People v. Glukhoy

• Decision Date: 18 April 2022
• Docket Number: C084169
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roman Andreyevich GLUKHOY et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 576

292 Cal.Rptr.3d 623

The PEOPLE, Plaintiff and Respondent,

v.Roman Andreyevich GLUKHOY et al., Defendants and Appellants.

C084169

Court of Appeal, Third District, California.

Filed April 18, 2022

Certified for Partial Publication.^*

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant, Roman Glukhoy.

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Ruslan Glukhoy.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Julie A. Hokans, Supervising Deputy Attorneys General, Marcia A. Fay and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.^**

Twin brothers, Roman and Ruslan Glukhoy, led police on two high speed chases, the second of which was in a stolen truck and culminated in a fatal collision killing two people. Separate juries found them guilty of multiple offenses and allegations.¹ Ruslan, who was convicted of first degree murder with felony-murder special-circumstances, was sentenced to two terms of life without the possibly of parole. Roman, who was convicted of two counts of second degree murder, was sentenced to 30 years to life.

On appeal, Ruslan raises four contentions: (1) insufficient evidence supports his residential burglary conviction; (2) insufficient evidence supports his conviction for aiding and abetting Roman's evasion with wanton disregard; (3) the trial court erred in excluding expert testimony regarding regressed brain development in youth; and (4) the court erred in denying his motion to continue in order to make a showing of jury misconduct. In the unpublished portion of this opinion, we reject Ruslan's contentions and affirm the judgment as to him.

Roman raises five contentions: (5) the convictions for evading a peace officer with wanton disregard and conspiracy to commit theft must be reversed because his trial counsel inappropriately conceded those counts in closing argument; (6) the murder verdicts must be reversed in light of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which abrogated the natural and probable consequences doctrine for murder; (7) the trial court failed to instruct that an aider and abettor, liable under the natural and probable consequences doctrine, can be guilty of a lesser offense than the perpetrator; (8) the court abused its discretion in imposing consecutive terms for the two murders; and (9) remand is required for a Franklin² hearing. In a supplemental brief, Roman contends (10) remand is required in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), and (11) the abstract of judgment must be corrected to accurately reflect an imposed fee. In a second supplemental brief, Roman asserts that based on Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), he need not file a Penal Code section 1170.95³ petition to obtain Senate Bill 1437 relief and we must reverse his second degree murder convictions and vacate the sentence.

In the published portion of this opinion, we conclude that the alternative-theory instructional error in Roman's case brought about Senate Bill 1437 was harmless beyond a reasonable doubt because the evidence establishing the valid theory of direct aiding and abetting implied malice was overwhelming. In addition, that evidence was the same evidence the jury had to have credited to find defendant guilty based on the now invalid natural and probable consequences theory. In the unpublished portion of this opinion, we reject Roman's other contentions and affirm the judgment as to him.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution's Case

The Thefts from Vehicles

In the early morning hours, twin brothers Roman and Ruslan Glukhoy, along with a friend, drove in the rain to Auburn to steal from unlocked cars parked on the street.

Auburn residents soon grew suspicious and called the police. Responding Auburn Police officers saw several suspects return to a BMW automobile parked in a cul-de-sac.⁴ An officer approached the BMW with his gun drawn and held in a low-ready position. He ordered the occupants to show their hands. One passenger, Ruslan, put his hands out the front passenger-side window and raised them. The driver, Roman, however, did not. As the officer approached the back of the driver's door, the BMW sped off. The BMW then made a U-turn in the cul-de-sac, then accelerated "straight towards" the officers and their patrol units, causing one of them to think the BMW was going to run over him. He took cover behind a patrol unit. Then, at the last second, the BMW veered away, jumping the curb onto residential lawns, crossing a driveway, before reentering the roadway and speeding away.⁵

The First Evasion and Pursuit & Theft of the Truck

Thereafter, Roman led police on a high-speed chase, and at various points drove in the direction of officers, ran a stop sign, spun out, drove without lights, and entered Interstate 80 where he reached a speed of approximately 125 miles per hour. This initial chase ended when Roman, trying to make an abrupt freeway exit in Loomis, missed the ramp, spun out and collided into an embankment in a landscaped area. One officer described the collision as "a violent crash. The vehicle was tore up pretty good." Another described it as "extremely violent." This collision took place at 5:12 a.m.

By the time the officers reached the BMW, Roman, Ruslan, and their friend had escaped.⁶ Placer County Sheriff's deputies were in foot pursuit. Around an hour later, law enforcement was alerted that a Ford F-150 pick-up truck had been stolen from a neighborhood not far from the BMW's crash site.⁷ Ruslan was driving, with Roman in the rear passenger seat. A second high-speed chase ensued.

The Second Evasion and Pursuit & the Fatal Crash

This pursuit included a freeway sprint on Interstate 80 toward Sacramento up to 120 miles per hour through early morning rush hour traffic. During the freeway pursuant, Ruslan made several unsafe lane changes to get around traffic. When the traffic got heavier and began to slow, Ruslan drove the truck from the number one lane onto the emergency lane next to the center divider. One of the pursuing deputies called this the "suicide lane." He described the traffic as "pretty heavy," adding "we're getting into rush hour traffic, a lot of vehicles headed to work." Utilizing the suicide lane, Ruslan passed the traffic in the number one lane. At one point, the pickup moved into the diamond lane, where there was no traffic. As the two brothers approached Antelope Road, the traffic began to spread out and Ruslan abruptly cut across the freeway lanes to the exit at Antelope Road. He then ran a series of red lights on Antelope Road, driving 80 to 90 miles per hour. It was then approximately 6:30 a.m. The chase ended when Ruslan ran a red light at high speed and collided with a small Kia, killing its two occupants. The pursuit of the truck lasted approximately eight or nine minutes. We discuss the portion of the pursuit from the Interstate 80 exit, down Antelope Road to the collision site in more detail in Discussion part V, post .

The Arrests and Statements to Law Enforcement

Ruslan and Roman then ran from the crash site without checking on the occupants of the Kia. Roman was arrested in a nearby neighborhood shortly thereafter.

Before Ruslan was arrested, startled residents in a nearby home discovered him in their home, drinking a glass of water. Ruslan left the house after a resident threatened to get his gun. At a different home, a resident discovered Ruslan trying to pry open her sliding glass door. She yelled to her boyfriend to "grab the gun." A Sheriff's K9 unit soon found Ruslan in the backyard.

Both juries heard that when he briefly talked to the police after his arrest, Ruslan claimed he had been driving both vehicles. Ruslan's jury heard statements he made to medical staff which were overheard by an officer. When asked by medical staff if he had hit the steering wheel, Ruslan replied, "Yeah I think so." He also said he had been involved in two accidents — one at 70 miles per hour and another one at 90 miles per hour.⁸

Roman also gave statements to the police after his arrest. He denied going to Auburn to steal from cars, claiming they went there in the early morning hours because they had "nothing to do" and Auburn was a "pretty cool place." He said it was his idea to go to Auburn. Later, he said they had gone there to steal from cars. But he claimed they had only tried to get into a couple of cars and did not get inside. He also, claimed at first that Ruslan was driving the BMW when they crashed. But later, he admitted he crashed the BMW. He denied going into houses to get keys and claimed the keys were in the truck when they took it. But he said he could not remember where the keys were within the truck. He said Ruslan was driving the truck when it crashed and he was in the backseat. Roman had said earlier that he had a warrant for failing to go to court. When asked whether they were trying to get away from law enforcement during the evasion in the truck, Roman said, "Not from the cops. I just wanted to, not from cops in general. I just, I didn't want to go to jail ." (Italics added.) We discuss additional statements Roman made in Discussion part V, post .

Verdicts and Sentencing

Ruslan's jury found him guilty of conspiracy to commit theft ( Pen. Code, § 182 ; count 1)⁹ ; evading a peace officer with wanton disregard for safety ( Veh. Code, § 2800.2 ; count 4); first degree burglary with a person present ( § 459 ; count 5); two counts of first degree felony murder, with findings of more than one murder in the first degree, and that the murder was committed during the commission of a burglary ( §§ 187, 190.2, subd. (a)(3) & (a)(17) ; counts 6 & 7); and trespass ( § 602.5 ...