People v. Tom, s. A124765

• Citation: 139 Cal.Rptr.3d 71,204 Cal.App.4th 480
• Decision Date: 20 June 2012
• Docket Number: Nos. A124765,A130151.,s. A124765
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard TOM, Defendant and Appellant. In re Richard Tom, on Habeas Corpus.

139 Cal.Rptr.3d 71

2012 Daily Journal D.A.R. 3595Review GrantedPreviously published at: 204 Cal.App.4th 480

The PEOPLE, Plaintiff and Respondent,
v.
Richard TOM, Defendant and Appellant.
In re Richard Tom, on Habeas Corpus.

Nos. A124765, A130151.

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

March 19, 2012.
Review Granted June 20, 2012.

Background: Defendant was convicted in the Superior Court, San Mateo County, Nos. A124765 and A130151,H. James Ellis, J., of vehicular manslaughter with gross negligence. Defendant appealed.

Holdings: The Court of Appeal, Jenkins, J., held that:

(1) defendant was placed under arrest when he was transported to police station;

(2) evidence of defendant's post-arrest failure to ask about victims violated his right to remain silent;

(3) the violation of defendant's right to remain silent was not harmless; but

(4) reckless driving is proper predicate offense for vehicular manslaughter with gross negligence.

Reversed and remanded.

139 Cal.Rptr.3d 73]Marc J. Zilversmit, San Francisco, CA, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Mark S. Howell, Deputy Attorneys General, for Plaintiff and Respondent.

JENKINS, J.

On the evening of February 19, 2007, defendant Richard Tom, while driving at a high rate of speed, broadsided a vehicle driven by Loraine Wong as she was making a left turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong's two daughters, Kendall (aged 10) and Sydney (8) were riding in the rear passenger seat. Sydney was strapped into a booster seat on the side of the vehicle that bore the brunt of the impact. Sydney died as a result of injuries sustained in the collision. Kendall survived, but sustained serious injuries.

As a result of the collision, defendant was charged with gross vehicular manslaughter while intoxicated, driving under the influence causing harm to another, and driving with a blood alcohol level of 0.08 percent or higher causing harm to another. Defendant pleaded not guilty to all charges. After a lengthy trial, the jury acquitted defendant on all alcohol-related charges but returned a verdict of guilty on the lesser included offense of vehicular manslaughter with gross negligence.

In case number A124765, defendant appeals the judgment imposed following his jury-trial conviction. Defendant asserts multiple grounds for reversal of the judgment, including deprivation of constitutional rights, prosecutorial misconduct, improper[139 Cal.Rptr.3d 74]admission of opinion testimony, prosecutorial failure to disclose exculpatory evidence, ineffective assistance of counsel, and sentencing error.

In case number A130151, defendant collaterally attacks the judgment by way of a petition for a writ of habeas corpus, asserting as prejudicial error many of the same issues raised in his direct appeal. On the court's own motion, we consolidated the two cases and deferred our determination of whether to issue an order to show cause on defendant's writ petition until we considered the issues raised on appeal.

Having considered the contentions raised by defendant on appeal, we conclude that the prosecution violated defendant's Fifth Amendment privilege against self-incrimination by introducing evidence at trial of his post-arrest, pre-Miranda silence as proof of guilt. We also conclude that defendant was prejudiced by this violation of his Fifth Amendment right. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion. We dismiss the writ petition as moot given our resolution of defendant's Fifth Amendment claim.

Procedural Background

In an amended felony information filed on October 7, 2008, the San Mateo County District Attorney (DA) charged defendant with vehicular manslaughter with gross negligence while intoxicated (unlawful killing of Sidney Ng) as a proximate result of violations of Vehicle Code sections 22350 (basic speed law) and 23103 (reckless driving), in violation of Penal Code section 191.5, subdivision (a) (count 1); driving under the influence and causing injury to another, in violation of Vehicle Code section 23153, subdivision (a) (count 2); and driving a vehicle with an blood alcohol level of 0.08% or more and causing injury to another, in violation of Vehicle Code section 23153, subdivision (b) (count 3).

The DA alleged that the offense charged in count 1 was a serious felony in which the defendant inflicted great bodily injury on someone other than an accomplice, pursuant to Penal Code section 1192.7, subdivision (c)(8). The DA also alleged with respect to count 1 that in the commission of the offense the defendant personally inflicted great bodily injury upon Loraine Wong and Kendall Ng, within the meaning of Penal Code section 12022.7, subdivision (a).

The evidentiary phase of defendant's jury trial began on October 16, 2008. The jury delivered its verdicts on October 29, 2008. The jury found defendant not guilty of count 1 and acquitted him of the lesser included offense of committing vehicular manslaughter while intoxicated with ordinary negligence. However, the jury found defendant guilty on the lesser included offense of count one, vehicular manslaughter with gross negligence, in violation of Penal Code section 192, subdivision (c)(1). The jury also found true the allegation that defendant personally inflicted great bodily injury on Kendall Ng but found the same allegation had not been proven with respect to Loraine Wong. Furthermore, the jury acquitted defendant of the charges in counts 2 and 3 and also acquitted him of lesser included misdemeanor offenses related to those counts.

On April 22, 2009, defendant filed a motion for a new trial based on newly discovered evidence. The trial court denied the motion for a new trial and proceeded to sentencing on April 24, 2009. The trial court sentenced defendant to the middle term of four years on his conviction for vehicular manslaughter with gross negligence and imposed an additional term of three years for the personal infliction of great bodily injury upon Kendall Ng, for [139 Cal.Rptr.3d 75]an aggregate term of seven years in state prison. In addition, the court ordered that defendant pay restitution in the amount of $147,860.82. Defendant filed a timely notice of appeal on April 27, 2009.

Factual Background

At trial, the prosecution presented testimony of several police officers who described the scene at the collision, as well as the ensuing investigation culminating in defendant's arrest on alcohol-related charges. Other prosecution witnesses included Loraine Wong and Peter Gamino, a retired police officer and friend of defendant. Gamino was with defendant during the evening the accident occurred and was driving another vehicle behind defendant's vehicle when the collision occurred. There were no third-party witnesses to the collision and both sides presented expert testimony regarding the speed of appellant's vehicle at the time of the collision. We recount the pertinent trial testimony below and provide more detail where required to resolve the issues raised by defendant.¹

The Accident

On the evening of February 19, 2007, Loraine Wong decided to take her daughters, Sidney and Kendall Ng (ages eight and ten), to her sister's house in Sunnyvale for an overnight visit. Wong drove a Nissan Maxima automatic sedan to her sister's house that evening. Kendall was seated in the rear passenger side of the Maxima and Sidney sat in a booster seat next to Kendall. Before departing, Wong secured both girls in their seat belts and fastened her own seat belt.

Wong took Santa Clara Avenue to Woodside Road en route to her sister's home. Upon reaching the intersection of Woodside Road and Santa Clara, Wong planned to turn left and proceed on Woodside to the Southbound I–280 on ramp. Wong drove this route to her sister's home hundreds of times during the 15 years she lived on Santa Clara Avenue. Wong backed out of her driveway and called her sister on a hand-held cell phone to let her know “we were on our way to her house.” The evening was chilly and clear. Wong spoke with her sister for a few minutes until she came to a full stop at the intersection of Santa Clara and Woodside Road. Wong recalled that her headlights and left-turn indicator were on at this time.

At this point, Wong was finished talking with her sister but had the cell phone in her hand. She began to inch forward, and looked to her left and observed the next cross-street, Alameda de las Pulgas. Wong then looked right and left again. Seeing no on-coming vehicles in either direction, she eased onto the accelerator pedal to execute a left turn. As she began to turn she “saw a big flash of light” and was struck by a vehicle on her left (driver's) side. Before she saw the flash of light, Wong heard no sound associated with a car braking, or a horn. She did not see headlights to her left and never saw defendant's car. Wong estimated she was going about 15 miles per hour at the time of the collision.

After the collision, Wong discovered that her daughters were injured. She yelled their names; Kendall responded, but Sidney didn't and never regained consciousness. Shortly, medical personnel arrived at the scene and extracted Wong and her daughters from the vehicle. Sidney and Kendall were transported to Stanford hospital.[139 Cal.Rptr.3d 76]At the hospital, Wong was informed that Sidney had died.² Kendall sustained a cut to her forehead that required 30–40 stitches, a broken arm and an injury to her neck, and Wong suffered a broken rib and finger. Wong was released from the hospital on the night of the collision but Kendall remained in the hospital for a week.

Retired San Francisco Police Officer Peter Gamino testified that he had known defendant for about 20 years. Gamino was visiting California and staying at...