P. v. Chavez

Filed 4/30/08 P. v. Chavez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In 2005, we reversed defendant Michael Ray Chavezs conviction of second degree murder, which arose from a high speed chase when the vehicle defendant was driving hit another vehicle, killing its occupant. (Case No. C044900.) We reversed because we could not determine from the record whether the jury, presented with alternate legal theories, reached its murder verdict based on a legally correct theory. We let stand defendants conviction of evading an officer and causing the death of another (Veh. Code, 2800.3), and the trial courts findings that defendant had a prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12), and he had served four prior prison terms. (Pen. Code, 667.5, subd. (b).)

Following retrial, a jury again convicted defendant of second degree murder. (Pen. Code, 187, subd. (a).) Defendant appeals from this new judgment, alleging the following errors:

1. Defense counsel rendered ineffective assistance by failing to object to the admission of experimental evidence;

2. The trial court erred when it did not instruct sua sponte with CALCRIM No. 334 to direct the jury to determine if a prosecution witness was also an accomplice to the crime;

3. The cumulative effect of these errors denied defendant due process; and

4. The trial court erred under Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham) when it imposed the upper prison term on the Vehicle Code count in reliance on defendants significant criminal history and the fact that defendant was on parole at the time of his arrest.

We disagree with each of defendants contentions and affirm the judgment.

FACTS

Sacramento County Deputy Sheriff Brian Amos was on duty the early morning hours of May 15, 2002, in a marked patrol car, accompanied by his canine partner, Jimmy. Amos was in Citrus Heights looking for defendant, a parolee with an outstanding arrest warrant. Amos had a description of defendant: white male, 28 years old, five feet eleven inches tall, 200 pounds, with brown hair and multiple tattoos. Amos also knew that defendant had been driving a white 2002 Chevrolet Impala with no license plates.

At 4:20 a.m., Amos saw a car that matched the description of the Impala. The white car was entering an alleyway behind 6533 Greenback Lane as Amos was exiting the alleyway. The car turned in front of Amos and slowly passed by him, coming within two or three feet.

As the car passed, Amos turned on a light on his patrol vehicles drivers side that illuminated the area outside the drivers door out to approximately 100 feet (an alley light). The light illuminated the interior of the white car. Amos saw the cars driver for about two seconds. The driver matched defendants description. Amos also saw other areas of the cars interior, and he did not see anyone else inside the car. Amos did not recall whether there was another source of lighting in the alleyway that morning.

After the car passed, Amos noticed the cars taillights were consistent with the distinctive shape of an Impalas taillights. He quickly made a u-turn and pulled up behind the car. He did not see anyone but the driver inside. The Impala picked up speed, then slowed as it approached two other marked patrol cars parallel parked on each side of the alleyway. The Impala paused, drove between the patrol cars, then sped off. Amos followed the Impala between the parked patrol cars. The passage was so narrow that his right mirror closed on one of the parked cars. He activated his lights and siren, and he informed dispatch he was in pursuit of the person they had been seeking.

The pursuit went into Placer County, then back into Sacramento County. At times, speeds reached 100 miles per hour. The Impala drove through numerous stop signs and red lights. As he pursued the Impala, Amos asked dispatch to provide him with defendants last known address, as a suspect in a pursuit frequently goes to an area he is familiar with. Defendants address was near Champion Oaks Drive and Cirby Way. During the pursuit, the Impala drove in a circle and around the general area of Champion Oaks Drive and Cirby Way.

Deputies laid down tack strips at two different locations. The Impala hit the first strip but did not stop. It later hit the second strip, and the Impala still did not stop even though the tire tread came off and the car was being driven on at least one wheel rim. Amos got within four or five car lengths of the Impala, and still he did not see any other person in the car other than the driver.

As the Impala proceeded south on Bell Street, it ran a red light at the intersection of Marconi Avenue and Bell Street. It collided with a Geo Metro proceeding east on Marconi Avenue. The collision killed the driver of the Geo, Cynthia Bernadette Rowland, who was driving to her job that morning. She worked as a school bus driver.

It seemed to Amos that when the cars collided, they disappeared from his sight. He was about 250 feet behind the Impala when the cars hit. As he reached the intersection, he saw both vehicles in different locations. He focused his attention on the Impala, knowing that deputies behind him would attend to the driver of Geo. Other officers set up a perimeter intended to contain the suspect.

When Amos and Jimmy went up to the Impalas drivers door, they found no one inside the car. Amos commanded Jimmy to find him, and Jimmy began searching using a tunnel scent method. With this method, the dog follows a scent a person leaves in the air as the person runs through an area. Jimmy ran through the front yards of nearby houses to a side gate at 2830 Bell Street. Amos opened the gate and let the dog into the backyard. Jimmy went to the fence on the yards farthest side, indicating to Amos the suspect had hopped the fence.

At that point, Amos received a call that the suspect was in a patio area on the other side of the fence. He and Jimmy proceeded to the next yard, where another deputy and the homeowner were waiting. Jimmy entered the yard and indicated someone was in a screened-off patio area. Amos twice yelled for the person to come out, warning that he would send in the dog. Receiving no response, Amos opened the patio door and sent Jimmy in. Amos and the other deputy then entered the patio, and they found defendant with Jimmy biting his leg.

Amos testified that, without a doubt, defendant was the same person Amos saw driving the Impala as it pulled into the alleyway off Greenback Lane. Officers found on the Impalas right front passenger floorboard a wallet containing defendants California identification card, his Social Security card, and $870 in cash. A rental agreement was also found in the vehicle that indicated the car had been rented to one David Purgason. Authorities detected and confirmed the presence of amphetamine and methamphetamine in defendants blood.

David Purgason, testifying for the prosecution, stated he rented a white Chevy Impala from Enterprise Rent-A-Car on April 25, 2002, because he did not have a car to use. After he had rented the car, he fell asleep at a house where he was with defendant and others. When he awoke, the Impala was gone. Purgason asked defendant where the car was, and defendant said he had it and would return it to Purgason.

Purgason stated he rode in the rented car only on one occasion after defendant took it. He had been trying to persuade defendant to return the car. Defendant picked Purgason up in the car so they could return it. They stopped at a convenience store to get a drink, and then defendant took off in the car, leaving Purgason behind.

The day before the accident, a representative of Enterprise Rent-a-Car stopped by Purgasons wifes house to inquire about the car. Purgason called his wife at that time. He spoke with the representative and told him the car had been stolen three days before.

About one week after defendant took the car, Purgason was watching the morning news on television and learned the car had been in an accident. He testified he was not in the car the night before, and that he was never in the car when it was being pursued by sheriffs deputies.

An investigating officer interviewed Purgason the day after the accident. He did not observe any injuries on Purgason. Purgason had no difficulty walking or moving about. Other than the rental agreement, which he obtained later, the officer found nothing at the scene of the accident linking Purgason to the vehicle.

We will provide additional facts below as needed.

At resentencing, the trial court sentenced defendant to prison for 30 years to life (15 years to life on the murder conviction doubled under the Three Strikes law). It reimposed an additional four years for the prior prison term enhancements. It also reimposed defendants earlier stayed sentence of 10 years on the Vehicle Code violation of evading an officer and causing a death (upper term of five years doubled under the Three Strikes law).^[1]

DISCUSSION

I

Failure to Object to Experimental Evidence

Defendant claims he suffered ineffective assistance of counsel when his trial attorney failed to object to the prosecutions use of experimental evidence to simulate Officer Amoss initial sighting of defendant driving the white car. He argues the evidence was inadmissible because it lacked a proper foundation and thus should have been subject to an objection. We conclude defendant did not suffer ineffective assistance.

A. Additional background information

Deputy Amos testified that when the white car first passed in front of him, he was able to see into the car with the aid of an alley light. He saw the driver, and he did not see anyone else in the car. To support this testimony, Sam Gault and Toni Spence, criminal investigators for the district attorney, attempted to replicate the situation. Gault testified as to their efforts without objection from defense counsel.

Specifically, on November 9, 2006, after the second trial had started, Gault and Spence went to the alley behind 6533 Greenback Lane at about 4:15 a.m. The sky was clear, stars were visible, and there was a three-quarter moon. Gault did not know what the moon conditions were on the morning of the accident, May 15, 2002.

There were 14 fourplexes on one side of the alley and 13 on the other side. Each of the fourplexes had a wall-mounted light on both the east and west side and a light on the side that faced the alley. Most of the units had open carports instead of garages. All of the carports had an overhead light, all of which were on. The garage doors on those units with garages were all closed. There were also lights on the second floor porches that faced the alley, and some of those lights were on. Spence counted 132 lights visible in the alley, and about one-third of them were not functioning that morning.

Relying on a report that described where the white car turned in front of Deputy Amoss car, Gault and Spence used their county vehicles to simulate that event. Gaults car simulated Amoss car, and Spence drove by Gaults car. At a point where the front grills of each car were even, Gault was able to see Spence inside her vehicle, discern her features, and identify her as Spence. He could also see that the right front passenger seat was vacant. He did this without the aid of an alley light. He used just the surrounding ambient light, his headlights, and the peripheral lights to his headlights.

On November 12, 2006, the day before Gault testified in court about his experiment, defense investigator Lisa Gara and her husband went to the same alleyway to reenact Amoss observation of the white car and see how much illumination there was at that location. They conducted their experiment at 8:00 p.m. The sky was overcast and there was no moonlight. Gara stood in the alleyway as her husband drove past her. Gara could see an individual in the car with a shaved head and could determine the individual was a man. She discovered afterward that her husband had stuck his tongue out as he passed her. She had not seen that.

B. Analysis

To establish ineffective assistance of counsel, defendant must show (1) his counsels representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability the result would have been different absent the error. (In re Resendiz (2001) 25 Cal.4th 230, 239, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].)

Under the first prong of the test, in order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Further, [i]t is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. [Citations.] (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) Defendant fails to satisfy these points.

Defendant fails to establish his counsels actions fell below an objective standard of reasonableness. The record does not affirmatively disclose the lack of a rational tactical purpose behind defense counsels decision not to object. Indeed, the record disclosed a purpose - the desire to admit evidence of defendants own experiment. Defense counsel would not have wanted to object to Gaults testimony knowing his own investigator had conducted a similar experiment with results favorable to his client.

Moreover, an objection to Gaults testimony would likely have been overruled. It is settled that a trial court has discretion to admit experimental evidence. The proponent of such evidence bears the burden of production and proof on the question whether such evidence rests upon an adequate foundation. Admission of such evidence depends upon proof of the following foundational items: (1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury. [Citations.] (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) The trial court would have likely determined that Gaults testimony satisfied these foundational requirements.

Defendant disputes that the experiment was conducted under substantially similar conditions because Gault did not compare natural or artificial lighting conditions as they existed on May 15, 2002, with those on the date of the experiment, November 9, 2006. The differences raised by defendant are not significant, as the experiment was conducted at night at the identical location and roughly the same time where the actual event occurred. Moreover, Gault performed his test without the aid of an alley light, thereby demonstrating by implication that Amos had a better view of defendant than Gault had of Spence, and Gault was still able to see Spence as she drove by.

Even if defense counsels actions fell below an objective standard of reasonableness, there was no reasonable likelihood exclusion of the testimony would have resulted in a different result. The evidence against defendant was overwhelming. Defendant had possession of the car prior to the chase. Deputy Amos positively identified defendant as the person he saw driving the white car. Amos saw no other person in the car. His canine partner tracked defendants scent from the cars drivers door to inside a patio where he was apprehended. Defendants wallet was found in the car, containing his California identification card, his Social Security card, and $870 in cash. Under these circumstances, there is no showing of prejudice due to defense counsels failure to object to Gaults testimony.

II

Instruction on Accomplice Testimony

Defendant contends the trial court erred by not instructing the jury, sua sponte, with CALCRIM No. 334 to determine whether Purgason was an accomplice by being in the car during the pursuit. Had the court given the instruction, defendant argues, it is likely the jury would have determined that Purgason acted as an accomplice, and therefore his testimony would have been subject to special scrutiny and the need for corroboration. We conclude the court did not err.

A. Additional background information

The defense introduced two witnesses, Darryl Foshee and Fawn Butrick, to rebut Purgasons claim that he had not been in the Impala near the time of the pursuit. The testimony of Darryl Foshee, an unavailable witness, was read to the jury. In May of 2002, Foshee had been at the Greenback Lane fourplexes for about a week partying and using methamphetamine when he was arrested. Defendant was with him at times during that week using drugs.

On the day Foshee was arrested, defendant had been at the Greenback Lane fourplex along with a white, bald-headed male named Dave. Defendant and Dave had arrived there in a new white car, delivering methamphetamine. Foshee, Dave, and defendant used methamphetamine together on that occasion. Foshee did not see defendant and Dave leave. About a half hour after they left, however, the police arrived and arrested Foshee. He was put in the back of a police car parked in the alley behind the fourplex. While he was sitting in the car, he saw the new, white car drive by between the car he was in and another police car parked close by, bumping the vehicles. He could not see who was driving the car or how many people were inside the car.

Foshee recalled being interviewed on two occasions by defense investigators. He could not remember if he said in the first interview that he thought there were two people in the vehicle, and he denied saying that in the second interview. During the second interview, the investigator showed him a single photograph which Foshee identified as Dave.

Foshee had previously been convicted of two felonies; unlawful sex with a minor and grand theft.

Defense investigator Charles Magnuson testified that he interviewed Foshee on March 5, 2003. Foshee told him that defendant and another guy had arrived at the residence in a white car and then left in a white car. When Foshee was in the back of the police car, he saw the white car go by. He could tell there were two people in the car, but he could not see who was driving.

Defense investigator Flossie Crump testified that she interviewed Foshee on March 12, 2003. Foshee told her he had seen two people in the white car but he could not tell who was driving. She showed Foshee Purgasons DMV photograph, and Foshee stated the person in the photo looked like the man who had been with defendant at the fourplex the day he was arrested.

Also, defense investigator Lisa Gara stated that Foshee told her on October 4, 2006, that he had the impression there were two people in the car, but he did not know who was in the car. The parties stipulated that the notes taken by Gara of this interview included a statement by Foshee regarding defendant and the person with whom he came to the fourplex that they didnt stay long. [Defendant] said Im going to come back. And Im dropping off my homeboy.

On rebuttal, David Duckett, an investigator for the district attorney, testified of his interview of Foshee in March 2003. The interview was recorded, and the recording was played for the jury. During the interview, Foshee stated that his statement to defense investigators was that defendant left the fourplex with another man, and Foshee did not see who was in the car when it came back. He was sitting in the police car when, suddenly, the white car hit the police cars and then went right through them. Foshee believed it was about 45 minutes from the time defendant and Dave left the fourplex until Foshee saw the white car pass the patrol cars.

Responding to a question while testifying, Duckett agreed that the only time Foshee was referring to defendant being with another person was when defendant and Dave came into the fourplex, not later when the white car drove by the patrol car in which Foshee was sitting.

The second defense witness used to impeach Purgason, Fawn Butrick, was a friend of defendants. She had ridden in the Impala at least three times. During those times, either defendant, Purgason, or a man known as Junior drove the car. On May 12 or 13, 2002, defendant and Dave picked up Butrick at her apartment. They drove to Citrus Heights, where they dropped off defendant. Dave and Butrick drove to another house, and then returned and picked up defendant.

Butrick admitted that at the time of these events, she, defendant, and Purgason were using methamphetamine. Occasionally, defendant supplied Butrick with the drugs. Butrick visited with defendant a few times after his arrest. Butrick also admitted she had been convicted in 2005 of felony possession of stolen property.

B. Analysis

Defendant argues the evidence just discussed was sufficient to require the trial court to instruct sua sponte on the testimony of accomplices. We disagree.

A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . (Pen. Code, 1111.) If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.] (People v. Horton (1995) 11 Cal.4th 1068, 1114.)

An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. (Pen. Code, 1111.) To be chargeable with an identical offense, a witness must be considered a principal, i.e., a person who directly committed the offense, aided and abetted in its commission, or advised and encouraged its commission. (Pen. Code, 31; People v. Horton, supra, 11 Cal.4th at pp. 1113-1114.) An accomplice must have guilty knowledge and intent with regard to the commission of the crime. [Citation.] People v. Lewis (2001) 26 Cal.4th 334, 369.)

To trigger the instruction on accomplice testimony, the evidence of accomplice liability must be substantial, not speculative. (People v. Lewis, supra, 26 Cal.4th at p. 369.) Substantial evidence is evidence sufficient to deserve consideration by the jury, not whenever any evidence is presented, no matter how weak. [Citation.] (Ibid., italics in original.)

Defendant did not produce substantial evidence that Purgason was an accomplice to the crime. First, there is no substantial evidence that Purgason was in the car with defendant at the time of the collision. Even if Purgason arrived at the fourplex with defendant and left with him, and even if Foshee did see two people in the white car as it passed the patrol car, a point on which Foshees testimony is not consistent, there is still no substantial evidence showing Purgason was in the car during the pursuit. Foshee did not identify who any of the persons in the white car may have been when it passed him. Except for the rental car agreement, police found no evidence linking Purgason to the car at the time of the accident.

Second, even if Purgason was in the car, defendant does not explain how Purgasons mere presence made him an accomplice to the crime. Showing Purgason sat in the car when it passed Foshee does not establish that Purgason directly committed the offense, aided and abetted in its commission, or advised and encouraged its commission. There is simply no evidence against Purgason of accomplice liability. The trial court was under no obligation to instruct the jury on determining whether Purgason was an accomplice.

Even if the court erred, defendant suffered no prejudice. This case is not close even without Purgasons testimony. Deputy Amos saw only one person in the car from the time the car passed him until the accident, and that person was defendant. The experiment conducted by the district attorneys investigators demonstrated it was feasible to see inside a car at the alley location and determine the existence of a passenger without an alley light. Amoss use of an alley light makes his testimony even stronger. Thus, had the instruction been given, it is not reasonably probable defendant would have received a more favorable verdict.

III

Cumulative Error

Defendant contends the cumulative effect of the alleged errors discussed above in sections I and II denied him a fair trial. Having found no individual errors, we cannot conclude there was cumulative error.

IV

Cunningham Error

When the first trial court imposed the upper prison term on the Vehicle Code violation, it relied on two aggravating factors: The upper term was selected because the defendants criminal record is significant, [former California Rules of Court,] Rule 421(b)(2) [now rule 4.421(b)(2)], and the defendant was on parole when the current offense was committed, [former California Rules of Court,] Rule 421(b)(4) [now rule 4.421(b)(4)]. Defendant contends the trial court violated Cunningham when it reimposed the upper prison because neither of the aggravating circumstances was submitted to the jury in either trial. We conclude the trial court committed no error.

Our Supreme Court has determined that a court may make the finding under former California Rules of Court, rule 421(b)(2) (now California Rules of Court, rule 4.421(b)(2)) without submitting it to the jury. (People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II).) Prior convictions are excepted from the jury submission requirement (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]), and a defendants prior criminal history falls within that exception. (See Black II, supra, 41 Cal.4th at pp. 819-820.)

An upper term sentence based on at least one aggravating circumstance complying with Cunningham renders a defendant eligible for the upper term sentence. (Black II, supra, 41 Cal.4th at p. 812.) Because the court relied on such a circumstance, we will not disturb the upper term sentence on the Vehicle Code count.

DISPOSITION

The clerk of the trial court is ordered to file an amended abstract of judgment noting trial was a jury trial, and recording defendants sentence on his conviction under Vehicle Code section 2800.3, stayed pursuant to Penal Code section 654, and the imposition of enhancements under Penal Code section 667.5, subdivision (b). The trial court clerk is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NICHOLSON , J.

We concur:

DAVIS, Acting P.J.

RAYE , J.

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^[1] The abstract of judgment filed after the second trial incorrectly states the trial was a court trial. It also omits any reference to the sentence on the Vehicle Code count and the prior prison term enhancements. We order the trial court clerk to correct these errors.