Case from CA.. mc death

OFF THE WIE
CALIFORNIA:
http://www.leagle.com/unsecure/page.htm?shortname=incaco20100603027 PEOPLE v. PALMA
THE PEOPLE, Plaintiff and Respondent, v. MAYNOR PALMA, Defendant and Appellant.
No. B214899.
Court of Appeals of California, Second District, Division Five.
Filed June 3, 2010.
Linda Acaldo, 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, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ARMSTRONG, Acting P. J.
Appellant Maynor Palma was found guilty, following a jury trial, of one count of vehicular manslaughter with gross negligence while intoxicated in violation of Penal Code[ 1 ] section 191.5, subdivision (a). The trial court found true the allegations that appellant had a prior serious felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law) and section 667, subdivision (a) and served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced appellant to a total term of 26 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting evidence of a 1998 conviction for driving under the influence ("DUI") and a 1999 DUI-related arrest, and by giving the jury an instruction on flight. Appellant also contends that the court erred in denying his motion to vacate his prior plea and/or writ for error coram nobis and in finding that his plea was properly entered and that the resulting conviction constituted a strike conviction. We affirm the judgment of conviction.
Facts On September 17, 2006, about 8:15 p.m., appellant arrived at the home of Mario Romero and Lorena Tigre. The couple lived on 54th Street in Los Angeles. Appellant was drinking a bottle of beer. According to Tigre, appellant appeared to be drunk. He said that he was drunk and had more beer in the car. According to Romero, appellant was drunk but not intoxicated. By this, Romero meant that appellant had been drinking but was able to walk.
Appellant and Romero left about 20 minutes after appellant arrived. They drove away in appellant's car, a gray Honda with a standard transmission. According to Romero, appellant drove. Romero could not drive a standard transmission. They drove down 54th Street, turned right on Central Avenue, drove for two or three blocks and began to make a left turn. Romero felt an impact to his side of the car. The next thing Romero remembered, he was out of the car, walking and asking for help.
The impact Romero felt was a collision between the Honda and a motorcycle. The driver of the motorcycle was 44-year-old Earl Nathasingh. He died from multiple traumatic injuries sustained in the crash.
The crash was witnessed by a number of people, including Cassandra Linicomb. She testified that a small sky-blue car ran a stop sign and tried to drive through Central Avenue. She heard a boom, ran to the scene of the collision and saw a man lying in the street. The collision involved the car that ran the stop sign and hit a motorcycle.
Los Angeles Police Officers Paul Marquez and Zena Leandro were the first officers to arrive at the scene of the crash. Firemen and an ambulance were already present. There were about 30 people running around, yelling, screaming and pointing in different directions. Officer Marquez described the scene as chaotic.
Several people approached the officers, pointed west toward 52nd Place and said that the driver had run in that direction. Officer Marquez saw a group of people approaching from that direction with appellant in the middle of the group. People in the group were pointing at appellant and saying that he was the driver.
Appellant staggered as he approached Officer Marquez. Appellant's speech was slurred and Officer Marquez smelt alcohol emanating from him. He appeared to be under the influence of alcohol. Officer Marquez handcuffed appellant and put him by the police car.
A crowd gathered around appellant and the officers. People were yelling that they should get appellant and kick his ass. The officers feared for appellant's life and their own. Officer Leandro broadcast a call for assistance. Officer Marquez yelled at the crowd to back up. The crowd stopped advancing.
Other officers soon arrived. Officer Marquez attempted to get identifying information from appellant. All appellant would say is "I was the passenger. Mario was driving." Officer Marquez rode with appellant in an ambulance to the hospital. During the ride, appellant told paramedics that he had been drinking.
As Officer Joel Morales was responding to the scene, a woman flagged him down and said, "I got the guy that was in the car. I followed him. He is over there." The woman then got into the patrol car and directed the officers to an ambulance. Romero was being treated at the ambulance.
Officer Morales approached Romero, detected a strong odor of alcohol and saw that Romero's eyes were red. He believed that Romero was under the influence. Officer Morales placed Romero in custody. Romero said, "I wasn't driving. He was." Romero would not give the name of the driver.
Officer Jason Cho, a traffic collision investigator, arrived at the scene about an hour after the accident. He confirmed that the car involved in the accident was a 1990 Honda Accord registered to appellant. The car had major collision damage on the right side, toward the front. The other vehicle involved in the accident was a motorcycle. The motorcycle's front wheel was crushed and detached. Officer Cho observed two empty beer bottles and a number of beer bottle caps inside the Honda.
Officer Cho did not observe any skid marks, and concluded that neither vehicle had braked before the collision. Officer Cho saw a "scrub mark," which was caused by the impact of the collision. Based on the scrub mark, Officer Cho opined that the collision occurred in the inner lane of traffic going southbound on Central, about 14 and a half feet south of the intersection of Central and 52nd Place. Officer Cho also opined that the motorcycle had been in that inner lane going southbound when the Accord, going north, made a left turn in front of the motorcycle, "way in advance of the intersection." The motorcycle would have had no warning that a car would be turning there.
Officer Cho had investigated over 200 motorcycle accidents, and the one in this case was the worst he had ever seen. He had never seen a motorcycle in so many pieces before. He estimated that the motorcyclist had flown about 47 feet through the air.
About 1:30 a.m., Detective Felix Padilla, and his partner went to the hospital to interview appellant. Detective Padilla observed symptoms of intoxication. Appellant had the odor of alcohol on his breath, his coordination was slow, his eyes were bloodshot and his speech was slightly slurred. Appellant told detectives that he drank a couple of beers with his father and drove to his friend Mario's house. He gave his car keys to Mario and they left to go to a party. The next thing he remembered was being attacked by a group of Black people. Appellant implied that his injuries came from being beaten up. Appellant would not agree to provide a blood sample.
After discussion with other detectives, Detective Padilla concluded that appellant was the driver, placed appellant under arrest and informed him that he had to give a blood sample or face certain legal consequences. Appellant did not respond. At 4:08 a.m., a physician drew a blood sample from appellant.
An analysis of the blood sample showed a blood alcohol level of .08. Criminalist Christopher Breyer estimated that appellant's blood alcohol level at the time of the accident was at least .14.
It was stipulated that on December 14, 1998, appellant was convicted of driving with a blood alcohol level of .08 or higher. As a result of that conviction, his driving privileges were suspended for a year, and he was ordered not to operate a motor vehicle with any measurable amount of alcohol in his system and not to refuse to take a chemical or breath test for alcohol or drug consumption.
The People offered evidence that appellant was arrested on November 14, 1999 for driving a stolen car, and that his blood-alcohol level at the time of the driving was estimated to have been about .10 or .11, based on breath tests administered later that night. Appellant came to the attention of police because he almost collided with a police car occupied by Los Angeles Police Officers Asatur Mkrtchyan and Manuel Ibarra. The officers followed appellant, intending to catch up and make a traffic stop. Appellant drove 40 miles per hour in a residential area where the speed limit was 20 to 25 miles per hour. He ran two stop signs and a red light. The officers caught up to him at this point, and activated their lights and siren. Appellant sped up, ran a stop sign, almost hit parked cars, and then ran two stop signs, avoiding a collision with another motorist only because that person was able to stop. Appellant then ignored a "Do Not Enter" sign and drove the wrong way down a one-way street. Appellant later stopped the car and fled on foot. He was captured, arrested and ultimately convicted of grand theft auto.
In his defense, appellant offered the testimony of Maria Rivera. She testified that she went to the scene of the crash immediately after it occurred and saw appellant standing on the sidewalk using a cell phone. A crowd approached appellant yelling obscenities. They also slapped him. Appellant appeared afraid and tried to move away from the people. When this was not successful, he ran away. The crowd chased him. They caught him, kicked him in the head and hit him in the face. The crowd then brought appellant back to the scene of the crash.
Appellant also offered the testimony of an accident reconstruction expert who opined that the motorcyclist had been traveling 60 miles per hour when the crash occurred. The posted speed limit was 35 miles per hour.
In rebuttal, the People offered the testimony of an accident reconstruction expert who testified that the motorcyclist was traveling at 38 to 48 miles per hour.
Discussion 1. DUI-related arrest Appellant contends that the trial court abused its discretion in admitting evidence that he had a 1998 conviction for DUI and 1999 arrest that was DUI-related and at the least should have excluded evidence of the arrest. He contends that the admission of this evidence violated his federal constitutional right to due process and was prejudicial under both state and federal standards of review. We see no abuse of discretion and no violation of appellant's right to due process.
Evidence Code section 1101, subdivision (b) permits 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, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Emphasis added.)
Here, the trial court instructed the jury that the evidence was admitted for the limited purpose of showing that appellant "appreciated the risks involved in driving under the influence." The court told the jury twice that the evidence was not to be used for any other purpose and was not sufficient by itself to prove appellant guilty of the manslaughter charge, and that the jury should not conclude that appellant had a bad character or was disposed to commit crimes.
Appellant's appreciation of the risks involved in driving under the influence was highly relevant in this case. Appellant was charged with gross vehicular manslaughter while intoxicated. Gross negligence is an element of that crime. (§ 191.5, subd. (a).) "Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (People v. Bennett (1991) 54 Cal.3d 1032, 1036, emphasis added.)[ 2 ]
It is well settled that when a defendant is charged with gross vehicular manslaughter while intoxicated, evidence of prior DUI convictions are relevant if they show the defendant actually appreciated the risks involved in drinking and driving but did so anyway. (People v. Ochoa (1993) 6 Cal.4th 1199, 1204-1207.) In Ochoa, for example, after the defendant was convicted of DUI, he was ordered not to drive with a measurable amount of alcohol in his system and attended an alcohol awareness class on the dangers of drinking and driving. (Ibid.)
There can be no serious dispute that appellant's 1998 DUI conviction was admissible under the reasoning of Ochoa. It resulted in orders that his driving privileges be suspended for a year, that he not operate a motor vehicle with any measurable amount of alcohol in his system and not refuse to take a chemical or breath test for alcohol or drug consumption.
Appellant acknowledges that his 1998 conviction and resulting orders would be admissible under the reasoning of Ochoa.[ 3 ] He contends, however, that since Ochoa involves only one prior DUI, it does not support the admission of two DUI incidents, particularly since, in his view, the details of the 1999 arrest were "lurid" and the arrest itself too remote in time to be probative.
We see nothing in the reasoning of Ochoa which would limit the prosecution to the admission of one prior DUI conviction. Similarly, none of the propensity cases cited by appellant turn on the number of prior bad acts admitted.
We see no abuse of discretion in the admission of details of the 1999 arrest in which appellant was ultimately charged with grand theft of an auto. In that case, appellant had a blood alcohol level of .10 while driving the stolen car. He ran numerous stop signs and one red light, exceeded the speed limit on residential streets, and drove the wrong way on a one-way street. He almost collided with other cars three times. This experience clearly shows that appellant was aware of the dangers of driving while drunk. We see nothing lurid about the details. No collision actually occurred and no one was injured. The arrest was seven years before the crime in this case. That is not remote in time, particularly since the importance of the arrest was the knowledge or awareness it gave appellant of the dangers of drinking and driving.
Since the evidence was admitted for a proper purpose and the jury instructed on the limited use of that evidence, we see no violation of appellant's right to due process.
2. Flight instruction Appellant contends that the trial court erred in instructing the jury with CALCRIM No. 372 on flight and that this error violated his federal constitutional right to due process. We see no error, and no due process violation.
CALCRIM No. 372 provides: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself."
"In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] Flight requires a purpose to avoid being observed or arrested." (People v. Avila (2009) 46 Cal.4th 680, 710, internal quotation marks omitted.)
Appellant contends that the instruction should not have been given because his leaving the scene of the accident had nothing to do with the crime at issue in this case. He contends that he left to protect his own safety because he was in danger from the angry crowd.
There was evidence, in the form of Rivera's testimony, that suggested appellant fled to avoid injury from the angry crowd. The jury was not required to believe this testimony.[ 4 ]
There was also evidence to suggest that appellant fled to avoid responsibility and that the crowd was merely trying to detain appellant until police arrived on the scene. Several people told the first officers on the scene that appellant "ran that way" and pointed in a certain direction. When the officers looked in that direction, they saw a group of people approaching with appellant in the middle. The people in the group were pointing at appellant and saying that he was the driver. Further, appellant attempted to avoid blame for the accident, telling officers at the scene that Romero was the driver. It would be reasonable to infer that his flight was a similar attempt to avoid blame. It was for the jury to decide the reason for appellant's flight.
3. Prior strike conviction The People alleged that appellant pled guilty to assault by means of force likely to produce great bodily injury in 2001, and that conviction qualified as a prior serious or violent felony conviction within the meaning of the Three Strikes law in 2001. Appellant contended that the plea was only to a misdemeanor, and asked the court to vacate his plea if it found otherwise. Appellant alternatively titled his motion a petition of a writ for error coram nobis. He contends that the trial court erred in denying his motion and petition and finding that the prior conviction was a strike. We see no error.
A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently. (Bradshaw v. Stumpf (2005) 545 U.S. 175, 183.) A defendant who pleads guilty must be fully advised of the direct consequences of his plea. (In re Birch (1973) 10 Cal.3d 314, 319-320; Brady v. U.S. (1970) 397 U.S. 742, 755.)
A petition for writ of error coram nobis may be used to raise the issue of the voluntariness of a guilty plea. The terms "motion to vacate" and "petition for writ of error coram nobis" are often used interchangeably and the two procedures are similar in scope and effect. (See People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) A writ of error coram nobis requires that a defendant show that some fact existed which without any fault or negligence on his part was not presented to the court at the trial on the merits, and that fact was not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ. (People v. Shipman (1965) 62 Cal.2d 226, 230; see also People v. Goodrum (1991) 228 Cal.App.3d 397, 401.)
In his motion in this matter, appellant claimed that he had pled guilty to a misdemeanor. To support this claim, he pointed to the July 24, 2001 minute order in the case, which states: "The information is amended by interlineations and the defendant is arraigned. [¶] On People's motion, court orders information deemed amended to allege count 1 as a misdemeanor pursuant to 17b4 of the Penal Code and count shall proceed as a misdemeanor." On the second page of the order, it states: "People amend count 1 to reduce the felony to a misdemeanor."
In opposition, the People pointed to the information, which charged the assault as a felony. The People also pointed to the reporter's transcript of the July 24, 2001 plea hearing and sentencing hearing. There is no mention in that transcript of any amendment to the information or to a misdemeanor. There is one explicit reference to a felony. The court told appellant and his brother, "You are placed on formal felony probation for a period of three years on condition that each one of you will serve a period of 364 days in the county jail." (Emphasis added.) There is also an implicit reference to a felony. The court explained to appellant and his brother, "If you violate your probation you could be sentenced to a maximum of four years. It's two, three, and four, and I can't guarantee what term the court would impose if you violate your probation." Those terms are the low, middle and high terms for a felony assault conviction.
The trial court held a hearing on the motion. Appellant testified that he was offered a package deal in 2001 consisting of reducing the felony to a misdemeanor with 364 days in county jail and formal probation. Appellant took the offer. Appellant did not offer testimony or declarations from his attorney in the prior case, or from anyone else involved in that case.
The trial court found that appellant's plea in 2001 was to a felony, and that the plea was knowing and voluntary. The court based its finding almost entirely on the reporter's transcript of the 2001 plea and sentencing hearing. The court impliedly found that appellant was not credible when he testified that it was important to him in 2001 that he plead to a misdemeanor, and that was what he believed he was pleading to. The court denied the writ petition without further comment.
We agree with respondent that appellant does not appear to have alleged any facts which without fault or negligence were not presented to the trial court in 2001. Thus, appellant does not appear to have met the requirements for a writ of coram nobis. For that reason alone, the trial court did not err in denying that petition.
We see no error in the trial court's finding that appellant knowingly and voluntarily pled guilty to a felony. The reporter's transcript shows that the court expressly used the word felony at one point, to describe probation. The court never used the word misdemeanor.
Further, it is the general rule that the rendition of judgment is the oral pronouncement of sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The recording of the judgment and sentence in the minutes or in the abstract of judgment is a purely ministerial act done by the court clerk. If there is any discrepancy between the judgment as pronounced and the judgment as entered in the minutes, the judgment as pronounced governs. (Id. at pp. 471-472.)
We see no significance in this proceeding to the fact that in 2006, appellant obtained a copy of the July 24, 2001 minute order for immigration purposes, and saw that the minute order showed his offense as a misdemeanor. Appellant implies that if the minute order had stated that the offense was a felony, he would have acted then. Appellant has not shown that action at that time would have resulted in a different outcome for him, however.
4. Custody credits In his supplemental opening brief, appellant contends that his presentence custody credits should be increased by 456 days. Appellant is mistaken.
Appellant points out that section 4019 was amended after his sentence was imposed. He contends that since his case is not yet final, the amended version of section 4019 must be applied to his sentence.
We will assume for the sake of argument that the amended version of section 4019 applies to appellant. Appellant is not entitled to any additional custody credit under that section. The amendments to section 4019 do not apply to defendants who were convicted of a serious felony within the meaning of section 1192.7, or who have prior serious felony convictions. Appellant was convicted of gross vehicular manslaughter, which is a serious felony within the meaning of section 1192.7. (See People v. Gonzales (1994) 29 Cal.App.4th 1684, 1691-1694.) He was also found to have suffered a prior serious felony conviction.
Disposition The judgment is affirmed.
We concur.
MOSK, J.
KRIEGLER, J.