People v. Morales, H030193 (Cal. App. 5/6/2009)
| Decision Date | 06 May 2009 |
| Docket Number | H030193 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUSTO MORALES, Defendant and Appellant. |
Appeal from the Monterey County, Super. Ct. No. SS043149.
A jury convicted defendant Justo Morales of two counts of second degree murder, two counts of gross vehicular manslaughter while intoxicated, driving while intoxicated and causing injury, driving with a .08 percent blood-alcohol level and causing injury, and hit-and-run driving with serious permanent injury. The jury further found that he personally inflicted great bodily injury on four victims and fled the scene after committing the offenses. (Pen. Code, §§ 187, subd. (a), 191.5, subd. (a), 12022.7; Veh. Code, §§ 23153, subds. (a) & (b), 20001, subds. (b)(2) & (c).)1 The court sentenced defendant to a determinate term of 10 years with a consecutive indeterminate term of 15 years to life.
On appeal from the judgment, defendant claims the court erred in admitting evidence of his prior driving record. He claims the court erroneously instructed the jury on assumption of the risk and misinstructed on the defense of voluntary intoxication, the knowledge element of hit-and-run driving, and the required concurrence of act and mental state. He claims the court erred in refusing his instruction defining implied malice. And last, he claims the court erred in imposing an upper term for driving while intoxicated.
We affirm the judgment.2
On December 2, 2004, around 8:15 p.m., defendant drove his large SUV southbound on Highway 101. A number people saw him driving and called 911 to report him. Cecilia Acuna and Ester Almanza testified that defendant was weaving between lanes and on and off the right shoulder going over 80 m.p.h. and forcing cars to the shoulder. Manuel Roque testified that at one point, defendant moved from left to right, narrowly missing his truck, and then drove onto the right shoulder, hit a temporary road sign, and continued on. Nick Rocha testified that at another point, defendant forced him off the side of the freeway. He followed defendant from a few car lengths back and flashed his lights. However, defendant swerved, almost running another car off the road, and then exited the freeway. He then drove up an embankment, backed down, and reentered the freeway, going even faster. Acuna testified that defendant came up so close to her that she had to swerve onto the shoulder to avoid being hit. She said he did the same thing to the car in front of her. Anthony Bayne testified that defendant scraped the side of his car as Bayne tried to avoid him. Defendant then continued down the freeway, swerving from one side to the other.
Sylvia Villanueva was also on the freeway in her minivan, driving her three daughters, Maria, Catalina, and Elizabeth, and her mother in law, Josephina Rocha. She was in the right lane. At one point, she noticed defendant weaving and quickly approaching her from behind. He passed her so closely on the left that she had to move farther to the right. Then the truck in front of her almost went off the road. Some time later, she saw defendant's SUV again approaching her from behind at around 85 m.p.h. Defendant swerved over to the center divider and then swerved back into the right lane, hitting Villanueva's van and causing it to skid and roll over. Josephina and Catalina were immediately ejected and killed; Maria was ejected and suffered near fatal injuries; Sylvia and Elizabeth were stuck inside the minivan. Sylvia was hospitalized for four days with a cerebral contusion and arm injury.
As a result of the collision, defendant lost control of his SUV, and it rolled across the freeway and through a fence, landing upside down on a frontage road. Defendant climbed out of the SUV and then looked around. He immediately fled the scene. At a nearby gas station, Cecilia Mendoza, the attendant, saw defendant come in. She remarked that his head was bleeding and asked if he was okay. He said he was okay and left. Mendoza called the police. Outside the station, at defendant's request, Mendoza gave him her phone, but he handed it back, and she called his wife, whom he spoke to for a while.
A short time later, defendant told California Highway Patrol (CHP) Officer Peter Aguilar that he had come to the gas station after an accident. They returned to the frontage road, where CHP Officer Craig Jackson spoke to defendant. Officer Jackson observed that defendant was disoriented, his head was lacerated, his speech was slightly slurred, his eyes were red, and he smelled of alcohol. Defendant said that he left work at 4:00 p.m., fell asleep, and woke up after the accident. However, he said that he had slept over seven hours the night before. He denied that he had been drinking. He was then arrested.
Defendant's blood was drawn at 11:15 p.m., and tests revealed a blood-alcohol level of .13 percent and the presence of the active ingredient in marijuana. A forensic toxicologist opined that defendant had used marijuana roughly around the time of the accident, two to three hours before his blood was drawn. He further testified that marijuana can cause driving errors, and the combination of marijuana and alcohol intensifies the intoxicating effect of both, slowing reaction time, making it difficult to maintain a constant speed, and causing weaving.
The prosecution introduced evidence of his prior driving record. In particular, defendant had two prior convictions for driving under the influence (DUI) in August and October 1990, when he was around 18 years old. His license was suspended until March 2000, and he was convicted of driving with a suspended license in August 1996 and April 1998. Starting in May 1998, defendant participated in a jail DUI program. In July 1998, after his release, he enrolled in an 18-month multiple-DUI program, which he completed in February 2000. That program reviewed the statistics concerning alcohol-related accidents resulting in injury or death, instructed on the correlation between blood-alcohol levels and driving impairment, warned that impairment intensifies when alcohol and marijuana are combined, and cautioned that alcohol impairs judgment and that bad judgment leads to fatal accidents. Defendant's driving privileges were reinstated in March 2000. However, because he had been convicted of driving with a suspended license earlier that March, his license was suspended again. In February 2001, the Department of Motor Vehicles (DMV) advised him that he had been deemed a "negligent operator" and suspended his license until September 2001. Thereafter, defendant regained his driving privileges, and, on the day of the accident, he had a valid license.
Irma Rodriguez, defendant's wife, testified that their five-year-old son suffers from severe birth defects and mental and physical disabilities. He has recurrent, potentially life-threatening seizures. Together she and defendant administer medication to control the seizures. She testified that on December 2, 2004, their son showed seizure symptoms, she administered some medication, and then called defendant, who usually got off work around 4:00 p.m. and was back home between 6:00 or 6:30 p.m. She could not recall when she called, saying it could have been 4:30, 5:30, or even 6:00 p.m.; but she said it was already dark outside. He did not answer, and she left a message on his cell phone. After some time—she could not say how long—defendant returned her call. He sounded normal and sober and did not mention where he was. She told him to return quickly because she feared their son would have another seizure. He said he was coming. Later, he called from the service station and told her about the accident.3
Contrary to what defendant told the Officer Jackson, Rodriguez testified that he did not sleep for seven hours the night before the accident.
Defendant's sister and two of his friends testified to their belief that defendant had a good character for exercising care and caution for the safety of others and was not a reckless person.
Defendant contends the court abused its discretion in admitting the evidence of his prior driving record.
Before trial, the prosecutor sought the admission of 11 items related to defendant's driving record, arguing they were relevant to prove implied malice, and in particular, defendant's knowledge at the time of the accident that driving under the influence was dangerous.
The court agreed to admit the two 1990 DUI convictions, three of five convictions for driving with a suspended license, an administrative decision to suspend his license as a negligent operator for some minor moving violation, and evidence of defendant's participation in DUI counseling programs. The court excluded two prior convictions for driving with a suspended license and two prior convictions for speeding.
Defendant claims that none of the evidence was relevant and that it was more prejudicial than probative. (Evid. Code, §§ 210, 352.) He argues that its admission rendered his trial fundamentally unfair and compels reversal.
In People v. Watson (1981) 30 Cal.3d 290 (Watson), the California Supreme Court held that a defendant charged with killing another while driving under the influence may be convicted of second degree murder based on a finding of implied malice, that is, a finding that the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. (Id. at pp. 296-297.) " `One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed,...
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