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People v. Smith

California Court of Appeals, First District, Fifth Division

March 30, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
KEVIN JOSEPH SMITH, Defendant and Appellant.

         Superior Court of Solano County, No. VCR221478, Tim P. Kam, Judge.

          Beles & Beles, Robert J. Beles, Paul G. McCarthy and Manisha Daryani for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Elizabeth W. Hereford, Deputy Attorneys General, for Plaintiff and Respondent.

          BRUINIERS, J.

         Kevin Joseph Smith was one of three people extracted from a vehicle involved in a single-car rollover accident. Smith's blood alcohol content (BAC) was determined to be 0.24 percent, and he was charged with driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)) and driving with a BAC in excess of 0.08 percent causing injury (id., § 23153, subd. (b)). As to both counts, it was alleged that Smith's BAC was in excess of 0.20 percent (id., § 23538, subd. (b)(2)), he proximately caused bodily injury to two victims (id., § 23558), he personally inflicted great bodily injury upon one of those victims (Pen. Code, § 12022.7, subd. (a)), and he had suffered a prior DUI conviction (Veh. Code, §§ 23560, 23566). Smith sought to introduce evidence at trial that another vehicle occupant made an extrajudicial statement against penal interest indicating she, and not Smith, was driving at the time of the accident. After an Evidence Code section 402 hearing, the trial court found the statement unreliable and declined to permit evidence of the statement to be presented to the jury. Smith was convicted on both counts and all allegations found true. He argues the court abused its discretion in excluding the third party admission. We affirm.

         I. Background and Procedural History

         Shortly after midnight on March 23, 2014, Vallejo Police Officer Jason Thompson responded to a residence in Vallejo. He observed a gray Dodge vehicle, later determined to belong to Smith, flipped on its side with its roof resting against the front of the house. The roof of the car was partially caved in and the front bumper was stuck to the side of the house. Thompson observed Smith, Smith's girlfriend (Norsheequa Deocampo), and Deocampo's cousin (Charlonda Anderson) inside the vehicle laying on the door panels and in between the seats. Smith was unconscious, pinned between the passenger seats and passenger side doors with his head toward the front of the car and his feet toward the rear. No one was in the driver's seat. A crowd of spectators ignored Thompson's command to move back from the vehicle, and one individual extricated Deocampo from the vehicle after smashing a window with a hammer. Smith and Anderson were removed by fire department personnel, after cutting away the roof.

         In Thompson's presence, Smith told Robert Aikman, the treating paramedic at the scene, that he had been driving the car.[1] Smith's cousins, Michael and Marico Garman, also spoke to Thompson at the scene. The Garman brothers told Thompson they were following Smith's car and witnessed the collision. Thompson testified that the brothers said the car was traveling at 35-40 miles per hour and suddenly veered left and flipped onto the yard of the house. Both said Smith was driving the car.

         When examined at the hospital, Smith, Deocampo, and Anderson each smelled of alcohol, had bloodshot and watery eyes, and appeared intoxicated. After first saying she did not know what happened or who was driving, Anderson told Thompson that Smith drove the car and she was in the front passenger seat. Tests of blood drawn from Smith a little over two hours after the accident measured his BAC at 0.24 percent.

         Deocampo and Anderson both suffered cuts and abrasions from the collision. Anderson's left femur was fractured, requiring placement of a permanent rod in her leg. She was hospitalized for three to four weeks and could not walk without a walker or crutch for some time afterward. She required medications one to two months following her release from the hospital, and she continued to experience pain at the time of trial. Deocampo's medical records reflected “soft tissue type injuries.”

         Smith was charged by information with driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)) and driving with a BAC in excess of 0.08 percent causing injury (id., § 23153, subd. (b)). As to both counts, it was alleged that Smith's BAC was in excess of 0.20 percent (id., § 23538, subd. (b)(2)), he proximately caused bodily injury to two victims (id., § 23558), he personally inflicted great bodily injury upon one of those victims (Pen. Code, § 12022.7, subd. (a)), and he had suffered a prior DUI conviction (Veh. Code, §§ 23560, 23566).

         At trial, Anderson testified that Deocampo, and not Smith, was driving at the time of the accident. Anderson said she was feeling the effects of morphine when she spoke to Thompson on the night of the collision and could not recall what she said. The Garman brothers denied telling Thompson that Smith was the driver and denied they witnessed the collision.

         The defense called Smith's aunt, Angela Chambers, who testified she was at a party at Smith's grandmother's house the evening of the accident. Smith and Deocampo also attended the party. Chambers said she gave Smith's car keys to Deocampo and told her to drive him home because Smith was “far too intoxicated to be driving.” Chambers said she received a telephone call about the accident and went to the scene. She saw paramedics remove Smith from the back seat of the car where she had placed him. In rebuttal, Thompson testified that Chambers would not have been able to see where Smith was extracted from within the vehicle because crime scene tape prevented spectators from entering the scene, and numerous emergency personnel were inside the perimeter blocking the spectators' view. The only available view of the car was of its undercarriage, and Smith and Anderson were extracted through the car's roof.

         Excluded Evidence

         Deocampo was included on both prosecution and defense pretrial witness lists. When advised that the defense expected Deocampo to testify she was the driver, the court appointed counsel to represent her.[2] Deocampo's appointed counsel advised the court that Deocampo would invoke her Fifth Amendment privilege if called to testify. The prosecution said it would not call Deocampo as a witness, but Smith's counsel stated his intention to call her and require her to assert the privilege before the jury. The court conducted a hearing outside the jury's presence, at which Deocampo refused to answer any questions. The court found “there would be no purpose in putting [Deocampo] in front of the jury and having her invoke” and stated it was exercising its discretion to not permit her to be called as a witness simply for the purpose of invoking her privilege against self-incrimination. Deocampo was excused as a witness with the agreement of both parties.

         Smith's counsel then indicated his intention to call an investigator, Angela Santos, to testify regarding Deocampo's claim to have been the driver, arguing that the statement was admissible as a declaration against penal interest. The prosecution objected to the statement as unreliable and argued it should not be admitted. At an Evidence Code section 402 hearing outside of the jury's presence, the court took testimony from Santos and Justin Legasa, a firefighter/paramedic who was at the scene of the accident.

         Santos testified to a December 2014 telephone conversation with Deocampo. Deocampo told Santos she had been drinking the night of the collision. After an altercation between Smith and another person at a party, Angela Chambers and Marico Garman put Smith in the back seat of his car. Deocampo got into the driver's seat, and Anderson was in the front passenger seat. Deocampo was driving the car when the collision occurred. Deocampo told Santos she “needed to do the right thing and admit what she did.” Santos opined that Deocampo was forthright and seemed “contrite.” Deocampo claimed she told an emergency room physician she was the driver and said she would provide her medical records to confirm this. She never did so.

         Legasa testified he was dispatched to the collision scene and was assigned to treat Deocampo, who was out of the car when he arrived. Deocampo told him she was in the back seat of the car at the time of the collision and was wearing her seatbelt. Thompson was present at the outset of the hearing and confirmed that Deocampo (and Anderson) told him Smith was the driver.

         The court declined to admit the extrajudicial statement, finding it was “not trustworthy or reliable” under the totality of the circumstances: “I'm not going to let in a prior inconsistent statement by a girlfriend of [Smith] who appears to be taking the blame for him without ...


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