People v. Johnigan

• Decision Date: 28 September 2011
• Docket Number: No. B220763.,B220763.
• Citation: 2011 Daily Journal D.A.R. 9385,196 Cal.App.4th 1084,128 Cal.Rptr.3d 190,11 Cal. Daily Op. Serv. 7844
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ashley JOHNIGAN, Defendant and Appellant.

196 Cal.App.4th 1084

128 Cal.Rptr.3d 190

11 Cal. Daily Op. Serv. 7844

2011 Daily Journal D.A.R. 9385

The PEOPLE, Plaintiff and Respondent,

v.Ashley JOHNIGAN, Defendant and Appellant.

No. B220763.

Court of Appeal, Second District, Division 6, California.

June 23, 2011.

Review Denied Sept. 28, 2011.

Sanger & Swysen; Robert M. Sanger and Stephen K. Dunkle, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Steven E. Mercer, Ana R. Duarte, Deputy Attorneys General, and Susan P. Stone for Plaintiff and Respondent.

YEGAN, A.P.J.

On the evening of May 1, 2008, Laura Cleaves was at the wrong place at the wrong time that night. Appellant, Ashley Johnigan, drank the equivalent of 16 alcoholic drinks at a Santa Ynez bar and struck and killed Cleaves on Highway 154. Appellant refused multiple offers for a safe ride home, was warned that she was too drunk to drive and could harm people, and knew the mountain road was very dangerous to drive. Shortly before the collision, appellant stopped her Mercedes on the road shoulder with the left tires in the traffic lane. California Highway Patrol officers arrived to provide assistance but appellant sped off, driving on the road shoulder. Reaching a speed of 70 miles per hour, appellant swerved across the road, and struck two on-coming vehicles, killing Cleaves and injuring Lisa Raines.

Johnigan appeals her conviction by jury for second degree murder (count 1; Pen.Code, §§ 187, subd. (a); 189), gross vehicular manslaughter while intoxicated (count 2; Pen.Code, § 191.5, subd. (a)), driving under the influence of alcohol (count 3; Veh.Code, § 23152, subd. (a)), and driving with a blood alcohol content of .08 percent or more (count 4; Veh.Code, § 23152, subd. (b)). Appellant was sentenced to 15 years to life in state prison and ordered to pay $1,056,201.58 victim restitution. (Pen.Code, § 1202.4, subd. (f).) Appellant contends that the evidence is insufficient to support the murder conviction and the trial court committed jury selection and instructional error. We affirm.

Facts

On the evening of May 1, 2008, appellant met Amanda Sebern and Jessica Perez for drinks at the Maverick Saloon. Appellant arrived at 7:30 p.m., consumed at least five alcoholic drinks, and took sips from other people's drinks. She became progressively intoxicated and was acting “wild, crazy, [and] just having a good time.” Appellant stumbled into patrons and claimed she was fine. A women said “No, you're not” and offered to help. Appellant was “very drunk” and “wanted to do her own thing, be on her own.”

Sebern and Perez prepared to leave and offered appellant a ride home at 10:00 p.m. Appellant decided to stay and “party.” Julie Wilks, the bartender's sister, saw that appellant was drunk and offered her a ride home. Appellant said she was “okay” and could drive.

At 10:45 p.m., the bar refused to serve her any more alcohol. Appellant stumbled outside and fell on Sarah Cliffe. Cliffe warned appellant, “You can't drive. You could hurt yourself. You could hurt somebody else. You are too drunk to drive.” Cliffe drove for a taxi cab company and offered appellant a free cab ride home as they walked by two cabs in the parking lot.

Appellant refused to take a cab and got into her Mercedes. Cliffe asked for the car keys. Appellant promised not to drive and asked Cliffe to get her a glass of water. The bartender called 911 as appellant drove out of the parking lot.

California Highway Patrol Officers Toby Hall and Cliff Powers saw the Mercedes on a straight section of Highway 154 about four miles from the bar. Appellant had stopped her car with the engine running on the side of the road but was partially blocking the traffic lane.

Officer Hall pulled up behind the Mercedes, activating the patrol car's left front spotlight, the clear overhead lights, and a rear facing amber light. As the officers approached with flashlights, appellant looked in the rearview mirror and sped away. The officers yelled “Stop” and followed the Mercedes with their red, yellow, and blue “code three” lights and alternating headlights activated, reaching a speed of 70 miles per hour. Appellant drove on the road shoulder, bouncing up and down and kicking up dirt for half a mile. As the Mercedes approached a right curve, appellant veered left, crossed two traffic lanes, and drove over the double yellow centerline at about 70 miles per hour. Appellant hit Laura Cleaves head-on killing her. She sideswiped a second vehicle, injuring Lisa Raines.

Appellant was ordered to stay in the Mercedes until the officers checked the other motorists. When Officer Hall returned, appellant had crawled out the driver's window and entangled herself in a barbed wire fence. She smelled of alcohol, had red watery eyes, and said that she was drunk and just wanted to go home. Inside the Mercedes, officers found a two-liter Sierra Mist bottle containing a liquid that had a strong pungent alcohol odor. Appellant said that she had “one shot of tequila, about two hours ago” at the Maverick Saloon but did not remember what happened after she left.

Appellant provided a blood sample which was tested and had a blood alcohol content (BAC) of .24 percent, three times the legal limit. Ventura County Criminalist Janet Anderson–Seaquist testified that a person matching appellant's weight and drinking timeline would have to consume 16.5 standard one-ounce alcohol drinks to reach a .24 percent BAC.

Prior Warnings

Prior to May 1, 2008, appellant had been warned on numerous occasions that she could injure or kill someone if she drove while intoxicated. In 2007, appellant tried to pick her daughter up at Rumi Koizumi's house and drive home while intoxicated. Koizumi refused to let appellant drive with the child in the car. Appellant took her daughter across the street to a relative's house and stayed the night.

On a second occasion, appellant was again intoxicated and drove to Koizumi's house. Koizumi's husband, Matt Doyle, told appellant, “If you want to kill yourself, go ahead, but I'm not going to let you put [your] child in the car.” Appellant argued with Koizumi but he would not allow her to take the child. Doyle looked outside a few minutes later and saw that appellant had driven away.

In 2008, appellant and Koizumi were out drinking and left a bar. Appellant was intoxicated, had trouble staying in the traffic lane, and almost hit another car. Koizumi told appellant to stop and warned her that “You could hurt someone. It could be me. It could be anyone else.”

On April 29, 2008, just two days before she killed Cleaves, appellant drank beer and gin at Amanda Sebern's house. Sebern asked if she was “okay to drive.” Appellant said she had driven drunk before and that “someday it might get [me] into trouble.”

Defense Case

Doctor Katherine Emerick, a psychologist, testified that appellant suffered from alcohol dependency, had abused cocaine and methamphetamine in the past, and suffered from posttraumatic stress disorder (PTSD) due to sexual assaults in her teen years. She opined that appellant had an “exaggerated startle response” the night of the crash.

Appellant testified that her plan was to visit the bar, drink, and drive home. Appellant put alcohol in the Sierra Mist bottle before going to the bar. After appellant arrived at the bar, two men gave her a dirty look and were in the parking lot when she left. Appellant drove off “to go somewhere else, to be safe.” Appellant knew she was drunk and that it would be “very dangerous” to drive.

Appellant decided to take Highway 154 where the “cops patrolled” and stopped on the highway to sober up. Moments later, she saw lights come up behind her. Appellant sped off, fearing it was the men from the bar.

On cross-examination, appellant denied that Sebern and Perez offered her a ride home, denied that she was offered a free cab ride home, denied that Julie Wilks offered her a ride home, denied that she was warned about the danger of driving drunk, and denied that she saw a police vehicle with red and blue emergency lights chasing her before the crash. Appellant admitted that she was “very intoxicated,” knew that she was too drunk to drive, and knew that driving under the influence of alcohol was dangerous to human life and especially dangerous if the driver is heavily intoxicated. Appellant also knew that the 19 mile drive home would be difficult to navigate because Highway 154 was a dark, winding, high-speed road.

Implied Malice

Appellant argues the evidence does not support the conviction for implied-malice second degree murder. As in any sufficiency of the evidence appeal, we review the record in the light most favorable to the prosecution and draw all reasonable inferences in support of the judgment. ( People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.) “Reversal ... is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” ( Ibid.)

California courts have long recognized that a traffic fatality caused by a grossly intoxicated motorist may support a conviction for second degree murder. ( People v. Watson (1981) 30 Cal.3d 290, 300–301, 179 Cal.Rptr. 43, 637 P.2d 279( Watson ); see People v. Autry (1995) 37 Cal.App.4th 351, 358, 43 Cal.Rptr.2d 135, and cases cited therein.) “ ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit conscious disregard of the safety of others.’ ” ( Watson, supra, 30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.)

Appellant contends that implied malice requires a “predicate act,” such as a prior...