People v. Ochoa

• Decision Date: 30 December 1993
• Docket Number: No. S031616,S031616
• Citation: 26 Cal.Rptr.2d 23,6 Cal.4th 1199,864 P.2d 103
• Court: California Supreme Court
• Parties: , 864 P.2d 103 The PEOPLE, Plaintiff and Respondent, v. Alberto OCHOA, Defendant and Appellant.

Page 23

26 Cal.Rptr.2d 23

6 Cal.4th 1199, 864 P.2d 103

The PEOPLE, Plaintiff and Respondent, v. Alberto OCHOA, Defendant and Appellant.

No. S031616.

Supreme Court of California In Bank.

Dec. 30, 1993.

Michael Ian Garey, Santa Ana, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Janelle B. Davis, Robert M. Foster, Keith I. Motley, Holly D. Wilkens and John T. Swan, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

Alberto Ochoa was convicted of two counts of gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a)) and one count of hit-and-run driving (Veh.Code, § 20001). He argued on appeal, among other contentions, that irrelevant and prejudicial evidence of his prior conviction for driving under the influence, his probationary status, and his attendance at an alcohol awareness class, was improperly admitted at trial, and that there was insufficient evidence of his gross negligence. The Court of Appeal, by a two-to-one vote, agreed with defendant, reversed defendant's gross vehicular manslaughter convictions and remanded for resentencing for the less serious offense of vehicular manslaughter (Pen.Code, § 192, subd. (c)(3)). We disagree and will remand to the Court of Appeal for resolution of certain unresolved appellate issues.

Facts

The following facts, with minor modifications, are adopted from the Court of Appeal opinion in this case. On Sunday, September 2, 1990, defendant and his family attended a barbecue at his sister-in-law's house in Corona. They brought three 12-packs of beer, which were consumed by four adults during the course of the afternoon and evening. Defendant himself drank around 17 to 22 beers. When he and his wife went to bed at 11:30 p.m., at his sister-in-law's house, he was intoxicated.

Sometime no later than 1:50 a.m. on Monday, defendant awoke, entered his Ford Bronco alone, and headed for his home. He was driving west on the Garden Grove Freeway at 60 to 65 miles per hour. Traffic was light. Around this time, Brian Doan was also driving home, using the middle of three lanes, at a speed of 50 to 55 miles per hour. He saw a Bronco pass him on the left and abruptly start to move into the lane in front of him, then move back into its original lane without completing the lane change. Doan applied his brakes and slowed to 40 miles per hour. As the Bronco passed by, Doan saw its right front and rear tires cross over the lane dividing-line and then back again.

A short distance ahead of Doan's car, Brian Simurda was driving his Chevrolet pickup in the middle lane at a speed of 55 to 60 miles per hour. For the last two or three miles he had been trailing a red Honda. The Honda was travelling at 45 to 50 miles per hour, and its taillights were lighted and visible. Simurda saw the Bronco pass him in the left lane and estimated its speed at 65 to 70 miles per hour. When the Bronco was only one car length ahead of him, it changed lanes without signaling, crossing to the right side of the lane, then back to the left. Defendant continued at the same speed, heading for the Honda. Soon thereafter, without first applying his brakes, defendant hit the left rear portion of the Honda, which spun into a ravine and hit a tree, killing the two occupants. The accident occurred no later than 1:50 a.m.

Defendant made a quick lane change without signaling and exited the freeway, taking the next off-ramp about 100 yards from the point of impact. Simurda followed and, achieving speeds of up to 80 miles per hour, cut in front of defendant's Bronco and blocked it. Another car pulled up behind the Bronco and parked, preventing its escape. Defendant was behind the wheel and said he had to call his brother. Simurda told him to wait in the car.

Eventually, after failing a series of field coordination tests, defendant was arrested for driving under the influence of alcohol. He claimed he saw neither the Honda nor its taillights until the collision. A blood sample taken about two hours later showed his blood-alcohol level to be .128 percent. A criminalist testified that, at the time of the accident, defendant's blood-alcohol level may have been as high as .15 percent, a level sufficient to render a driver incapable of safely operating a motor vehicle.

In 1988, defendant had been convicted of driving under the influence of alcohol and had been ordered not to drive with a measurable amount of alcohol in his system. He had also been ordered to attend an alcohol awareness class, which included discussion of the dangers of drinking and driving. He completed the class in 1989. During this class, defendant viewed a film showing how one drink alone may impair one's driving ability. Defendant admitted to the arresting officers that he knew he was on probation for driving under the influence, and knew that he was not supposed to drink and drive.

Based on the foregoing facts, the Court of Appeal majority ruled the evidence insufficient to sustain a finding that defendant exercised gross negligence under Penal Code section 191.5, subdivision (a). (Further statutory references are to this code.) In the majority's view, the evidence showed at most that defendant drove at high speeds while intoxicated, conduct amounting to simple negligence. Accordingly, the majority ordered defendant's gross negligence conviction set aside and remanded the case for resentencing under section 192, subdivision (c)(3) (vehicular manslaughter without gross negligence). By reason of the majority's disposition, it was unnecessary to reach defendant's remaining appellate contentions.

The Court of Appeal majority reasoned that because defendant's probable blood-alcohol level (.15 percent) was "not excessive," because he slept for two hours before attempting to drive, because his driving involved "relatively minor speeding" in light traffic conditions, and because his lane changing evidenced "some prudent driving," no gross negligence was proved. The dissenting opinion strongly disagreed, accusing the majority of reweighing the evidence to favor defendant, contrary to the deferential standard of review ordinarily applicable in resolving evidentiary challenges to criminal convictions. As will appear, we agree with the dissent.

In addition, the Court of Appeal majority ruled that evidence of defendant's prior conviction for driving under the influence, his probationary status arising therefrom, and his attendance at an alcohol awareness class following that offense were each inadmissible to establish gross negligence. The dissenting opinion again disagreed, concluding that the foregoing evidence was admissible to show defendant's appreciation of the risks of drinking and driving. Here too, we agree with the dissent.

Discussion

1. Gross negligence--As previously indicated, defendant was convicted of gross vehicular manslaughter while intoxicated. (§ 191.5, subd. (a).) That provision states in pertinent part: "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (Ibid.) On appeal, defendant disputed the sufficiency of the evidence regarding the requisite element of gross negligence.

We have previously explained that "[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] 'The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens." ' [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. [Citation.]" (People v. Bennett (1991) 54 Cal.3d 1032, 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849 [hereafter Bennett ].)

2. Evidentiary issues--Before attempting to relate the evidence in this case to the foregoing standard, we first consider the preliminary question whether part of that evidence was inadmissible at trial. As previously indicated, the prosecutor elicited evidence of defendant's prior conviction for driving under the influence of alcohol, his subsequent probation, and his attendance at traffic school, including an alcohol awareness class discussing the dangers of drinking and driving. This evidence was admitted to show defendant was previously aware of these dangers.

On appeal, defendant conceded that such evidence would have been admissible in a vehicular murder case based on implied malice, to show the accused's subjective awareness of the risks. (E.g., People v. David (1991) 230 Cal.App.3d 1109, 1115, 281 Cal.Rptr. 656, and cases cited.) Defendant argued, however, that because the test of gross negligence is an objective one, i.e., whether a reasonable person in the defendant's position would have been aware of the risks (Bennett, supra, 54 Cal.3d at p. 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849), evidence of his own subjective state of mind was irrelevant and unduly prejudicial.

The Court of Appeal majority agreed, stating that "[a] defendant's particular state of mind is not the pertinent consideration, rather that of a reasonable person in the same or similar situation. [p] ... If a reasonable person placed in [defendant's] position would have been aware of the risks, it does not matter whether [defendant] was actually aware of them."

We believe the Court of Appeal majority's analysis is flawed. In determining whether a reasonable person in defendant's position would have been aware of the risks, the jury should be given...