People v. Roque
| Decision Date | 27 April 2022 |
| Docket Number | F080242 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA ROQUE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No 18CMS0210 Robert S. Burns, Judge.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Samantha Roque was convicted by jury of one count of gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5, subdivision (a).[1] She was sentenced to the middle term of six years (§ 191.5, subd. (c)(1)) and was ordered to pay $7, 500 in restitution to the California Victim Compensation Board; a $300 restitution fine under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under section 1202.45, subdivision (a), suspended; a $40 court operations assessment under section 1465.8, subdivision (a)(1); and a $30 court facilities fee under Government Code section 70373 subdivision (a)(1).
Defendant claims there was no substantial evidence to support the jury's finding of gross negligence; that the trial court erroneously precluded evidence related to the victim's failure to use a seatbelt; that the trial court improperly denied probation and abused its discretion in sentencing defendant to the middle term; and that the trial court violated defendant's constitutional rights by failing to conduct an ability-to-pay hearing with respect to the $370 of fines and fees imposed. For the reasons set forth below, we reject defendant's contentions and affirm the judgment.
At approximately 11:30 p.m. on February 16, 2018, California Highway Patrol (CHP) officer Jonathan Yale was dispatched to the scene of a traffic accident on Highway 41 at Madison Avenue between Lemoore and Kettleman City. This specific section of Highway 41 contains two traffic lanes, one for northbound traffic and one for southbound traffic.[2] There are yellow-painted dashed lines between the lanes, and there is a curve in the road, which Yale described as neither "abrupt" nor "'natural, '" but somewhere in between.
The accident scene was dark, with no street lights. There was an overturned Toyota RAV4 on the "west" side of the highway (southbound shoulder), and a Dodge pickup truck on the "east" side (northbound shoulder) of Highway 41. Multiple witnesses and passengers were present; firefighters arrived before Yale and were performing cardiopulmonary resuscitation on a 10-year-old victim, M.M., who sustained fatal injuries. Defendant was sitting by her Dodge. The Dodge was missing its right front tire and the entire front, right of the vehicle was crushed, with the bumper displaced and the hood crumpled.
Yale first spoke with RAV4 driver, A.B. Yale then approached defendant, and Yale could smell alcohol emanating from her breath and her body; her eyes were red and watery; and she remained sitting. He asked defendant whether she had any sort of injuries or whether she needed medical assistance; defendant did not identify injuries and she had already declined medical care.
Defendant told Yale she had been driving home from a friend's house in Lemoore toward Kettleman City when she collided with the RAV4. She denied using her cell phone while driving, she was not speeding, and she was wearing her seatbelt. The RAV4 came into defendant's southbound lane of traffic, and defendant attempted to swerve to the right, but she was unable to avoid the collision. The airbags had deployed.
As they talked, Yale became concerned defendant was under the influence. She was slurring her words and she had remained sitting while they were talking. When asked whether she had been drinking, defendant admitted she had consumed a single tequila shot about four or five hours prior to the collision; but she also said she had the shot of tequila one and one-half hours before she started driving.
Yale then subjected defendant to a variety of field sobriety tests, which are used to indicate whether someone may be under the influence, all of which defendant failed.
Defendant had noted prior to the tests that she had back pain issues, a wandering-eye condition, and that she was clumsy. Yale concluded defendant was possibly under the influence and offered her a preliminary alcohol screening (PAS) test. He explained she could refuse the test, but if she was arrested, she would be required to submit a blood or breath test. Defendant refused the PAS test, and Yale placed her under arrest and transported her to the hospital to test her blood-alcohol content (BAC).
On the way to the hospital, defendant and Yale had a conversation that was recorded and played for the jury at trial. Yale explained they were going to the jail, and defendant said "that's fucked up" and she "shouldn't be in jail" because she was "not fucked up drunk." Yale said they were going to the hospital, and then defendant was "definitely going to jail." Defendant responded,
Yale explained to defendant that he suspected she was under the influence of alcohol, and he had offered her a PAS test at the scene, but she had declined. Defendant said she had no idea that was the purpose of the breath test at the scene, and questioned whether Yale automatically assumed that anyone who does not consent to that breath test is under the influence. Yale tried to explain defendant was mischaracterizing what he had told her, but defendant argued After arguing more with Yale, defendant concluded,
A.B. testified that at the time of the accident, she was driving her mother's RAV4 in the northbound lane. A.B.'s mother was in the right front passenger seat, and A.B.'s daughter, sister and nephew were in the backseat. She was driving and talking with her mother; the road was clear and there was little traffic. A.B. saw white lights coming toward her in her lane, and she tried to turn the RAV4 left. Despite her attempt to avoid the other vehicle, they were struck and the RAV4 flipped. A.B. lost consciousness for a while, and then she realized the car was upside down. She asked her sister if the kids were okay. Her nephew was unconscious when pulled out of the car and had blood on his mouth.
L.V., A.B.'s mother, testified she was sitting in the front passenger seat of the RAV4 at the time of the accident. Her two grandchildren and her daughter were in the backseat, and A.B. was driving. She saw a car coming into their lane, and she closed her eyes because she did not want to see what was going to happen. She was not hurt in the collision.
When Yale examined the scene, he discovered a gouge mark in the northbound lane, which he thought was caused by the Dodge since it had lost a front tire. When that happened, Yale explained the front tire scraped against the roadway. This indicated the Dodge was in the oncoming northbound lane at the time of collision, not the southbound lane. Yale explained the collision between the Dodge and the RAV4 went into a sideswipe along both vehicles' passenger sides.
CHP Officer Nathan Howard took measurements and diagrammed the collision scene. There was a gouge mark on the roadway, and there were skid marks that indicated the RAV4 had applied its brakes; no similar brake marks were found from the Dodge. He opined the collision occurred because the Dodge traveled into the oncoming northbound lane where the roadway curves, the RAV4 made an evasive maneuver to the left to avoid the collision, and the collision and the sideswiping of both vehicles' passenger sides occurred in the Dodge's original southbound lane.
An independent witness testified she was driving behind an SUV in the northbound lane just before the accident. She saw a "flurry of sparks" in the southbound lane and the Dodge coming towards her in the northbound lane.
CHP Officer Donnie Conner performed inspections of both the Dodge and the RAV4. On the Dodge, testing showed the brakes and the steering functions were intact at the time of the collision. Conner did not look at the brakes or the steering on the RAV4; he was asked to focus on the seatbelt restraint system. He determined the driver's and right front passenger's seatbelts were being used at the time of the collision, but none of the three seatbelts in the RAV4's backseat were used. The right rear seatbelt could not be buckled at all; it was possible that seatbelt was inoperable before the collision.
Criminalist Greg Masters analyzed defendant's blood draw sample and the tests indicated an average BAC of 0.189 percent. In this case, based on elimination rates, defendant's BAC would have been about 0.22 percent two hours before the blood draw. At that BAC, a person would not be able to safely operate a vehicle. For a 190-pound female who drank seven hours before this blood draw, to achieve a 0.189 percent BAC, defendant would have had to ingest about 15 to 17 ounces of 40 percent alcohol or 11 to 12, 12-ounce beers at 4.5 percent alcohol. The criminalist opined someone with a BAC of 0.189 percent would be grossly impaired.
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