People v. McCarnes

Decision Date31 March 1986
Citation224 Cal.Rptr. 846,179 Cal.App.3d 525
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Charles Francis McCARNES, III, Defendant and Appellant. E001605.
OPINION

TAYLOR, * Associate Justice.

A jury convicted Charles Francis McCarnes III (defendant) of two counts of second degree murder (Pen.Code, §§ 187, 189); two counts of vehicular manslaughter (then Pen.Code, § 192, subd. (3)(a), now Pen.Code, § 192, subd. (c)(1)); one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another (Veh.Code, § 23153, subd. (a)); one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another (Veh.Code, § 23153, subd. (b)); and one count of failing to give the proper information or render the proper assistance at the scene of the accident (Veh.Code, § 20001). In addition, defendant admitted four previous convictions for driving under the influence of alcohol or alcohol and drugs, and pled guilty to one count of driving with knowledge that his driving privileges had been suspended or revoked for driving under the influence of alcohol or drugs (Veh.Code, § 14601.2, subd. (a)). Defendant was sentenced to state prison for a determinate term of 4 years and 8 months and a consecutive indeterminate term of 15 years to life. This appeal followed.

FACTS

About two o'clock on a summer Saturday afternoon, defendant was driving his Chevrolet west on Allesandro Boulevard just west of its intersection with Moreno Beach Boulevard, east of Riverside. His blood alcohol level was about .27 percent. 1 He tried to pass a Datsun station wagon at a speed of "65-plus." 2 During the passing maneuver, defendant drove into the eastbound lane of Allesandro (a two-lane highway) and collided head-on with a VW station wagon. There were six people in the VW: Frank Ferreira and his wife Jacqueline; their baby daughter Jennifer, who was almost 2; their neice Lisa; their teenage nephew Patrick, and Frank's 15-year-old sister Elizabeth.

After the collision, defendant walked over to the vicinity of the VW. A bystander was giving artificial respiration to the baby, who, according to a witness, was missing "a big chunk of her head." Defendant leaned over, said " 'Don't die, baby, don't die.' " and walked away. A deputy sheriff arrived on the scene and was told that defendant had left the scene. The sheriff drove after defendant. When the sheriff approached him, defendant ran into a field. The sheriff ran after him and overtook him. Defendant told the sheriff that he had tried "to do CPR on the baby."

A CHP officer administered a field sobriety test to defendant within an hour of the collision. The officer testified at trial that in his opinion defendant was "extremely intoxicated." The criminalist (see fn. 1, supra ) testified that a person had to be a "pretty experienced drinker" to reach a level of .27 percent, and that many persons would become unconscious with a blood alcohol level of less than .30 percent.

As a result of injuries received in the collision, Frank Ferreira and his baby daughter died; Frank's wife Jacqueline had four broken ribs; their nephew Patrick had two broken arms, a broken femur and a broken pelvic bone; their neice Lisa had torn ligaments in her knee, and Frank's sister Elizabeth had a broken nose and front teeth knocked out.

SYNOPSIS OF PROCEEDINGS IN THE TRIAL COURT

Defendant was charged by information with: two counts of murder; two counts of vehicular manslaughter; one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another; one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another; having previously been convicted of driving under the influence of alcohol or alcohol and drugs (then Veh.Code, § 23102, now Veh.Code, § 23152) in 1975, 1979, 1980, 1981 and 1982; having previously been convicted of reckless driving (Veh.Code, § 23103) in 1978; one count of failing to give information or assistance at the scene of the accident, and one count of driving with suspended or revoked driving privileges.

Defendant pleaded not guilty to the charges, and denied the previous convictions. He then filed a motion, pursuant to Penal Code section 995, to set aside the murder counts on the grounds, incredibly, that the preliminary hearing evidence as to his driving before the collision (see infra ) and his blood alcohol level were insufficient to support a finding of implied malice. After a hearing, the motion was denied.

At the outset of trial, the People made a motion, pursuant to Evidence Code section 402, to admit defendant's earlier convictions for driving under the influence and for reckless driving, supra, for the purpose of proving the element of implied malice in the murder counts. After extensive argument (48 pages in the reporter's transcript) the motion was granted. Shortly afterwards, the court limited its ruling to the 1979, 1980, 1981 and 1982 convictions, and refused to admit the 1975 and 1978 convictions. Thereupon the People dismissed the charges as to those two convictions.

After the court denied his motion to bifurcate the trial on the previous convictions, defendant withdrew his denial of the four remaining convictions, and admitted the truth thereof.

Defendant also withdrew his plea of not guilty to the driving with a suspended or revoked license charge, and pleaded guilty thereto. The prosecutor then made a motion to introduce that conviction on the implied malice issue. The court denied the motion, on the grounds that such evidence would be more prejudicial than probative.

At the end of the People's case the prosecutor read the jury a stipulation as to the four previous convictions, and the court admonished the jury that it could consider the convictions only on the issue of implied malice in the murder counts. Defendant then made a motion, pursuant to Penal Code section 1118.1, for a judgment of acquittal on the murder counts. The motion was denied.

After the conviction, defendant substituted two retained attorneys for the public defender. The new attorneys, who are also representing defendant on appeal, filed a motion for a new trial on the grounds that the trial court had erred in admitting the previous convictions, and, because the jury had returned verdicts convicting defendant of both murder and manslaughter, that he could be convicted only of manslaughter. After a lengthy hearing, the motion for a new trial was denied.

DISCUSSION

On appeal, defendant contends: (1) the trial court prejudicially erred in admitting evidence of four of defendant's previous convictions for driving under the influence; (2) there was insufficient evidence to support the verdicts on the murder counts; and (3) the jury verdicts on the murder and the manslaughter counts preclude defendant from being convicted of murder.

I THE ADMISSION OF DEFENDANT'S PREVIOUS CONVICTIONS FOR DRIVING UNDER THE INFLUENCE

As noted, the trial court allowed the People to present evidence of defendant's 1979, 1980, 1981 and 1982 convictions for driving under the influence, and instructed the jury that it could consider the convictions only on the issue of implied malice in the murder counts. On implied malice the jury was instructed as follows:

"Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." (CALJIC No. 8.11 (1983 Rev.), emphasis added.)

In deciding to admit the previous convictions, the trial court relied on the second concept of implied malice, supra, (hereinafter the "dangerous to life" concept), and reasoned that evidence of the convictions "would be highly probative that the defendant ... did possess the knowledge that his conduct would endanger the lives of others as well as ... that he consciously and deliberately disregarded such knowledge and did so with a conscious disregard for the lives of other[s]." On the section 352 issue, the court stated, although the evidence was highly prejudicial, that it was "so substantial" on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice. We agree.

Without citing any relevant authority, defendant contends that the court erred in relying on the "dangerous to life" concept of implied malice to admit the previous convictions, and in including that concept in the jury instruction, supra. Defendant argues that the "high probability that it will result in death" concept is the "proper" definition of implied malice, and the "dangerous to life" concept is not. We do not agree.

The alternative definition of implied malice in the 1983 revision of CALJIC No. 8.11 is based on the following language in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279: "We have said that second degree murder based on implied malice has been committed when a person does ' " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' "....' (People v. Sedeno, (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913, quoting from People v....

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