IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TYRONE ADAM PALMER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01427)
The opinion of the court was delivered by: Nicholson , J.
P. v. Palmer
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The defendant was involved in the theft of a trailer and three road rage incidents, the last ending in a fatality. Convicted of second degree murder and several other crimes and sentenced to both determinate and indeterminate state prison terms, the defendant appeals.
On appeal, he contends: (1) there was insufficient evidence of implied malice to sustain the second degree murder conviction, (2) the trial court abused its discretion in denying his motion to sever the counts, (3) he was improperly convicted of two counts of hit and run for one incident, (4) he was improperly convicted of both stealing a trailer and receiving as stolen property the trailer's license plate, and (5) his stayed manslaughter conviction was improperly enhanced with two findings of great bodily injury,
We conclude that the third and fourth contentions have merit and therefore modify the judgment by striking a hit-and-run conviction and the receiving stolen property conviction. In all other respects, we find no error and therefore affirm the judgment as modified.
The defendant's crimes at issue in this case involved three incidents of road rage and one theft of a utility trailer, all occurring within about a week in October 2007.
October 6, 2007
James Holland was driving southbound on Watt Avenue when he noticed the defendant in a white Ford pickup approaching quickly from behind. The defendant went around Holland and just missed Holland's vehicle when pulling in front of him. Holland stopped behind the defendant at an intersection and yelled at the defendant to be more careful. The defendant yelled back something about his driving being the reason he had lost his license.
Holland began writing down the defendant's license plate number (Cal. license No. 7H16418), and the defendant backed the white pickup into Holland's vehicle. When the light turned green, they both took off. Holland caught up to the defendant, and the defendant veered to the right, hitting Holland's vehicle. The defendant pulled in behind Holland at another intersection and struck Holland's vehicle again.
October 10, 2007
Four days later, Betty Figlia was driving her vehicle north on Howe Avenue, with Sherry Lujan as a passenger. Figlia began to pull into a Valero gas station at the same time that the defendant, in the white Ford pickup, with a large trailer, was pulling out of the station. Figlia stopped because the defendant's truck was in the way, and she threw up her hands. The defendant pulled up beside Figlia's vehicle and asked her what her problem was. After they exchanged words, the defendant backed up then drove into the side of Figlia's vehicle. The defendant said, "How do you like that, bitch?"
The defendant drove away, and Figlia followed as Lujan dialed 911 on her phone. At an intersection, Figlia pulled in behind the defendant. The defendant backed the trailer into her car and then took off down a side street.
October 13, 2007
Three days after the Figlia/Lujan assault, the defendant was standing next to the white Ford pickup near Mineral Court at about four o'clock on a dark and foggy morning. A Honda Civic passed by, and someone in the Honda threw an egg at the defendant. Three young women were in the Honda: Saychelle Curry, Kailey McGagin, and Valerie Schmidt, with Curry driving. The young women had been celebrating Curry's 18th birthday, which celebration included drinking. The defendant got into the pickup and chased the Honda.
The defendant rammed the back of the Honda twice. A few blocks into the defendant's pursuit of the Honda, he was directly behind the Honda with his lights off. He passed the Honda and then stopped abruptly. Curry tried to pass the defendant, but he drove in front of her, so she turned around and headed in the other direction. The defendant again gave chase.
Curry and the defendant turned onto Winding Way and both passed Wanda Drewitz as she drove eastbound. The defendant passed Curry and moved in front of her. Curry appeared to lose control and veered across the road, hitting something on the left side of the road and then came back diagonally across all four lanes of Winding Way, ahead of the defendant. Drewitz observed these events, but she did not see where the Honda ended up. The defendant continued on Winding Way without stopping.
The Honda had crashed into a tree. The impact killed McGagin and critically injured Curry and Schmidt. Curry suffered traumatic brain injury and still cannot speak or walk. Schmidt suffered serious injuries to her face, head, and legs, but she recovered and was able to testify at the defendant's trial.
Evidence from the Honda's bumper and the bumper of the white Ford pickup indicated that the Ford had hit the Honda from behind.
The defendant made statements to his roommate, Jean Munyan, indicating that he had been involved in an accident. He appeared shocked when he saw a television news story about it. He told an acquaintance, Jeffrey Cooley, that he had chased a vehicle after he was egged and that he spun the vehicle out, causing the vehicle to crash. He said he thought he killed someone.
Also on October 13, 2007, and also on Mineral Court, a utility trailer was stolen from the Daby residence.
The defendant was detained on October 24, 2007. In the garage was a white Ford pickup that had been reported stolen a month before. The license plate on the back of the pickup and two more in the cab did not belong to the pickup. A later search of the defendant's storage space revealed three trailers and the license plate from the Daby trailer, but not the Daby trailer.
The defendant was charged by amended information with following counts:
Count one: murder of McGagin (Pen. Code, § 187, subd. (a))*fn1 ;
Count two: vehicular manslaughter of McGagin with gross negligence (§ 192, subd. (c)(1), with allegations that the crime also caused great bodily injury to Curry and Schmidt (§ 12022.7);
Count three: reckless driving causing bodily injury to Curry and Schmidt (Veh. Code, § 23105);
Count four: hit and run, resulting in death or permanent serious injury to Curry and McGagin (Veh. Code, § 20001, subd. (b)(2));
Count five: hit and run, resulting in serious injury to Schmidt (Veh. Code, § 20001, subd. (a));
Count six: theft of the Daby trailer (Veh. Code, § 10851, subd. (a));
Count seven: receiving stolen property -- the license plate from the Daby trailer (§ 496, subd. (a));
Count eight: assault with a deadly weapon on James Holland (§ 245, subd. (a)(1)), while personally using a deadly weapon (§ 1192.7, subd. (c)(23));
Count nine: assault with a deadly weapon on Betty Figlia (§ 245, subd. (a)(1)), while personally using a deadly weapon (§ 1192.7, subd. (c)(23));
The amended information also alleged two prior convictions with separate prison terms. (§ 667.5, subd. (b).)
The jury found the defendant guilty on all counts and associated allegations, with the murder found to be in the second degree.
The trial court sentenced the defendant to a total determinate term of seven years four months. The determinate term included consecutive terms for hit and run causing death or permanent injury (four years; count four), hit and run causing injury (eight months; count five), theft of the trailer (eight months; count six), and two counts of assault with a deadly weapon (one year each; counts eight and nine). The court stayed the vehicular manslaughter (count two), reckless driving (count three), and receiving stolen property (count seven) counts.
The court additionally sentenced the defendant to an indeterminate term of 15 years to life for second degree murder (count one).
On the prosecution's motion, the prior prison term allegations were dismissed.
Subjective Awareness of Risk to Human Life
The defendant contends that there was insufficient evidence to convict him of second degree murder because the evidence did not show that he had a subjective awareness of the risk his actions posed to human life. The contention is without merit. Indeed, this is not a close case.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be express or implied." (§ 188). Malice "is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Ibid.) "Implied malice requires that the defendant act with a wanton disregard of the high probability of death. [Citations.]" (People v. Moore (2010) 187 Cal.App.4th 937, 941.) The defendant must "'"know that his conduct endangers the life of another and . . . act with conscious disregard for life."' [Citations.]" (People v. Martinez (2003) 31 Cal.4th 673, 684.)
"'Implied malice . . . may be proven by circumstantial evidence. [Citations.]' [Citation.]" (People v. James (1998) 62 Cal.App.4th 244, 277.) It may be found even if the act causes an accidental death. (People v. Contreras (1994) 26 Cal.App.4th 944, 954.) The rule of implied malice applies to vehicular homicide cases. When "the facts demonstrate a subjective awareness of the risk created, malice may be implied. [Citation.] In such cases, a murder charge is appropriate." (People v. Watson (1981) 30 Cal.3d 290, 298 (Watson).)
In Watson, the defendant consumed alcohol then drove recklessly, killing two people when he collided with their car. In a pretrial proceeding, the defendant argued that the facts did not support the charge of second degree murder. The court concluded that the defendant's conduct, "reasonably viewed, exhibited wantonness and a conscious disregard for life . . . ." (Watson, supra, Cal.3d at p. 295.) This supported a finding of implied malice, in turn justifying the murder charge against the defendant. (Ibid.)
The court in Watson "presumed" the "defendant was aware of the hazards of driving while intoxicated." (Watson, supra, 30 Cal.3d at p. 300.) It cited the defendant's conduct in driving through city streets at high speeds, his near collision with another car after running a red light, and his delayed attempt to brake before the fatal crash as "suggesting an actual awareness of the great risk of harm which he had created." (Id. at p. 301.) While many cases, including Watson, involve an intoxicated defendant or a high-speed chase, "the absence of intoxication or high speed flight from pursuing officers does not preclude a finding of malice. . . . Where other evidence shows 'a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied.'" (People v. Contreras, supra, 26 Cal.App.4th at p. 955.)
When a defendant claims the evidence was insufficient to sustain the verdict, our role is to determine whether "substantial evidence supports the conclusion of the trier of fact . . . ." (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1076.) "Substantial evidence is evidence that is '"reasonable, . . . credible, and of solid value."' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.)
In support of his argument that there was no evidence he was subjectively aware of the risks of his driving, the defendant notes that in other cases courts relied on the defendant's drunk driving and prior traffic offense convictions to support an inference that the defendant was subjectively aware of the risks. He also notes that he was not drunk and did not have prior traffic offense convictions, pointing out that "there is no substantial evidence of facts typically relied upon to support an inference of subjective awareness." The defendant further argues that evidence of his prior low-speed collisions, which did not produce injury or death, does not support an inference that he was subjectively aware of the risks engendered in his later high-speed behaviors.
We agree with the defendant that this case is unlike many of the prior cases finding a subjective awareness of risk. We depart from the defendant's line of reasoning concerning the effect of those differences, however, because, in this case, the jury had plenty of evidence to conclude that the defendant actually attempted to cause the collision.
This case is unlike prior cases on this issue because, in those cases, the collision was accidental. In Watson, for example, the defendant drank then drove recklessly. Considering those circumstances, the court presumed that the defendant was aware of the risks involved in drunk driving -- the risks being that drunk driving could lead to unintended collisions and death.
Here, the defendant intended the collisions, and we may presume he knew, as does everyone, that high-speed collisions can lead to death. The record supports an inference that the defendant used the Ford he was driving to deliberately collide with the Honda, sending the Honda and three young women in it into a collision. Beyond that, even assuming for the sake of argument that the Honda's last movements were not the result of a collision, a collision took place at some point and the young women in the Honda were frantically fleeing the defendant's aggressive pursuit. The inference that the defendant knew he was putting the occupants of the Honda at risk of death is not only supported by the evidence but practically inescapable. (See People v. Moore, supra, 187 Cal.App.4th at pp. 940-941 [jury may presume defendant aware of obvious risks].)
Yet the defendant attempts to escape this line of reasoning by claiming that it applies a reasonable person standard instead of measuring whether this defendant actually was subjectively aware. We disagree. In the absence of even a scintilla of evidence to the contrary, the jury could conclude that the defendant actually comprehended what any rational person would comprehend concerning the risks. Therefore, his substantial evidence argument fails.
Motion to Sever
Before trial, the defendant moved to sever counts one through six, alleging crimes on October 13, 2007, including murder, from the counts charging crimes committed on other days. Defense counsel stated that the defendant wanted to testify concerning the events leading up to crash of the Honda, but he did not necessarily want to testify concerning the other charged crimes. He also stated that he wished to dispute the issue of identity as to the other counts while not disputing the issue of identity in the events leading up to the crash of the Honda. Finally, he claimed that the evidence of the earlier incidents was more prejudicial than probative. The trial court noted that the crimes charged were of the same class and were close in time, thus supporting joinder. It denied the motion because the events of October 6 and 10, 2007, were probative of issues relating to the events of October 13, 2007. The court reasoned that the evidence concerning the earlier events was more probative than prejudicial with respect to the later events.
The defendant asserts that the trial court abused its discretion by denying the motion to sever and that this abuse of discretion resulted in a denial of due process. We disagree. The counts were properly joined. Because we find that the issue of identity, alone, justified joinder, we need not consider other issues, such as intent or knowledge, that may also have justified joinder.
We review the denial of a severance motion for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.'" (Ibid.) Applying this standard, we conclude the court's ruling on the motion to sever was not an abuse of discretion.
Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . ."
As relevant to this discussion, Evidence Code section 1101, subdivision (a) bars introduction of evidence of a person's character trait "when offered to prove his or her conduct on a specified occasion." But Evidence Code section 1101, subdivision (b) permits introduction of evidence "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident . . .) other than his or her disposition to commit such an act."
Our Supreme Court in People v. Ewoldt (1994) 7 Cal.4th 380, at pages 402-403, explained the circumstances under which evidence of conduct other than that currently charged may be admissible to prove intent, common design or plan, or identity. Concerning proof of identity, the court stated: "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Id. at p. 403; see also People v. Catlin (2001) 26 Cal.4th 81, 111-112 [applying rule of Ewoldt in considering whether trial court properly denied motion to sever trial of separate crimes].)
Here, the undeniable similarities between the events of October 6 and 10, 2007, and the events of October 13, 2007, established the cross-admissibility of the evidence to establish the defendant's identity. The white Ford pickup, the raging response to perceived disrespect, the pursuit, the use of the pickup as a weapon, all lead to the conclusion that the same person committed the crimes. Accordingly, the pattern and characteristics of the crimes were like a signature and therefore supported the trial court's denial of the severance motion.
Despite this cross-admissibility, the defendant argues that the probative value of the earlier incidents to establish the defendant's identity in the later incidents, including the murder, was weak because it was merely cumulative. To support this argument, the defendant notes that he made statements to his roommate and an acquaintance that tended to show that he was involved in the later incidents. He therefore argues, relying on his assertion that the probative value of the earlier incidents was weak, that the evidence that he committed the earlier incidents should have been excluded pursuant to Evidence Code section 352, which provides for exclusion of evidence if the prejudicial effect substantially outweighs the probative value.
This argument fails because, as the prosecution argued during the hearing on the severance motion, there was no guarantee that jury would find the roommate and acquaintance believable. In any event, the evidence of the earlier incidents was very probative, supporting an inference that the defendant committed the later crimes. And the evidence concerning the earlier incidents was not prejudicial in the sense contained in Evidence Code section 352. (People v. Karis (1988) 46 Cal.3d 612, 638 ["prejudicial" term "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].) Therefore, the trial court did not abuse its discretion pursuant to Evidence Code section 352.
As to the defendant's further due process argument, the defendant "has not established that joinder 'actually resulted in "gross unfairness" amounting to a denial of due process.' [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 28.)
Separate Counts of Hit and Run
The defendant was convicted of two counts of felony hit and run (Veh. Code, § 20001), both arising from the October 13, 2007, incident in which McGagin was killed and Curry and Schmidt were injured. On appeal, the defendant contends that he could not lawfully be convicted of both counts because he violated the statute only once. The Attorney General agrees, as do we, based on People v. Newton (2007) 155 Cal.App.4th 1000, which held that the defendant could be convicted of only one count of felony hit and run when multiple victims were injured in a single accident. (See also Wilkoff v. Superior Court (1985) 38 Cal.3d 345 [same issue with respect to drunk driving conviction].)
Vehicle Code section 20001 prohibits leaving the scene of an injury accident without presenting identification, rendering aid, or reporting the accident. (See Veh. Code, §§ 20001, 20003, 20004.) The purpose of the statute is to prevent a driver involved in an injury accident from attempting to avoid civil or criminal liability. (People v. Powell (2010) 181 Cal.App.4th 304, 316.) And, when there is a single accident, "the conduct commanded by [Vehicle Code] section 20001, to stop, identify, and assist, is only committed once." (People v. Newton, supra, 155 Cal.App.4th at p. 1003.)
Accordingly, we strike the conviction in count five, under Vehicle Code section 20001, subdivision (a), along with the associated state prison term of eight months. This leaves in force the conviction in count four, under Vehicle Code section 20001, subdivision (b)(2), and the associated four-year term in state prison.
Receiving a Stolen License Plate
Similarly, the defendant was convicted of both stealing the Daby trailer (count six; Veh. Code, § 10851, subd. (a)) and receiving the license plate from that trailer as stolen property (count seven; § 496, subd. (a)). On appeal, the defendant contends that he could not be convicted of both crimes, and he frames this contention as a prejudicial failure on the part of the trial court to instruct the jury sua sponte that the actual thief may not be convicted of both stealing and receiving the stolen property. (§ 496, subd. (a).)*fn2 We agree, because there was no evidence that stealing the trailer and receiving the license plate as stolen property were separate acts. (See People v. Garza (2005) 35 Cal.4th 866, 872 [noting same error but finding it was not prejudicial because there was evidence of separate acts -- that is, that defendant drove vehicle after stealing it, also a violation of Veh. Code, § 10851, subd. (a)].)
The Daby trailer was stolen in the early morning hours of October 13, 2007. It was never recovered; however, the license plate from the trailer was found in a search of the defendant's storage unit. There was no evidence of what the defendant did with the trailer after the theft or that the defendant stole the license plate on a separate occasion. Therefore, the trial court should have instructed sua sponte that the defendant could not be convicted of both stealing the Daby trailer and receiving the license plate from that trailer as stolen property, and the failure to do so was prejudicial under any standard because it allowed the jury to convict of both crimes when the evidence was insufficient to support conviction of both.
Therefore, we strike the conviction in count seven, under section 496, subdivision (a), the punishment for which the trial court stayed under section 654. This leaves in force the conviction in count six, under Vehicle Code section 10851, subdivision (a), and the associated eight-month term in state prison.
Enhancement for Infliction of Great Bodily Injury
Section 12022.7, subdivision (a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Subdivision (g) of the same section states: "This section shall not apply to murder or manslaughter . . . ."
In connection with the count alleging manslaughter of McGagin (count two), the jury found that the defendant inflicted great bodily injury on Curry and Schmidt. (§ 12022.7.) The trial court, however, stayed the manslaughter count and associated enhancements pursuant to section 654 because it had imposed the indeterminate term for second degree murder. The defendant contends that the enhancements were improper because they were associated with the count charging him with McGagin's manslaughter. The contention is without merit.
In People v. Verlinde (2002) 100 Cal.App.4th 1146 (Fourth Dist., Div. One) (Verlinde), a jury convicted the defendant of the manslaughter of one of the passengers in her vehicle. The jury also found the defendant inflicted great bodily injuries within the meaning of section 12022.7, subdivision (a) on two surviving passengers. Relying on section 12022.7, subdivision (g), the defendant argued that because she was convicted of manslaughter, enhancements under section 12022.7 were not authorized. In rejecting this argument, the court stated that section 12022.7 "does not define a separate offense, but rather is a legislative attempt to punish more severely those crimes that result in great bodily injury 'on any person.' [Citations.] The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, two other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. [Citation.] 'When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.]' [Citation.] [The defendant's] argument is inconsistent with a fundamental objective of our penal justice system, namely, 'that one's culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries.' [Citation.]" (Verlinde, supra, 100 Cal.App.4th at p. 1168.)
Therefore, according to the Verlinde court, section 12022.7 enhancements may be applied to a manslaughter count, but only for serious bodily injury inflicted on victims other than the manslaughter victim. Here, the section 12022.7 enhancements were based on the injuries to Curry and Schmidt, not the injuries to McGagin, the manslaughter victim.
However, the defendant asserts that we should not follow Verlinde, but should instead follow People v. Beltran (2000) 82 Cal.App.4th 693 (Second Dist., Div. Five) (Beltran) which, with no reasoning or analysis, summarily stated: "Under section 12022.7, subdivision (f) [now subdivision (g)] the enhancements could not be based on [the defendant's] conviction of vehicular manslaughter." (Id. at p. 695.)
The same contention was rejected in People v. Weaver (2007) 149 Cal.App.4th 1301, 1330-1331 (Fourth Dist., Div. One) (Weaver), in which the court held that a great bodily injury enhancement could be imposed under circumstances similar to this case. Concerning Beltran, the Weaver court (the same division that decided Verlinde) stated: "To the extent [the defendant] relies on [Beltran] as support for her contention, that case is inapposite and, in any event, we decline to apply its reasoning here because of our contrary reasoning in Verlinde. In Beltran, a section 12022.7, subdivision (c) allegation was found true as to each of the offenses of evasion of a pursuing police officer that caused serious injuries (Veh. Code, § 2800.3) and vehicular manslaughter (§ 192, subd. (c)(1)). (Beltran, at p. 695.) Without any substantive reasoning, Beltran first summarily concluded a section 12022.7 enhancement could not apply to the vehicular manslaughter offense regarding injuries sustained by a person other than the deceased victim because then section 12022.7, subdivision (f) (now subdivision (g)) provided section 12022.7 shall not apply to murder or manslaughter. (Beltran, at p. 696.) Based on our reasoning in Verlinde, quoted above, we disagree with that conclusion by Beltran and decline to apply it to this case." (Weaver, supra, at p. 1335, fn. 35.)
We agree with Verlinde and Weaver that section 12022.7, subdivision (g) was meant to prohibit dual punishment for the injuries inflicted on the homicide victim and therefore does not prohibit punishment for injuries inflicted on other victims. Accordingly, we reject the defendant's suggestion that we follow Beltran.
In any event, the section 12022.7 enhancements associated with the manslaughter count were stayed under section 654.
The judgment is modified by striking the convictions in (1) count five, under Vehicle Code section 20001, subdivision (a), along with the associated state prison term of eight months and (2) count seven, under section 496, subdivision (a), the punishment for which the trial court stayed under section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send a
certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. DUARTE , J.