People v. Autry

• Citation: 37 Cal.App.4th 351,43 Cal.Rptr.2d 135
• Decision Date: 30 June 1995
• Docket Number: No. B082559,B082559
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 6088, 95 Daily Journal D.A.R. 9999 The PEOPLE, Plaintiff and Respondent, v. Kenneth AUTRY, Defendant and Appellant.

Page 135

43 Cal.Rptr.2d 135

37 Cal.App.4th 351, 95 Cal. Daily Op. Serv. 6088,

95 Daily Journal D.A.R. 9999

The PEOPLE, Plaintiff and Respondent, v. Kenneth AUTRY, Defendant and Appellant.

No. B082559.

Court of Appeal, Second District, Division 4, California.

June 30, 1995.

Review Denied Sept. 27, 1995.

[37 Cal.App.4th 355] Cynthia L. Barnes, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Kenneth C. Byrne and Emilio E. Varanini IV, Deputy Attys. Gen., for plaintiff and respondent.

CHARLES S. VOGEL, Associate Justice.

With a blood alcohol level of .22 percent, defendant and appellant Kenneth Autry recklessly drove on a freeway, swerved into the median strip, struck and killed two highway construction workers, and injured his two passengers. A jury convicted appellant of two counts of second degree murder (People v. Watson (1991) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279) and two counts of driving with a blood alcohol content of .08 percent or more, causing bodily injury. (Veh.Code, § 23153, subd. (b).) The court sentenced appellant to state prison for three years plus two concurrent terms of 15 years to life.

FACTS

Appellant had four prior convictions for drunk driving, suffered in 1983, 1984, and 1991. He failed to attend court-ordered educational programs in connection with those convictions, but in 1991 admitted that he had a drinking problem and participated in a 45-day residential alcoholism program at "How House," where participants are "bombarded" with horror stories about the dangers of driving while intoxicated. In October 1991, his probation officer told him he should not drink and drive because he might kill someone or be killed, and leave his children without a parent. On April 27, 1992, the day of the fatal accident, appellant was on probation for a different offense. That very morning, he met with his probation officer who warned him not to drink and drive.

Nevertheless, that day appellant drove his Ford Bronco to the desert where he and his friend Richard Bonato, and Bonato's friend Lester Lonian, drank beer. Appellant drove them to Bonato's aunt's house in Apple Valley and drank more beer. They decided to drive to Los Angeles. Appellant stopped to buy a case of beer. Appellant drank more than two beers while driving.

At the transition from Interstate 15 to Interstate 10, appellant, who by then appeared under the influence, lost control, swerved and skidded because he was going too fast, about 70 or 80. Lonian told appellant to slow down; appellant told him to shut up. Twice Bonato asked to let him drive; twice appellant told him to shut up. Appellant almost hit a car. He pulled over and stopped. Bonato asked to drive; Lonian said, "Yeah ... let him drive, ... you are buzzing." Appellant refused, saying "I got it under control" and resumed driving. While Near downtown Los Angeles, appellant missed a freeway turn and got off the freeway. As he exited, he ran a red light and was nearly broadsided by a big rig truck. Bonato and Lonian again urged that Bonato drive; appellant told them, "later."

driving on Interstate 10, appellant resumed speeding and swerving. Bonato and Lonian told appellant three or four times to slow down; appellant told them to kick back and shut up.

Appellant drove southbound on the Long Beach Freeway at 80 to 85 miles per hour. Lonian told appellant to "slow down, [I don't] want to die"; appellant said "Fuck off." At Lonian's urging, Bonato climbed into the back seat with Lonian and fastened his seat belt.

The accident occurred about 6:30 p.m., near the Rosecrans overpass. There a private highway construction contractor, MCM Construction, had a warning sign truck stopped in the median, with a flashing arrow indicating traffic should move to the right for construction ahead. The warning sign truck was entirely within the wide median, not blocking the fast lane, because the actual lane takeover would not occur for another mile, after two more warning signs. This was the first of such warning signs. Several motorists testified at trial that although the warning sign truck was beyond the overpass, they had no difficulty seeing it well before reaching the overpass.

About two minutes before the accident, appellant nearly struck the car of Carolyn Fraser when he moved into her lane. He appeared to be laughing and talking to his passengers. After Fraser moved so as to be behind appellant's car, she saw the warning sign. Bonato, in appellant's car, also saw it and warned appellant he had better move over. Appellant had no room to move to the right. Appellant was going faster than the car in front of him. Apparently in order to avoid hitting the car in front of him, appellant veered to the left, into the median strip.

Two highway construction workers, Armando Rentoria and Antonio Fernandez, were standing at the rear of the warning sign truck, between the truck and the center divider. Appellant's car struck the workers and the warning sign truck, knocking it into traffic. Appellant's car struck the center divider and flipped over in the air, coming to rest facing the opposite direction. As a result of the accident, Rentoria died instantly and Fernandez died later that night; Lonian received head and back injuries, and Bonato received severe back and internal injuries.

Appellant, although bleeding, got out of his car and moved beer cans into a cooler. Appellant shook the dead body of Rentoria and told the unconscious Fernandez to get up and show he was alright. Appellant resisted instructions of Highway Patrol officers to sit down. Arrested and taken to a hospital, appellant had a blood alcohol level of .22 percent. After falling asleep and waking up handcuffed to a hospital bed and being told he was under arrest for killing two people, appellant said, "Fuck 'em. They shouldn't have been out there in the first place."

Defense

Appellant's defense was to blame the construction company for not taking stronger precautions to protect its workers from such an accident.

Appellant presented evidence that when highway maintenance is performed by workers of the California Department of Transportation (CALTRANS), policy requires that a "shadow vehicle" known as an "attenuator truck" follow behind the workers. This equipment consists of a large, e.g., 2-ton, truck with a cushion attached to its rear. It follows a reasonable distance behind the workers, where traffic might first begin to slow in response to conditions ahead. The idea is that if a vehicle veers into the area where the workers are, it will strike the cushioned attenuator truck, which will absorb the collision and possibly prevent the workers or other CALTRANS vehicles from being struck. This is expensive equipment, required for CALTRANS but not usually seen in private construction. There was a dispute at trial whether the CALTRANS policy applied to work performed by contract with CALTRANS, or otherwise established a safety standard of the industry. It was undisputed that MCM Construction did not Appellant's experts also criticized placing the warning sign truck near a curve and beyond the overpass, making it more difficult to see from a long distance.

have such equipment. Appellant's expert opined that the use of an attenuator truck would have saved the victims in this case. A rebuttal expert for the prosecution opined that it would have made no difference because appellant would have gone in front of it.

CONTENTIONS

Appellant contends: (1) the evidence is insufficient to support the convictions of second degree murder; (2) the court abused its discretion under Evidence Code section 352 in admitting evidence of statements of appellant's probation officers; and (3) the court erred regarding jury instructions on appellant's defense of superseding cause. The Attorney General raises a sentencing error regarding custody credit. Finding no merit to appellant's contentions, we modify the judgment and affirm.

SUFFICIENCY OF EVIDENCE

Appellant contends the evidence is insufficient to support conviction of two counts of second degree murder. We review this contention under the usual standard of the substantial evidence rule, resolving all conflicts in evidence and questions of credibility in favor of the verdict, and indulging every reasonable inference the jury could draw from the evidence. (People v. David (1991) 230 Cal.App.3d 1109, 1114, 1116, 281 Cal.Rptr. 656.)

In People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the Supreme Court held that in appropriate circumstances a homicide caused by a drunk driver may be prosecuted as second degree murder. Second degree murder based on implied malice is shown when the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. (Id. at pp. 296, 300, 179 Cal.Rptr. 43, 637 P.2d 279.) Implied malice requires that the accused actually appreciated the risk involved. (Id. at pp. 296-297, 179 Cal.Rptr. 43, 637 P.2d 279.)

Since Watson, numerous cases have upheld drunk driving murder convictions. (People v. Olivas (1985) 172 Cal.App.3d 984, 218 Cal.Rptr. 567; People v. Albright (1985) 173 Cal.App.3d 883, 219 Cal.Rptr. 334; People v. McCarnes (1986) 179 Cal.App.3d 525, 224 Cal.Rptr. 846; People v. Brogna (1988) 202 Cal.App.3d 700, 248 Cal.Rptr. 761; People v. Murray (1990) 225 Cal.App.3d 734, 275 Cal.Rptr. 498; People v. David, supra, 230 Cal.App.3d 1109, 281 Cal.Rptr. 656.) As recently summarized in People v. Talamantes (1992) 11 Cal.App. 4th 968, 973, 14 Cal.Rptr.2d 311, these cases have relied on some or all of the following factors in upholding such convictions: (1) blood alcohol level above the .08 percent legal limit; (2) a predrinking intent...