P. v. Callion
Filed 7/25/13 P. v. Callion CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CHARLES GREGORY CALLION,
Defendant
and Appellant.
E055485
(Super.Ct.No.
FSB051311)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Annemarie G. Pace, Judge.
Affirmed.
David
M. Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Charles Gregory Callion killed two teenagers in a car accident while driving
drunk and is serving a life term after a jury convicted him of the resulting
charges. Defendant challenges the trial
court’s decision to admit into evidence the details, rather than the mere fact,
of his most recent drunk driving conviction from 2001. As discussed below, the trial court did not abuse
its discretion when it admitted the evidence, and so we affirm the conviction.
and Procedure
Around
4:15 a.m. on July 24, 2005, defendant was driving his Chevy
Suburban the wrong way on the southbound Interstate-215 in San
Bernardino. He
collided head-on with a two-door Saturn driven by a 17-year-old boy, with a
16-year-old boy in the front passenger seat, and that boy’s 17-year-old brother
in the rear seat. The Saturn’s driver
swerved to avoid defendant, but defendant swerved in the same direction. The Saturn’s driver died at the scene. His front seat passenger died at the hospital
later that morning. The rear seat
passenger suffered major injuries
but survived.
Defendant
was found unbuckled in the passenger seat of the Suburban, along with a nearly
empty bottle of vodka. Defendant’s eyes
were red and watery, and he smelled of alcohol.
Defendant’s response to questions was not understandable because his
words were mumbled and slurred.
Defendant was found to have a blood alcohol level of 0.16 percent.
Defendant
had prior drunk driving convictions from arrests in 1990, 1991, 1992, 1998, and
2000. When the accident occurred in
2005, he was on probation for the last conviction and his driver’s license was
still suspended.
On
December 2, 2010,
charging defendant with two counts of murder (Pen. Code, § 187, subd. (a)), two
counts of gross vehicular manslaughter
while intoxicated (Pen. Code, § 191.5, subd. (a)), causing bodily injury
while driving under the influence (Veh.
Code, § 23153, subd. (a)), and causing bodily injury while driving with a blood
alcohol level of 0.08 percent (Veh. Code, 23153, subd. (b)). As to the two bodily injury counts, the
People further alleged defendant personally inflicted great bodily injury (Pen.
Code, § 12022.7, subd. (a)) and proximately caused great bodily injury or death
to more than one person (Veh. Code, § 23558).
On
October 27, 2011, a jury found defendant guilty of all charges and found each
of the enhancement allegations true. The
jury set the degree of murder at second degree.
On
January 20, 2012, the trial court sentenced defendant to a determinate term of
eight years to be followed by an indeterminate term of 30 years to life, as
follows: two consecutive terms of 15
years to life for the murder counts, plus three years consecutive for the
causing great bodily injury while under the influence, plus three years
consecutive for the great bodily injury enhancement to that count, plus two
years consecutive for the multiple victim enhancement to that counts. The court stayed the sentences for all other
counts and enhancements, including two terms of 15 years to life for gross
vehicular manslaughter, pursuant to Penal Code section 654. This appeal followed.
Defendant
challenges the trial court’s decision to allow the People to introduce into
evidence the details of his 2001 drunk-driving conviction, rather than just the
fact of the conviction. Although the
court ruled the details were admissible because they are relevant to prove the
implied malice necessary for second-degree murder, defendant contends the
evidence was neither relevant to nor probative of his state of mind, was
cumulative of other evidence, and was unduly prejudicial. As discussed below, we conclude the trial
court did not abuse its discretion.
The
details of the 2001 conviction were presented to the jury through the testimony
of the highway patrol officer who arrested and cited defendant for drunk
driving on March 21, 2001. Officer Turk
testified that, a little after midnight on that date, he was on patrol and
noticed a car parked along the side of a four-lane, divided road near
Cabazon. The car had “significant damage
to its hood, roof and front windshield.â€
Defendant was the only person present and he was attempting to change a
flat tire. Defendant told Officer Turk
that he had gotten lost after leaving an Indian casino and fell asleep while
driving. He went through a gap in the
road’s center divider, crossed into the opposing lanes of traffic, and hit a
big rig trailer parked on the side of the road.
The trailer was 30 feet long and had four to five feet of clearance. Defendant told the officer that he kept his
left hand on the wheel but leaned to the right to protect his head and
body. After the collision, defendant
attempted to drive away, but had to stop about 200 feet later because he had a
flat tire. Defendant did receive some
cuts on the top of his left hand.
Officer
Turk noticed that, while defendant was providing this information, defendant
seemed to have trouble keeping his train of thought, slurred his words and
spoke slowly. Defendant’s breath smelled
of alcohol, his eyes were red and watery, and, when asked to move a few feet
away from the car, “his gait was a little unstable.†Suspecting that defendant might be drunk, the
officer performed some field sobriety tests and subsequently arrested defendant
and issued him a citation.
Generally,
evidence of a person’s character or a trait of his or her character, including
evidence of prior conduct by him or her, is “inadmissible when offered to prove
his or her conduct on a specified occasion.â€
(Evid. Code, § 1101, subd. (a).)
This rule does not prohibit “the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . ) other than his or
her disposition to commit such an act.â€
(Id. at subd. (b); see
393 (Ewoldt), superseded by statute
on another point as stated in People v
Robertson (2012) 208 Cal.App.4th 965,
991.) “The admissibility of such
evidence turns largely on the question whether the uncharged acts are
sufficiently similar to the charged offenses to support a reasonable inference
of the material fact they are offered to prove.†(People
v. Erving (1998) 63 Cal.App.4th 652, 659-660.)
Even if the
evidence is relevant for purposes of Evidence Code section 1101, subdivision
(b), it may not be admitted if doing so would “‘contravene other policies
limiting admission, such as those contained in Evidence Code section 352. [Citations.]’
[Citation.]†(
404.) The evidence “must have
substantial probative value that is not greatly outweighed by the potential
that undue prejudice will result from admitting the evidence.†(People
v. Lenart (2004) 32 Cal.4th 1107, 1123.)
“Prejudice,†in this sense, refers to evidence which tends to evoke an
emotional bias against the defendant. (
1107, 1119.) We review the trial court’s
decision on these issues for an abuse of discretion. (People
v. Kipp (1998) 18 Cal. 4th 349, 369.)
Here,
the details of the 2001 accident were offered by the prosecution as evidence
that defendant was subjectively aware of the risk to human life associated with
drunk driving. The use of such evidence
for this purpose is based upon the theory of vehicular homicide approved in
another point as stated in People v.
Bradford (1994) 22 Cal.App.4th 433, 439.
In Watson, our state Supreme
Court held that a person whose reckless driving kills another can be charged
with second degree murder if there is sufficient evidence of implied
malice. Implied malice, the court
explained, can be shown “when a person, knowing that his conduct endangers the
life of another, nonetheless acts deliberately with conscious disregard for
life.†(Id. at p. 296.) The court
distinguished implied malice from gross negligence—the level of culpability
required for vehicular manslaughter.
(Pen. Code, § 192, subd. (c)(1).)
“A finding of gross negligence is made by applying an
person in defendant’s position would
have been aware of the risk involved, then defendant is presumed to have had
such an awareness. [Citation.] However, a finding of implied malice depends
upon a determination that the defendant actually
appreciated the risk involved, i.e., a subjective
standard. (Watson, supra, 30 Cal. 3d. at pp. 296-297.)
Since
use of evidence of prior driving conduct to show implied malice in vehicular
second degree murder cases. (See, e.g.,
104, 116 (Ortiz);
700, 706-710; People v. McCarnes
(1986) 179 Cal.App.3d 525, 532-533; People
v. Eagles (1982) 133 Cal.App.3d 330, 340.)
As stated by the Ortiz
court: “[C]ourts have recognized
repeatedly that a motor vehicle driver’s previous encounters with the
consequences of recklessness on the highway—whether provoked by the use of
alcohol, of another intoxicant, by rage, or some other motivator—sensitizes him
to the dangerousness of such life-threatening conduct.†(Ortiz,
supra, 109 Cal.App.4th at p. 112.)
Here, contrary to
the arguments set forth in defendant’s brief, the evidence is relevant,
probative, not cumulative, and not unduly prejudicial. As the cases cited above make clear, the
evidence is relevant to show that defendant actually appreciated the risk of
driving drunk and therefore acted with implied malice. The evidence is probative because defendant
himself was injured in the 2001 accident, in which he was also driving on the
wrong side of the road. Thus, the
evidence tends to show that defendant was well aware that getting behind the
wheel of a vehicle while drunk is dangerous to human life. The evidence is not merely cumulative
because, although the jury was also told of the fact of several other
drunk-driving convictions, it was important for the jury to know, not just that
defendant had driven while drunk on numerous occasions, but that he had
actually crashed his car and been injured, however slightly. This added to the evidence of his subjective
awareness of the danger of getting behind the wheel while drunk. As the court in Ortiz points out, it is the “‘crashing of cars and the killing of
people’†that increases a defendant’s subjective awareness of the perils of
driving badly. (Ortiz, supra, 109 Cal.App.4th at p. 116.) While defendant had not previously killed a
person while driving drunk, this evidence that he had actually crashed his car
and been injured in doing so was not cumulative to the mere fact of previous
drunk driving convictions.
The test for
whether evidence is unduly prejudicial is whether “it is of such nature as to
inflame the emotions of the jury, motivating them to use the information, not
to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it
for an illegitimate purpose.†(
998, 1008-1009.) Here, although the
evidence is probative in that it shows defendant had previously crashed his car
and injured a person, himself, after driving drunk on the wrong side of the
road, it is not likely to “inflame the emotions of the jury.†This is because, compared to the current
accident in which he killed two innocent teenagers, the evidence to which he
objects is relatively mild. Any
inflaming of emotions would have come from the evidence of the current crash
rather than the 2001 crash.
To conclude, the
trial court did not abuse its discretion when it allowed the jury to hear the
details of the 2001 crash. The evidence
is highly relevant to and probative of defendant’s subjective awareness of the
danger to human life when he chose to drive drunk, it was not cumulative, and
it was not unduly prejudicial.
Disposition
The conviction is
affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
title=""> [1] The People filed the felony complaint on
August 4, 2005. Defendant was held to
answer after the preliminary hearing on March 13, 2006. The People filed the first information on
March 15, 2006 and the first amended information on October 1, 2007. The trial was continued numerous times,
mostly on defense motion and sometimes by stipulation.
