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The People v. Robert Palacio Vellanoweth

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT PALACIO VELLANOWETH, DEFENDANT AND APPELLANT.

(Super. Ct. No. 07F03967)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Vellanoweth CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Robert Vellanoweth of four counts of gross vehicular manslaughter while under the influence of alcohol after he crashed head-on into a car being driven by Brizchelle Rice, killing Rice and three of her passengers. (Pen. Code § 191.5, subd. (a).)*fn1 The fourth passenger, Tanisha Johnson, survived the crash, but was seriously injured, for which defendant was convicted of causing bodily injury while driving under the influence and causing bodily injury while driving with .08 percent alcohol in his blood. (Veh. Code, § 23153, subds. (a) & (b).) His total sentence for these crimes was 17 years and 8 months in prison.

We shall conclude that the trial court correctly excluded evidence that the deceased driver of the other vehicle did not have a driver's license. Defendant sought to introduce the evidence to show that the other driver's negligence caused the accident, despite the fact that defendant was driving drunk, in the wrong lane of traffic, at a speed of more than double the posted limit. The evidence was properly excluded because it was irrelevant to prove the negligence of the victim, since there was no causal relationship between her failure to have a license and the crash.

We shall also conclude that the instructions given to the jury permitting them to infer from defendant's 0.16 percent blood alcohol level when tested that he: (a) was under the influence of alcohol at the time of the crash, and (b) had a blood alcohol level of at least 0.08 at the time of the crash, were not unconstitutional. The instructions did not impermissibly lighten the prosecution's burden of proving every element of the offense beyond a reasonable doubt because the instructions left the jury free to accept or reject the inference.

The trial court properly limited defendant's worktime credits to 15 percent because defendant was convicted of a felony in which he inflicted great bodily injury. The statutory scheme limiting the accrual of worktime credits is unambiguous, and we reject defendant's arguments that the Legislature must have meant something other than what it said.

Finally, we reject defendant's claim that the trial court did not understand its sentencing discretion under recent amendments to the sentencing laws giving the trial court greater discretion to choose the upper, lower, or middle term. The trial court's lengthy discussion of the factors weighing into its decision to impose the upper term demonstrates no misunderstanding of its obligations or of its discretionary power.

FACTUAL AND PROCEDURAL BACKGROUND

The collision occurred at approximately 3:40 p.m. on March 26, 2007. The bartender at The Distillery testified that defendant arrived at her establishment around 11:30 a.m., and she served him three martinis. Defendant left around 1:30 p.m.

Defendant went back to his office, arriving around 1:45 p.m. He left the office around 3:30 and went to the El Camino Real restaurant, next door. He stayed less than 10 minutes before leaving, eventually heading south on South Land Park Drive.

Tanisha Jackson, who was 16 at the time, testified that she and her friend Brittanya Nash were picked up from their high school that day by Brittanya's sister, Brizchelle. Also in the car were Brizchelle's baby son Kamall, and friend Shanice Carter. They first stopped at a Food Stop convenience store, then were going to pickup Brizchelle's other son from school. Jackson, the only survivor, remembered nothing after leaving the Food Stop.

Several witnesses heard, but did not see the crash. It had been raining that day, and the street was still wet. Lloyd Need was parked in a parking lot facing the intersection of South Land Park Drive and 35th Avenue when he heard the squealing of tires and revving of an engine. He looked up and saw defendant's red Jeep spinning its tires and fishtailing. The engine of the Jeep sounded like it was being floored. The Jeep was headed south on South Land Park Drive. Need did not continue to watch the Jeep, but a "very short period of time" later, he heard a huge, ground-shaking thud. He observed Rice's brown sedan in the northbound lane sitting sideways in the street. The front end of the car was "totally smashed." Further down in the southbound lane, he saw the red Jeep. He went back to his truck and dialed 911.

Sharon Williamson was getting out of her mother's car to mail some letters when she heard tires spinning out. She looked around and saw Rice's brown sedan in the street. It was headed north after appearing to have exited the southernmost exit from the parking lot. She continued on towards the post office, then heard a huge collision. She looked over quickly enough to see the impact as it was still happening. The red Jeep was on top of the brown car. The Jeep landed right side up in the gutter, and the sedan landed across the street almost on someone's lawn.

Jerry Kwong was working at a nearby store when he heard a loud, thundering sound. He looked out the front door and saw the Jeep at an angle. He eventually saw the other car on the lawn facing the wrong direction. He helped the driver of the Jeep get out of the vehicle, then went to the other car. He realized he could not help the driver of the other car because it was apparent she was dead.

Jordan Lindsey lived nearby. He heard the screeching tires first, then a tremendous impact. He ran outside and saw the sedan on his neighbor's lawn. He saw only three people in the car. He could tell the passenger in the front was dead. One of the passengers in the back was breathing, but not moving. Nothing could be done to help the driver. He wanted to help the passenger he knew was still alive, but the condition of the car was such that he was unable to get to her.

James Keating was shopping at a nearby grocery store. He was in the store when someone said there had been a fatal crash outside. He went to see if he could help. He saw defendant sitting in the passenger seat of the Jeep. He asked defendant if he were all right. Defendant indicated he was. He asked who had been driving, and defendant replied that his wife had been driving. He asked where defendant's wife was, and defendant said, "She got out and walked home."

Firefighter Robert Wenzler was the first emergency responder to speak with defendant. Defendant was outside the vehicle, walking around. Wenzler testified that defendant told him he was the passenger in the Jeep, and that his wife had been driving. Wenzler asked defendant where his wife was, and defendant told him she was in Arizona.

Wenzler started asking defendant questions to assess his condition. Defendant was irate and upset, and did not want to answer any questions. Defendant told Wenzler to go fuck himself. Defendant's speech was slurred, and Wenzler detected the odor of alcohol. After the police came, Wenzler tried to convince defendant to get in an ambulance and be evaluated. Defendant was uncooperative, and told Wenzler he did not have to cooperate because he (defendant) was a peace officer.

Police officer Lee Elson was dispatched to the scene of the accident. He noticed the odor of alcohol on defendant's breath. Defendant told Elson he was a retired CDC parole agent, and showed Elson his badge. Defendant told Elson he had been driving southbound on South Land Park Drive when the sedan "blew a red light and hit him." Elson knew this was impossible because there was no light at that intersection. Defendant did not recall how fast he had been going or what direction the other car had been coming from. Defendant told Elson he had had one alcoholic drink.

Police officers Jyotis Hasegawa and Shannon Whent also responded to the scene. Hasegawa testified that he smelled a strong odor of alcohol coming from defendant, that defendant's speech was slurred, and that his eyes were bloodshot and watery. Defendant told Whent he had been coming home from the El Camino Real restaurant. He told her he had been driving. He told her he had not had anything alcoholic to drink.

Officer Whent attempted to perform field sobriety tests on defendant. The first test performed was the Horizontal Gaze Nystagmus test. The test evaluates the bouncing of the eye as it tracks the movement of a pen or fingertip. Defendant was uncooperative and would not stand still. When Whent attempted to repeat the test and reinstructed defendant, he once again failed to follow instructions.

Whent also told defendant to stand on one leg, but he would not do it. Defendant refused to provide a breath sample for testing. Whent concluded there was probable cause to believe defendant was under the influence.

Defendant was uncooperative and had to be handcuffed to a gurney to be taken to the hospital. At the hospital, Whent advised defendant that he was required to submit to a blood alcohol test and that he did not have the right to refuse. Defendant's response was that he wanted an attorney and that he would not give a blood sample. According to procedure, the forced blood draw was videotaped, and the tape was played for the jury.

After the blood sample was taken from defendant, he told Whent that his foot slipped off the brake and he hit the gas, that "it must have been a hell of an impact," and "just take me to jail." Defendant told Hasegawa, "I went to the Camino Real restaurant and had a drink possibly called a Kamikaze. It was a large drink, and it contained rum. I made a bad choice. I hadn't eaten anything and then I drove home. I normally don't drink alcohol. I approached a stop sign and didn't even see what happened."

Around midnight, defendant told a nurse, "they hit me, it was not my fault, I am glad to be alive." He said "they" ran a stop sign. He also said he had not had anything to drink.

The forced blood draw was taken at 5:48 p.m., approximately two hours after the accident. The sample contained a blood alcohol concentration of .16 percent. With a blood alcohol concentration of .16 percent, a person absolutely would be mentally impaired.

The term "drink equivalent" is used to describe a standard drink. A drink equivalent contains a half-ounce of pure alcohol. A 12-ounce beer, a four-ounce glass of wine, an ounce-and-a-half of 80-proof alcohol, and an ounce of 100-proof alcohol are all one drink equivalent. Assuming defendant had no alcohol from the time of the crash to the time of the blood draw, he would have had to have drunk a minimum of 11 drink equivalents in a very short time frame just before the crash to reach a .16 level two hours later. The three martinis that defendant was proven to have consumed between 11:30 and 1:30 would have resulted in an approximate alcohol concentration of .03 percent at 3:39 p.m. To arrive at a .16 level two hours later, defendant also would have had to have consumed a minimum of nine and one-half drink equivalents just before the crash. This is the equivalent of 12 ounces of 80-proof alcohol.

Douglas Tracy, an officer with the Sacramento Police Department's major collision investigation unit, testified to his reconstruction of the accident. He stated that the collision occurred in the northbound lane of traffic. Defendant's Jeep was traveling southbound, and the victims' Chrysler LeBaron was traveling northbound. The vehicles hit head-on. The Jeep's speed was between 66 to 76 miles an hour at the time of the impact. The event data recorder in defendant's Jeep confirmed that it was traveling 66 miles an hour two seconds before the crash and accelerated to 72.7 miles an hour, dropping off in the last 2/10ths of a second to 72.08 miles an hour. Defendant never applied his brakes. The Chrysler's speed was between 18 and 24 miles an hour. The posted speed limit was 30 miles an hour.

Brizchelle Rice suffered massive injuries. Her spinal cord was torn in half, which was immediately fatal. Her heart was lacerated, also fatal. She suffered potentially fatal injuries, including a lacerated liver, pelvic injuries, a lacerated arm and a mangled leg. Had she lived, her arm likely would have been amputated. She had no alcohol in her system.

Shanice Carter also suffered numerous injuries, a pinched spinal cord being fatal. Brittanya Nash also suffered multiple injuries, including fatal lacerations of the heart and vena cava, and a severed aorta. Kamall Osby was 19 months old. He, too, suffered numerous injuries, including a fatal skull fracture and brain injury. Tanisha Jackson suffered multiple serious injuries, but survived.

Defendant testified on his own behalf. He confirmed having three martinis between 11:40 a.m. and 1:30 p.m. He claimed he went to the restaurant (El Camino Real) next door to his office at around 3:30 to visit the owner, who was his client. Mr. Garnica, defendant's client, was not at the restaurant, but his daughter, Angelia, offered him a drink. He asked her for a Horchata, which is a sweet rice drink. The drink Angelia handed him was not white, like a Horchata, but was orange and pink. He was told by Mrs. Garnica (Angelia's mother) that the drink was a virgin kamikaze, which he thought meant it had no alcohol. The drink tasted like orange juice with triple sec in it, but he did not taste any alcohol.

After drinking the drink, he got in his car and proceeded to South Land Park Drive. He recalled stopping at the stop sign at 35th Avenue and South Land Park Drive. While he was stopped, a car came up next to him on the right shoulder of the road. He accelerated out of the stop sign in order to get ahead of the car on the right, exceeding the speed limit. He saw a car coming directly at him in his lane, so he swerved into the northbound lane, accelerating as he did so. Simultaneously, the other vehicle moved to the northbound lane. He turned as quickly as he could, but there was no way to avoid the crash. He told the jury, "You have to remember, this is an accident, it's nobody's fault, nobody's fault."

Defendant claimed he remembered nothing from the time of the impact until he woke up in a hospital room with a police officer. He told the police officer there was nothing he could have done to prevent the accident.

Angelia Garnica testified that defendant did not have anything to drink when he stopped by the restaurant the afternoon of the accident. Antonio Garnica, who had not been at the restaurant when defendant stopped by, testified that his wife told him defendant had been served a punch drink. Mrs. Garnica was deceased at the time of trial.

Defendant hired an accident reconstruction expert to testify that the accident could have happened as defendant claimed it did. The expert conceded that there were a lot of different trajectories for the Jeep which would have resulted in the Jeep being in the correct position following the impact. Also, the expert assumed the Chrysler had been exiting the parking lot from the exit nearest the accident, when the only eyewitness to the Chrysler leaving the parking lot (Williamson) indicated the Chrysler exited the lot further south.

Defendant also hired a forensic toxicology expert who opined that defendant's blood alcohol concentration at the time of the collision was .045 percent. To explain defendant's .16 blood alcohol concentration two hours after the accident, the expert theorized that defendant suffered an abdominal injury which blocked the digestion from the abdomen, known as a dynamic ileus, slowing the absorption of alcohol into the bloodstream.

The expert testified that the hospital drew a second blood sample from defendant at approximately 7:20 p.m. the day of the accident. Unlike the whole blood analysis done by the police department, the hospital analyzed only the plasma. To equate a whole blood analysis to a plasma analysis, one must multiply by a factor of .89. Having done this calculation, the expert determined that defendant's blood alcohol concentration from the second test was .17.

This would mean that defendant's blood alcohol concentration was rising. Normally, if defendant had consumed eight to nine ounces of 80-proof alcohol, the amount necessary to result in a blood alcohol concentration two hours later of .16, he would have reached maximum absorption into the bloodstream within 45 minutes to an hour. Thus, if he consumed the alcohol at approximately 3:30 p.m., his highest blood alcohol level would have occurred from 4:15 to 4:30 p.m. The fact that the alcohol levels were rising, rather than falling, was explained by the dynamic ileus.

On cross exam, the expert admitted defendant would have had to have consumed 12 ounces of 80-proof alcohol just before the accident, not eight or nine ounces. The expert also admitted that the hospital records for defendant indicated he had no abdominal trauma or tenderness, and that his abdominal exam was unremarkable. Also on cross-examination, the expert agreed that any given plasma or serum alcohol concentration reflects a range of possible whole blood alcohol concentrations. He admitted to some familiarity with studies indicating plasma tests for alcohol showed a range of results.*fn2

The expert also opined that defendant behaved like a person suffering from a closed head injury or post concussive syndrome, but not someone with a .16 blood alcohol concentration. He also claimed that he saw no Horizontal Gaze Nystagmus when looking at defendant's blood draw video. However, the Horizontal Gaze Nystagmus test was not performed on defendant during that video.

Defendant also hired a neuropsychologist who opined that defendant's post-collision behavior indicated traumatic brain injury, not alcohol dementia. She admitted, however, that alcohol dementia results from fairly long term use of alcohol. Saying he did not suffer from alcohol dementia did not mean he could not have suffered from overuse of alcohol on the date in question. The neuropsychologist admitted that defendant was given a CT scan that showed no fracture and no acute intracranial abnormality.

DISCUSSION

I Exclusion of Evidence

Brizchelle Rice did not have a driver's license. The prosecution brought a motion in limine to prevent defendant from introducing this evidence, arguing evidence of contributory negligence was not a defense, thus the evidence was irrelevant. Defendant argues it was error to exclude the evidence. We disagree.

Defendant opposed the motion in limine, arguing the evidence was admissible to show that Rice's negligence was an independent and superseding cause of the accident. The trial court ruled that evidence of Rice's bad driving on the day of the accident would be admissible, but not evidence that she had no driver's license. The trial court stated that the evidence Rice was unlicensed:

"has no relevance[,] or what very little relevance it has is outweighed by the prejudicial effect. There are people who have driver's licenses and are terrible drivers, and there are people who have no licenses and are fine drivers. I don't think having or not having a license bears any rational connection to how well she was driving at the time of the crash. [¶] The extent that it does, I think the prejudicial effect of confusing the issue and the potential for the District Attorney to show, well, despite the fact that she has -- didn't have a license, she is a good driver, outweighs what little probative effect it has."

In concluding that the evidence was not relevant, the trial court was following established law in California, as well as other states. (see Annot., Lack of Proper Automobile Registration or Operator's License as Evidence of Operator's Negligence (1953) 29 A.L.R.2d 963, 970-976, and cases cited therein.) Thus, in Wysock v. Borchers Bros. (1951) 104 Cal.App.2d 571, 582, the court acknowledged that "[t]he nonpossession of an operator's or chauffeur's license is not of itself proof that a person is an incompetent or a careless driver." Likewise in Strandt v. Cannon (1938) 29 Cal.App.2d 509, 518, the court held that a driver's negligence is to be determined by the facts of the accident, and that whether the driver had a license is immaterial unless there is some causal relationship between the injuries and the failure to have a license.

Defendant argues that this is not the rule in criminal cases, but offers no convincing authority to support this assertion. First, he argues that the rule excluding evidence of non-licensing is based upon Vehicle Code section 40832 and implies that the statute is the only basis for the exclusionary rule. That section states: "No record of the suspension or revocation of the privilege to operate a motor vehicle by the department, nor any testimony of or concerning or produced at the hearing terminating in the suspension or revocation, shall be admissible as evidence in any court in any civil action." Defendant argues that pursuant to the doctrine expressio unius est exclusio alterius, the expression of one thing is the exclusion of another, the evidence is not admissible in a civil action, but is admissible in a criminal action.

However the common law rule excluding evidence of non-licensing as irrelevant to the issue of negligence predates the statute. The statute's predecessor was adopted in 1923. (Stats. 1923, ch. 266, § 73, p. 534.) At least one case relying on the rule in California, Arrelano v. Jorgensen (1921) 52 Cal.App.622, 623-624, predates the predecessor statute. No exclusionary rule appeared in the statute until 1925. (Stats. 1925, ch. 239, § 6, p. 397.)

The current statutory exclusionary rule found in Vehicle Code section 40832 applies to evidence of any suspension or revocation of a driver's license in any civil action. It is similar, but not identical to the common law rule articulated in a long line of cases holding that the failure to have a driver's license is not relevant to the issue of the driver's incompetence or negligence. (See e.g., Strandt v. Cannon, supra, 29 Cal.App.2d at p. 518; Hunton v. California Portland Cement Co. (1942) 50 Cal.App.2d 684, 691; Crosby v. Martinez (1958) 159 Cal.App.2d 534, 542.)

We conclude that the absence of a driver's license is not relevant to the issue of negligence of the driver in causing a particular accident, unless the absence of the license contributed directly to the injury. In this case there was no evidence showing that the absence of a license had anything todo with the accident. For these reasons such evidence was not relevant, and it was inadmissible for the purpose of proving negligence.

Defendant next argues that courts routinely admit evidence of the license status of a defendant driver in criminal cases, and that exclusion of such evidence against a victim driver offends due process because it applies a different standard of admission to the same class of evidence. However, none of the cases defendant cites support the proposition that a driver's unlicensed status is admissible to prove negligence in a criminal case.

In People v. Sanchez (2001)24 Cal.4th 983, 987, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, the court noted that the defendant, who was convicted of second degree murder and gross vehicular manslaughter while intoxicated, had been driving without a driver's license since his license had been suspended in connection with his first conviction for drunk driving. There is no indication that any objection was made to such evidence, and there was no indication that an objection was made that the evidence was irrelevant to the issue of negligence. A case is not authority for a proposition not raised or addressed. (People v. Mendoza (2000) 23 Cal.4th 896, 915.)

In People v. Pike (1988) 197 Cal.App.3d 732, the defendant was convicted of vehicular manslaughter and other Vehicle Code violations. The parties stipulated that the defendant's driver's license had been suspended and that he was aware of the suspension. (Id. at p. 740.) Again, since no relevance objection appears to have been made, the case does not support a claim that the absence of a driver's license is admissible in a criminal case to prove negligence.

The defendant in People v. Guitierrez (1987) 189 Cal.App.3d 596, 598, was convicted of vehicular manslaughter, felony drunk driving, and driving with a revoked license after he pleaded guilty. Evidence the defendant was unlicensed at the time of the accident was obviously relevant to prove one of the charges (driving with a revoked license), and was not admitted to prove negligence.

In People v. Costa (1953) 40 Cal.2d 160, 166, the defendant was convicted of vehicular manslaughter with gross negligence. There, objection was made to evidence that defendant was driving with a conditional license. (Id. at p. 167.) The court did not hold that evidence of the conditional license was admissible to prove negligence. Instead, it concluded that assuming the admission of the evidence was erroneous, it was not prejudicial. (Ibid.) Thus, defendant has pointed to no authority for the proposition that the fact of a revoked or suspended license, or no license at all, is admissible in a criminal case to prove negligence.

Defendant sought to offer the fact that Rice had no driver's license to prove that her negligent driving caused the accident. Only relevant evidence is admissible. (Evid. Code, § 350.) Because the mere failure to obtain a driver's license is not relevant to the issue of negligent driving at the time of the accident, the trial court properly excluded the evidence.

Because we hold the evidence was properly excluded as irrelevant, we need not consider defendant's alternative argument that the trial court incorrectly concluded the evidence amounted to bad character evidence against Rice.

II Permissive Inference Instructions

Defendant argues for the first time on appeal that CALCRIM Nos. 2100, 2101, 2110, and 2111, given by the trial court, regarding the Vehicle Code section 23153 offenses (counts five and six),*fn3 lightened the prosecution's burden of proof because they amounted to an impermissible rebuttable presumption.*fn4

In People v. Roder (1983) 33 Cal.3d 491, 498 and footnote 7 (Roder), the Supreme Court held that the prosecution may not rest its case on a mandatory presumption unless "the basic fact proved compels the inference of guilt beyond a reasonable doubt." A mandatory presumption "tells the trier of fact that it must assume the existence of the ultimate, elemental fact from proof of specific, designated basic facts[.]" (Id. at p. 498.) Such presumptions run afoul of the prosecution's burden to prove guilt beyond a reasonable doubt because they "limit[] the jury's freedom independently to assess all of the prosecution's evidence in order to determine whether the facts of the particular case establish guilt beyond a reasonable doubt." (Ibid.)

Accordingly, Roder concluded it was error to give an instruction informing the jury that the guilty knowledge element of the crime of receiving stolen property (i.e., knowing the property was stolen) "shall" be "presume[d]" if the defendant was a dealer in secondhand merchandise who received the property under circumstances which should have caused him to make reasonable inquiry and he did not make reasonable inquiry. (Roder, supra, 35 Cal.3d at pp. 495-496.)*fn5 However, the court distinguished between mandatory presumptions, a "'troublesome evidentiary device'" and an inference, which is less troublesome because it "'leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof . . . .'" (Id. at p. 498.)*fn6

Determining whether defendant was deprived of his constitutional rights requires that we examine "the words actually spoken to the jury [citation], for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." (Sandstrom v. Montana (1979) 442 U.S. 510, 514 [61 L.Ed.2d 39, 45].)

Specifically, he complains of the court's instruction to the jurors that they "may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage" at the time of the accident if defendant had a blood alcohol level of 0.08 percent or more, and the instruction that they "may, but are not required to, conclude that the defendant's blood alcohol level was 0.08 percent or more" at the time of the accident if a sample of defendant's blood taken within three hours showed a blood alcohol level of 0.08 percent or more.

Defendant recognizes that the instruction given allowed a permissive inference, rather than a mandatory presumption, but still argues the instructions were constitutionally flawed.

Defendant's argument is twofold. First, he argues that the instruction should have made clear to the jury that the prosecution retained the burden of proving every element of the offense beyond a reasonable doubt. He analogizes the instructions given here to those given with respect to Evidence Code section 1108, which authorizes the admission of prior sexual offenses against a criminal defendant as evidence of the defendant's propensity to commit sexual offenses. The standard instruction in such cases informs the jury it may conclude from the uncharged offenses that the defendant was inclined to commit sexual offenses and was likely to have committed the charged offense. But the instruction also cautions the jury that such evidence is only one factor to consider, is insufficient by itself to prove guilt, and that the prosecution must prove each charge beyond a reasonable doubt. (CALCRIM No. 1191.)

The analogy is a bad one, because it is the nature of propensity evidence itself that requires additional precaution be taken in the instruction, not the fact that the instruction allows a permissive inference.

Defendant cites several cases in support of his argument, including People v. James (2000) 81 Cal.App.4th 1343 (James). As James explained, Evidence Code sections 1108 and 1109 revised the law in sex offense and domestic violence cases to allow prior offenses to prove the defendant's propensity to commit the charged offense. (Id. at p. 1346.) The standard jury instructions told the jury it could infer from the prior offenses, which were proved by a preponderance of the evidence, that the defendant had a disposition to commit similar offenses, and further infer that the defendant was likely to commit and did commit the charged crime. (Ibid.)

James explained that the instructions overstated the way the evidence could be used because it permitted a conviction based upon the defendant's propensity as a substitute for proof of the current offense. (81 Cal.App.4th at p. 1353.) The court recognized that there is a "natural inclination to assume guilt from propensity[.]" (Id. at p. 1354.) It further noted that even though other crimes evidence could support an inference of propensity, "propensity alone cannot support a conclusive inference that the defendant committed the charged offense." (Ibid.)

James further recognized the use of permissive inferences which allow, but do not require, the trier of fact to infer the ultimate fact from proof of the evidentiary fact where no burden of any kind is placed on the defendant. (81 Cal.App.4th at p. 1354.) Quoting Ulster Court v. Allen, supra, it stated: "'When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.' [citation.]" (Id. at pp. 1355-1356.)

The problem with the instruction in James was that it allowed the jury to infer propensity (not an element of the crime) from the evidentiary fact of prior offenses. It then allowed the jury to infer that the defendant was likely to commit the crime (also not an element of the crime) from the inference of propensity. Finally, the jury was allowed to infer the defendant did commit the charged offense (the ultimate fact) from this series of inferences. "By merging likelihood with actual commission of the offense, the instruction can be interpreted as permitting one sweeping inference of guilt based on the defendant's disposition. However, even if the jury does not infer guilt directly from disposition, and draws an intermediate inference that the defendant was likely to commit the charged offense, none of the connections permitted by the instructions are moored to any of the facts of the charged offense." (81 Cal.App.4th at p. 1356.)

The instruction in this case was not subject to the same weaknesses. It did not deal with propensity evidence, which courts have recognized tends to over persuade the jury. (People v. Younger (2000) 84 Cal.App.4th 1360, 1382.) Furthermore, it did not allow a series of inferences leading to guilt based on facts that were unconnected to the facts of the charged offense, and that were proven only by a preponderance of the evidence. (James, supra, 81 Cal.App.4th at p. 1356.)

On the contrary, the inference allowed by the instruction in this case was precisely the type of inference recognized by James, supra, requiring the appellant to demonstrate the invalidity of the instruction as applied to him. (81 Cal.App.4th at p. 1355.) In other words, the instruction was not error unless there was no rational way the jury could have made the inference from defendant's 0.16 percent blood alcohol concentration when tested that he was under the influence of alcohol at the time of the offense, or unless there was no rational way it could have made the inference from his 0.16 percent test that he was 0.08 percent at the time of the offense. Defendant has made no such showing, and the instructions were proper.

Defendant next argues that permissive inference instructions may be appropriate when the record contains only evidence that is consistent with the conclusion that the defendant's blood alcohol concentration was falling at the time of the first test, but here there was evidence from which the jury could have concluded the concentration was rising. He claims the instruction should not be given where there is evidence rebutting the inference. In support of this argument, defendant relies on People v. Moore (1998) 65 Cal.App.4th 933, 938 in which the court held it was error to give a permissive inference instruction in a trial for misdemeanor failure to provide care for a minor child where evidence had been received tending to prove the failure to provide was not willful or was not without lawful excuse.

However, we agree with People v. Beltran (2007) 157 Cal.App.4th 235, and with its criticism of People v. Moore. In People v. Beltran, supra, the defendant argued that the instruction permitting the jury to infer he drove a vehicle with a blood alcohol concentration of 0.08 percent or more if a test taken within three hours recorded a concentration of 0.08 percent or more should not have been given where there was evidence rebutting the inference. (Id. at p. 240.) In making this argument, the defendant relied principally on People v. Moore, supra. (People v. Beltran, supra, at p. 242.)

Beltran noted that the bench notes for CALCRIM Nos. 2100 and 2111 contain language indicating that the bracketed portion of the instruction relating to the permissive inference is only appropriate if there is no evidence to contradict the inference. (157 Cal.App.4th at pp. 242-243.) It concluded that People v. Moore, supra, and the bench notes for CALCRIM No. 2111 "fail[ed] to recognize the important legal distinction between mandatory presumptions and permissive inferences." *fn7 (Id. at p. 243.) The court noted that the instruction was changed from a mandatory presumption to a permissive inference in order to conform to Roder, and concluded that the bench notes retained the unnecessary limitation on the use of the instruction that was formerly reserved for mandatory rebuttable presumptions. (Id. at pp. 242-243 and fn. 7.)

Accordingly, the bench notes for CALCRIM Nos. 2100 and 2101 no longer state that the bracketed portion of the instruction should not be given unless there is no evidence to contradict the inference. Instead, the notes state that the paragraph must not be given if there is "no evidence that the defendant's blood alcohol level was at or above 0.08 percent at the time of the test." (CALCRIM No. 2100 (2009-2010 ed.) Bench Notes, p. 132.)

Here, there was evidence that defendant's blood alcohol concentration was above 0.08 percent at the time of the test. There was also some evidence, though not conclusive, that defendant's blood alcohol concentration was rising at the time he tested at .16 percent, making it possible that his concentration was less than 0.08 percent at the time of the accident. (See fn. 2, infra.) Nevertheless, a permissive inference does not shift the burden of production or lower the prosecution's burden of proof. (People v. Beltran, supra, 157 Cal.App.4th at p. 244.) To the extent that the premise of the instructions (that the defendant's blood alcohol was declining at the time of the test) was impaired by the evidence of rising blood alcohol concentration, the prejudice to defendant was overcome by the overwhelming evidence that he was intoxicated at the time of the accident, from which the jury reasonably inferred that his blood alcohol concentration was above the legal limit of 0.08.

III Worktime Credit Limitation

The trial court sentenced defendant to the upper term of 10 years for the gross vehicular manslaughter conviction in count one (Brizchelle Rice), and two years each (one third the midterm) for the remaining three gross vehicular manslaughter convictions (Shanice Carter, Brittanya Nash, and Kamall Osby). Defendant received eight months (one third the midterm) for driving under the influence causing bodily injury to Tanisha Jackson (count five). The sentence for the conviction in count six (driving with a blood alcohol concentration of 0.08 or more) was stayed. Enhancements were alleged and found true with respect to counts five and six, that defendant personally inflicted great bodily injury on Tanisha Jackson within the meaning of section 12022.7, subdivision (a).*fn8

Section 2933 provides that prisoners may earn credit against their prison term if they participate in qualifying work or training programs. Such programs may reduce the term of incarceration by up to 50 percent. Certain statutes, section 2933.1 being the relevant statute in this case, restrict the amount of credit that may be earned. Section 2933.1, subdivision (a) provides that persons who have been convicted of a violent felony offense listed in section 667.5, subdivision (c), may earn no more than 15 percent worktime credit. Included in section 667.5, subdivision (c) is "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . ."

Thus, the enhancements charged and proved as to the drunk driving with injury charges prevent defendant from earning more than 15 percent worktime credit. Because defendant received a consecutive term, rather than concurrent sentences for the drunk driving with injury counts, and the aggregate term includes time for a violent offense, the restriction on credits is applicable throughout the aggregate term. (In re Reeves (2005) 35 Cal.4th 765, 772-773.)

Defendant argues the Legislature did not intend to deny 50 percent credit for the non-intentional infliction of great bodily injury in the context of Vehicle Code offenses. However, as set forth above, felonies charged and proved under section 12022.7 are expressly included in the qualifying offenses, and defendant's drunk driving convictions were charged and proved pursuant to section 12022.7. There is no ambiguity. "The statute's plain meaning controls the court's interpretation unless its words are ambiguous. If the plain language of a statue is unambiguous, no court need, or should, go beyond that pure expression of legislative intent. (Citation.)" (Green v. State (2007) 42 Cal.4th 254, 260.)

For the same reason, we reject defendant's use of a statutory interpretation aid to determine the statute's meaning. He argues that where a statute adopts by specific reference the provisions of another statute, such provisions are incorporated as the statute existed at the time of the reference, but not as subsequently modified. Since section 2933.1 incorporates section 667.5, which in turn incorporates section 12022.7, and since section 12022.7 was amended in 1995 to eliminate the requirement that the defendant acted with intent to inflict great bodily injury, defendant argues a section 12022.7 enhancement that does not involve intentional infliction of great bodily injury is not subject to the credit limitation.

Defendant recognizes that the same argument was rejected in People v. Van Buren (2001) 93 Cal.App.4th 875 (disapproved on another point in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3), but argues that case is not controlling because it dealt with whether section 2933.1 incorporated an amendment to section 667.5, not an amendment to section 12022.7.

Regardless of whether there is a material distinction between the two situations, we conclude that the amendments were incorporated here because that was the clear intent of the Legislature. "'"'[T]he Legislature is presumed to have meant what it said and the plain meaning of the language governs.'" [Citation.] Therefore, if a statute is unambiguous, it must be applied according to its terms. Judicial construction is neither necessary nor permitted.' [Citations.]" (People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.)

As indicated, section 12022.7 is clearly incorporated by way of section 667.5. Moreover, section 2933.1 was amended in 2002, at which time the Legislature could have, but did not specify that no crime involving the infliction of great bodily injury without intent would be subject to the credit limitation.

We also reject defendant's argument that the credit limits raise an issue of constitutional dimension. Citing In re Lynch (1972) 8 Cal.3d 410, 424, he argues that the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. We respond by also quoting In re Lynch, supra, which stated:

"Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense' [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment." (Id. at pp. 423-424.)

We do not consider the limitation of worktime credits for an offense resulting in great bodily injury to be out of all proportion to the offense. We therefore defer to the Legislature's direction.*fn9

IV Upper Term

Defendant argues the trial court used the wrong legal standard in sentencing him to the upper term on count one. Noting that California's determinate sentencing scheme was amended after the United States Supreme Court declared it unconstitutional in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], defendant argues the trial court did nothing to suggest it was aware of the change, which granted it broader discretion in selecting between sentencing options. We can find no abuse of discretion.

Defendant apparently objects to the fact that after the trial court discussed the numerous factors it considered in deciding to impose the upper term, it concluded by using language employed by courts prior to the amendment to the sentencing laws, stating that the aggravating circumstances outweighed the mitigating circumstances. Defendant argues this process has been eliminated, and under the new scheme the trial court enjoys increased discretion to impose the lower term.

The current version of California Rules of Court, rule 4.420, which was the version in effect when defendant was sentenced, reads:

"(a) When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules.

(b) In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.

(c) To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.

(d) A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.

(e) The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record."

Under the new sentencing scheme, the trial court may consider circumstances in aggravation or mitigation and, subject to express limitations, any other related factor in exercising its discretion, provided it states the reasons for selecting the chosen term orally on the record. The trial court discussed the factors it considered, including defendant's lack of a criminal record and contributions to the community on the one hand, and his arrogance, refusal to take responsibility for the crime, and refusal to submit to a blood test on the other.

The trial court stated that in determining which term to impose it had "to consider the circumstances of the offense and the background and the character of the defendant, and I've done that." The trial court appears to have appreciated its discretion under the new sentencing scheme, and we will not send the case back for resentencing merely because the trial court couched its conclusion in terms of "weighing" the aggravating and mitigating circumstances.

DISPOSITION

The judgment is affirmed.

We concur: HULL, J. CANTIL-SAKAUYE, J.


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