People v. Barreto, A110849 (Cal. App. 12/13/2006)

• Decision Date: 13 December 2006
• Docket Number: A110849
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JIMENA BARRETO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. JIMENA BARRETO, Defendant and Appellant.

A110849

Court of Appeals of California, First Appellate District, Division One

December 13, 2006

Appeal from the Contra Costa County Super. Ct. No. 5-040775-9.

SWAGER, J.

Defendant was convicted following a jury trial of two counts of second degree murder (Pen. Code, § 187),¹ leaving the scene of an accident that resulted in permanent serious physical injury or death (Veh. Code, § 20001, subds. (a), (b)(2)), driving under the influence and causing injury to more than one victim (Veh. Code, § 23153, subd. (a)), and driving with a suspended or revoked license (Veh. Code, §§ 14601.1).² She was sentenced to an aggregate state prison term of 30 years to life for the two murder convictions, and concurrent terms for the remaining convictions. In this appeal she claims that the trial court gave an erroneous supplemental instruction on implied malice. We conclude that the challenged instruction did not result in prejudicial error, and affirm the judgment.

STATEMENT OF FACTS

Undisputed evidence was presented that on the evening of October 26, 2003, defendant drove her Mercedes over the concrete curb and onto the sidewalk of Camino Tassajara in Danville, where her car struck and killed two children, Troy and Alana Pack.³ The crucial contested issue in the case was defendant's mental state when the accident occurred.

Just before the accident, Troy and Alana were accompanied by their mother Carmen, and two friends Mckenna and Hunter Doliber, as they proceeded on the sidewalk of Camino Tassajara near the intersection of Rassani Drive just before dark at around 7:00 p.m. Troy and Hunter were on their scooters; Alana rode her bicycle; Carmen and Mckenna were walking. Carmen testified that as the road curved she suddenly "looked back" and noticed car headlights pointing toward them, followed by a "loud noise." The car driven by defendant struck Hunter on the right foot, then hit Troy and caused him to roll over the windshield, then collided with Alana and threw her to the left. Troy's scooter flew through the air after impact with the car and hit Carmen in the knees. Defendant's car was traveling at a speed of between 35.53 and 43.37 miles per hour — which was within the legal speed limit — and did not brake or take any corrective action before the collision with the victims. The primary cause of the accident was an "unsafe turning movement" by defendant whereby she continued "going straight" over the curb as the street curved to the left. Both Troy and Alana died at the scene of the accident.

Witnesses testified that defendant stopped her car, a gold 1979 Mercedes, on the far side of the intersection and approached Carmen, who was screaming. Defendant asked "what had happened," and inquired if the children were dead. When defendant realized the victims were dead she repeatedly stated, "I don't want to go to jail." Defendant also mentioned that she had taken medication for her back. Defendant appeared to be unsteady on her feet, a bit disoriented, and frightened, but none of the witnesses at the scene smelled alcohol on her breath. Carmen took defendant's keys from the ignition of the Mercedes so she could not drive away. Witnesses at the scene testified that defendant did not attempt to aid the victims, and seemed only worried "about herself."

When police officers and emergency vehicles arrived, defendant crossed the street, ran up a hillside into the bushes, and fled from the accident scene. She ran in front of a van "that was at a stop sign" nearby, and told the driver, Patricia Casci, that "there had been an accident." Defendant then jumped into the passenger seat of the van, and requested to use Casci's cell phone. She appeared to be irrational, hyperventilating, hysterical, and in shock. Without using the phone, defendant stated that she "was in distress" and asked Casci to take her to "a shopping center or somewhere." Defendant "became more hysterical" when she noticed ambulances and a medevac helicopter overhead. She told Casci that "the driver of the car that she was in had a head injury or something." Casci advised defendant that she needed to return to the accident scene, and made a U-turn, whereupon defendant became "very agitated" as they approached the ambulances. Defendant said, "Nobody can see me. I can't allow anybody to see me." As traffic slowed and a police officer approached the van with a flashlight, defendant left the vehicle and fled from the accident scene again. Casci testified that based upon her observations she suspected defendant was under the influence, although she did not smell alcohol on defendant's breath or clothes.

Defendant was next observed at a nearby AM/PM Mini-Mart on Camino Tassajara when she approached the driver of a Plymouth Breeze, stated that "she'd been in an accident" and her "husband had stayed with the car," and complained she was "having an asthma attack." Defendant asked for a ride home. The driver "noticed an alcohol odor" as defendant entered the car, but her speech was not slurred. The driver "didn't feel good abut the situation," but drove defendant to Walnut Creek and dropped her off at the Andronico's Market — which was about a mile from defendant's residence — at about 7:45 p.m.

Defendant was then taken by taxi to an apartment complex on Flora Avenue in Walnut Creek. As the taxi approached the driveway, a sheriff's patrol vehicle was leaving, so defendant asked the driver to keep driving "down to the next road and take a right," then "go to Danville." Defendant directed the driver to Camino Tassajara near Rassani Drive in Danville, where they encountered "an awful lot of police [t]here." Defendant asked the driver to "turn around" and proceed to the BART station in Walnut Creek, where she left the taxi. Defendant was "fidgety and sort of anxious," but she appeared to speak and walk normally, and the driver "didn't smell any alcohol on her." Defendant left her cell phone on the back seat of the taxi. The taxi driver subsequently took the cell phone to the Danville Police Department.

Defendant took a BART train to San Francisco, then arrived at her friend Ximena Marin's house in Pacific Heights at about 9:30 p.m. Defendant was desperate, "screaming" and "out of control." She said to Marin: "I messed up my life. What am I gonna do?" At that moment, the San Francisco police called Marin, who divulged that defendant was with her in a car. Before Marin could take defendant to the police, however, she exclaimed, "I have to get out," and left the car. Defendant mentioned to Marin that she "was taking medicine," but was not staggering when she walked and did not smell of alcohol.

As the Danville Police Department continued to pursue defendant, she took a Greyhound bus to Coalinga. Then in the course of the next two days defendant placed calls to a friend at her apartment complex in Walnut Creek seeking help. Defendant asked her friend to enter her apartment to gather her cash and jewelry so "someone could come and pick it up for her."⁴ Late in the afternoon on October 28th, defendant called the same friend to relate that she wanted to contact "some former employers" to "give herself up to them." In the telephone calls to her friend defendant denied that she had been drinking the day of the accident.

Defendant was apprehended just after 5:00 p.m. on October 28th in San Jose in response to an all points bulletin. Later that evening she was interviewed by Danville police officers. Defendant acknowledged her "drinking problem" and her "record" of prior drunk driving. She stated to the officers, "I do drink all the time," but denied that she had "been drinking" before the accident. Defendant admitted that she had taken prescription Vicodin and a "muscle relaxer" intermittently for the past week following a knee injury that resulted from a fall. On the day of the accident she took "a few" of each of the medications in the morning, and again in the afternoon "before and after" her nap. Defendant claimed she "was fine," however, when she left her apartment in the car at around 6:35 p.m. to report for work in Danville as a nanny that night. She said she "was just driving, everything was fine," then suddenly she "saw the kids" and was "off the road." When defendant saw someone giving "the little boy" CPR she "just got scared and left." Defendant stated she "didn't know they were dead" when she left the scene. Defendant also told the officers that her Mercedes "has problems" with swerving to the left and shaking, but an examination and "road test" of the car revealed that it was "fully functional and intact," without any preexisting mechanical "deficiencies found." The brakes, steering, and suspension of the vehicle all "worked fine."

The prosecution offered evidence of defendant's alcohol abuse and impaired driving, both in the past and immediately before the accident. Defendant suffered a conviction in Florida for driving under the influence on October 21, 1987, and was placed on probation with a condition that required completion of an alcohol-education program. She was arrested for driving under the influence on July 24, 2000 after both of her breath tests revealed blood-alcohol levels of 0.12. She was granted probation for a conviction of driving under the influence, with restriction of her driving privilege and a requirement that she complete a driving-under-the-influence program. The record also includes testimony that defendant participated in the Level-I Future Solutions Driving Under the Influence Program between October 29, 2000 and January 31, 2001, and received a certificate of completion of the program in March of 2001.⁵ On January 5, 2001, defendant was again detained and arrested for driving under the influence on Flora Avenue in Walnut Creek, after she failed a field sobriety test; when tested, her blood-alcohol levels were 0.09 and 0.10. She subsequently...