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The People v. Elva Diaz

February 6, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELVA DIAZ, DEFENDANT AND APPELLANT.



(Super.Ct.No. RIF149672) APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

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

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

I. INTRODUCTION

Defendant Elva Diaz appeals from her conviction of involuntary manslaughter (Pen. Code,*fn1 § 192, subd. (b)), as a lesser included offense to the charge of second degree murder in count 1, and vehicular manslaughter with gross negligence while intoxicated (§ 191.5, subd. (a)) in count 2. Defendant contends the admission of evidence obtained through the warrantless seizure of the sensing diagnostic module (SDM)*fn2 from her previously impounded vehicle and the downloading of data from the device violated her Fourth Amendment rights. We affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Prosecution Evidence

About 8:00 p.m. on February 21, 2008, defendant drove herself and her then boyfriend, Zachary Palumbo, in her Chevrolet Tahoe truck to a bar a mile or two from their home. At the bar they drank and socialized. Palumbo had been a police officer for about nine years, and he was trained in identifying signs of intoxication. When they left the bar at 11:00 or 12:00 p.m., Palumbo believed he was less intoxicated than defendant, and he offered to drive home. An argument ensued, and defendant got into the driver's seat and insisted on driving. The argument lasted several minutes, and defendant's friend pulled up and offered Palumbo a ride. Defendant stayed in her truck, and Palumbo chose to walk home. As he was walking, he saw defendant drive by; she seemed to be driving normally.

Defendant's friend, Caryn Keppler, testified that she had been at the bar with defendant that night. When Keppler left the bar around midnight, she saw defendant and Palumbo in the parking lot having an argument about who was going to drive. Defendant got into the car and "pretty much locked herself in." Keppler drove past them and asked Palumbo if he needed a ride, but he declined. Keppler did not remember if she had also offered defendant a ride.

Luis Aguilar had been driving home at 12:40 a.m. when he called 911 to report a traffic accident at the intersection of Claystone and Knabe in Corona. Defendant got out of her truck, which was upside down. She told Aguilar she was a paramedic and "she s[aw] this all the time," which Aguilar understood her to mean "those types of accidents." She was crying, and she told Aguilar the accident was not her fault and that the other driver was at fault. Aguilar noticed a moderate to strong odor of alcohol on her breath, and she was slurring her speech a little. On his way walking home, Palumbo passed the crash scene--defendant's truck was on its roof, and defendant was on the curb being interviewed by a California Highway Patrol (CHP) officer. Rachel Elliott, the 18-year-old driver of the other vehicle, a Honda Accord, suffered skull fractures in the collision and died from blunt force trauma.

CHP Officer Jack Penneau arrived at the accident scene at 12:40 a.m. Defendant told him she had been driving north on Knabe on the correct side of the road, and the other vehicle had been driving south in her lane, resulting in a head-on collision. Defendant said she had one beer at 8:00 p.m.; she denied being diabetic or epileptic. The officer testified that defendant did not perform properly on field sobriety tests, including nystagmus, standing position, and finger count. She smelled of alcohol and had bloodshot eyes and slurred speech. Preliminary alcohol screenings, at 1:14 a.m., 1:16 a.m., and 1:18 a.m., resulted in readings of 0.194, 0.154, and 0.160 percent blood alcohol respectively. Defendant was arrested and transported to the hospital, where her blood was drawn before she was taken to jail. Her blood alcohol level at 2:58 a.m. was 0.20, and based on the absorption rate, would have been 0.23 at 12:30 a.m.

Defendant's truck and the victim's vehicle were impounded for evidence and towed to the towing company's secured lot. Officers determined the initial point of impact between the vehicles based on gouge or scrape marks on the pavement. The speed limit in that area was 50 miles per hour.

Stephen Turner, a member of the CHP's Multidisciplinary Accident Investigation Team (MAIT) supervised the inspection of defendant's Tahoe and reviewed and approved the report of the inspection. Before conducting the inspection, the accident history and background of the vehicle were reviewed. The external condition of the vehicle was then documented; the control modules were downloaded; and the vehicle was taken apart. Turner inspected the Accord and determined that nothing about its mechanical condition would have caused or contributed to the crash. Turner also inspected the Tahoe, beginning with an external overview and an inspection of the control aspects of the vehicle, including the throttle, steering, suspension, brakes, tires, and wheels. Turner determined there were no mechanical deficiencies that would have contributed to the collision.

Sergeant Lance Berns, Chief of the CHP's Inland Division MAIT, stated his opinion that the Tahoe had been travelling at 76 miles per hour at the point of impact. On cross-examination, Sergeant Berns conceded he could not estimate speed at the point of impact without the SDM data. The point of impact for the head-on collision was between the number one and number two lanes on northbound Knabe with the Tahoe traveling south. Defendant conceded she had crossed over the two sets of double yellow lines that separated the northbound and southbound lanes on Knabe.

Officer Richard Wong, also assigned to MAIT, testified that the main function of the SDM is to deploy the air bags. The SDM has the secondary function of recording throttle, speed, application of brakes, and transmission position. Data downloaded from the SDM showed that five seconds before the impact, the driver was not pushing on the gas pedal, and the Tahoe's speed was 84 miles per hour. Four seconds before the impact, the vehicle was traveling at 80 miles per hour with seven percent pressure on the gas pedal. Three seconds before the impact, the vehicle was traveling at 77 miles per hour, with 31 percent pressure on the gas pedal. Two seconds before the impact, the vehicle was traveling at 77 miles per hour, with 84 percent pressure on the gas pedal. One second before the impact, the vehicle was traveling at 76 miles per hour, with 94 percent pressure on the gas pedal. The brake was not on from six to eight seconds before the impact. It was on at five seconds before the impact, and not on from four to one seconds before the impact. Officer Wong testified, based on his "training and experience with collision reconstruction," that "the photographs that [he] saw of the damage to both vehicles" was consistent with "the Tahoe traveling at 76 miles per hour."

Charges were not filed against defendant until 14 months after the accident. In May 2009, it was learned that defendant was in Mexico, and extradition proceedings were begun. Defendant was returned to the United States on July 27, 2010. She told the investigator she had hidden with her father because he did not want her to be in jail while he was alive. He had died on Easter, and she was going to come back and turn herself in after he died.

B. Defense Evidence

Dennis Burke, an investigator for the district attorney's office, testified he had interviewed Keppler in February 2009. Keppler told him she did not hear any conversation in the parking lot and did not observe any dispute at defendant's vehicle. Palumbo told Burke that Keppler had offered to give both him and defendant a ride home.

Defendant testified she had given her driver's license and keys to Palumbo at the bar, and she did not remember getting them back. At the bar, she drank multiple mixed drinks and shots of Tequila. She remembered having a hard time walking to the restroom but did not remember anything else at the bar. She did not remember going to the parking lot, having discussions at her truck, or driving away. She did not remember anyone trying to convince her not to drive. The next thing she remembered was sitting on a curb. She was extremely drunk that night. She admitted she had crossed two sets of double yellow lines, which is against the law.

Defendant was familiar with the road where the accident occurred, because she had driven it frequently in the year and a half when she lived nearby. She went to Mexico in June or July 2009 because she learned ...


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