her, observing her changing lanes. At the Gough Street intersection, Zhu crashed into the back of a Chevrolet Venture minivan in the right lane that was stopped at a red light. The minivan was pushed forward, struck another vehicle, was hit by an oncoming bus, and flipped onto its side. Zhu's Mercedes veered right, collided with a parked vehicle, and also flipped onto its side.
The minivan contained three occupants, a mother and her teenage son and daughter. The son was pronounced dead at the scene, having suffered a skull fracture, brain hemorrhaging, and multiple blunt-force injuries. The mother lived, but she was gravely injured and remained unconscious for six weeks. She endured a traumatic brain injury, a broken arm, fractures to her vertebrae, and lacerations to her liver. The daughter was less seriously injured, but she was nonetheless hospitalized to treat fractures to her right scapula, right hand, and left wrist, and she missed several weeks of school.
A criminal complaint was filed against Zhu in December 2013. She waived her right to a speedy trial and was released on her own recognizance. Before the preliminary hearing was set, the cause was continued repeatedly. Eventually, the preliminary hearing was set for a date in June 2016, about two and a half years after the charges were brought. Shortly before the June 2016 date, Zhu successfully moved to continue the preliminary hearing. Five months later, in November, she moved for another continuance, which was also granted.
In February 2017, Zhu moved for yet another continuance of the preliminary hearing, and yet again the motion was granted. In seeking this third continuance, Zhu's trial counsel stated he had not yet obtained expert reports from a lawyer who was defending Zhu in a civil case involving the crash. He declared he had "attended several meetings with [the civil lawyer's] office and with his hired experts." He also declared that the civil lawyer "agreed to share the fruits of this expert's work" and that he "intend[ed] to engage the expert directly." The record does not reflect whether Zhu's counsel retained or received anything from such an expert or experts.
The preliminary hearing was finally held in September 2017, and trial was set for the middle of April 2018. A week before the scheduled trial date, Zhu's counsel requested a continuance of "at least 12 to 16 weeks" to obtain an expert on SUA. When asked by the trial court about the availability of the experts in the civil case, Zhu's counsel said that, although he had "sat down with the [civil defense lawyer] on more than one occasion," he was "not sure that they had experts." Thus, while 14 months earlier counsel had told the court that he had met with and was planning to retain one or more of the civil defense lawyer's experts, he now represented that he was unaware whether there even were any such experts.
In any event, Zhu's counsel said he had been consulting with three experts who worked for a company called InSciTech, and they had recently told him they could not "speak to [him] about thirty (30) or more cases of [SUA] currently pending against Mercedes vehicles" in which they were involved. According to Zhu's counsel, these experts informed him they "could not testify on behalf of [Zhu] until and unless the defense 'comes up with independent discovery' not covered by their non[]disclosure agreement" in the other cases. Counsel said these experts were "not coming in for [him]," were refusing to communicate with him, and were "not available to [him] as experts." The prosecutor objected to a continuance, noting she had not received any defense expert report on vehicle-related issues in the two years she had been handling the case.
The three experts consisted of an expert in "pedal confusion or panic," an expert in accident "reconstruction" and "mechanical factors," and "the team leader who is charged with vehicle diagnostics."
The trial court denied the motion. It pointed out that Zhu's counsel had received the prosecution's vehicle-inspection report four years earlier, in 2014, and it believed the defense "had the case long enough." It also expressed doubts that it would permit the InSciTech experts to testify about other cases involving Mercedes-Benz vehicles or that a nondisclosure agreement would preclude them from testifying entirely about SUA as a general phenomenon. Although Zhu's counsel said he wanted experts "not bound by non-disclosure pacts," he did not explain the terms or scope of the ones binding the InSciTech experts, the reason the agreements prevented the experts from testifying at all about SUA, the nature of the testimony the experts would have given, or whether there was any "independent discovery" that might allow them to testify to at least some extent.
The trial was delayed for another couple of weeks, and jury selection began in early May 2018. At trial, police investigators and a Mercedes-Benz forensic engineer testified that they inspected Zhu's vehicle after the accident and found nothing to indicate it was defective. Collectively, they testified that there was no defect in the throttle body and valve, which control acceleration, or in the cruise-control mechanism, which would be the only way to accelerate the vehicle without using the gas pedal. Testimony was presented that the brake rotors were not discolored, as would be expected if Zhu had pushed the brakes hard more than once or twice. In addition, at the time of the inspection, the SUV contained a normal amount of brake fluid.
Zhu testified in her own defense, but she claimed that her memory of the relevant events was hazy, and her testimony was inconsistent. She testified that as she was driving on Pine Street at about 30 or so miles per hour, the SUV made a loud noise and then "sped up quite a lot." She said she had not engaged the cruise control. According to her, the SUV simply "dragged [her] along," and she became "scared." She testified that when her vehicle sped up, she "was dizzy" and "completely oblivious of [her] surroundings." She did not know if she stepped on the accelerator, and she said she "felt, like, not conscious of anything around [her] anymore."
Zhu gave mixed testimony on whether she had tried to brake. When asked if she stepped on the brake, she said, "I really didn't know anything. I was almost [un]conscious." But she also said, "I tried to stop. I don't know. I don't recall if I did. I tried to stop. I tried to brake. I don't know what happened." On cross-examination, she reiterated that she had tried to brake but that "the car just would not conform to what it's supposed to do, and then [she] just [didn't] know anything and [her] whole body felt weak." Later, she testified that she put her foot on the brake "[i]nitially," but when asked "[h]ow many times [she tried] to brake the car in four blocks," she responded, "I did not—did not. . . . When I was too dizzy, I just didn't know anything anymore." She also could not remember if she tried to use the parking brake.
Zhu also suggested that something went wrong with the SUV's steering. She testified that "in the beginning," when her vehicle first sped up, she tried to pull over, but the vehicle steered itself to the right. She could not say whether she went through intersections or through a red light, and she did not know if the SUV had moved into the left lane after it moved into the right lane. While the vehicle was speeding, she did not honk her horn or turn on her hazard lights.
Other testimonial and video evidence showed that before the crash Zhu was speeding and moving between traffic lanes. The trial court later summarized this evidence as showing that the SUV "was controlled. . . . [¶] It showed that the vehicle was traveling, moving away from cars. There is no evidence that the brakes weren't working. The car didn't stop. The car, in fact, maneuvered away from other cars."
After Zhu testified, and outside the presence of the jury, the trial court held a hearing under Evidence Code section 402 to determine whether a proposed defense expert, Dr. William Woodruff, would be allowed to testify. Dr. Woodruff, who worked at InSciTech, claimed that Zhu's counsel retained him in September 2017, which was around the time the preliminary hearing was held. It appears Dr. Woodruff was one of the experts whom Zhu's counsel represented would not be "coming to trial" and was "not available to [him]" when requesting a continuance of the trial date, and it is not apparent how Dr. Woodruff became available to testify after all.
All further statutory references are to the Evidence Code unless otherwise noted.
During the section 402 hearing, the trial court asked Zhu's counsel for an offer of proof of Dr. Woodruff's anticipated testimony. Counsel stated, "He will testify that Mercedes[-]Benz technicians did [] [shoddy] and [] shallow work, that the police officers did their job, but they did only the mechanical side of the system. He knows and the Court know[s] and all of us know that Ms. Zhu said the car acted on its own, did not act as designed. This was a vehicle malfunction. The question that I will ask the doctor in front of the jury is whether or not the investigation the police did was good enough to rule out vehicle malfunction and it wasn't." When asked if there was additional anticipated testimony, Zhu's counsel reminded the court of the defense's previous request for a continuance because its proposed experts were subject to a nondisclosure agreement, but counsel again failed to explain how the agreement would limit Dr. Woodruff's ability to testify about SUA more generally.
Citing section 352, the trial court ruled that "the other lawsuits involving Mercedes, the Court doesn't even know whether [they] involve[] this vehicle; but nevertheless, whether it's this model or others it's not relevant." The court did rule, however, over the prosecutor's objection, that Dr. Woodruff could testify in accordance with the defense's offer of proof. Thus, although the court prohibited Dr. Woodruff from testifying about other cases involving Mercedes-Benz, it did not categorically prohibit him from testifying about SUA.
Dr. Woodruff then testified as an expert in accident reconstruction and systems analysis. He opined that the investigation of Zhu's Mercedes after the crash was a "good start" but "[in]adequate or [in]sufficient to answer the question at hand, which is was there a malfunction that could have caused or contributed to the accident." He testified that a more thorough investigation was required to rule out the possibility that the vehicle malfunctioned. Although he indicated that a general mechanical malfunction could not be ruled out, he was not asked and did not testify about SUA in particular. He admitted that, if there were simultaneous system failures, the kind of examination that was performed on Zhu's vehicle "would probably detect" some evidence of them.
II.
DISCUSSION
Zhu claims that the trial court abused its discretion by denying her a continuance of the trial date. And because this ruling purportedly precluded her from presenting expert testimony about SUA, she claims that her Sixth and Fourteenth Amendment rights to due process, to effective assistance of counsel, and to present a defense were violated. We are not persuaded.
A continuance in a criminal case may be granted only for good cause. (Pen. Code, § 1050, subd. (e).) The burden of establishing good cause is on the moving party. When a continuance is sought to secure the presence of a witness, the movant must show: " '(1) [t]hat [he or she] has exercised due diligence in an attempt to secure the attendance of the witness at the trial by legal means; (2) that the expected testimony is material; (3) that it is not merely cumulative; (4) that it can be obtained within a reasonable time; and (5) that the facts to which the witness will testify cannot otherwise be proven.' " (Owens v. Superior Court (1980) 28 Cal.3d 238, 250-251.) In determining whether to grant a continuance, a 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. Doolin (2009) 45 Cal.4th 390, 450.)
The decision whether to grant a requested continuance " 'rests within the sound discretion of the trial court,' " and " 'an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence,' " although " '[t]he trial court may not exercise its discretion "so as to deprive the defendant or his [or her] attorney of a reasonable opportunity to prepare." ' " (People v. Fuiava (2012) 53 Cal.4th 622, 650.)
Applying these standards here, we conclude that Zhu failed to satisfy her burden of demonstrating that the trial court abused its discretion or violated her constitutional rights in denying the requested continuance. Zhu's trial counsel neither clearly articulated the expert testimony he anticipated presenting nor addressed the court's expressed doubts that the nondisclosure agreement prevented the defense experts from testifying at all about SUA. As a result, the court was unable to assess meaningfully the possible benefit of the anticipated testimony or the likelihood that such a benefit would be realized. (See People v. Doolin, supra, 45 Cal.4th at p. 450.) More is required than simply asserting that a continuance is necessary to secure unspecified beneficial testimony, particularly given the enormous amount of time that the defense had already had to secure experts on SUA.
Even if we could conclude that the trial court erred based on the record at the time it ruled, Zhu has not carried her burden to demonstrate that she was prejudiced by the ruling. (See Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527-528.) Nothing in our record reflects a ruling by the court preventing Zhu's experts from testifying about SUA generally, yet Zhu's counsel did not attempt to elicit testimony from Dr. Woodruff on this issue. Indeed, at least certain aspects of Zhu's testimony were at odds with SUA as an explanation for the crash, including her denial of engaging her cruise control and her suggestion of multiple other malfunctions with her vehicle, including its braking and steering. Ultimately, like the court below, we lack information about the anticipated testimony and what its likely benefit to the defense might have been, and we therefore must conclude that the denial of a continuance to secure it was harmless under either measure of prejudice. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
The record does show that the trial court sustained an objection when Zhu's counsel attempted to cross-examine the prosecution's forensic engineer about SUA. The court did not explain the basis of its ruling, and Zhu does not challenge it on appeal. --------
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Sanchez, J.