PEOPLE v. ESPARZA

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Abel ESPARZA, Defendant and Respondent.

AO25637.

Decided: February 25, 1985

John K. Van de Kamp, Atty. Gen., Linda Ludlow, Ann K. Jensen, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Sheldon Portman, Public Defender, James McNair Thompson, Deputy Public Defender, San Jose, for defendant and respondent.

While driving an automobile early one morning defendant Abel Esparza caused it to collide with two bicycles resulting in the death of one cyclist, Kevin, and serious bodily injuries to his wife, the other cyclist, Connie.

Esparza was thereafter charged by information with (count I) murder (Pen.Code, § 187), (count II) vehicular manslaughter (Pen.Code, § 192, subd. (3)(a)), (count III) driving under the influence of alcohol and drugs causing bodily injury (Veh.Code, § 23153, subd. (a)), (count IV) driving under the influence of alcohol and drugs causing death (Veh.Code, § 23153, subd. (a)), (count V) driving a motor vehicle with a suspended or revoked driver's license (Veh.Code, § 14601, subd. (a)), and, (count VI) taking a motor vehicle without the consent of the owner, with intent to deprive the owner of his or her title and possession thereto (Veh.Code, § 10851).

Additionally, the information alleged that within five years of the commission of the charged offenses, Esparza had seven times been convicted of driving under the influence of alcohol or drugs in violation of Vehicle Code section 23102, subdivision (a) (now section 23152, subdivision (a)).

And also, the information alleged that within five years of the commission of the charged offenses, Esparza had seven times been convicted of driving a motor vehicle with a revoked or suspended driver's license, in violation of Vehicle Code section 14601, subdivision (a) or section 14601.1, subdivision (a).

In the superior court Esparza moved, under Penal Code section 995, to set aside count I of the information, i.e., the murder charge.   The motion was granted, and the murder charge was set aside.

On the Penal Code section 995 motion, it had been argued that the preliminary hearing's magistrate may have improperly considered evidence of Esparza's “prior convictions for driving under the influence of alcohol and/or drugs.”   The prosecutor accordingly moved under Penal Code section 995a, subdivisions (b)(1) for leave to correct the magistrate's “minor errors of omission, ambiguity or technical defects.”   The motion was denied.

The People have appealed from the order granting the motion to set aside count I of the information.   Such an order setting aside part of an information is appealable under Penal Code section 1238, subdivision (a)(1).  (See People v. Watson, 30 Cal.3d 290, 294, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. Burke, 47 Cal.2d 45, 54, 301 P.2d 241;  People v. Espinoza, 99 Cal.App.3d 59, 65, 159 Cal.Rptr. 894;  People v. Shirley, 78 Cal.App.3d 424, 430, 144 Cal.Rptr. 282.)

Evidence adduced at Esparza's preliminary examination tending to establish the murder count, count I of the information, follows.

Esparza had suffered the charged seven prior convictions for misdemeanor drunk driving, and he had problems associated with alcohol and PCP (Phencyclidine).   A matter of minutes before the accident he had at least four beers, and he was smoking what appeared to be a marijuana cigarette.   But the burning odor was not that of marijuana;  it had a chemical smell, more like PCP.   Following the accident Esparza had about him a slight odor of alcohol.   His speech was slurred, his eyes were bloodshot and their pupils were constricted.   He twice attempted to walk or “jog” away from the scene;  each time people who had gathered, brought him back.   He appeared to a conservation ranger to be under the “influence of something.”   To a highway patrol officer, he appeared under the influence of alcohol and PCP.   And a toxicologist witness opined, that the combination of alcohol and PCP would probably “exacerbate the difficulties,” and that Esparza's described appearance and conduct was “consistent with someone under the influence of alcohol and phencyclidine.”   Approximately two hours after the accident tests established that Esparza had “an alcohol content of zero point zero three percent as expressed in grams of ethyl alcohol per one hundred millimeters of blood, zero point zero five parts per million of phencyclidine in the blood.”

And from the entire evidence before the magistrate, an inference must reasonably have been drawn, that but for Esparza driving under the influence of alcohol and drugs, the accident would not have happened.

In its ruling that the count I murder charge of the information was improperly charged, the superior court reasoned as follows:  “It is clear that these prior convictions were not and are not relevant to the fact that defendant was aware he posed a threat to others while operating a motor vehicle under the influence of phencyclidine (PCP).   These prior convictions do not fall within the purview of Evidence Code section 1101(b) and were, therefore, inadmissible under Evidence Code section 1101(a).   The conclusion is that the magistrate committed error in considering said prior convictions.”

The rule by which the superior court was, and we now are, bound, was stated by People v. Hall, 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664, in this manner:  “Neither the trial court in a section 995 proceeding ․ nor a reviewing court on appeal therefrom ․ may substitute its judgment as to the weight of the evidence for that of the committing magistrate.  ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order.’  ․ Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.”

 Evidence of such prior offenses is, of course, inadmissible “when it is offered solely to prove criminal disposition or propensity on the part of the accused.”   But it is not rendered inadmissible because of lack of relevancy.   “ ‘It may almost be said that it is because of this indubitable Relevancy of such evidence that it is excluded.   It is objectionable, not because it has no appreciable probative value, but because it has too much.’ ”  (People v. Schader, 71 Cal.2d 761, 772–773, fn. 6, 80 Cal.Rptr. 1, 457 P.2d 841, quoting Dean Wigmore with approval;  and see People v. Haslouer, 79 Cal.App.3d 818, 824–825, 145 Cal.Rptr. 234;  People v. Sheets, 251 Cal.App.2d 759, 763–764, 59 Cal.Rptr. 777;  People v. Baskett, 237 Cal.App.2d 712, 716, 47 Cal.Rptr. 274.)

It will be noted that the trial court perceived the case's issue to be whether Esparza's prior convictions, and driver's license suspension, were “relevant to the fact that defendant was aware he posed a threat to others, while operating a motor vehicle under the influence of phencyclidine (PCP).”   The issue is perhaps better stated by People v. Watson, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, as whether such knowledge and conduct of Esparza was relevant to the issue of his “wantonness and a conscious disregard for life.”  (30 Cal.3d p. 295, 179 Cal.Rptr. 43, 637 P.2d 279.)

Few things, we opine, are better calculated to drive home to an offender, knowledge that driving an automobile after having ingested substantial quantities of alcohol or drugs poses a threat to the life and safety of others than, as here, several drunk driving convictions and attending driver's license suspensions.

The here questioned evidence was manifestly relevant.   And it was offered, not to prove general “criminal disposition or propensity,” but instead, the fact of Esparza's “knowledge,” an exception to the general rule.  (See Evid.Code, § 1101;  People v. Kelley, 66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 424 P.2d 947;  People v. Garcia, 115 Cal.App.3d 85, 106, 171 Cal.Rptr. 169.)

We are aided in our analysis of the appeal by the recent case of People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, where also the defendant was charged with both murder and vehicular manslaughter, proximately resulting from an automobile accident while the driver was under the influence of alcohol or drugs.   The court first stated:

“Based upon his review of the legislative history of the vehicular manslaughter statute (§ 192, subd. 3(a)), defendant claims that a murder charge is precluded.   He asserts that the Legislature intended separately to classify and punish all vehicular homicide as manslaughter.   We hold otherwise, concluding that nothing in the legislative history of this section suggests such an intent.   Rather, we conclude that if the facts surrounding the offense support a finding of ‘implied malice,’ second degree murder may be charged;  if the facts demonstrate only ‘gross negligence,’ a vehicular manslaughter charge may be sustained.   Although the terms ‘gross negligence’ and ‘implied malice’ are similar in requiring an awareness of a risk of harm, the degrees of awareness differ.   Because of that fact, the more specific vehicular manslaughter statute does not preclude application of the more general murder statute․  [T]he conduct of defendant in this case, reasonably viewed, exhibited wantonness and a conscious disregard for life which would support a finding of implied malice․”  (30 Cal.3d at pp. 294–295, 179 Cal.Rptr. 43, 637 P.2d 279.)

It then reasoned:

“Having determined that a defendant may be charged with second degree murder upon facts which also would support a charge of vehicular manslaughter, we inquire whether the facts in the present case imply malice and therefore justify charging the greater offense, that is, whether there was probable cause to hold defendant to answer the second degree murder charge․  Based upon our independent review of the record, we believe that there exists a rational ground for concluding that defendant's conduct was sufficiently wanton to hold him on a second degree murder charge.   The facts upon which we base this conclusion are as follows:  Defendant had consumed enough alcohol to raise his blood alcohol content to a level which would support a finding that he was legally intoxicated.   He had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later.   It also may be presumed that defendant was aware of the hazards of driving while intoxicated․  ‘One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’ ”  (30 Cal.3d at pp. 299–301, 179 Cal.Rptr. 43, 637 P.2d 279.)

Then, although holding that the facts did not conclusively demonstrate implied malice, the high court found them to pose a factual issue, first for the magistrate, and then for the trial jury.   The order of the superior court dismissing the murder charge was reversed, and the charge reinstated.

We have considered the factual-procedural distinction between People v. Watson and the case before us.   In People v. Watson both the magistrate and the superior court had found, as a matter of law, that murder was not chargeable.   Here the magistrate concluded that it was.   In Watson the defendant was under the influence of alcohol alone;  here Esparza was under the influence of alcohol and PCP.   And although in Watson, the defendant was driving at a much higher speed, he had apparently suffered no prior drunken driver convictions;  here, as noted, Esparza had suffered seven.   The distinction between the two cases, if any there were, would in our opinion render Esparza the more culpable.

And:  “[E]vidence which is otherwise relevant ‘is not excluded because it reveals the commission of an offense other than that charged’ ․ where ‘it tends logically, naturally, and by reasonable inference, to establish any fact material for the People or to overcome any material matter sought to be proved by the defense’ ․  It is settled that evidence of other crimes is ordinarily admissible despite the prejudicial effect where it tends to establish guilty knowledge․”  (People v. Hill, 66 Cal.2d 536, 556–557, 58 Cal.Rptr. 340, 426 P.2d 908.)

 Here Esparza's guilty knowledge could readily have been inferred from the case's uncontroverted evidence by the magistrate, and by the trial jury if allowed.   And, risking repetition, we again point out that upon such evidence, it reasonably follows, as a matter of law, that:  “The conduct of defendant in this case, reasonably viewed, exhibited wantonness and a conscious disregard for life which would support a finding of implied malice” (People v. Watson, supra, 30 Cal.3d at p. 295, 179 Cal.Rptr. 43, 637 P.2d 279), and that:  “It also may be presumed that the defendant was aware of the hazards of driving while intoxicated.”  (Idem., at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

From all of the foregoing it follows that the superior court erred in the premises, and that the magistrate did not.   Following the above rule iterated by People v. Hall, supra, 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664, the determination of the superior court must be reversed.

The order setting aside count I of the information is reversed.

I concur in the result and would sustain the magistrate's determination of probable cause as to the murder charge under the compulsion of People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, solely on the basis of evidence of implied malice other than defendant's prior convictions.1  I cannot agree that, at least on this limited record, evidence of an accused's past record of drunk driving or license suspension convictions is “manifestly relevant” to prove knowledge of awareness of the dangers of impaired driving likely to kill so as to supply the necessary inference of malice within the Watson formula.   In the context of a vehicular homicide as the basis for a murder rather than a manslaughter charge, the requisite implied malice imports “a subjective awareness of a higher degree of risk ․, and involves an element of wantonness․”  (Id., at p. 296, emphasis added, 179 Cal.Rptr. 43, 637 P.2d 279.)   But a subjective awareness of a duty imposed by law is not the legal equivalent of a subjective awareness of the risk to life associated with the act proscribed.   It does not follow logically that evidence of past misdemeanor offenses tends to prove that on this occasion the accused thus knew, without more, that his impaired driving endangered the lives of others and reflected a conscious disregard for their safety.   If, as the lead opinion implies, past misdemeanor offenses may always be used to prove culpable knowledge of life-threatening danger and conscious indifference in support of a vehicular-murder theory, then the distinctively qualified nature of the required mental state cautiously drawn in Watson becomes meaningless.   I am not aware of any policy or other consideration which impels such a strained interpretation.   The Watson test is to be limited as intended (People v. Watson, supra, 30 Cal.3d at pp. 296–300, 179 Cal.Rptr. 43, 637 P.2d 279);  and the validity of its application should not be made to rest on the defendant's deplorable misdemeanor record.

I respectfully dissent.

In order to find the “implied malice” which would support a charge of murder under People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, for what would otherwise be vehicular manslaughter, one must conclude that Esparza, at the time he wilfully became intoxicated, knew that necessarily he would thereafter be required to operate a motor vehicle.   Since the evidence indisputably shows that, at the time he ingested the PCP which was the cause of intoxication (his blood alcohol was 0.03), Esparza believed that Talamantez, who had driven him earlier, would continue to act as his driver, the “Watson ” test cannot be met on the record before us as a matter of law.

Nor can I agree with the lead opinion's conclusion that Esparza's driving under the influence priors were admissible to show knowledge that the commission of that unlawful act “poses a threat to the life and safety of others.”   In the first place, the present offense did not involve alcohol to any appreciable degree—Esparza's blood alcohol level was 0.03—but PCP.   More importantly, it seems to me a great logical leap to conclude that prior convictions for driving under the influence without accident or injury ought to make one aware that such conduct jeopardizes the lives of others.

As the concurring opinion observes, the knowledge that the priors justify our imputing to Esparza is knowledge of the unlawfulness of the act of drunk driving.   But one may harbor such knowledge without implied malice, as the existence of the vehicular manslaughter sections—Penal Code sections 192.3, subdivision (c) and 192.3, subdivision (d) shows.

Since, therefore, as a matter of law Esparza's conduct cannot rise above the level of manslaughter, I would affirm the Superior Court's order and judgment.

I take the occasion to observe that it would be well if some attempt were made to harmonize the judicial and legislative laws on vehicular homicide, which at present strike me as a standardless mass of conflicting rationalizations.

FOOTNOTES

1.   Notably, evidence of defendant's earlier drinking and use of PCP, speeding and reckless driving moments before the accident and subsequent admission.

ELKINGTON, Associate Justice.

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