People v. Khemphomma
| Decision Date | 07 March 2023 |
| Docket Number | D079149 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. THONGLINH KHEMPHOMMA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No INF1700929, Anthony R. Villalobos, Judge. Reversed and remanded with directions.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Robin Urbanski, Paige B. Hazard and Juliet W. Park, Deputy Attorneys General for Plaintiff and Respondent.
The People charged Thonglinh Khemphomma with second degree murder (Pen. Code,[1] § 187, subd. (a); count 1), gross vehicular manslaughter (§ 191.5, subd. (a); count 2), driving under the influence of alcohol and causing death and bodily injury (Veh. Code, § 23153, subd. (a); count 3), and felony driving with a 0.08 percent or more blood alcohol content causing injury (Veh. Code, § 23153, subd. (b); count 4). The People alleged as to counts 3 and 4 that Khemphomma personally inflicted great bodily injury upon the victim, who was not an accomplice. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).)
Following the People's case-in-chief, the court granted the prosecutor's motion to dismiss the gross vehicular manslaughter count. The jury convicted Khemphomma on the remaining counts and found all enhancements true. The court sentenced Khemphomma to 15 years to life in state prison on count 1, and imposed but stayed the sentence on the other counts and enhancements under section 654.
Khemphomma contends: (1) insufficient evidence showed he acted with implied malice to support his second degree murder conviction; (2) the court prejudicially granted the prosecution's motion to dismiss the gross vehicular manslaughter count; and (3) he is entitled to resentencing under Senate Bill No. 567, and Assembly Bill Nos. 124, and 518; moreover, the abstract of judgment should be corrected to accurately reflect his convictions. We conclude the court erroneously dismissed count 2, and therefore reverse the judgment and remand with directions.
In May 2017, Khemphomma drove under the influence of alcohol from Arizona to California with his mother, Sim Khemphomma, as his passenger. He crashed his car into the freeway's center median, killing his mother. The parties stipulated her cause of death was multiple blunt impact injuries from the collision, with no other significant conditions noted.
A police officer investigating the collision testified He believed the vehicle overturned at least twice. He did not see any evidence to support a mechanical failure as the cause of the accident. Three of the tires appeared deflated, but apparently they did not deflate before the collision.
Khemphomma failed several field sobriety tests administered while he was at the hospital following the incident. Approximately two hours after the crash, a preliminary alcohol screening test showed his blood-alcohol concentration was 0.226 percent.
Khemphomma had four prior convictions for driving under the influence and his license had been revoked twice before. As part of a 2013 case, he was ordered to attend Mothers Against Drunk Driving classes, and he acknowledged on a plea form that he
Defense counsel presented no trial evidence.
Khemphomma contends there was insufficient evidence of implied malice to sustain his second degree murder conviction.
In reviewing the sufficiency of the evidence under the substantial evidence standard, an appellate court does not"' "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Boatman (2013) 221 Cal.App.4th 1253, 1262, italics omitted.)
(People v. Llamas (1997) 51 Cal.App.4th 1729, 1736.)" 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Murder is the unlawful killing of a human being . . . with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) Implied malice has" 'both a physical and a mental component. The physical component is satisfied by the performance of "an act, the natural consequences of which are dangerous to life." [Citation.] The mental component is the requirement that the defendant "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." '" (People v. Chun (2009) 45 Cal.4th 1172, 1181; accord, People v. Watson (1981) 30 Cal.3d 290, 300.) The mental component of implied malice is subjective, requiring that the defendant actually appreciate the risk of his or her actions. (People v. Murphy (2022) 80 Cal.App.5th 713, 726; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.)
People v. Watson is the leading case on vehicular murder on a theory of implied malice. The defendant there consumed large quantities of beer at a bar. Afterwards, he drove through a red light and barely avoided a collision with another car in an intersection. He drove away at high speed and collided with another vehicle, killing two of its occupants. (People v. Watson, supra, 30 Cal.3d at p. 293.) The trial court dismissed the murder counts, and the California Supreme Court reversed the order. (Id. at pp. 294-295.) It explained there was a rational ground to conclude the defendant's conduct constituted second degree murder: he had consumed enough alcohol to be legally intoxicated; he drove to the bar and must have known he would have to drive later; it could be presumed he knew of the hazards of driving while intoxicated; he drove at "highly excessive speeds through city streets, an act presenting a great risk of harm or death"; he only narrowly avoided a collision with another vehicle by skidding to a stop, then resumed his excessive speed; and he tried to brake his car before the fatal collision, suggesting he knew of the great risk of harm he had created. (Id. at pp. 300301.) These facts would "reasonably and readily" support a conclusion the defendant acted with a conscious disregard for human life. (Id. at p. 301.)
Since People v. Watson, supra, 30 Cal.3d 290, several cases have upheld convictions for murder based on drunk driving, relying on some or all of these factors: blood-alcohol level above the legal limit; a pre-drinking intent to drive; knowledge of the hazards of driving while intoxicated; and highly dangerous driving. (People v. Murphy, supra, 80 Cal.App.5th at p. 727; People v. Autry (1995) 37 Cal.App.4th 351, 358.) These factors need not all be present. (People v. Wolfe (2018) 20 Cal.App.5th 673, 682-683.)
For instance, in People v. Olivas (1985) 172 Cal.App.3d 984, 989, sufficient evidence showed implied malice, as the defendant had consumed enough drugs to impair his faculties, drove at extremely high speeds on city streets for a relatively lengthy period of time, and continued doing so after the dangers were shown by one collision, two near misses, and a police chase, although there was no indication he took the drug knowing he would later drive.
In People v. McCarnes (1986) 179 Cal.App.3d 525, 533, the defendant drove at high speeds with a high blood alcohol level, executing two extremely reckless passing maneuvers and embarking on a third in the face of an oncoming vehicle. The appellate court said that the evidence, coupled with four prior convictions for driving under the influence, was "overwhelming[ ]," and any suggestion it did not support a finding of implied malice was "nonsense, if not an affront to this court." (Ibid.)
The evidence here similarly supports a finding Khemphomma was subjectively aware of the potentially deadly consequences of his driving. After the collision, his blood alcohol level was near three times the legal limit. As shown in his police interview, he intended to and did drink alcohol before and during the drive from Phoenix to California. He was aware of the dangers of drunk driving from his prior DUI convictions. Finally, the investigating police officer testified Khemphomma was driving in a dangerous manner.
Khemphomma states: "Should this court find sufficient evidence of implied malice, [he] exhausts his remedies in order to request the California Supreme Court grant review to re-examine its decision in People v. Watson, supra, 30 Cal.3d 290." Howev...
To continue reading
Request your trial