People v. Nicolas

• Decision Date: 23 February 2017
• Docket Number: G052512
• Citation: 214 Cal.Rptr.3d 467,8 Cal.App.5th 1165
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jorene Ypanto NICOLAS, Defendant and Appellant.

8 Cal.App.5th 1165

214 Cal.Rptr.3d 467

The PEOPLE, Plaintiff and Respondent,

v.Jorene Ypanto NICOLAS, Defendant and Appellant.

G052512

Court of Appeal, Fourth District, Division 3, California.

Filed February 23, 2017

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, ACTING P.J.

A jury found defendant Jorene Ypanto Nicolas guilty of vehicular manslaughter with gross negligence. Essentially, defendant was on her phone and texting while driving on the freeway. The deceased victim had been in her car, stalled in a traffic jam. Defendant crashed into the rear of the victim's car at about 80 miles per hour.

In this appeal, defendant claims: a) there was insufficient evidence of gross negligence; b) the trial court committed three separate instructional errors; and c) the court abused its discretion by imposing an upper term sentence (six years).

We agree with defendant that the trial court committed three separate instructional errors. Indeed, one of the errors requires automatic reversal because it had the effect of lowering the prosecution's burden of proof. We need only address that particular issue in this opinion, but we will also discuss the remaining claims to give guidance to the trial court (and perhaps the parties) in any further proceedings.

IFACTUAL AND PROCEDURAL SUMMARY

On the morning of April 27, 2011, defendant was driving northbound on the Interstate 405 freeway. Defendant was driving at a speed of about 80 miles per hour in her Prius when she crashed directly into the rear of a Hyundai. At the time of the collision, the traffic had been at a complete stop for about 20 to 30 seconds, but may have been just starting to move forward. The force of the collision caused the Hyundai to strike the vehicle in front of it, then the center divider. The driver of the Hyundai, Deanna M., died as a result of the collision.

The first 911 call regarding the collision came in at 10:59 a.m. In the preceding 17 minutes, defendant had sent eight text messages (10:42:11; 10:48:09; 10:52:16; 10:54:50; 10:55:46; 10:56:31; 10:56:57; 10:59:10), received six text messages (10:47:27; 10:49:13; 10:50:29; 10:53:46; 10:55:08; 10:55:23), and answered two phone calls (10:52:18, duration 27 seconds; 10:57:24, duration 20 seconds). After defendant was pulled from the passenger side of her vehicle by another driver, she asked, "What happened?" The other driver told defendant that she had "hit somebody incredibly fast, and they're not doing well." Defendant said that she had been in a "big hurry" to meet her boyfriend for lunch.

As she stood near the center divider, defendant asked the other driver to retrieve her cell phone from her car. The other driver went to defendant's car, noticed that the phone was damaged on the floorboard, and offered to let defendant use his own phone. Another person who spoke to defendant said that "any question I asked her she would answer, ‘Where is my phone?’ " Defendant eventually retrieved her phone from her car and made calls at 11:08 and 11:09 a.m. Defendant was on her phone when a California Highway Patrol Officer arrived on the scene. When the officer asked defendant for her license and registration, she glanced at the officer and "kept talking on the phone." Another person noticed defendant yelling, "Oh, my God, my car."

On March 27, 2013, the prosecution filed an information charging defendant with vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).)¹ After 12 jurors were unable to reach a verdict (11 voted for conviction and one for acquittal), a second jury convicted defendant as charged. The court sentenced defendant to an upper term of six years in prison.

IIDISCUSSION

A. The jury's finding of gross negligence is supported by substantial evidence.

In a sufficiency of the evidence claim, a reviewing court determines whether a rational fact finder could have concluded defendant was guilty beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269, 14 Cal.Rptr.2d 377, 841 P.2d 897.) "Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.) Evidence is substantial when it is reasonable in nature, credible, and of solid value. (People v. Ramsey (1988) 203 Cal.App.3d 671, 682, 250 Cal.Rptr. 309.) We consider the evidence, including the reasonable inferences drawn from the evidence, in the light most favorable to the judgment. (People v. Valdez (2004) 32 Cal.4th 73, 104, 8 Cal.Rptr.3d 271, 82 P.3d 296.)

Gross vehicular manslaughter is defined as "driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 192, subd. (c)(1).) "The finding of an operator's gross negligence in driving a motorcar, when supported by substantial evidence, is conclusive upon the reviewing court and can be reversed only when that court becomes convinced by the evidence that freedom from gross negligence was so clearly established that reasonable minds could not differ upon the question." (People v. Flores (1947) 83 Cal.App.2d 11, 14, 187 P.2d 910.)

"Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, "I don't care what happens." ’ [Citation.] The test is objective: whether a reasonable person in the defendant's position would have been aware of the risk involved. [Citation.]" (People v. Bennett (1991) 54 Cal.3d 1032, 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849.) "Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment." (CALCRIM No. 592.)

In determining what constitutes gross negligence, the case of People v. Leitgeb (1947) 77 Cal.App.2d 764, 176 P.2d 384 (Leitgeb ), is instructive: "[D]efendant was driving his car at 40 miles an hour, veered across a corner of, and struck decedent in, the safety zone. According to his own testimony, he did not see decedent until the instant he struck him. There was no evidence whatever as to any circumstance that would have made it necessary for defendant to invade the safety zone, nor was there any evidence of any obstruction in the street, or other condition which would have prevented defendant's seeing decedent standing in the safety zone." (Id . at p. 769, 176 P.2d 384.) The court noted the defendant, "was not slowing down, nor did he have control of the car that would have enabled him to stop quickly if it should become necessary to do so in order to avoid an accident." (Ibid. ) The court found that: "Not only was the conclusion of the jury a reasonable one, but in our opinion it was the more reasonable. There is not the least doubt in our minds that upon the state of facts which formed the basis of the verdict, appellant was guilty of gross negligence." (Ibid . )

Here, similar to Leitgeb , we have no doubt that substantial evidence supports the jury's finding of gross negligence. This was not a case of ordinary carelessness or a momentary lapse of attention. The evidence disclosed defendant was using her cell phone and texting for 17 minutes leading up to the collision. Defendant was driving at about 80 miles per hour and approaching a typical freeway traffic jam. But there was no evidence defendant took any evasive actions prior to the impact, which suggests she was oblivious to what was right in front of her. Further, immediately following the collision, defendant was preoccupied with her phone and was indifferent to the consequences of her actions. This evidence supports a reasonable inference that defendant displayed that same indifference just prior to the collision.

Defendant suggests that her postcrime actions and statements were not relevant. She is mistaken. " ‘Relevant evidence’ means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added; see, e.g., People v. Thompson (2010) 49 Cal.4th 79, 113, 109 Cal.Rptr.3d 549, 231 P.3d 289 [evidence of a "defendant's postcrime actions and statements ... can support a finding that defendant committed a murder for which his specific mental state is established by his actions before and during the crime"].)

In sum, the jury's finding of gross negligence was supported by substantial evidence.

B. The trial court imprecisely instructed the jury regarding general criminal intent.

In criminal law, there are two descriptions of criminal intent: general intent and specific intent. "A crime is characterized as a ‘general intent’ crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a ‘specific intent’ crime when the required mental state entails an intent to cause the resulting harm." (People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15, 41 Cal.Rptr.2d 826, 896 P.2d 119.) "General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law." (People v. Sargent (1999) 19 Cal.4th 1206, 1215, 81 Cal.Rptr.2d 835, 970 P.2d 409.) If a crime is defined as a general criminal intent crime, the trial court has a sua sponte duty to instruct on the requirement of a union between the act and a defendant's general intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 920-923, 49 Cal.Rptr.2d 86 ; CALCRIM No. 250.)

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