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People v. Wolfe

California Court of Appeals, Fourth District, Third Division

February 21, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
KELLY MICHELE WOLFE, Defendant and Appellant.

         Appeal from a judgment of the Superior Court of Orange County No. 14HF2315, Gary S. Paer, Judge. Affirmed.

          Corona & Peabody and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          MOORE, J.

         Defendant Kelly Michele Wolfe killed an innocent pedestrian while driving under the influence of alcohol. The prosecution charged Wolfe with an implied malice murder (colloquially known as a Watson murder).[1] The trial court refused to instruct the jury on involuntary or vehicular manslaughter; it is well-settled that these are not lesser included offenses. The court also instructed the jury that voluntary intoxication was not a defense to an implied malice murder; this is also an accurate statement of California law.

         The jury convicted Wolfe of murder and other offenses. Wolfe makes three claims: the evidence was insufficient to sustain the murder conviction, the failure to allow a manslaughter instruction as a lesser included offense violates the equal protection clause, and the failure to allow voluntary intoxication as a defense violates due process.

         We disagree and affirm the judgment.

         I

         FACTS AND PROCEDURAL BACKGROUND

         On July 4, 2013, at about 8:30 p.m., Wolfe left a San Clemente bar and was driving to her nearby home when she struck and killed a pedestrian. Wolfe's blood-alcohol content (BAC) was about.34 percent. The evidence at trial encompassed: Wolfe's prior knowledge about the dangers of drinking and driving; Wolfe's alcohol consumption before the collision; the circumstances of the collision itself; and what happened afterwards, including Wolfe's arrest.

         Prior DUI Knowledge

         In 1994, Wolfe pleaded guilty to a charge of driving under the influence in Nevada. Wolfe was required to attend a victim impact panel in which offenders learn about the consequences of drinking and driving. During the 90-minute presentation, Wolfe was exposed to statistical information and presentations by “injured victims or surviving family members of deceased victims.”

         In 2008, Wolfe renewed her California Driver's License. Wolfe signed a Department of Motor Vehicles (DMV) renewal form, which included the following statement: “I am hereby advised that being under the influence of alcohol or drugs, or both, impairs the ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I drive while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.”[2]

         Alcohol Consumption Before the Collision

         Wolfe and her husband Mike Rosney were regular customers at Knuckleheads, a bar in San Clemente. The couple had two vehicles that they would regularly drive to the bar, Rosney's red convertible and Wolfe's white Volkswagen van. Wolfe and Rosney usually called a local taxi driver, Thomas “Tommy Taxi” Meadows, to take them home when they felt they could not drive safely. Wolfe ordinarily called Meadows for a ride home two to three times a month.

         On July 4, 2013, at about 11:00 a.m., Wolfe and Rosney drove separately to Knuckleheads for lunch. After eating lunch, Rosney and Wolfe left in Rosney's car to attend a birthday party in Mission Viejo. Wolfe drank an unknown quantity of wine at the party. At about 4:00 p.m., Rosney drove Wolfe back to the couple's home in Capistrano Beach; they dropped off some leftovers, and then they returned to Knuckleheads at about 6:15 p.m.

         When they entered the bar, Rosney ordered two shots and two beers for himself and Wolfe. The bartender, Serena Stewart, noticed that Wolfe had been drinking, although Wolfe did not appear to be “overly intoxicated.” Wolfe drank the shot at the bar and took her beer glass outside. After about 45 minutes, Wolfe came back inside the bar. Wolfe's glass was mostly empty, and she told Rosney that she was ready to leave. Rosney told Wolfe that he had just ordered another shot and a beer for himself and a friend. Wolfe put her glass on the bar and walked out the front door.

         Rosney continued drinking for 10 to 15 minutes. Rosney asked Stewart for his tab and said he had “an angry wife” waiting for him in the car. Stewart advised Rosney: “You guys have been drinking. It's a holiday. There's lots of cops out. You are calling Tommy Taxi, right?” Rosney responded: “Yes.” Rosney picked up a phone, but Meadows later testified that neither Rosney nor Wolfe called him for a ride that evening. Rosney left the bar, walked to his car, and eventually drove home. Rosney did not see Wolfe or notice whether her van was still parked outside the bar.

         The Collision

         Shortly after 8:00 p.m., 12-year-old Mason, and his grandmother, Marthann, were walking from their family's beachside vacation home towards the beach where they planned to watch fireworks with their family. Mason was blind from birth (as in years past, it was anticipated that Marthann would describe the fireworks to her grandson). As they walked along the Pacific Coast Highway (PCH), Mason held a white cane in his right hand and held on to his grandmother's arm with his left hand.

         At about 8:33 p.m., Marthann and Mason stood in the gutter near the bike lane, waiting to cross the street. At that moment, Wolfe was driving her van northbound on PCH and failed to negotiate a curve in the road. Wolfe veered out of the traffic lane into the bike lane. Wolfe's van was headed directly towards Marthann and Mason, as well as others who were seated nearby. Marthann pushed Mason away just before the van struck her; Marthann died at the scene. Mason heard a loud “thud”; his grandmother's arm was no longer within his reach. Mason sustained injuries to his face and right leg. There were no skid marks at the site of the collision.

         After the Collision

         After the collision, Wolfe continued driving northbound on PCH towards her apartment. As a result of the impact, the van's passenger windshield was shattered, its horn was blaring, one or both of its headlights were out, and its front grill section was crumpled and severely damaged. The van stalled as it made a right hand turn from PCH onto a side street. As Wolfe tried to restart the van, its horn kept blaring intermittingly. Wolfe was eventually able to restart the van and drive to her home, which was right up the hill. Wolfe nearly clipped a parked car before she stopped abruptly and parked askew on the street. Several witnesses noticed that Wolfe remained seated in the van for a few minutes. One witness said that Wolfe had “a very shocked look on her face.” Wolfe eventually got out of the van with her purse and walked into her home.

         At about 8:35 p.m., Deputy Anton Pereyra arrived in front of Wolfe's residence; he was responding to a dispatch call regarding a possible vehicle involved in the fatal collision on PCH. Pereyra saw the van and noticed that it had sustained major damages to its front passenger side; he “could see pieces of hair and scalp in the windshield as well as on the [vertical support].” When Pereyra looked inside of the van he noticed “broken glass particles across the dashboard, the passenger seat, and the floorboard.” Pereyra ran the vehicle's license plate and learned that it was associated with Wolfe's address.

         As Deputy Pereyra walked to Wolfe's apartment, he saw Rosney sitting on the front porch drinking beer. Pereyra asked Rosney several questions, but Rosney was uncooperative and argumentative. Rosney eventually told Pereyra that he assumed Wolfe was inside the home, but Rosney said that he had not spoken to Wolfe since they separately arrived at their home from Knuckleheads bar.

         At about 8:40 p.m., Sergeant Jonathan Daruvala arrived at the home and asked Wolfe to walk outside. Daruvala noticed that Wolfe was unsteady as she walked, she smelled of alcohol, and her eyes were bloodshot and watery. Wolfe told Daruvala that she had consumed two glasses of wine two to three hours earlier. Daruvala conducted multiple field sobriety tests; Wolfe performed poorly on all of them. Daruvala arrested Wolfe and took her to the hospital to have her blood drawn. Daruvala noticed that in the backseat of his police vehicle there were broken pieces of glass. Inside of Wolfe's purse there were also pieces of broken glass and Wolfe's driver's license, which had expired.

         Wolfe's blood draw occurred at about 10:39 p.m., and later revealed a blood alcohol content (BAC) of.307 and.314 percent. At trial, a forensic expert opined that given the average rate of alcohol elimination from the bloodstream, Wolfe's BAC at the time of the collision was somewhere between.34 and.35 percent. The expert further opined that based on Wolfe's weight, gender, and other factors, she had consumed the equivalent of 14 to 16 standard alcoholic drinks prior to the collision.

         Court Proceedings

         The prosecution filed an amended information charging Wolfe with murder, hit and run with permanent injury or death, DUI causing great bodily injury (GBI) (Mason), driving with a BAC level of.08 percent or greater causing GBI (Mason), driving without a license, and failing to yield the right of way to a blind pedestrian. (Pen. Code, § 187; Veh. Code, §§ 20001, subd. (a), 23153, subds. (a) & (b), 12500, subd. (a), 21963.)[3] The information further alleged that Wolfe had driven with a BAC of.15 percent or greater. (Veh. Code, ยง ...


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