People v. Calderon, F044054.

• Decision Date: 02 June 2005
• Docket Number: No. F044054.,F044054.
• Citation: 29 Cal.Rptr.3d 277,129 Cal.App.4th 1301
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Rogelio CALDERON, Defendant and Appellant.

29 Cal.Rptr.3d 277

129 Cal.App.4th 1301

The PEOPLE, Plaintiff and Respondent, v. Jose Rogelio CALDERON, Defendant and Appellant.

No. F044054.

Court of Appeal, Fifth District.

June 2, 2005.

Certified for Partial Publication.^*

As Modified June 27, 2005.

Janet J. Gray, Pacific Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, J.

In Tulane County Superior Court case No. 01-73627, appellant Jose Rogelio Calderon stands convicted, following a jury trial, of second degree murder (Pen.Code, § 187, subd. (a); count 1), evading an officer with willful or wanton disregard for safety (Veh.Code,¹ § 2800.2, subd. (a); count 2), being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)(1); count 3), leaving the scene of an accident resulting in death (§ 20001, subd. (a); count 4), unlawfully driving or taking a vehicle (§ 10851, subd. (a); count 5), driving under the influence of alcohol or drugs (§ 23152, subd. (a); count 7), and being under the influence of methamphetamine (Health & Saf.Code, § 11550, subd. (a); count 8). The jury acquitted him of grand theft of a firearm (Pen.Code, § 487, subd. (d); count 6).² Sentenced to an aggregate term of 17 years 8 months to life in prison (which included a concurrent term for violation of probation in case No. 01-68605) and ordered to pay restitution and a restitution fine, he now appeals, raising various claims of error.³ For the reasons that follow, we reverse the murder conviction and remand the matter for further proceedings.

FACTS

Sometime between 11:00 p.m. on April 15 and 4:00 a.m. on April 16, 2001, someone stole Gail Stroud's silver PT Cruiser from inside the garage of her Farmersville residence. Stroud kept a handgun inside a box in the glove compartment. She reported the theft to police.

At approximately 1:22 p.m. on April 16, Tulare County Sheriff's Deputy Cantu received a "be on the lookout" broadcast concerning the vehicle. An hour or two later, he spotted the vehicle in Goshen. The PT Cruiser, which contained four occupants, failed to yield to Cantu's red lights and siren, and accelerated away from him. A pursuit ensued.

The driver of the PT Cruiser, who was subsequently identified as appellant, proceeded through Goshen at approximately 35 to 40 miles per hour. The speed limit was 25 miles per hour. He ran five or six stop signs in town, and at one point drove through someone's yard, knocking down a cyclone fence on either side. Although vehicular traffic in town was fairly light, there were a lot of pedestrians in the area.

Appellant tried to elude Cantu by driving circularly around city blocks; when he was unsuccessful, he headed out of town. Once on the highway, his speed reached approximately 80 miles per hour in a 55-mile-per-hour zone. At one point, appellant slowed down somewhat when confronted with traffic, then ran a red light at approximately 45 to 55 miles per hour, then sped up again to around 80 miles per hour. Vehicles going both directions on the two-lane highway were yielding; however, appellant was driving erratically and passing vehicles that did not pull over quickly enough. A couple of times, he nearly struck another vehicle head-on. Cantu estimated that appellant passed 10 to 15 vehicles.

Approximately 10 minutes after Cantu first saw the vehicle, California Highway Patrol Officer Yokley took over as the primary pursuit unit. At this point, speeds were exceeding 100 miles per hour. Traffic was such that there might be a dozen cars, then a small gap, then five or six more vehicles, then another small break.

Approximately a quarter to half a mile after Yokley took the lead, the PT Cruiser, which was traveling northbound, and a blue or silver vehicle, which was traveling southbound, approached a two-lane bridge over the Saint John's River.⁴ A white pickup truck pulling a trailer was traveling northbound in front of the PT Cruiser. The truck did not yield to the officers' lights and sirens, but instead proceeded across the bridge. The PT Cruiser attempted to pass the truck and trailer; the southbound vehicle was in the center of the bridge and had nowhere to go. It attempted to swerve to the right and hit the guardrail, at which point the PT Cruiser, going northbound in the southbound lane, struck the right front of the vehicle. The southbound vehicle, which was driven by Hector Gutierrez, basically stopped where it had been hit. It sustained severe damage to the driver's side of the engine compartment and door. The PT Cruiser spun into the truck and trailer, which also began to spin.

When the PT Cruiser came to a stop, appellant crawled out of the driver's window and fled. Yokley chased him for a third to a half of a mile, at which point appellant surrendered. Meanwhile, Cantu took custody of the PT Cruiser's three remaining occupants, who also had exited the vehicle. A loaded, small-caliber semiautomatic handgun was found on the driver's side floorboard of the car.

Hector Gutierrez was not moving and was bleeding profusely from the head, although he still had a pulse, when the first officer reached him. He died later that day. The primary cause of death was a broken neck. Contributing factors included a flail chest (traumatic breakage of multiple ribs, resulting in collapsed and lacerated lungs) and blunt trauma injuries to the abdomen, mainly a lacerated liver.

A sample of blood taken from appellant was negative for alcohol. However, methamphetamine was present at a level of 50 nanograms per million. At this level, appellant was under the influence of methamphetamine for purposes of safety-sensitive operations such as driving a car.

DISCUSSION

I The Second Degree Murder Conviction Must Be Reversed

The jury was instructed on two theories of second degree murder: implied malice and felony murder based on the violation of section 2800.2. Appellant argues the trial court erred by instructing on the latter theory because a violation of section 2800.2, evading a pursuing peace officer while driving with willful and wanton disregard for the safety of persons or property, is not an inherently dangerous felony and therefore cannot serve as the predicate offense for a second degree felony-murder conviction. The California Supreme Court recently agreed. (People v. Howard (2005) 34 Cal.4th 1129, 1138-1139, 23 Cal.Rptr.3d 306, 104 P.3d 107.) The People concede the error, but claim it was harmless.

A "legally incorrect theory" is one "which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense." (People v. Harris (1994) 9 Cal.4th 407, 419, 37 Cal.Rptr.2d 200, 886 P.2d 1193, fn. omitted.) When the prosecution presents its case to the jury on alternate theories, one of which is legally correct and the other legally incorrect, "we must reverse the conviction unless it is beyond a reasonable doubt that the error did not contribute to the jury's verdict. (People v. Swain (1996) 12 Cal.4th 593, 607, 49 Cal.Rptr.2d 390, 909 P.2d 994, citing Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) Such a reasonable doubt arises where, although the jury was instructed on alternate theories, there is no basis in the record for concluding that the verdict was based on a valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1121-1122, 1126-1129, 17 Cal.Rptr.2d 365, 847 P.2d 45, applying People v. Green (1980) 27 Cal.3d 1, 62-74, 164 Cal.Rptr. 1, 609 P.2d 468 [overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239, 83 Cal.Rptr.2d 533, 973 P.2d 512 & People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99].)" (People v. Smith (1998) 62 Cal.App.4th 1233, 1238, 72 Cal.Rptr.2d 918, parallel citations omitted.) "An instructional error presenting the jury with a legally invalid theory of guilt does not require reversal, however, if other parts of the verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory. (People v. Guiton, supra, 4 Cal.4th at p. 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.)" (People v. Pulido (1997) 15 Cal.4th 713, 727, 63 Cal.Rptr.2d 625, 936 P.2d 1235.)⁵

Here, the prosecutor argued both theories to the jury; jurors were never told they had to agree unanimously on one theory or the other;⁶ and the general verdict returned by the jury does not indicate upon which theory jurors relied. Nevertheless, we understand the People to argue that, based on the instructions actually given, jurors had to find equivalent mental states under either theory; hence, if they found the mental state required for felony murder based on a violation of section 2800.2, they necessarily also found implied malice.

The trial court told the jury that in order to prove the crime of murder, it must be proved that a human being was killed, the killing was unlawful, and "the killing was done with malice aforethought or occurred during the commission of a felony inherently dangerous to human life." With respect to implied malice murder, the court instructed: "Murder in the second degree is the unlawful killing of a human being when one, the killing resulted in [sic] an intentional act. Two, the natural consequences of the act are dangerous to human life. And three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. When the killing is a direct result of such act it is not necessary to prove that the defendant intended that the act would result in the death of a human being." Concerning felony murder, the court told jurors: "The unlawful killing of a human being whether intentional or unintentional or accidental which occurs in the commission of the crime of a violation of...