P. v. Palacios

P. v. Palacios

Filed 8/28/08 P. v. Palacios CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. GERARDO PALACIOS, Defendant and Appellant.

2d Crim. No. B199211 (Super. Ct. No. GA064107) (Los Angeles County)

Gerardo Palacios appeals the judgment following his conviction for second degree murder (Pen. Code,  187/189),[1] and gross vehicular manslaughter while intoxicated ( 191.5, subd. (a)). The jury found a true allegation that he caused bodily injury or death to more than one victim in committing vehicular manslaughter. (Veh. Code,  23558.) Palacios was sentenced to 15 years to life for the murder. Sentences for vehicular manslaughter and the bodily injury or death enhancement were stayed pursuant to section 654. Palacios contends that a combination of erroneous evidentiary rulings and ineffective assistance of counsel resulted in the improper and prejudicial admission of his preliminary hearing testimony at trial. Specifically, Palacios claims (1) the magistrate erroneously allowed him to be cross-examined at the preliminary hearing on matters beyond the scope of direct examination or, alternatively, counsel was ineffective by calling him to testify and by not properly objecting that the cross-examination was outside the scope of direct examination; (2) the trial court erred in ruling that a section 995 motion was untimely or, alternatively, that counsel was ineffective by failing to make the motion sooner; and (3) counsel was ineffective by failing to object to admission of his preliminary hearing testimony at trial. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 4:30 a.m. on December 21, 2005, Palacios was driving his Chevrolet Tahoe the wrong way on a freeway. He collided head-on with a Chevrolet Cobalt lawfully driving in the correct direction. The driver of the Cobalt was killed. A passenger in the Tahoe was injured. The Cobalt left long skid marks on the road prior to impact, but there was no evidence that Palacios attempted to avoid the collision. When California Highway Patrol officers arrived, Palacios was seat-belted in the driver's seat of his Tahoe, and told an officer that he had been driving but was not drunk. Later, he told an officer that he was not driving because he "was too drunk to drive." Blood drawn from Palacios 90 minutes after the collision showed a blood-alcohol level of .20 percent and the presence of cocaine.

Palacios had a prior conviction for driving under the influence of alcohol in 2000, and had attended a court-ordered education program for first time DUI offenders. The program covered the dangers of drinking and driving, including the risk that drunk driving could cause serious injury or death.

Palacios was charged with second degree murder, gross vehicular manslaughter while intoxicated, and three other offenses that were later dismissed.

Palacios testified at his February 2006 preliminary hearing, and unsuccessfully argued that there was no probable cause to hold him to answer to a second degree murder charge due to insufficient evidence of implied malice. In May 2006, Palacios filed an unsuccessful written section 995 motion making the same argument.

In July 2006, Palacios substituted in new retained counsel.

On April 22, 2007, jury selection began. On April 23, Palacios made an oral section 995 motion arguing that the murder charge should be dismissed due to ineffective assistance of counsel at the preliminary hearing. The trial court ruled that the motion was untimely and did not consider its merits.

DISCUSSION

No Judicial Error or Ineffective Assistance at the Preliminary Hearing

Palacios contends that the magistrate erred by allowing the prosecutor to cross-examine him at the preliminary hearing regarding his knowledge of the dangers of drunk driving. He argues that the questioning went beyond the scope of direct examination and violated his privilege against self-incrimination. We disagree.

A defendant who testifies on his or her own behalf making a general denial of the charges waives his right to claim a Fifth Amendment privilege against self-incrimination on cross-examination as to matters that are within the scope of his direct examination. (People v. Coffman (2004) 34 Cal.4th 1, 72; People v. Mayberry (1975) 15 Cal.3d 143, 160.) "When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them." (People v. Cooper (1991) 53 Cal.3d 771, 822.) Proper cross-examination includes matters reasonably related to the direct examination which may dispute, qualify or explain testimony during direct examination. (People v. Dotson (1956) 46 Cal.2d 891, 898.)

At the preliminary hearing, the People called a California Highway Patrol officer to testify to the facts of the collision based on his investigation, and then rested. The defense called Palacios as a witness. On direct examination, Palacios testified he and an acquaintance drove to a bar the evening before the collision. Palacios testified that he intended to drink alcohol, but that his acquaintance "was the designated driver." He also testified that he gave his car keys to another friend at the bar who was not drinking. Palacios believed the other friend was driving at the time of the collision, but could not remember because he had blacked out.

On cross-examination, the prosecutor asked whether Palacios knew that it was dangerous to drive while drunk and that a drunk driver could kill someone. Palacios answered yes. The prosecutor followed up by asking whether Palacios had obtained this knowledge through the alcohol education program he attended after his 2000 DUI conviction. Defense counsel objected and asserted Palacios's privilege against self-incrimination. The trial court overruled the objection, stating that "[h]e has chosen to take the stand. He is subject to cross-examination." Palacios then answered that the program taught him that drunk driving was "very dangerous" and "can kill someone," and that he was "told" he might be charged with murder if he killed someone.

The trial court correctly overruled Palacios's objection. (People v. Brown (2003) 31 Cal.4th 518, 547 [evidentiary rulings reviewed for abuse of discretion].) On direct examination, Palacios's testimony was tantamount to a general denial in that he sought to negate the requisite state of mind for second degree murder. The cross-examination was within the scope of direct examination and, as a result, Palacios waived his privilege. On direct examination, Palacios testified that, due to his planned consumption of alcohol, he had arranged for a "designated driver" and had handed his car keys to another individual. By acknowledging the need for a "designated driver," Palacios revealed his knowledge of the dangers of drunk driving and opened the door to cross-examination concerning the source and extent of that knowledge.

Alternatively, Palacios contends that his counsel provided ineffective assistance by allowing him to testify at the preliminary hearing, and by not objecting to the cross-examination questions soon enough or on the proper grounds. To show ineffective assistance of counsel, the defendant must establish that counsel's representation fell below an objective standard of reasonableness and a reasonable probability that, but for counsel's errors, the defendant would have achieved a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Holt (1997) 15 Cal.4th 619, 703.) If the record on appeal fails to disclose why counsel acted in the manner challenged, we will affirm the judgment unless there simply could be no satisfactory explanation. (People v. Bolin (1998) 18 Cal.4th 297, 333.) We presume counsel's conduct fell within the wide range of reasonable professional assistance, and defer to reasonable tactical decisions. (People v. Frye (1998) 18 Cal.4th 894, 979.)

The record shows that the evidence against Palacios was substantial and compelling. His blood alcohol level and prior drunk driving offense established more than sufficient cause to hold him over for trial on the murder charge. On this record, Palacios's only viable defense was to accept criminal liability for vehicular manslaughter, but to convince the court or the jury that he did not act with the implied malice required for second degree murder. Defense counsel called Palacios as a preliminary hearing witness as part of an "informed if calculated risk" to elicit testimony in support of his defense that he did not act with malice. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1260-1261.) Success would have avoided trial on the charge, and a judge might be more receptive than a jury to a defense based on the legal requirements of malice. (See People v. Mendoza (2000) 78 Cal.App.4th 918, 927-928.)

In addition, the tactic was reasonable based on the evidence. As in most or all vehicular murder cases associated with drunk driving, the People claimed that Palacios acted with implied malice. Implied malice exists when a person, knowing that his conduct is dangerous to life, nonetheless acts deliberately with conscious disregard for life. (See People v. Watson (1981) 30 Cal.3d 290, 301; People v. Garcia (1995) 41 Cal.App.4th 1832, 1848-1849, disapproved on other grounds in People v. Sanchez (2001) 24 Cal.4th 983, 990-991.) Generally, drunk-driving murder convictions require some or all of the following factors: "(1) a 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." (People v. Talamantes (1992) 11 Cal.App.4th 968, 973.) The "knowledge" requirement is subjective. The defendant must actually appreciate the risk posed by his or her dangerous conduct. (Watson, supra, at pp. 296-297.)

At the preliminary hearing, defense counselelicited testimony from Palacios that he had arranged for a designated driver and gave his keys to another person who had not been drinking. Such testimony supports the conclusion that Palacios did not intend to drive after drinking alcohol and, in fact, acted responsibly until something went awry and he ended up behind the wheel at a time when he was too drunk to make a reasonable decision. Counsel pursued this theory of the case by arguing to the magistrate that the evidence did not show two of the factors set forth in Talamantes. Counsel argued that the evidence showed no predrinking intent to drive, and that when he did decide to drive he was too intoxicated to appreciate the risk he was taking. Counsel repeated this contention in a written section 995 motion filed a few months later.

We will not question counsel's competence by his lack of success, because to do so would call into question every criminal conviction. Confronted with a difficult case, counsel chose to actively defend. We do not fault him for that choice.

Moreover, counsel's tactical decision did not involve any significant risk. On appeal, Palacios focuses on his testimony on cross-examination that he was told in his 2000 DUI program that a drunk driver who kills someone might be charged with murder. Obviously, such testimony was not helpful to Palacios, but it pertained only to one of the four factors critical to a determination of implied malice. (People v. Talamantes, supra, 11 Cal.App.4th at p. 973.) And, evidence of Palacios's 2000 DUI conviction as well as evidence of the alcohol education program would have been admissible even if he had not testified. (See People v. Autry (1995) 37 Cal.App.4th 351, 359; People v. Johnson (1994) 30 Cal.App.4th 286, 292.)

We also reject Palacios's claim that counsel provided ineffective assistance by not making a timely objection to the cross-examination on the proper ground. Counsel did object promptly on the same ground as is advanced on appeal, and the objection would have lacked merit whenever it had been made.

No Judicial Error or Ineffective Assistance of Counsel at Trial

1. Oral Section 995 motion

After the preliminary hearing, Palacios retained new counsel who represented him throughout trial. During jury selection, new counsel made an oral section 995 motion to dismiss the murder charge on the ground that Palacios had received ineffective assistance from prior counsel at the preliminary hearing. The trial court ruled that the motion was untimely. Palacios contends that the trial court erred in failing to consider the merits of the motion or, alternatively, that counsel's delay in making the motion was ineffective assistance of counsel. We disagree.

Under section 995, a defendant may bring a motion to dismiss a criminal information where the defendant has been committed without reasonable or probable cause. ( 995, subd. (a)(2)(B).) "The courtmay entertain such motion prior to trial" ( 997), but retains discretion to decline to hear the motion brought immediately prior to the commencement of trial and without a showing of good cause for the delay. (People v. Arjon (2004) 119 Cal.App.4th 185, 191.)In Arjon, the court ruled that there was no abuse of discretion in ruling that a motion was untimely where it was made one hour before the prospective jurors were scheduled to arrive and after witnesses had been subpoenaed. (Arjon, supra, at pp. 191-192.) Similarly in this case, jury selection had begun, and witnesses had been subpoenaed.

Furthermore, assuming counsel provided ineffective assistance by not making the motion sooner, there was no prejudice. We have previously concluded that cross-examination of Palacios during the preliminary hearing was properly within the scope of his direct examination, and that there was no ineffective assistance of counsel at that time. In addition, there is no reasonable possibility that the magistrate would have refused to hold Palacios for trial on the murder charge if Palacios had not testified.

2. Admission of Preliminary Hearing Testimony at Trial

Palacios also contends that his trial counsel was ineffective by not objecting to the admissions of his preliminary hearing testimony at trial as a violation of his privilege against self-incrimination, or ineffective assistance by his counsel at the preliminary hearing. We have already concluded that the cross-examination was proper and that Palacios had waived his privilege against self-incrimination, and that there was no ineffective assistance in permitting Palacios to testify at the preliminary hearing.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Rafael A. Ongkeko, Judge

Superior Court County of Los Angeles

George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.