P. v. Garcia

Filed 7/20/06 P. v. Garcia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed in part, reversed in part and remanded with directions.

Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Raymond Garcia challenges his second degree murder conviction on the grounds of insufficiency of evidence and instructional error. He also argues the trial court was required to stay the sentence upon his evading an officer conviction. We conclude that the evidence that appellant drove at high speed, ran numerous red lights, swerved to avoid several collisions, collided with another vehicle, and attempted to avoid the fatal collision was sufficient to permit the jury to conclude appellant acted with implied malice. However, reversal is required because the trial court instructed the jury with mandatory presumptions regarding violations of Vehicle Code sections 21453 and 22350, in violation of appellant's right to due process. In addition, the court erred by failing to stay the sentence for the felony evading count.

BACKGROUND AND PROCEDURAL HISTORY

Appellant drove a stolen car with license plates stolen from a second car at high speeds on surface streets and the freeway in Long Beach. He failed to stop either for pursuing police cars or at numerous red traffic lights he encountered. He drove between vehicles in adjacent lanes, striking the bumper of one of the vehicles. Shortly thereafter, he ran a red signal and collided with the side of a car making a left turn. The impact injured appellant and killed the driver of the other car, Rodney Harris.

A jury convicted appellant of evading an officer with willful disregard, unlawfully driving or taking a vehicle, second degree murder, and receiving stolen property. The court sentenced appellant to prison for an indeterminate term of 16 years 4 months to life.

DISCUSSION

1. Substantial evidence supports appellant's second degree murder conviction.

The second degree murder charge against appellant was premised exclusively upon implied malice. Appellant contends the evidence was insufficient to establish implied malice because the evidence did not demonstrate his subjective awareness of the danger to human life posed by his driving.

Second degree murder based on implied malice is committed when a defendant knows that his conduct endangers the life of another, but consciously disregards that risk and deliberately performs a life-threatening act that results in death. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.) â€