Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF175455, Gary L. Paden, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
As defendant Samuel Flores Tello, who was intoxicated, fled pursuing officers, he ran a red light and struck a vehicle, killing a woman and injuring her son. He was convicted of second degree murder and various other offenses. On appeal, he contends (1) insufficient evidence supported the finding of implied malice, (2) medical records were inadmissible for various reasons, (3) the trial court erred by failing to stay the sentence on one count, and (4) defendant should not have been convicted of two counts of evading a peace officer. We will strike the conviction on count 5 and stay the sentence on count 6. In all other respects, we will affirm.
PROCEDURAL SUMMARY
On June 13, 2007, the Tulare County District Attorney charged defendant with murder (Pen. Code, § 187, subd. (a);count 1); gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 2); driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a); count 3), driving with a blood-alcohol level of 0.08 percent or above and causing bodily injury (Veh. Code, § 23153, subd. (b); count 4); evading a peace officer and causing serious bodily injury (Veh. Code, § 2800.3, subd. (a); count 5); evading a peace officer and causing death (Veh. Code, § 2800.3, subd. (b); count 6); and driving without a valid driver’s license (Veh. Code, § 12500, subd. (a); count 7). The information further alleged as to counts 3 and 4 that defendant personally inflicted great bodily injury upon a victim, which caused the victim to become comatose due to brain injury or to suffer paralysis (Pen. Code, § 12022.7, subd. (b)).
A jury found defendant guilty as charged and found the enhancement allegations true. The trial court sentenced defendant to 22 years to life in prison, as follows: 15 years to life on count 1, two years on count 4, plus five years on the enhancement on count 4. The court imposed a five-year term on count 5 and a six-year term on count 6, both of which were to be served concurrently to the term on count 4. The six-year term on count 2 and the seven-year term on count 3 were stayed (Pen. Code, § 654). The 90-day term on count 7 was deemed served. The court also ordered restitution in the amount of $32,000 for damage to the victims’ vehicle, $10,000 for funeral expenses, and $158,299.56 for medical care expenses.
The term on count 3 included a two-year term plus a five-year enhancement.
FACTS
On December 10, 2006, at about 7:15 p.m., Officer Yarber was on patrol in Exeter. She had stopped for coffee with off-duty Officer Chhean. Officer Yarber received a dispatch regarding a possible drunk driver in a dark blue van with specific Washington plates followed by another driver. The two officers got in the patrol vehicle and proceeded to the area the van was last seen and, at 7:25 p.m., found the van parked near a church on Palm Street. Officer Yarber stopped the patrol vehicle behind the van. She exited the vehicle, took her flashlight and approached the van. She saw no one inside. She walked around the van, pulled on both locked doors and returned to her vehicle. She advised dispatch that no one was in the van and she requested a check on the plates. Meanwhile, she and Officer Chhean noticed defendant walking toward the church and looking back at them.
During Officer Yarber’s conversation with dispatch, defendant approached the passenger side of the patrol vehicle. Officer Yarber lowered the passenger window a few inches and conversed with defendant in Spanish. Officer Yarber asked defendant if he needed something and if he was the driver of the van. He said he was not the driver, but he saw someone he thought might be the driver go into the church. He asked if Officer Yarber wanted him to go look for the person and she told him she did not. Defendant walked away toward the church.
When Officer Yarber finished her conversation with dispatch, she contacted other officers for assistance in finding the van’s driver. At that moment, Officer Chhean saw the van’s passenger door closing, a dome light go on and someone move over to the driver’s seat. The officers saw the van move a little and they realized someone was inside. As Officer Yarber prepared to exit the patrol vehicle again, the van’s brake lights came on and the van pulled away abruptly and quickly. Officer Yarber put her vehicle in gear and followed the van on Palm Street.
The van approached the intersection of Palm and Orange Streets, failed to brake for the stop sign and made a very wide turn into the wrong lane of Orange Street. Officer Yarber activated all of her emergency lights. The van weaved in and out of the opposing lane, almost fishtailing, for five to 10 seconds. A truck approached in the opposing lane and was forced to stop to avoid a head-on collision. Defendant maneuvered away from the truck, but he overcorrected, lost control of the van and sideswiped a vehicle parked along the curb. As he did, Officer Yarber activated her siren. The van appeared to slow somewhat after the accident.
The van proceeded toward the intersection of Orange Street and Visalia Road, a four-way stop with a flashing red light in addition to stop signs. The van went through the intersection without braking and cut the corner, turning onto Visalia Road and traveling in the opposing lane. The van almost collided head-on with a vehicle approaching in the opposing lane, but the vehicle swerved out of the way to avoid the collision.
As the van continued in the wrong lane, it accelerated and pulled away from the patrol vehicle. Officer Yarber accelerated to about 30 to 35 miles per hour. The posted speed limit was 35 miles per hour. It had been raining and the streets were wet. The van eventually moved into the proper lane. Officer Yarber accelerated to 35 to 40 miles per hour and defendant continued to pull away from her as he approached the light-controlled intersection of Visalia Road and Belmont Road. Officer Yarber could see that the traffic light was red. The van did not brake or veer, but continued to accelerate away from the patrol vehicle, which was now going about 40 miles per hour.
Officer Yarber knew the van was not going to stop. She saw a silver sport utility vehicle (SUV) enter the intersection and she watched as the van broadsided the SUV, striking the driver’s side. As later determined, the van was traveling at a fast rate of speed, exceeding the speed limit, when it hit the SUV. The SUV spun around and slid sideways. Glass and debris from the two vehicles showered the area. The SUV came to rest about 150 feet from the intersection. The van came to rest about 100 feet from the intersection. The collision occurred at 7:42 p.m. Officer Yarber called for emergency services.
Officers patrolling nearby ran toward the accident and Officer Yarber directed them to the victims’ SUV. Officer Yarber drew her weapon and ran toward the van. She could see someone moving inside. Another officer helped her open the driver’s door. They pulled defendant out onto the ground and handcuffed him. Officer Yarber recognized him as the man who had spoken to her outside the church. No one else was inside the van.
Officer Yarber then ran to the victims’ SUV. She saw two people inside—a female, Ms. Serna, in the driver’s seat and her 12-year-old son, M., pushed up next to her. Officer Yarber saw no movement from either victim. The officers were working to open the door. An officer could detect no breathing or carotid pulse from Ms. Serna. M., however, was still breathing. Ms. Serna died as a result of the collision. Her body was transported to the coroner’s office.
A report of Ms. Serna’s autopsy was admitted into evidence as Exhibit 43.
Two unopened pints of cold malt liquor were found inside the front portion of defendant’s van.
M.’s father arrived on the scene as M. was being loaded into an ambulance. From there, M. was taken to the airport and flown to University Medical Center (UMC) in Fresno. M.’s father saw M. at UMC late that evening. He observed M. to be in a coma. M. was not responsive to his father or anyone else. M. was intubated and connected to a breathing machine and intravenous lines (IV’s). He had about 50 stitches on his left ankle. M. remained unalert and unresponsive for at least three days. M. stayed at UMC for about one week, then was transferred to Children’s Hospital in Madera. He went home on December 31, 2006, and suffered no lasting mental impairment. He did, however, suffer swelling from the intubation and returned to the hospital on January 2, 2007. He required a tracheotomy, which was scheduled to be reversed in September 2007.
M.’s father testified that M. had not been in this condition before the collision.
M.’s medical records were admitted into evidence as Exhibit 44.
At 8:47 p.m. on the night of the collision, an officer spoke to defendant at the police department. He had vomited on himself and he smelled strongly of alcohol. From three feet away, the officer detected a strong odor of alcohol emanating from defendant’s body and breath. Defendant’s eyes were red and watery. At about 9:35 p.m., the officer conducted two preliminary alcohol screenings, which yielded blood-alcohol concentrations of 0.137 and 0.140 percent. At 9:40 p.m., defendant’s blood was drawn for a legal blood test, which yielded a blood-alcohol concentration of 0.19 percent. A person with these blood levels would be under the influence for the purpose of driving. The officer discovered that defendant had not been issued a driver’s license. The officer took defendant to the hospital for medical clearance.
A witness told an officer he was driving on Visalia Road when a van passed him going in the opposite direction at a high rate of speed. The witness heard a police siren and saw a patrol vehicle with its lights activated turning onto Visalia Road from Orange Street. The witness pulled over, assuming the officer was pursuing the van. The patrol vehicle, with the siren and emergency lights on, passed him and continued in the opposite direction after the van. As the witness turned onto Orange Street, he heard a crash coming from behind him.
Defense Evidence
Osiel Garza, a criminal investigator for the Public Defender, was assigned to defendant’s case. According to his manual measurements, the length of Palm Street, near the church, to Orange Street was 301 feet 7 inches; the length of Orange Street between Palm Street and Visalia Road was 301 feet 5 inches; and the length of Visalia Road between Orange Street and Belmont Road was 1,863 feet 8 inches. The total distance according to his car’s odometer was between 0.4 and 0.5 miles.
We take judicial notice that there are 5,280 feet in one mile. By our calculations, the investigator’s measurements add up to about 2,466 feet 8 inches, which amounts to about 0.47 miles.
A witness who worked in a Starbucks coffee shop at the corner of Visalia and Belmont Roads, had parked her car and was walking into the Starbucks when she heard a loud noise. She turned and saw a car spinning in the intersection. She did not hear police sirens before the collision. After the collision, she saw a police car on Visalia Road. On cross-examination, she admitted she had told an officer she observed that the traffic signal for Belmont Road traffic was green. She testified she never heard any sirens that night. After the collision, she went into the Starbucks.
DISCUSSION
I. Sufficiency of Evidence—Second Degree Murder
Defendant contends there was insufficient evidence of implied malice to support the second degree murder conviction. He argues there was insufficient evidence that he was subjectively aware that his conduct endangered the lives of others. We disagree.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“Murder is the unlawful killing of a human being … with malice aforethought.” (Pen. Code, § 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.) Stated another way, “[m]alice is implied when the killing is proximately caused by ‘“an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’ [Citation.] In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143; see also People v. Taylor (2004) 32 Cal.4th 863, 868.) This is a subjective standard: the defendant must have actually appreciated the risk involved. (People v. Watson (1981) 30 Cal.3d 290, 297.)
Defendant claims there was no evidence that he intended to drive while intoxicated or that he was aware of the risks of doing so before the pursuit. However, the jury could reasonably have inferred from the cold cans of malt liquor found inside defendant’s van and from the earlier report of defendant’s drunk driving that defendant had been drinking while driving or sitting in his van, and therefore he drank knowing he would be driving again. Furthermore, he lied to the police, attempting to divert them. From this evidence arose a reasonable inference that defendant harbored an intent to drive while intoxicated, knew the police were looking for him and chose to drive while intoxicated anyway.
Defendant also asserts there was no evidence supporting an inference that he was aware of the risks during the pursuit because the pursuit was short and he did not travel at high speeds, and because there was no evidence that anyone honked at him, that he was aware he sideswiped a truck, or that he was aware the stoplight was red before he entered the intersection. This assertion miscomprehends our standard on review. We look at the evidence that was presented and from it draw all reasonable inferences in support of the judgment; we do not look for nonexistent evidence whose existence might have made a stronger case (e.g., the honking of other motorists, defendant’s admission he was aware he sideswiped the truck and was aware the light was red, etc.). As it was, without such evidence, there was ample evidence to support an inference that defendant was aware his driving was dangerous. He was drinking and had two more cold drinks in his van. Instead of yielding to officers, he lied to them in an attempt to divert them. Then he initiated a chase by getting in his van and speeding away in the presence of officers he knew were looking for him. He ran a stop sign and flashing light without braking. As the officers pursued with emergency lights and siren activated, he drove in the opposing lane toward an oncoming truck, swerving to avoid a collision. As he overcorrected, he sideswiped a parked vehicle. He ran a flashing red stoplight and continued to drive in the opposing lane as he fled. He rapidly accelerated, traveled at a fast rate of speed and ran a red stoplight before broadsiding the victims’ SUV.
The pursuing patrol vehicle with siren and emergency lights, in conjunction with defendant’s traffic violations, near collision and sideswiping, together put defendant on notice that his driving was not only impaired, but dangerous. This evidence was overwhelming and more than sufficient to permit a rational trier of fact to conclude defendant acted with implied malice because he continued to drive dangerously despite having an actual awareness of, and a conscious disregard for, the fact his conduct endangered the lives of everyone on the road in his vicinity. (See, e.g., People v. Watson, supra, 30 Cal.3d at p. 301 [running a red light and nearly hitting another car should have warned intoxicated defendant he was unfit to drive]; People v. Autry (1995) 37 Cal.App.4th 351 [defendant nearly collided with three vehicles, two passengers asked defendant to let them drive and to slow down before fatal collision]; People v. Talamantes (1992) 11 Cal.App.4th 968 [defendant’s vehicle became airborne when crossing railroad tracks before driving on wrong side of street at time of fatal collision]; People v. Jarmon (1992) 2 Cal.App.4th 1345 [defendant sideswiped several cars and sped on heavily trafficked streets before collision]; People v. David (1991) 230 Cal.App.3d 1109 [defendant sped on city streets, ran red lights, traveled on wrong side of street and evaded pursuing officer]; People v. Murray (1990) 225 Cal.App.3d 734 [defendant nearly collided with vehicles, made U-turn across all lanes of freeway, drove wrong way on freeway, sideswiped car]; People v. Ricardi (1990) 221 Cal.App.3d 249 [defendant crossed center divider, struck road sign, had prior conviction for drunk driving that involved injury to another driver]; People v. McCarnes (1986) 179 Cal.App.3d 525 [defendant recklessly passed at high rate of speed into oncoming traffic]; People v. Albright (1985) 173 Cal.App.3d 883 [defendant sped at 100 miles per hour, passed multiple vehicles in residential area]; People v. Olivas (1985) 172 Cal.App.3d 984 [defendant evaded police pursuit, nearly collided with two vehicles, struck vehicle during chase].)
Defendant urges that his conduct amounted at most to gross negligence. This is incorrect. “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) “The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]” (Ibid.) “The distinction between ‘conscious disregard for life’ [as required for a finding of implied malice] and ‘conscious indifference to the consequences’ [as required for a finding of gross negligence] is subtle but nevertheless logical. 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 [sic] to the consequences is simply, ‘I don’t care what happens.’ It makes sense to hold the former more culpable than the latter, since only the former is actually aware of the risk created.” (People v. Olivas, supra, 172 Cal.App.3d at pp. 987-988.) As we have explained, in this case, defendant’s awareness of the risk involved is supported by the evidence and thus the evidence supports the jury’s finding of the more culpable state of mind.
II. Medical Records
Defendant argues that the medical records admitted to prove M. was comatose within the meaning of the Penal Code section 12022.7, subdivision (b) enhancement, were inadmissible hearsay. Defendant asserts that, without an expert to explain the records, an insufficient foundation supported their admission under the business records exception to the hearsay rule. He asserts that a diagnosis by a medical professional was needed to determine whether M. was comatose. Defendant further maintains he was denied his right to cross-examine a medical professional about the meaning and significance of the medical records because the prosecution did not present expert testimony to explain the evidence. Defendant says admission of the evidence was prejudicial because, without it, the jury would not have found the enhancement true.
Penal Code section 12022.7, subdivision (b) provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, ‘paralysis’ means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.” (Italics added.)
Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Evidence Code section 1271 provides an exception to the hearsay rule for business records, as follows: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Properly authenticated hospital records are business records. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742; People v. Moore (1970) 5 Cal.App.3d 486, 492-493.) The trial court has wide discretion in deciding whether to admit business records under Evidence Code section 1271. (People v. Crosslin (1967) 251 Cal.App.2d 968, 975; Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797.) The burden is on the proponent of the evidence to establish its trustworthiness. (People v. Beeler (1995) 9 Cal.4th 953, 978 (Beeler).) The primary purpose of the business records exception as it pertains to hospital records is to prevent having to call every doctor and nurse who made any entry on the hospital record and thereby disrupting the administration of health care when these individuals would most likely not recall the particular entry and have to rely on the records in any event. (People v. Gorgol (1953) 122 Cal.App.2d 281, 299-300.)
As we explain below, although we believe defendant’s contentions regarding M.’s medical records are without merit, we also conclude any error in their admission was harmless in light of other evidence that was independently sufficient to establish M. was comatose within the meaning of Penal Code section 12022.7, subdivision (b).
We disagree with defendant’s assertion that a medical professional’s diagnosis was required to determine whether M. was comatose. Penal Code section 12022.7 does not provide a definition for “comatose,” thereby suggesting its meaning is that of ordinary English usage, rather than a technical meaning peculiar to the law. Merriam-Webster’s Collegiate Dictionary (10th ed. 1999) at page 228 defines “comatose” as “1. of, resembling, or affected with coma 2: characterized by lethargic inertness.” The same source defines “coma” as “1: a state of profound unconsciousness caused by disease, injury, or poison 2: a state of mental or physical sluggishness.” (Ibid.) “Profound,” in turn, is defined as “all encompassing,” such as a profound sleep. (Id. at p. 931.) And “unconscious” is defined, as relevant here, as “having lost consciousness (was ~ for three days).” (Id. at p. 1287.)
These definitions do not suggest the need for a level of medical expertise beyond that of an average person. In our opinion, a lay person could observe these circumstances and conclude a person was in a coma. Accordingly, in this case, Officer Yarber’s observation that M. was motionless after the collision, and M.’s father’s testimony that M. was in a coma—unalert and unresponsive for three days, while attached to both respiratory and intravenous support—were sufficient to support the jury’s finding that M. was comatose. M’s father’s testimony was elicited as follows:
“[PROSECUTOR:] Okay. When was the first time you saw [M.]?
“[M.’S FATHER:] It was late that evening when I got to see him.
“[PROSECUTOR:] Okay. What condition did you observe him to be in?
“[M.’S FATHER:] Coma.
“[PROSECUTOR:] All right. When you say
“[DEFENSE COUNSEL:] Your Honor—she may clarify.
“[PROSECUTOR:] Thank you. When you say ‘coma,’ how—what makes you say coma? [¶] [Stricken testimony.] [¶]
“[PROSECUTOR:] Okay. Was he responsive to you?
“[M.’S FATHER:] No.
“[PROSECUTOR:] Was he responsive to anybody?
“[M.’S FATHER:] No.
“[PROSECUTOR:] How long was he unresponsive like this?
“[M.’S FATHER:] At least three days.
“[PROSECUTOR:] Okay. During those three days did you see him alert at all?
“[M.’S FATHER:] No.
“[PROSECUTOR:] Did you see him—let me ask you this. How long did he stay at UMC?
“[M.’S FATHER:] Approximately one week.
“[PROSECUTOR:] All right. And of that one week, how long was he unresponsive?
“[M.’S FATHER:] Three days.
“[PROSECUTOR:] Okay. The first three days?
“[M.’S FATHER:] The first three days.
“[PROSECUTOR:] Was he hooked up to anything?
“[M.’S FATHER:] Yes, he was.
“[PROSECUTOR:] What was he hooked up to?
“[M.’S FATHER:] A breathing machine, IV’s.
“[¶] … [¶]
“[PROSECUTOR:] The first three days that he was at UMC he was unresponsive?
“[M.’S FATHER:] Correct.
“[PROSECUTOR:] Do you know how he was able to eat?
“[M.’S FATHER:] He was being fed I guess just liquid in the IV. I remember seeing stuff hooked up to him but I can’t remember exactly what it was.
“[PROSECUTOR:] Through an IV?
“[M.’S FATHER:] Yeah.
“[PROSECUTOR:] All right. Okay. I have, I have nothing further.”
Because we conclude this evidence, independent from M.’s medical records, was sufficient to establish that M. was comatose, as required by Penal Code section 12022.7, subdivision (b), we can also conclude that any error in admitting M.’s medical records was harmless. Without the records there was sufficient evidence to support the finding and therefore defendant cannot show that the admission of the medical records resulted in a miscarriage of justice, nor a reasonable probability the outcome of his trial would have been more favorable if the records had been excluded. (See Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Ayers (2005) 125 Cal.App.4th 988, 996.)
Nevertheless, we believe M.’s medical records were properly admitted as evidence that M. was comatose. First, we think the records did not require an explanation by a medical expert for the limited purpose for which they were admitted, despite the likelihood that the jurors had to exert some effort to extract the relevant information from the records. Indeed, during their deliberations, the jurors requested “[t]he definition of comatose.” The following took place:
“THE COURT: Okay. We are meeting outside the presence of the jury and apparently they wanted the definition of comatose.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: Have you agreed on one?
“[DEFENSE COUNSEL]: I guess what we kind of thought was there’s no jury instruction defining it, but then [the prosecutor] pointed out there’s a jury instruction to give words their ordinary meaning.
“[PROSECUTOR]: Isn’t there—do we have one of those in the 200 series?
“THE COURT: There is. Now comatose is something that maybe a lot of people aren’t aware of the definition. Webster’s Dictionary says comatose is ‘relating to or affected with coma.’
“[DEFENSE COUNSEL]: That isn’t really going to help too much, but I would have no objection to that.
“[PROSECUTOR]: Well I didn’t do a very good job I suppose.
“THE COURT: Comatose, can we agree is the state of being in a coma?
“[DEFENSE COUNSEL]: I can agree with that.
“[PROSECUTOR]: Yeah. It is.
“THE COURT: Okay. If they have problems with that, I don’t know how much more we can help them. Let’s bring them out. [¶] … [¶]
“THE COURT: [Y]ou were requesting a definition of comatose.
“(JUROR 643463): Yes.
“THE COURT: And the parties have agreed that is a person being in the state of a coma. Does that help?
“(JUROR 643463): No. Can I ask a question?
“THE COURT: Sure.
“(JUROR 643463): On the medical records it does have a chart of when [M.] was admitted. It says coma state three and then at another point it says six. We have no way of knowing what those numbers mean.
“(JUROR 716736): It was part of the special allegations. None of us know what a three means when you’re being admitted in a state of a coma.
“THE COURT: All I can tell you is you have to do the best you can on the state of the medical records.”
Like the jurors, when we examined the medical records, we observed the references to coma scores of three and six. And like the jurors, on first impression, we were unsure of the meaning of those scores, referred to as Glascow Coma Scores (or GCS’s). But as we further examined M.’s records, it became clear that M.’s GCS was frequently tested and recorded in the hours and days following the collision. A reference chart included in the records shows the Glascow Scale’s three categories (eye, motor, verbal) and a brief description of the scores in those categories. Each category starts with a high score (four, five or six) as the most alert and responsive state (described as “Spontaneous,” “Obey commands” and “Oriented”) and descends to a score of one, a state described as “None.” The records further show that the GCS was calculated by adding together the scores from the three categories. For example, where M. scored a one in each category, a GCS of three was recorded. The records further establish that on the night of the collision, M.’s GCS was six at 8:25 p.m. and it decreased to three at 8:39 p.m. and remained there for some time.
We believe that even without the assistance of an expert, the relevant information was accessible and understandable to lay jurors, and the jurors were entirely capable of inferring from M.’s medical records that because M. scored the lowest possible score in each category of the Glascow Coma Scale, he did suffer a coma.
Second, we disagree with defendant’s argument that because M.’s medical records were admitted to show that M. was comatose, they were not admitted “as a record of an act, condition or event, but rather for the truth of the medical conclusions listed therein” and therefore they were not admissible under the business records exception to the hearsay rule.
In fact, the records were admitted to show M.’s “condition”—that he was comatose. In Beeler, supra, 9 Cal.4th 953, the Supreme Court explained: “To be sure, some medical opinion has been deemed inadmissible under the business records exception of Evidence Code section 1271. (People v. Reyes (1974) 12 Cal.3d 486, 502-503 [psychiatric opinion not admissible]; People v. Terrell (1955) 138 Cal.App.2d 35, 57 [physician’s opinion that patient had criminal abortion not admissible].) The reasoning in those cases was that, to be admissible under the business records exception, the evidence ‘… must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion.…’ [Citation.] As the Terrell court explained, however, ‘It is true that some diagnoses are a statement of a fact or a condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors.’ (138 Cal.App.2d at p. 58; People v. Reyes, supra, 12 Cal.3d 486, 503 [holding inadmissible a subjective psychiatric opinion and noting the distinction made in Terrell, supra, 138 Cal.App.2d 35, 57].)” (Beeler, supra, at pp. 980-981.)
Beeler held that the doctor’s conclusions in the medical records in that case were all of this type. The court explained: “The same reasoning obtains in the present case. Dr. Bolduc’s conclusion regarding the cause of death—a bullet wound to the heart—was based on his direct observation and is no different in kind from a diagnosis of a broken femur, the example noted in Terrell of an observed fact. Indeed, all of Dr. Bolduc’s relevant conclusions are of this type. He concluded in his report that: (1) ‘There is an entrance gunshot wound of the posterior left chest [i.e., the back].…’ (2) ‘This is a distant gunshot wound entrance.… The wound is free of gunpowder, burns or stippling.’ (3) The shot pierced the heart. (4) ‘The direction of the [bullet] track is forwards, up 45 degrees and left to right 10 degrees.’ None of these conclusions, including that regarding the cause of death, was inadmissible under Evidence Code section 1271.” (Beeler, supra, 9 Cal.4th at p. 981.)
Similarly, in this case, the conclusions regarding M.’s neurological status—his Glascow Coma Scores—were based on direct observations by medical personnel and they were not inadmissible under Evidence Code section 1271.
III. Count 5: Multiple Convictions
Defendant contends, and the People concede, that the conviction on count 5, evading a peace officer and causing serious bodily injury to M., must be stricken because it was based on the same act of evasion as count 6, evading a peace officer and causing death to Ms. Serna, despite the fact there were two victims.
To be convicted under Vehicle Code section 2800.3, the perpetrator must have met the requirements of violating Vehicle Code section 2800.1. When the violation of that section “proximately causes serious bodily injury to any person” (Veh. Code, § 2800.3, subd. (a)) or “proximately causes death to a person” (Veh. Code, § 2800.3, subd. (b)), the crime is elevated to a felony under Vehicle Code section 2800.3. We agree that multiple victims injured or killed by a single violation of Vehicle Code section 2800.3 does not support multiple charges under that section. In a similar context, the Supreme Court held in Wilkoff v. Superior Court (1985) 38 Cal.3d 345 that one instance of driving under the influence that causes injury to several persons is chargeable as only one count of driving under the influence. This is so because, “[i]n contrast to the crimes of murder, manslaughter, administering poison, robbery and sex offenses—all of which are defined in terms of an act of violence against the person—the act prohibited by [Vehicle Code] section 23153 is defined in terms of an act of driving: the driving of a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. The actus reus of the offense does not include causing bodily injury. Rather, where bodily injury proximately results from the prohibited act, the offense is elevated from a misdemeanor to a felony. [¶] Defendants are not chargeable with a greater number of offenses simply because the injuries proximately caused by their single offense are greater. Rather, the Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, raising the statutory prison terms, adding enhancements, or upgrading the offense from a misdemeanor to a felony. The number and severity of injuries proximately caused by an offense may also be considered by a trial court in sentencing.” (Id. at p. 352; see also People v. Garcia (2003) 107 Cal.App.4th 1159.)
Vehicle Code section 2800.1 provides, in relevant part: “(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer … and that peace officer is wearing a distinctive uniform.”
Accordingly, we accept the People’s concession and will strike the conviction on count 5.
IV. Count 6: Multiple Punishment
The People also concede that the term on count 6 for evading a peace officer and causing death should be stayed pursuant to Penal Code section 654 because the same conduct against the same victim rendered him criminally liable for second degree murder (count 1) and gross vehicular manslaughter (count 2). We agree and accept the People’s concession.
DISPOSITION
The judgment on count 5 is stricken. The sentence on count 6 is stayed. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a copy to the appropriate authorities.
WE CONCUR: Levy, Acting P.J., Hill, J.
Vehicle Code section 2800.3 provides, in relevant part: “(a) Whenever willful flight or attempt to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for three, five, or seven years, by imprisonment in a county jail for not more than one year, or by a fine of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment. [¶] (b) Whenever willful flight or attempt to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 proximately causes death to a person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison for a term of 4, 6, or 10 years.”