Opinion
F073217
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEX ANTHONY RUBIO, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF152760A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Alex Anthony Rubio was convicted of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence and causing bodily injury, driving with a blood-alcohol content of 0.08 percent or greater and causing bodily injury, failure to perform a duty following an accident resulting in death, and resisting or delaying a peace officer, all arising out of an automobile collision that resulted in the death of Princess Almonidovar. He was sentenced to an indeterminate state prison term of 15 years to life.
On appeal, he challenges the sufficiency of the evidence to support his convictions for murder and gross vehicular manslaughter while intoxicated. He also challenges the trial court's denial of his motion to quash and traverse a warrant and suppress evidence of his blood-alcohol level from a compulsory blood draw. We reject these challenges.
He additionally requests we review the sealed record of the trial court's Pitchess hearing to determine whether police officer personnel records were erroneously deemed not discoverable. Having done so, we find no abuse of discretion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
He raises two additional points, which the People concede and with which we agree: (1) count 3 must be dismissed as a necessarily included offense to count 2, and (2) the matter must be remanded to the trial court for purposes of making a record for Rubio's eventual youth offender parole hearings.
We dismiss count 3 and remand the matter for the limited purpose of making a record for Rubio's eventual youth offender parole hearings. We otherwise affirm.
PROCEDURAL HISTORY
Rubio was charged by way of information with murder in the second degree (Pen. Code, § 187, subd. (a); count 1); gross vehicular manslaughter while intoxicated with an enhancement for fleeing the scene (Pen. Code, § 191.5, subd. (a); Veh. Code, § 20001, subd. (c); count 2); driving while under the influence and causing bodily injury, with enhancements for personally inflicting great bodily injury and driving with a blood-alcohol level of 0.15 percent or more (Veh. Code, § 23153, subd. (a); Pen. Code, § 12022.7, subd. (a); Veh. Code, § 23578; count 3); driving with a blood-alcohol level over 0.08 percent and causing bodily injury, with an enhancement for inflicting great bodily injury (Veh. Code, § 23153, subd. (b); Pen. Code, § 12022.7, subd. (a); count 4); failing to stop at the scene of an accident with an enhancement for personally inflicting great bodily injury (Veh. Code, § 20001, subd. (b)(2); Pen. Code, § 12022.7, subd. (a); count 5); misdemeanor resisting an officer (§ 148, subd. (a)(1); count 6); and misdemeanor use of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 7).
All further statutory references are to the Penal Code, unless otherwise noted.
On the People's motion, count 7 was dismissed near the beginning of trial. The jury found Rubio guilty on all remaining counts and found true all of the enhancements, with one exception: the enhancement to count 3 alleging that Rubio had a blood-alcohol level over 0.15 percent was found not true. The court imposed a term of imprisonment of 15 years to life on count 1, stayed the sentences on counts 2 through 5 pursuant to section 654, and imposed a concurrent 180-day jail term for the misdemeanor conviction in count 6.
This timely appeal followed.
FACTUAL BACKGROUND
On January 3, 2014, at approximately 3:00 a.m., Rubio drove his Chrysler 300 southbound on New Stine Road in Bakersfield and entered the intersection with Ming Avenue at a speed of 118 miles per hour with his accelerator pedal fully depressed. There, he struck the left side of a Toyota Celica driven by Almonidovar, who had been traveling eastbound on Ming Avenue. An eyewitness who was not involved in the collision testified at trial that he believed the traffic on Ming Avenue had the green light, although his memory was "foggy."
The eyewitness also testified that Almonidovar was traveling westbound on Ming Avenue, contrary to the testimony of a witness who was experienced in accident reconstruction.
Rubio drove his vehicle through the passenger area of Almonidovar's vehicle, resulting in Almonidovar's death. Almonidovar had scrapes and fractures on her left arm and the left side of her head was crushed and flattened. Almonidovar had a blood-alcohol concentration of 0.12 percent.
The jury was instructed that information regarding Almonidovar's blood-alcohol level could be used "only as to the red light/green light issue and for no other purpose."
Rubio's vehicle went airborne, rolled over, struck a traffic signal pole and utility box, and slid on its roof before coming to rest on New Stine Avenue, 596.55 feet from the initial area of impact. Hair and bodily fluids were found on Rubio's front bumper and the underbody of his vehicle. Half of the roof of Almonidovar's vehicle was found next to Rubio's vehicle.
Rubio, uninjured, fled the scene of the collision on foot. He jumped a nearby wall and spent time hiding in a backyard on an adjacent cul-de-sac. Eventually, he exited the yard into an alleyway, where he was spotted by Officer Aaron Mundhenke. Officer Mundhenke pursued Rubio on foot, chasing him over three six-foot fences before pulling him to the ground. Rubio ignored Officer Mundhenke's instructions to put his hands behind his back, instead putting his hands underneath himself near his waistband. Officer Mundhenke struck Rubio in the lower left leg with a collapsible baton and hit Rubio in the face several times before eventually subduing and handcuffing him. Once on his feet, Rubio stated, "I'm fucked up. I'm sorry. I ran from the car because I was scared."
Officer Mundhenke delivered Rubio to Officer Richard Bittleston, who placed Rubio in a patrol car. There, Rubio spoke with Officer Christopher Bagby. Officer Bagby concluded Rubio was severely impaired by alcohol: Rubio's eyes were watery, he had slurred speech, an odor of alcohol emanated from his person, and he had poor motor coordination. Additionally, Rubio was belligerent, hostile, extremely angry, disrespectful to officers, and shouting profanities. In Officer Bagby's opinion, Rubio was impaired in his ability to safely operate a motor vehicle.
Officer Bittleston transported Rubio to Kern Medical Center. Officer Bittleston did not ask Rubio any questions or share with Rubio any facts regarding the case. Nonetheless, Rubio told Officer Bittleston that a female had been driving his car. Rubio asked, "How bad did that chick fuck up my car?" When Officer Bittleston did not respond, Rubio stated, "Come on, man. How bad is my car fucked up?"
At Kern Medical Center, Rubio was evaluated by Officer Glenn Phippen. Officer Phippen immediately smelled a strong odor of alcohol on Rubio's breath and person. He noticed Rubio's eyes were bloodshot and watery, and Rubio had difficulty balancing and walking. Officer Phippen performed three field sobriety tests and Rubio's performance on each indicated he was under the influence of alcohol or a depressant. On the horizontal gaze nystagmus test, Rubio displayed nystagmus and a lack of smooth pursuit. On the walk-and-turn test, Rubio failed to follow instructions, took a wide stance to maintain his balance, missed each heel-to-toe step by at least three inches, was unable to walk a straight line, and raised his arms to maintain balance. On the one-leg-stand test, Rubio was only able to maintain his balance for a few seconds before raising his arms and putting his feet down. Based on these tests, Officer Phippen determined Rubio was under the influence of alcohol and unable to safely operate a motor vehicle.
Officer Phippen asked Rubio to take a blood test but Rubio refused. Officer Phippen telephoned Officer Antonio Orozco and requested that he obtain a warrant to draw Rubio's blood. While waiting for the warrant, Rubio asked if he could "blow to see where he was at." Officer Bittleston then administered a breath test to Rubio. In two tests, administered at 6:00 a.m. and 6:03 a.m., respectively, Rubio blew a 0.14 percent. At approximately 6:40 a.m., Rubio's blood was drawn pursuant to the warrant. The blood draw revealed a blood-alcohol concentration of 0.13 percent.
Prior to the collision, Rubio had signed three separate Department of Motor Vehicles applications for a commercial driver's license, each time affirming under the penalty of perjury that he understood the form's admonitions, which included the following:
"I hereby advise that being under the influence of alcohol or drugs or both impairs the ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both.
"If I drive under the influence of alcohol or drugs or both, and as a result a person is killed, I may be charged with murder."
At trial, Rubio testified that, on January 2, 2014, he met up with friends at a bowling alley at approximately 8:30 p.m. There, he consumed three beers and a shot of "Fireball." He left the bowling alley alone at approximately 11:19 p.m. and drove to a bar called the VIP. He stayed there for 45 minutes to one hour and drank two beers. He then walked to an adjacent lounge that does not serve alcohol and stayed there for an hour and a half to two hours.
Rubio left the lounge without difficulty and began driving. He did not think he was impaired. At trial, he could not recall the speed he was traveling but knew "for a fact" that he was not traveling over 100 miles per hour. He did not recall having his accelerator fully depressed and could not recall whether he applied his brakes or took his eyes off the road as he entered the intersection of Ming Avenue and New Stine Road. He recalled that he had a green light. He claimed he never saw the other car. He described the accident as follows:
"I had a green light. As I was going through the intersection, I heard it before I felt it. And what I mean by that, is, um, I heard a huge, loud bang coming from my passenger rear side.
"And as I turned my head to the right, my car was already going upside down in a barrel roll. And from that point, everything was slow
motion. And I—I—from that point, I just remember looking over my shoulder, and then my car being like—going like this, slow motion."
Rubio explained that he fled from the scene of the collision because he was scared and did not want to get in trouble. He ran from Officer Mundhenke because he was afraid of the police. After jumping three fences, he realized the worst that would happen was that he would get a DUI; he therefore stopped and put his hands up. According to Rubio, Officer Mundhenke hit him without cause, and continued to hit him after he was handcuffed.
Rubio initially claimed that he was scared because he had never been in trouble with the law. However, after a break in testimony, he acknowledged that he had pending misdemeanor charges that preceded the collision.
Rubio denied asking Officer Bittleston about the state of his car. He denied telling Officer Bittleston that a female had been driving his car. He instead claimed he told Officer Bagby about a female driving his car, but did so only because Officer Bagby was "mean" and Rubio was hurt by his comments. He wanted Officer Bagby to leave him alone. Rubio testified he did not know at the time that anyone had been hurt in the accident.
At the hospital, Officer Phippen administered field sobriety tests and told Rubio he had done well. Officer Phippen also told Rubio he did fine on the breath test. Rubio confirmed he refused to submit to a blood test until the police obtained a search warrant.
In the days following the collision, Rubio made several phone calls from jail. In a telephone call with his mother, his mother stated, "And I been telling you son. 'Son stop. Son stop.' You're - the last conversation that you and I had, 'You're gonna hurt somebody or you're gonna hurt yourself.' " She went on, "Okay, but—but do you remember me telling you—what were my last words when you walked out the door last night?" In another call, his mother stated, "I'm not gonna sit here and tell you I told you so. I'm not. But I wish you would have heard me when I was crying out to you this whole time.... 'Cause I told you it would happen one day." Rubio claimed his mother was referring to him having broken up with his girlfriend and needing to become a family man.
In another jail call, Rubio's then-ex-girlfriend stated, "Why did you drive?" and "I always tell you not to." Rubio did not know why she said this. In another call, his ex-girlfriend stated that "everybody" had told Rubio to "calm down." Rubio did not know why she said this but speculated she meant they should have gotten back together for their child.
In jail calls with a friend and with his father, Rubio maintained the lie that someone else was driving his car at the time of the collision and stated that he was going to beat the case. He testified that he did so because he wanted to be left alone and was concerned police might be listening to the call.
Rubio testified that he did not think it dangerous to drink and drive and believed himself to be "fine" to drive with a 0.08 percent blood-alcohol concentration. He acknowledged that it could be dangerous to drive impaired, depending on the level of impairment. He believed it safe to drive down New Stine Road at a speed of 75 miles per hour, but a speed over 80 miles per hour would be excessive and dangerous. He claimed that "90 percent of people have dranken [sic] alcoholic beverage and gotten—or beverages and gotten behind the wheel. [¶] The difference between the people convicted and what—I mean, some people have been caught. Some people haven't." He acknowledged that he had "some fault" for the collision but maintained that it occurred because "both parties drank and drove."
Rubio acknowledged signing the commercial driver's license applications, affirming under the penalty of perjury that he had read the admonitions on the applications. He testified, however, that he did not actually read the admonitions.
DISCUSSION
I. Evidence of Implied Malice
Rubio argues the evidence is insufficient to support a finding of implied malice as required to support his conviction for second degree murder. He acknowledges evidence that he drove at a speed "more than twice the posted speed limit and possibly disregarded a red light," but contends this does not support a finding of implied malice because he did so at an hour when few other drivers were on the road, he was not "driving unsafely" prior to the collision, his level of alcohol intoxication was not "extraordinarily high," his exposure to warnings about the dangers of reckless or intoxicated driving was minimal, and his conduct was less aggravated than that found in other vehicular murder cases. We reject Rubio's arguments and conclude the evidence is sufficient to establish implied malice.
In reviewing the sufficiency of the evidence, " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens (2012) 53 Cal.4th 500, 507.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, supra, at p. 508.)
To support a finding of implied malice, the evidence must establish that the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of its danger to life and a conscious disregard of that danger. (People v. Watson (1981) 30 Cal.3d 290, 300 (Watson).) This conscious disregard for the danger to the life of another distinguishes implied malice from gross negligence, which involves "the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (Id. at p. 296.) "Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' The state of mind of the person who acts with conscious indifferences to the consequences is simply, 'I don't care what happens.' " (People v. Olivas (1985) 172 Cal.App.3d 984, 987-988 (Olivas).) The standard for implied malice is subjective and therefore requires that the defendant actually appreciated the risk involved. (Watson, supra, at pp. 296-297.)
Watson is the leading case on vehicular murder involving implied malice. (Watson, supra, 30 Cal.3d 290.) There, the defendant drove to a bar and consumed large quantities of beer. After leaving the bar, he drove through a red light and narrowly avoided a collision with another car. He then drove away at high speed, accelerating to 84 miles per hour before suddenly braking and skidding into an intersection where he collided with another car, killing two people. Watson's blood-alcohol level one-half hour after the collision was 0.23 percent. An information charged him with two counts of second degree murder, but the trial court dismissed the murder counts. (Id. at pp. 293-294.)
On the People's appeal, our Supreme Court reversed the dismissal, holding there was sufficient evidence to uphold the second degree murder counts in the information. (Watson, supra, 30 Cal.3d at p. 301.) The court cited to the following evidence as sufficient to support a finding that the defendant acted with conscious disregard for life: the defendant's blood-alcohol level was sufficient to find him legally intoxicated; he drove to the establishment where he was drinking knowing that he had to drive later; he presumably was aware of the hazards of driving while intoxicated; he drove at high speeds on city streets, creating a great risk of harm or death; and he was aware of the risk, as shown by the near collision and his belated attempt to brake before the fatal collision. (Id. at pp. 300-301.)
Since Watson, appellate courts have upheld numerous murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol. (E.g., People v. Wolfe (2018) 20 Cal.App.5th 673, 683 (Wolfe) [driver had blood-alcohol level of 0.34 percent, was aware of dangers of drinking and driving and had previously used a taxi service, drank with intention of driving home, and continued driving her damaged vehicle after hitting a pedestrian]; People v. Autry (1995) 37 Cal.App.4th 351, 358-359 (Autry) [driver had a blood-alcohol level of 0.22 percent, was warned of the dangers of drinking and driving, drank and drove throughout the day, had three near misses, and continued driving over protests of his passengers]; People v. Murray (1990) 225 Cal.App.3d 734, 746-747 [driving wrong way on a freeway with a blood-alcohol level between 0.18 and 0.23 percent]; People v. McCarnes (1986) 179 Cal.App.3d 525, 533 [crossing into oncoming traffic on two-lane highway with a blood-alcohol level of 0.27 percent]; Olivas, supra, 172 Cal.App.3d at p. 989 [extremely dangerous driving while under influence of PCP and "negligible" amount of alcohol].) These opinions have generally relied on some or all of the factors that were present in Watson: "(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving." (Autry, supra, at p. 358.)
Considering these factors here, there was substantial evidence to support a finding of implied malice. First, Rubio was intoxicated beyond the legal limit and had a predrinking intent to drive. He drove alone to one location and consumed several alcoholic beverages before driving alone to another location and drinking more. His blood-alcohol concentration was at least 0.14 percent. Officers observed him to have watery eyes, slurred speech, an odor of alcohol, impaired motor coordination, and odd behavior. He also performed poorly on field sobriety tests.
Furthermore, Rubio had knowledge of the hazards of driving while intoxicated. He signed driver's license applications affirming he had been advised that driving under the influence of alcohol and drugs could lead to a murder charge. He also had been told by friends and family not to drive, and had been warned by "everyone" that he needed to calm down.
Perhaps most significantly, Rubio's driving was extremely reckless—he drove through a red light at a speed of 118 miles per hour (73 miles per hour over the applicable speed limit), without braking and with his accelerator fully depressed. "Whether [defendant] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [defendant] was aware of the risk." (People v. Moore (2010) 187 Cal.App.4th 937, 941 (Moore).) Rubio also testified that driving on New Stine Road at a speed over 80 miles per hour is dangerous, and he therefore knew the hazards inherent in his reckless driving. A reasonable juror could conclude that this conduct, taken together, evidences a conscious disregard of the danger he posed to the lives of others on the roadway.
Rubio nonetheless presents several reasons he believes the evidence is insubstantial. He contends that his level of intoxication was not extraordinarily aggravated. However, Watson does not require an extraordinary level of intoxication. Indeed, courts have found implied malice in vehicular murder cases even where the driver was sober. (Moore, supra, 187 Cal.App.4th at p. 941 [running a red light at 70 miles per hour without attempting to brake]; People v. Ortiz (2003) 109 Cal.App.4th 104, 106-107 [crossing double yellow line into oncoming traffic to pass another car at 65 miles per hour].) The relevant question is not whether Rubio was extraordinarily intoxicated, but whether driving at his level of intoxication posed a risk to the lives of others, and whether he was aware of that risk.
In this regard, Rubio contends that his knowledge of the risks of impaired or intoxicated driving was "minimal." While some cases involve detailed evidence of the defendant's knowledge of these risks (e.g., Autry, supra, 37 Cal.App.4th at p. 355; People v. David (1991) 230 Cal.App.3d 1109, 1112-1113), such knowledge is generally presumed. (Watson, supra, 30 Cal.3d at pp. 300-301.) "A high level of intoxication sets the stage for tragedy long before the driver turns the ignition key. 'There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated.' " (People v. Bennett (1991) 54 Cal.3d 1032, 1038 (Bennett).) " 'One who wilfully 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, reasonably may be held to exhibit a conscious disregard of the safety of others.' " (Watson, supra, at pp. 300-301.) In any event, we reiterate the evidence on which a reasonable juror could conclude Rubio was actually informed of the danger to life that he posed: he signed driver's license applications acknowledging, under penalty of perjury, that he was advised that a potential consequence of driving under the influence was that he could be charged with murder (Wolfe, supra, 20 Cal.App.5th at p. 683), and, he was warned by friends and family not to drive because something like this could happen.
We also reject Rubio's claim that his driving was not so "blatantly dangerous" that he must have known the danger to the lives of others. While many vehicular murder cases involve pre-collision mishaps or near-misses that clearly warned the driver that his conduct was dangerous, near-misses are not required to support a finding of implied malice. (People v. Talamantes (1992) 11 Cal.App.4th 968, 971 [only potential warning to driver was when his car went airborne as it crossed railroad tracks prior to collision].) Again, the evidence here showed that Rubio ran a red light at a speed of 118 miles per hour, 73 miles per hour over the legal speed limit. It is difficult to imagine a set of facts less likely to preclude a jury from concluding that this conduct evidences a complete disregard for the lives of others.
Rubio nonetheless suggests that, because the accident occurred at an hour when the roads were less occupied, the risk to others was somewhat diminished. However, even if the danger to others was diminished by the late hour, it was not extinguished. The site of the collision was not deserted. Even if Rubio believed a collision at this hour was less likely, such belief would merely reflect that he was aware he posed some danger to the lives of others but determined the risk was acceptable.
Lastly, Rubio cites several vehicular murder cases and attempts to distinguish each of them based on their facts. However, there is no specific formula for determining whether the evidence is sufficient to support a showing of implied malice. Rather, the evidence must be evaluated on a case-by-case basis. (Olivas, supra, 172 Cal.App.3d at p. 989; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091.) None of the cited cases compels us to reverse on the facts presented here. Nor does Rubio cite any published opinion in which a Watson murder conviction has been reversed based on a claim of insufficiency of the evidence.
Reviewing the evidence as a whole, we conclude the murder conviction is supported by substantial evidence.
II. Evidence of Gross Negligence
Rubio argues the evidence was insufficient to establish gross negligence as required to support his conviction for gross vehicular manslaughter while intoxicated. Although he acknowledges evidence establishing that he was "greatly impaired" and drove through an intersection at an excessive rate of speed, he contends this evidence supports no more than ordinary negligence. We disagree.
A conviction for gross vehicular manslaughter while intoxicated requires a finding of gross negligence. (§ 191.5, subd. (a); Bennett, supra, 54 Cal.3d at p. 1036.) As stated above, 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.' " ' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa), quoting Bennett, supra, at p. 1036.)
In evaluating whether the defendant acted with gross negligence, "the jury should ... consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence." (Bennett, supra, 54 Cal.3d at p. 1038; see Ochoa, supra, 6 Cal.4th at p. 1207.) These circumstances include "the manner in which the defendant operated his vehicle, the level of his intoxication, and any other relevant aspects of his conduct." (Ochoa, supra, at p. 1207.) The defendant's level of intoxication is particularly relevant because " '[o]ne who drives with a very high level of intoxication is indeed more negligent, more dangerous, and thus more culpable than one who drives near the legal limit of intoxication . . . .' " (Bennett, supra, at p. 1037.)
Gross negligence is evaluated under an objective standard; that is, whether a reasonable person in defendant's position would have been aware of the risks involved. (Ochoa, supra, 6 Cal.4th at p. 1204.) Although this test is objective, the defendant's own subjective state of mind remains relevant. "In determining whether a reasonable person in defendant's position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True ... the defendant's lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant's position would have recognized the risk." (Id. at p. 1205, italics omitted.)
Above, we concluded the evidence was sufficient to establish Rubio actually appreciated that his conduct was dangerous to the lives of others. Having done so, it is a relatively simple matter to conclude the evidence was sufficient to establish Rubio was consciously indifferent to the consequences of his actions. We reiterate that the evidence presented at trial reflects that Rubio drove through a red light at a speed of 118 miles per hour with a blood-alcohol concentration of at least 0.14 percent. He did so, despite having been warned by his family and friends that he should not drive in such condition and that his conduct was likely to result in injury to himself or others. A reasonable juror could easily reject Rubio's claim that the accident occurred due to mere inadvertence and find instead that Rubio had no care for the consequences of his conduct. This finding is supported by substantial evidence.
As with his challenge to the murder conviction, Rubio contends the evidence here is not as strong as that presented in other cases because there was no evidence he was driving recklessly prior to the collision, his blood-alcohol level was "unexceptional," there was a lack of evidence of his knowledge of the risks, and his driving was "unsafe but not blatantly dangerous." We reject these arguments on the same grounds as stated above. While the jury could have resolved these points in his favor, it did not. On review, our duty is to determine only whether a reasonable trier of fact could find defendant guilty beyond a reasonable doubt, not to determine whether the facts might also support a contrary finding. (People v. Alexander (2010) 49 Cal.4th 846, 917.)
We conclude the verdict is supported by substantial evidence.
III. Motion to Traverse the Search Warrant
Rubio argues the trial court erred in denying his motion to traverse the search warrant authorizing the police to draw his blood. He contends that the police made deliberately false or recklessly misleading statements in pursuit of the warrant and, absent those statements, the warrant lacked probable cause. He contends the evidence of his blood-alcohol level from the blood draw should have been suppressed and its erroneous admission was prejudicial, warranting reversal. We conclude that, regardless of any error in failing to traverse the search warrant, the admission of evidence of Rubio's blood test results was harmless beyond a reasonable doubt.
Police officers are required to obtain a warrant, when reasonable to do so, before compelling a blood sample in an impaired driving investigation. (Missouri v. McNeely (2013) 569 U.S. 141, 152.) An affidavit in support of a warrant is presumed valid, but a defendant may challenge the veracity of statements contained therein through a motion to traverse. (Franks v. Delaware (1978) 438 U.S. 154, 155-156 (Franks); People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7.)
A defendant is entitled to an evidentiary hearing on a motion to traverse (sometimes referred to as a "Franks hearing") if he makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the false statements are necessary to the finding of probable cause. (Franks, supra, 438 U.S. at pp. 155-156.) Innocent or negligent misrepresentations will not defeat a warrant. (Id. at p. 171; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.) "Because of the difficulty of meeting the 'substantial preliminary showing' standard, Franks hearings are rarely held." (People v. Estrada (2003) 105 Cal.App.4th 783, 790.) The denial of a Franks hearing is reviewed de novo. (People v. Benjamin (1999) 77 Cal.App.4th 264, 271.)
If the allegation of perjury or reckless disregard is established at the Franks hearing and the affidavit's remaining contents are insufficient to establish probable cause, the warrant must be voided and the fruits thereof excluded under the Fourth Amendment. (Franks, supra, 438 U.S. at p. 156.) The improper admission of evidence obtained in violation of the Fourth Amendment is subject to harmless error analysis under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Moore (2011) 51 Cal.4th 1104, 1128-1129.) Under Chapman, "[w]e must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831.)
Here, it is undisputed that Officer Orozco made false statements in support of the warrant. Specifically, in requesting the warrant, Officer Orozco represented, under oath, that Rubio was unable to participate in field sobriety testing or a preliminary breath test. Officer Orozco went on to state, "He refused, uh, to do anything," and he "refused to submit to any chemical tests, uh, by stating he would not submit to any chemical tests." The judge asked, "[H]e was advised that it wa—that it was necessary for him to submit to a blood, breath or urine test but he just said no?" Officer Orozco responded, "Correct." The judge ultimately found probable cause to justify the blood draw to determine whether Rubio had consumed alcohol. The judge's determination was based on Officer Orozco's affidavit, the accident having resulted in fatalities, Rubio fleeing the scene and refusing "to cooperate," and the need to obtain the evidence in a timely fashion.
As is now clear from the record, Rubio participated in field sobriety testing when asked, and was not asked to participate in a breath test prior to the warrant request. Indeed, Rubio volunteered to take a breath test while Officer Phippen waited for Officer Orozco to obtain the warrant. Ultimately, Rubio acceded to two breath tests prior to Officer Orozco representing to the judge that Rubio refused such testing, although it does not appear this information was conveyed to Officer Orozco.
On the motion to traverse, Rubio argued that Officer Orozco's statements were deliberately false or made in reckless disregard of the truth. The People argued that the misstatements were a result of innocent miscommunication between Officers Orozco and Phippen. The People also argued that the warrant was nonetheless supported by probable cause because, even had Rubio agreed to a breath test, a blood draw was required to determine whether Rubio was under the influence of a central nervous system stimulant. In denying the motion, the court concluded that Rubio failed to make a showing that the misstatements showed a reckless disregard for the truth and concluded that the misstatements were not material, given that there may have been probable cause for the warrant to conduct a blood draw to detect the presence of drugs.
Although the court's ruling is somewhat unclear, it appears the court may have remained under the erroneous impression that Rubio had initially refused to participate in a preliminary alcohol screening test or evidentiary breath test.
At trial, Officer Orozco testified regarding the warrant procedure. He explained that he had incorrectly assumed Rubio had refused to participate in field sobriety tests and a preliminary alcohol screening test. He intended to convey to the judge only that Rubio had refused a blood test, given that the purpose of the warrant was to obtain a blood test. Based on Officer Orozco's testimony and testimony from Officer Phippen confirming that Rubio was never asked to participate in and never refused a breath test, Rubio sought reconsideration of the denial of the motion to traverse. The motion was denied for lack of jurisdiction.
On appeal, we conclude that we need not determine whether the motion to traverse and motion for reconsideration were properly denied because admission of the blood draw evidence was harmless beyond a reasonable doubt. The blood evidence established that Rubio had a blood-alcohol level of 0.13 percent at 6:40 a.m., approximately three and a half hours after the collision. However, evidence that Rubio was highly intoxicated at the time of the collision was established through other, unchallenged evidence, including officer testimony regarding Rubio's demeanor, appearance, and performance on field sobriety tests, and evidence of breath tests showing Rubio had a blood-alcohol concentration of 0.14 percent. We are certain that the jury's verdict was not attributable to evidence of a blood test showing a lower blood-alcohol level than that derived from the breath tests.
Additionally, the blood test evidence was mentioned only briefly in closing argument. In his initial closing argument, the prosecutor made one reference to Rubio's specific blood-alcohol concentration, stating that it was "twice the legal limit." The blood draw was not specifically referenced. In rebuttal closing, the prosecutor argued that the results of Rubio's field sobriety tests were "backed, not by one test, but two tests. Four tests if you really want to think about it. Two individual breath tests and two tests of his blood through the gas chromatograph." In addressing defense counsel's arguments regarding the accuracy of the blood test results, the prosecutor argued, "that test is backed up by the, you know, the fact that you get a breath result that is exactly one point higher than the blood as it was taken an hour before in time." He also referred again to Rubio's "double the blood alcohol concentration." However, the argument focused primarily on Rubio's reckless driving and his attitude, rather than his level of intoxication. Furthermore, the jury rejected the claim that Rubio's blood-alcohol level was twice the legal limit, finding "not true" the allegation that Rubio had a blood-alcohol content of 0.15 percent or greater. Arguments regarding the blood test were therefore insignificant in relation to everything else the jury considered. (See Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 ["To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."].)
Rubio contends that the blood draw evidence is not insignificant because "the only testimony the jury asked to hear again during deliberations was the testimony about appellant's blood alcohol level provided by the criminalist." During deliberations, the jury asked for a read-back of the testimony of the criminalist who had tested Rubio's blood and determined that his blood-alcohol concentration was 0.13 percent. The criminalist also testified that the reagent used in testing Rubio's blood was technically past its "best use" date, but that this was not known to her at the time of testing and she did not believe it affected the results. She also opined, based on the rate alcohol leaves the blood, that a person with a blood-alcohol level of 0.14 at 6:03 a.m. and 0.13 at 6:40 a.m., who had not consumed alcohol between 3:05 a.m. and 6:40 a.m., likely had a blood-alcohol level of at least 0.15 percent at 3:00 a.m.
Shortly after the read-back of this testimony, the jury asked, "With respect to consideration of findings if we are unable to agree as true or not true what do we do?" After being instructed to deliberate further, the jury reached a unanimous verdict as to all counts and findings. Ultimately, the jury found "not true" the allegation that Rubio had a blood-alcohol content of 0.15 percent or greater. In other words, the jury rejected the criminalist's testimony, at least in part. The requested read-back of this testimony therefore does not persuade us that the admission of blood draw evidence contributed to the jury's verdict in a manner prejudicial to Rubio.
Finally, Rubio cites People v. Fiscalini (1991) 228 Cal.App.3d 1639, for the proposition that the admission of other evidence of his blood-alcohol level did not render the blood draw evidence harmless. We find Fiscalini uninformative on this point. There, the defendant provided a urine sample to the police and thereafter was subjected to a warrantless blood draw. (Id. at p. 1642.) The Court of Appeal concluded the defendant's motion to suppress was erroneously denied and summarily stated that the introduction of blood draw evidence was not harmless beyond a reasonable doubt. (Id. at p. 1646.) However, it is not clear from the facts that other evidence of the defendant's intoxication was presented to the jury. The conclusory nature of the court's determination leaves us unable to draw any parallels to the instant case.
On the facts presented here, we conclude admission of the blood draw evidence was harmless beyond a reasonable doubt. IV. Pitchess Proceedings
Rubio requests that we independently review the sealed transcript of an in camera Pitchess hearing and related records to determine whether the trial court committed reversible error in determining the records were not discoverable. The People do not object to this request.
Before trial, Rubio filed a motion pursuant to Evidence Code section 1043 and Pitchess, requesting records of investigations and disciplinary actions relating to false statements or false testimony by Officers Orozco and Bittleson. The court conducted an in camera review of the officers' records "as it may apply to dishonesty, false information, false reporting and those issues." Following in camera review, the court determined the records contained "no discoverable or disclosable information." The court sealed the reporter's transcript of the in camera hearing.
" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' " (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26 Cal.4th 1216, 1220 (Mooc) [California Legislature codified Pitchess motions through enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045].) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) "Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' " (Gaines, supra, at p. 179.)
On September 30, 2018, the Governor signed into law Senate Bill No. 1421, which amends Penal Code sections 832.7 and 832.8 to provide public access to certain officer personnel records without the necessity of bringing a Pitchess motion. (Sen. Bill No. 1421, approved by Governor Sept. 30, 2018 (2017-2018 Reg. Sess.).) Although not yet effective (Gov. Code, § 9600), these amendments would not alter our conclusion.
"If the trial court concludes the defendant has ... made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" (Mooc, supra, 26 Cal.4th at p. 1226), and "the court must review the requested records in camera to determine what information, if any, should be disclosed." (Gaines, supra, 46 Cal.4th at p. 179.) "Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' " (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Here, the court followed the proper procedure and created an adequate record of the in camera hearing. (See Mooc, supra, 26 Cal.4th at p. 1228.) Having examined the personnel records of Officers Orozco and Bittleson, we conclude the trial court did not abuse its discretion in excluding from disclosure any of these records. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We therefore uphold the trial court's ruling.
V. Dismissal of Count 3
In count 3, Rubio was found guilty of driving while under the influence and causing bodily injury. (Veh. Code, § 23153, subd. (a).) The trial court stayed the sentence on count 3 pursuant to section 654.
Rubio argues, and the People concede, count 3 must be dismissed because the offense of driving while under the influence and causing bodily injury is a lesser included offense to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), which Rubio was convicted of in count 2.
We agree that gross vehicular manslaughter while intoxicated cannot be committed without also committing the crime of driving under the influence and causing bodily injury. (People v. Givan (2015) 233 Cal.App.4th 335, 351.) Thus, as a necessarily included offense, count 3 must be dismissed, rather than stayed. (People v. Pearson (1986) 42 Cal.3d 351, 355 [defendant may not be convicted of both a greater and lesser included offense].)
VI. Future Youth Offender Parole Hearings
In supplemental briefing, Rubio requests a limited remand for purposes of making a record relevant to his eventual youth offender parole hearings. (§§ 3051, 4801.) The People do not object to this request.
In 2013, the Legislature enacted Senate Bill No. 260, codified in section 3051. (People v. Franklin (2016) 63 Cal.4th 261, 276 (Franklin).) This statute provides for youth offender parole hearings that guarantee juvenile offenders a meaningful opportunity for release on parole. (§ 3051, subd. (e).) Juvenile offenders who committed a "controlling offense" prior to reaching a specified age are entitled to a parole hearing after serving a designated period in custody. (§ 3051, subd. (b).) The "controlling offense" is "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B).)
As originally enacted, section 3051 applied where the controlling offense was committed before the offender was 18 years old. (In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6 (Trejo).) By an amendment that became effective on January 1, 2016, the Legislature extended the availability of youth offender parole hearings to offenders who were under 23 years old when they committed their controlling offenses. (Stats. 2015, ch. 471, § 1 (Sen. Bill No. 261); see Trejo, supra, at p. 981 & fn. 6.) By a subsequent amendment that became effective January 1, 2018, the Legislature further extended the availability of youth offender parole hearings to offenders who were under 25 years old when they committed their controlling offenses. (§ 3051, subd. (b); Stats. 2017, ch. 675, § 1 (Assem. Bill No. 1308).)
Here, Rubio was 24 years and 11 months old at the time he committed his controlling offense. Under the most recent amendments to section 3051, Rubio will be eligible for release at a youth offender parole hearing during his 20th year of incarceration. (§ 3051, subd. (b)(2).) However, when Rubio was sentenced in 2016, youth offender parole hearings were not available to offenders who were over 23 years old at the time they committed their controlling offense. Thus, the court had no reason to make a record of factors pertaining to Rubio's youth that might be relevant at such a hearing.
In similar circumstances, our Supreme Court has concluded that a limited remand is appropriate for purposes of making "an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors . . . in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime . . . ." (Franklin, supra, 63 Cal.4th at p. 284; see People v. Perez (2016) 3 Cal.App.5th 612, 619.) The People concede that the record does not establish Rubio had such an opportunity in this case. Accordingly, we agree with Rubio and the People that a limited remand for this purpose is appropriate here.
DISPOSITION
Rubio's conviction on count 3 for driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a)) is dismissed. The trial court is directed to prepare an amended abstract of judgment reflecting dismissal of count 3 and to forward a copy to the appropriate authorities.
The matter is remanded to the trial court for the limited purpose of making a record of information relevant to Rubio's eventual youth offender parole hearings.
In all other respects, the judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.