People v. Tom, S202107.

• Citation: 176 Cal.Rptr.3d 148,59 Cal.4th 1210,331 P.3d 303
• Decision Date: 14 August 2014
• Docket Number: No. S202107.,S202107.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard TOM, San Mateo County Defendant and Appellant. In re Richard Tom, on Habeas Corpus.

59 Cal.4th 1210
331 P.3d 303
176 Cal.Rptr.3d 148

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

No. S202107.

Supreme Court of California

Aug. 14, 2014.

See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 146 et seq.

Marc J. Zilversmit, San Francisco, for Defendant and Appellant.

Michael T. Risher, San Francisco, for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of 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, Mark S. Howell, Laurence K. Sullivan, Seth K. Schalit and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

[331 P.3d 305]

On a clear evening in February 2007, defendant Richard Tom broadsided at high speed a vehicle driven by Loraine Wong, who was making a left turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong's younger daughter, Sydney Ng, eight, was killed; her older daughter, Kendall Ng, 10, sustained serious injuries. The evidence at trial showed that defendant did not brake prior to the crash. He had been speeding, although his precise speed was disputed. He had been drinking earlier that evening, although (again) the amount he had consumed was disputed.

The issue before us arises from the People's reliance in their case-in-chief on defendant's failure to inquire about the occupants of the other vehicle as evidence that he was driving without due regard for their safety. Did it violate the Fifth Amendment privilege against self-incrimination to admit evidence that defendant, following his arrest but before receipt of Miranda¹ warnings, expressed no concern about the well-being of the other people involved in the collision?

The issue is one of first impression for this court. However, a plurality of the high court recently addressed the “closely related” issue of prearrest silence in Salinas v. Texas (2013) 570 U.S. ––––, ––––, 133 S.Ct. 2174, 2182, 186 L.Ed.2d 376 (plur. opn. of Alito, J.) ( Salinas ), and we find that analysis instructive. Declaring that “[t]he privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone's testimony,’ ” the Salinas plurality applied “the ‘general rule’ that a witness must assert the privilege to subsequently benefit from it.” (Id. at pp. ––––, 133 S.Ct. at pp. 2179, 2181 (plur. opn. of Alito, J.).) We likewise apply the general rule here and conclude that defendant, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it. Because the Court of Appeal held that the Fifth Amendment privilege against self-incrimination categorically prohibited any reference to defendant's postarrest failure to inquire about the others involved in the collision without ever considering whether defendant had clearly invoked the privilege, we reverse the judgment of the Court of Appeal and remand for further proceedings.

Background

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, along with various enhancement allegations. A jury acquitted defendant of the alcohol-

[331 P.3d 306]

related charges but convicted him of vehicular manslaughter with gross negligence and found true the allegation that he personally inflicted great bodily injury on Kendall Ng. (Pen.Code, § 192, subd. (c)(1); id., former § 12022.7, subd. (a).) The court sentenced defendant to seven years in prison.

Events Surrounding the Fatal Collision

Defendant spent the early evening of February 19, 2007, entertaining his longtime friend Peter Gamino, a retired San Francisco police officer who was visiting from out of state. Defendant cooked a steak dinner at his Redwood City home and, after waking Gamino from a nap around 5:30 or 6:00 p.m., made them vodka tonics. Around 6:30 p.m., Gamino made another round of drinks. He did not know whether defendant finished that drink.

After dinner, defendant announced that they needed to pick up a vehicle from his son's home just north of Woodside Road. Gamino testified that defendant exhibited no signs of intoxication, but admitted defendant had trouble finding his son's house: “We didn't get there right away. Couldn't find our—the way. We eventually found it.” On the return trip, defendant drove his Mercedes E320, and Gamino followed 100 to 150 yards behind in the Toyota Camry they had picked up at the son's house. Gamino was traveling at the speed limit.

As the two cars turned from Alameda de las Pulgas onto Woodside Road, defendant was about 200 yards ahead. Gamino accelerated on Woodside, but defendant remained “a ways ahead.”

Meanwhile, Loraine Wong had left her home on Santa Clara Avenue in Redwood City to drive her daughters to an overnight visit at her sister's house in Sunnyvale. Her sister, Geneva, had a new baby, and the girls were excited to see their new cousin. They were bringing some books they had purchased at Barnes and Noble that evening.

As they left the house, Wong called Geneva to let her know that they were on their way. Wong had completed the call by the time she reached the intersection of Santa Clara Avenue and Woodside (a two-lane divided state highway) less than a mile away, but the phone was still in her hand. Wong came to a full stop at the stop sign and inched forward, looking both ways. Her lights and blinker were on. She first looked left, and saw it was clear all the way to Alameda de las Pulgas, four-tenths of a mile away. She looked right, where it was also clear. Turning back to the left, she still saw no headlights or vehicles coming and began her turn onto Woodside. Wong, who had lived on Santa Clara Avenue for 15 years, had driven through this intersection several thousand times before.

This time was different. Suddenly, there was a flash of light, a feeling of soreness, and the pressure of the airbag. She had not seen headlights or heard any sound of braking, but Wong realized they had been hit. She looked outside but did not see any cars around her. She looked back and saw her daughters were unconscious and their faces were bleeding. As Wong climbed into the backseat, people nearby came to offer assistance. Wong shouted out her husband's phone number for someone to call him. Kendall regained consciousness, but Sydney never did. Sydney was pronounced dead at Stanford Hospital at 8:53 p.m. The cause of death was multiple blunt injuries. Kendall suffered a three-inch gash on her forehead, which was closed with 30 to 40 stitches, and a broken arm. She had to use a brace for her injured neck and spent a week in the hospital. Wong suffered internal injuries, a broken rib, and a broken finger. Pieces of broken glass had scratched her face, arms, knees, and feet.

Sergeant Alan Bailey of the Redwood City Police Department received a report of the crash at 8:20 p.m. and arrived at the scene 10 minutes later. Wong's vehicle, a 1996 Nissan Maxima, was badly damaged. The point of contact was the left rear quarter panel and passenger door, where there was a “massive intrusion.” The left rear passenger window and the rear windshield were shattered; the front windshield was broken. Defendant's vehicle, a 2006 Mercedes E320, was considerably north of the intersection, about 200 feet from the Nissan. Bailey testified that it was “incredible to see those vehicles that far

[331 P.3d 307]

apart in an accident that occurred in the city,” where the posted speed limit is 35 miles per hour. The Mercedes had suffered major damage to its front end, a cracked windshield, a broken left-side mirror, and a couple of flat tires. Based on the circumstances at the scene, Bailey concluded that the Nissan had come from Santa Clara Avenue in a westbound direction turning left onto Woodside; the Mercedes had come north on Woodside “[e]xtremely fast,” “[n]ot even close” to the speed limit; and there was a broadside collision.

Officer Janine O'Gorman, who arrived about an hour after Bailey, was assigned to be the lead investigator for this incident. She found no evidence that the Mercedes had applied its brakes prior to impact.² Based on the glass fragments, she opined that the Nissan had spun at least 360 degrees following the impact. She testified that although defendant's view of the intersection would have been partially obstructed by the Dodge Caravan parked on the corner of Woodside and Santa Clara as well as by the Arco sign at the corner gas station, in that those objects would have made it harder to see cars turning left onto Woodside, defendant was driving recklessly and was responsible for the collision.

Officer Jincy Pace, a traffic accident investigator with the San Jose Police Department, agreed that the Mercedes barreled into the left rear portion of the Nissan and spun it around and that the primary cause of the collision was the Mercedes's unsafe speed. Using a conservatively low “drag factor” (a measurement of the frictional relationship between the tire and the roadway), Pace calculated the Mercedes was traveling at a speed of at least 67 miles per hour prior to the collision; the Nissan was traveling about 12 miles per hour. Pace estimated that the Mercedes would have been at least 334 feet away from the intersection at the time the Nissan began its turn and opined that the Nissan would thus have had the right of way. Pace estimated that the Nissan would have been in the intersection for at least three to four and one-half seconds prior to the collision, which would have given the Mercedes enough time to stop even if it were speeding at 67 miles per hour.

Defendant's friend Peter...