Filed 1/24/14 P. v. Lewis CA5
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID WAYNE
LEWIS,
Defendant and Appellant.
F064694
(Super. Ct. No. BF130438A)
APPEAL
from a judgment of the Superior Court of
Kern County. Gary T. Friedman,
Judge.
Gordon
S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
David Wayne
Lewis, with a blood alcohol
content of .22 percent, drove through a red light and collided with a
truck. His passenger, Michael Rogers,
died at the scene. A jury found Lewis
guilty of second degree murder (Pen. Code, § 187, subd. (a))
manslaughter (§ 191.5, subd. (a)).
Lewis argues the
trial court abused its discretion when it overruled his objection to evidence
(1) that Lewis had suffered three prior convictions for driving while under the
influence of alcohol, (2) he had attended courses to regain his driver license,
(3) evidence of the topics presented at these courses, and (4) Lewis’s response
to topics presented during these courses.
Since the charge of second degree murder required the prosecution to
prove beyond a reasonable doubt that Lewis acted with implied malice when the
accident occurred, the evidence was relevant and admissible. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The amended
with second degree murder (§ 187, subd. (a)), and gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)).
manslaughter count also alleged that because of Lewis’s prior convictions for
driving under the influence, if convicted, he was subject to a prison term of
15 years to life. (§ 191.5, subd.
(d).)
Janet Castro was
driving home with her boyfriend, Sisco Vijil, and her son on December 21,
2009. They were traveling northbound on
Highway 43, and had stopped for a red light at the intersection of Kimberlina
Road. Vijil, who was driving, was
waiting for a tractor-trailer rig to complete a left turn onto Kimberlina from
southbound Highway 43. Vijil made a
comment that a vehicle (Lewis’s vehicle) approaching from the rear was traveling
very fast. When Castro looked for the
approaching vehicle she saw it “fly by†on the right side of the vehicle she
was in, and then run into the tractor-trailer rig. The truck did not appear to move very much
with Lewis’s vehicle taking most of the impact.
Castro did not hear any brakes before the collision. The light controlling northbound traffic on
Highway 43 was red when Lewis’s vehicle entered the intersection. Castro immediately called for emergency services.
Kern County Fire
Department personnel arrived at the scene and were informed by ambulance
personnel that Rogers was deceased. It
was determined that because of the extensive damage to the automobile the fire
department would have to extricate the driver from the vehicle. This was accomplished by removing the doors
from the vehicle.
When paramedic
Andrew Farrell arrived at the scene, he observed an accident between a tractor
trailer and passenger automobile. The
driver of the tractor trailer appeared uninjured. The passenger in the automobile was deceased,
and the driver had several lacerations on his head and appeared to be in a
confused state. The driver identified
himself as Lewis. The Kern County Fire
Department had to extricate Lewis from the vehicle before paramedics provided
treatment.
Kern County
Senior Deputy Sheriff Bob Venable was dispatched to the hospital to interview
Lewis. Before driving to the hospital he
had seen beer cans at the scene so he thought alcohol may have been involved in
the accident. At the hospital, Lewis
first admitted he had been driving the vehicle, but later indicated that Rogers
may have been driving the vehicle because Lewis was not certain about what
occurred. Venable smelled the odor of
alcoholic beverage when speaking with Lewis, and also observed that Lewis had
red watery eyes. Lewis admitted he and
Rogers had drunk several beers at their house, and then the two drove to a bar
and consumed more beer. The two were on
their way home when the accident occurred.
The parties
stipulated that on the night of the incident, blood was drawn from Lewis twice
and each sample was tested for blood alcohol levels. The first blood draw occurred at 7:45 p.m.
and the blood alcohol level was .218 percent.
The second blood draw occurred at 10:35 p.m. and the blood alcohol level
was .11 percent.
Ronald Bailey, a
criminalist for the Kern County Crime Lab, explained that the type of test done
by the hospital, a serum alcohol test, actually concentrates the alcohol in the
blood, so the reported level is higher than a whole blood test. He estimated the alcohol was approximately 18
percent more concentrated than a whole blood test. Using the 18 percent figure, Bailey concluded
that the test performed by the hospital, if performed on whole blood instead of
serum, would have resulted in an alcohol level of .185. Using this information, Bailey calculated the
alcohol elimination rate for Lewis. He
then opined that at the time of the accident, Lewis’s blood alcohol content was
.22 percent.
The remainder of
the testimony related to Lewis’ past infractions. California Highway Patrol Officer Jeffrey
Douglas Nousch testified that he arrested Lewis in 1999 for driving while
intoxicated. Lewis’s blood alcohol
content tested at .13 percent. Both
Lewis and his passenger were taken to the hospital for treatment of minor
injuries. Lewis pled guilty to a
misdemeanor violation of Vehicle Code section 23153, subdivision (a).
Katherine Sons
is an alcohol and drug counselor for TAASK, a program for people arrested for
driving while under the influence of alcohol.
The program lasts three months for first time offenders, and 18 months
for repeat offenders. The State of
California has a specific curriculum for first time offenders. She confirmed that Lewis enrolled in a three
month program in 1999, and completed that program in 2000. During the program it would have repeatedly
been explained to Lewis that if you drive while intoxicated you could seriously
injury or kill someone.
The prosecution
next introduced evidence that Lewis was arrested and convicted for driving
while under the influence on March 13, 2004, and on March 27, 2004.
Linda Eviston,
the executive director at STEPS, another program for individuals who have been
convicted of driving under the influence of alcohol, confirmed that Lewis enrolled
in one of the 18 month multiple offender programs at STEPS on September 20,
2005, and completed the program on May 8, 2007.
Christine Joy
Essepian was Lewis’s counselor at the STEPS program. She explained the goals of the program and
how the program works. Essepian
testified that in every group she teaches she reminds the clients that driving
while intoxicated can result in the death of the driver or someone else. The prosecutor reviewed some of the forms
filled out by Lewis while he was enrolled in the program. As an example, one of the forms asked Lewis
how he would feel if he were involved in a fatal collision while
intoxicated. Lewis replied, “I have been
in several accidents and I am very fortunate that I haven’t killed somebody or
even myself. That is one of the … main
reasons why I don’t drink anymore.â€
Another question was whether Lewis believed he made logical choices when
he received his driving under the influence ticket. Lewis responded, “No, I didn’t. I should have … never got behind the wheel
when I drank. That is why I will never
drink again. It has caused me nothing
but trouble.†Another comment made by
Lewis was that he “learned that 6,568 people have died from alcohol-related
accidents, drunk driving.â€
The jury found
Lewis guilty of each charge, and found each enhancement to be true. The trial court sentenced Lewis to a term of
15 years to life for the second degree murder charge, but stayed the sentence
on the gross vehicular manslaughter charge pursuant to section 654.
DISCUSSION
The only issue
is whether the trial court abused its discretion when it denied Lewis’s motion
to exclude evidence of his prior drunk driving arrests and the DUI classes he
took to regain his driving privilege.
Lewis admits the evidence was relevant and probative, but asserts the
amount of evidence admitted, and the inflammatory nature of some of that
evidence, required the trial court to limit the evidence offered by the
prosecution. We do not agree.
Lewis objected to
this evidence pursuant to the provisions of Evidence Code section 352. This section grants the trial court
discretion to exclude relevant evidence if the probative value of the evidence
is substantially outweighed by the probability that its admission will (1)
necessitate the undue consumption of time, or (2) create substantial danger of
undue prejudice, or (3) create substantial danger of confusing the issues, or
(4) create substantial danger of misleading the jury. The statute grants the trial court broad
discretion in making determinations under Evidence Code section 352. (People
v. Clark (2011) 52 Cal.4th 856, 893.)
We review the rulings of the trial court under the deferential abuse of
discretion standard. (
ruling only if the record demonstrates the trial court acted in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Lewis faced two
charges at trial, second degree murder and gross vehicular manslaughter while
intoxicated. The murder charge was based
on the theory of implied malice. Malice
is implied “when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.†(§ 188.)
Recognizing that the statutory definition of implied malice is vague
and, therefore, requires judicial interpretation (People v. Bryant (2013) 56 Cal.4th 959, 964), the Supreme Court has
explained that implied malice exists when (1) a person commits an act, (2) the
natural consequences of the act are dangerous to life, (3) the person knew his
conduct endangered the life of others, and (4) the person deliberately acted with
conscious disregard for life. (
300.) This definition of implied malice
includes “ ‘both a physical and a mental component. The physical component is satisfied by the
performance of “an act, the natural consequences of which are dangerous to
life.†[Citation.] The mental component is the requirement that
the defendant “knows that his conduct endangers the life of another and ...
acts with a conscious disregard for life.â€
[Citation.]’ [Citation.]
requiring the prosecution prove the “ ‘defendant’s awareness of engaging in
conduct that endangers the life of another .…’ †(People
v. Cravens (2012) 53 Cal.4th 500, 507.) Accordingly, the
prosecution was required to prove beyond a reasonable doubt that Lewis was
aware that driving a vehicle while intoxicated endangered the life of another,
and he decided to drive while intoxicated even though he knew doing so was
dangerous to the lives of others.
The evidence
about which Lewis complains was aimed at proving the mental component of
implied malice. The primary type of
evidence offered by the prosecution to prove this element of the crime related
to DUI classes Lewis took to regain his driver license. In those classes, Lewis was required to fill
out forms relating what he had learned in each session, and his plan to avoid
future offenses. The forms Lewis filled
out were admitted into evidence, and the counselor who led Lewis’s class
testified about the following portions of the forms:
Lewis was asked to describe how he
behaved when intoxicated. He wrote
“blackouts, loss of memory, judgment is messed up, I feel I am o.k. but in
reality I am not.â€
Lewis wrote that he learned “that 90%
of date rapes involve alcohol. Bottom
line alcohol is no good and is a evil thing for me. Thats why I don’t drink anymore.â€
One form asked Lewis “How would you
feel if you were involved in a fatal collision while under the influence, and
it was your fault?†Lewis wrote “I have
been in several accidents and I am very fortunate that I haven’t killed
somebody or even myself. That is one of
the main reasons why I don’t drink anymore.â€
Lewis wrote that he learned in class
that “1 in 4 Drivers are on something or have been drinking. Increase your chances of living or not
getting in a accident by driving sober, it’s hard enough to concentrate driving
sober.â€
When asked whether he made a logical
choice when he was cited for driving under the influence, Lewis wrote “No I
didn’t, I should have never got behind the wheel when I drank. That is why I will never drink again. It has caused me nothing but trouble and I am
happier when I do not drink.â€
One class apparently dealt with
individuals who are opinionated and judgmental.
Lewis wrote “I am criticizing because I do analyze and evaluate almost
everything I do now. I didn’t used to
when I was a drunk (I didn’t care).â€
In one session Lewis was asked to
respond to the question of who was responsible for his DUI conviction. He responded “Myself and I am glad I got a
DUI because I feel that I was out of control and this is what it took for me to
realize that I needed to stop drinking all together and that I had a
problem.â€
After one session, Lewis wrote that he
learned “that 6,568 people have died from alcohol related accidents (drunk
driving).â€
Lewis stated on one form that three
positive things that occurred as a result of his conviction were “stopped
drinking, being more responsible, grateful that nothing else happened.â€
In response to a question asking
whether he knew how much damage he was doing to himself as a result of his
substance abuse, Lewis wrote “No, and at that time I just did not care. Now am paying the consequences but I am at
the end of my damage control and I am thankful that it is finally over.â€
As part of his exit plan, Lewis was
asked to write six things that would prevent him from using alcohol again. Lewis listed the following:
“(1)
My son.
“(2)
My drivers license.
“(3)
The long struggle I went through that I will not do to myself again.
“(4)
My happiness.
“(5)
Me being an example for my son, family and friends.
“(6)
I will not drink or use drugs again let alone drive under the
influence.â€
In addition to
this evidence, the prosecution introduced evidence that Lewis was convicted for
driving under the influence of alcohol in 1999 after he had an accident. Lewis’s blood alcohol content tested at .13,
and Lewis and his passenger were both treated for minor injuries. In addition, the prosecution introduced
evidence that Lewis completed a three month program in 2000, and during this
program Lewis was repeatedly informed that he could seriously injure or kill
someone if he continued to drive while intoxicated. The prosecution also introduced evidence that
Lewis was convicted of driving while under the influence twice in 2004, for
incidents that occurred in the month of March.
Lewis concedes
the statements were relevant and probative to prove implied malice, but
contends the trial court should have limited the amount of information
presented to the jury. Lewis opines the
prosecution should have been limited to evidence of the prior arrests and the
three month program because this evidence was ample to ensure his
conviction.
As stated above,
to prove Lewis acted with implied malice, the prosecution was required to prove
(1) Lewis intentionally committed an act, (2) the natural and probable
consequence of the act was dangerous to human life, (3) Lewis knew the act was
dangerous to human life, and (4) Lewis deliberately acted with conscious
disregard for human life, i.e., he deliberately acted even though he knew his
actions would endanger human life.
(CALCRIM No. 520.) There was no
dispute that Lewis intentionally drove a motor vehicle while he was
intoxicated, and Lewis conceded that he knew that if he got into a vehicle it
would be dangerous to human life, satisfying elements one and three.
Lewis questioned
whether there was evidence that the natural and probable consequence of driving
while intoxicated was dangerous to human life, pointing out that many
intoxicated drivers arrive at their destination without harming anyone. His primary argument, however, was that he
did not act with a conscious disregard for human life when he drove while
intoxicated. Defense counsel argued in
closing that (1) the fact that Lewis drove with a blood alcohol content of .22
did not conclusively establish that Lewis acted with a conscious disregard for
human life, (2) Lewis’s cooperation with law enforcement suggested he was
acting responsibly, (3) there was no evidence that Lewis drove dangerously at
any time before the accident, and (4) he attempted to stop before the
collision, an act suggesting Lewis was concerned about human life. Each of these arguments, according to defense
counsel, suggested that Lewis did not have a conscious disregard for human
life.
The evidence
about which Lewis complains suggests otherwise.
This evidence established that Lewis knew it was dangerous to drive
while intoxicated and that people frequently were killed by intoxicated
drivers. In the words of the jury
instruction, the evidence established that Lewis was conscious (aware) that
driving while intoxicated could result in the loss of human life. Lewis then deliberately acted (chose to drive
while intoxicated) thereby disregarding his knowledge that driving while
intoxicated endangered his life and the life of others. In other words, the evidence was necessary to
prove that Lewis deliberately acted with conscious disregard for life. The trial court did not abuse its discretion
in so concluding.
Lewis’s
suggestion that this probative evidence should have been excluded admits, in
essence, the evidence to prove Lewis’s guilt was overwhelming. Accordingly, logic compels the conclusion
that Lewis could not have suffered any prejudice by the admission of the
evidence. If the evidence did not
establish Lewis’s guilt overwhelmingly, then the trial court’s ruling was
correct and the evidence should have been admitted in an attempt to prove guilt
beyond a reasonable doubt. If, on the
other hand, the evidence was overwhelming, then, theoretically, the trial court
could have limited that evidence to the point where it conclusively established
Lewis’s guilt. The impossibility of
knowing exactly when evidence reaches the point of conclusively establishing a
defendant’s guilt is why the trial court is granted wide discretion when ruling
on such motions (People v. Clark, supra, 52
Cal.4th at p. 893), and also explains why the trial court did not err in
denying Lewis’s motion.
The evidence
introduced by the prosecution about Lewis’s prior convictions and his attempts
at rehabilitation was not excessive. The
only witness of any length was Essepian.
The fact Essepian was emotionally distraught during her testimony simply
demonstrated that she was concerned about her students, and devastated when
Lewis caused a fatal accident after all of her efforts to prevent just such an
outcome. Moreover, we note that defense
counsel never sought to exclude Essepian’s testimony on the basis that her
presentation would be too emotional. To
the extent such an objection could be made, it was forfeited. (People
v. Virgil (2011) 51 Cal.4th 1210, 1276.)
Finally, the
type of prejudice Evidence Code section 352 was designed to prevent was not
present in this case. “ ‘The
prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of
“prejudging†a person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]†(
958.)
There was little if any danger the evidence
of past convictions for driving under the influence would cause the jury to
prejudge Lewis. The circumstances of the
current offense were far more serious than the prior offenses. Only one of the prior incidents involved
injury, and the injuries were not serious.
The testimony about the topics covered in the classes Lewis took, and
his written responses to the topics discussed, did not generate the type of
prejudice at which Evidence Code section 352 is directed. This information established Lewis’s
knowledge about the dangers of driving while intoxicated, but would not cause
any reasonable juror to prejudge him.
Accordingly, we
conclude Lewis’s argument must be rejected for the three reasons outlined
above: (1) The trial court did not abuse its discretion when overruling Lewis’s
objection, (2) the evidence was not prejudicial in the sense described in
Evidence Code section 352, and (3) even if there was error, Lewis did not
suffer any prejudice because of the error.
Lewis also
argues the introduction of this evidence violated the due process clause of the
Fourteenth Amendment to the United States Constitution rendering his trial
fundamentally unfair. As we have
demonstrated, the evidence was material and probative on the issue of whether
Lewis subjectively knew his actions were dangerous, and whether he acted in
conscious disregard of life. The
evidence harmed Lewis’s case because it defeated his only possible defense to
the charges, not because it had the potential for causing the type of prejudice
prohibited by Evidence Code section 352.
Because the evidence was relevant and was not impermissibly prejudicial,
the evidence did not render the trial fundamentally unfair within the meaning
of the Fourteenth Amendment.
DISPOSITION
The judgment is
affirmed.
_____________________
LEVY,
Acting P.J.
WE CONCUR:
_____________________
KANE, J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise stated.
name="_ftn2" title="">[2] The amended information also contained two additional charges,
causing bodily injury to another while driving under the influence of alcohol
(Veh. Code, § 23153, subd. (a)), and causing bodily injury to another
while driving with a blood alcohol level greater than .08 percent (Veh. Code,
§ 23153, subd. (b)). These charges
were dismissed at the request of the prosecutor prior to trial.
