P. v. >Oran>

 

 

 

 

 

 

 

 

 

Filed 11/12/13  P. v. Oran 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JESSE KENNETH ORAN,                           Defendant and Appellant.

C068486   (Super. Ct. No. 10F06769)

 

 

            In a fit of
road rage, defendant Jesse Kenneth Oran merged into a freeway lane already
occupied by Tessa Canavarro, causing a collision that killed Canavarro.  Convicted of href="http://www.fearnotlaw.com/">vehicular manslaughter with gross negligence,
defendant appeals.  He contends:  (1) the evidence was insufficient to sustain
a finding that he was grossly negligent, (2) the jury instructions may have
allowed the jury to convict defendant of vehicular manslaughter on a factually
irrelevant theory, (3) there was insufficient evidence to support the booking
and classification fees imposed, and (4) the trial court unlawfully imposed two
restitution fines under Penal Code section 1202.4.

            We find no
merit in defendant’s contentions. 
However, we conclude that the trial court imposed an unauthorized
sentence by imposing a Penal Code section 1202.45 restitution fine that was not
equal to the Penal Code section 1202.4 restitution fine, as required by
law.  We therefore modify the Penal Code
section 1202.45 restitution fine and affirm the judgment as modified.

BACKGROUND

            On May 2,
2010, Tessa Canavarro was headed home to Sacramento westbound on Interstate 80
at around 9:00 p.m. after being with friends at a bar and grill in
Lincoln.  Other motorists noticed that
there was some problem between Canavarro, who was driving a Mercedes, and
defendant, who was driving a Honda. 

            At one
point, the Honda was just five or six feet behind the Mercedes, going about 70
miles per hour and shining its high beams on the Mercedes.  The Honda aggressively changed lanes,
flashing its lights and pulling next to the Mercedes at times.  The Mercedes was in lane number two, counting
from the left.  Canavarro raised her
hands in a gesture that one of the other motorists interpreted to mean, “What
are you doing?”  Eventually, the Honda,
near the Antelope exit, rapidly changed lanes from behind the Mercedes into
lane number three, pulled forward, then moved back into lane number two,
hitting the front part of the Mercedes. 
The collision caused both drivers to lose control.  The cars eventually hit the center divider;
the left side of the Honda lifted up; and a tire and wheel on the Honda broke
through the driver’s window of the Mercedes and killed Canavarro.  At the time of her death, Canavarro’s blood
alcohol level was .23 percent. 

            Defendant
had three passengers in the Honda. 
Jennifer Martinez, who was defendant’s fiancée, was in the front
passenger seat, while Jennifer’s daughter Ashley Martinez and Robert Olsen were
in the backseat.  When motorists
approached the wreckage, Jennifer said, “It was that stupid bitch’s fault.”  She also said, “Did you see the car that hit
us?”  Defendant said, “That bitch cut me
off.”  Jennifer told an officer, “The
only thing you need to know is she was driving 90 miles per hour and hit us.” 

            Jennifer
Martinez testified that the conflict began where Highway 65 merges into
Interstate 80.  Canavarro rapidly
approached from behind and was driving aggressively and flashing her high beam
lights on them.  The Mercedes almost hit
the Honda, and, when it got in front of the Honda, Canavarro slammed on the brakes,
requiring defendant to slow down quickly to avoid the Mercedes. 

            Ashley
Martinez testified that Canavarro was speeding and swerved several times at
them.  During one of these episodes,
Canavarro blew kisses toward the Honda. 
Ashley sustained a broken arm, a bruised rib, and cuts and abrasions on
her leg. 

            The
prosecution introduced accident-reconstruction-expert testimony that the
accident happened when the Honda encroached on the Mercedes’s lane.  The defense introduced
accident-reconstruction-expert testimony that the Mercedes was overtaking the
Honda in the adjacent lane when the Mercedes moved into the rear driver’s side
of the Honda in a maneuver similar to a PIT (pursuit intervention technique)
maneuver used by law enforcement. 

            The
district attorney charged defendant by information with vehicular manslaughter
of Tessa Canavarro with gross negligence (count one; Pen. Code, § 192, subd.
(c)(1)), with an allegation that defendant inflicted great bodily injury on
Ashley Martinez (Pen. Code, former § 12022.7, subd. (a), Stats. 2002, ch. 126,
§ 6, p. 696), and misdemeanor driving without a valid license (count two; Veh.
Code, § 12500, subd. (a)).  The district
attorney also alleged that defendant had a prior felony prison term.  (Pen. Code, § 667.5, subd. (b).) 

            Defendant
pleaded no contest to count two.  A jury
found defendant guilty on count one, finding true the great-bodily-injury
allegation.  The trial court dismissed
the prior prison term allegation on the prosecution’s motion. 

            The court
sentenced defendant to the upper term of six years in href="http://www.mcmillanlaw.com/">state prison for vehicular manslaughter,
with a consecutive three years for the great-bodily-injury enhancement, and a
concurrent 20-day jail term for driving without a license. 

DISCUSSION

I

Sufficiency of Evidence

            Defendant
contends that the evidence was insufficient to support the jury’s finding of
gross negligence as an element of vehicular manslaughter with gross negligence,
and therefore the conviction violated his due
process and fair trial rights.  He
maintains that his lane change that caused the collision was, at most, simple
negligence.  The record does not support
defendant’s contention.

            “ ‘In
reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” ’  ([People
v.] Rowland [(1992)] 4 Cal.4th
[238,] 269 . . . .)  We apply an
identical standard under the California Constitution.  (Ibid.)  ‘In determining whether a reasonable trier of
fact could have found defendant guilty beyond a reasonable doubt, the appellate
court “must view the evidence in a light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’  (People
v. Johnson (1980) 26 Cal.3d 557, 576, italics omitted.)”  (People
v. Young (2005) 34 Cal.4th 1149, 1175.)  In reviewing the sufficiency of the evidence,
“a reviewing court resolves neither credibility issues nor evidentiary
conflicts.  [Citation.]  Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact.  [Citation.]”  (Id.
at p. 1181.)  We will reverse for insufficient
evidence only if “ ‘ “ ‘upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’  [Citation.]” ’ ”  (People
v. Manriquez (2005) 37 Cal.4th 547, 577.)

            Penal Code
section 192, subdivision (c)(1) defines vehicular manslaughter with gross
negligence as “driving a vehicle in the commission of an unlawful act, not
amounting to felony, and with gross negligence; or driving a vehicle in the
commission of a lawful act which might produce death, in an unlawful manner,
and with gross negligence.”

            “Gross
negligence is the exercise of so slight a degree of care as to raise a
presumption of conscious indifference to the consequences.  [Citation.] 
‘The state of mind of a person who acts with conscious indifferences to
the consequences is simply, “I don't care what happens.” ’  [Citation.]  The test is objective:  whether a reasonable person in the defendant’s
position would have been aware of the risk involved.  [Citation.]”  (People
v. Bennett (1991) 54 Cal.3d 1032, 1036.)

            The
evidence in this case supported the jury’s finding that defendant acted with
gross negligence.  The jury could infer
from defendant’s aggressive driving, his anger toward Canavarro, and his
obvious awareness of Canavarro’s presence in the lane to which he changed that
defendant acted with conscious indifference to the consequences.  The jury could conclude that he either
intentionally caused the collision or consciously disregarded the risk that his
action would cause a collision.  Any
reasonable person would know that causing such a high-speed collision was
dangerous to life.  Because Canavarro
died as a result of defendant’s actions, he committed vehicular manslaughter
with gross negligence.

            Defendant,
however, argues:  “His blood alcohol was
zero.  There is no evidence that when he
changed lanes and hit Canavarro’s vehicle he was speeding or going faster than
traffic in general.  He properly and
correctly put on his blinkers when he moved into the number two lane prior to
trying to come back into the number three lane. 
He may have passed the Mercedes at least once without incident.  When [a witness] passed [defendant] prior to
the accident ‘. . . he had both hands on the wheel, and he didn’t look mad or
anything . . . .’  He was not
gesturing.  That he may have changed
lanes in an aggressive manner shows ordinary, not gross, negligence.  Such a lane change does not show a disregard
for human life, but merely a lack of reasonable care.”  (Record citations omitted.) 

            This is
nothing more than an attempt to marshal the facts favorable to defendant and,
from those facts, draw inferences in his favor. 
(See People v. Battle (2011)
198 Cal.App.4th 50, 62 [restricting sufficiency-of-evidence analysis to facts
favorable to defendant forfeits contention].) 
Using the correct standard of review, as stated and applied above, we
conclude that the evidence of gross negligence was sufficient to support the
conviction.

II

>Factual Theory of Guilt

            Defendant
contends that we must reverse the vehicular manslaughter with gross negligence
conviction because there is a possibility that the jury based its verdict on a
theory that was not supported factually. 
Specifically, defendant argues that the jury may have convicted on that
count by relying on the flashing of the high beams or tailgating and not the
lane change as causing the fatal crash. 
This contention is without merit. 


            The trial
court instructed the jury that one of the elements of vehicular manslaughter
with gross negligence is that “[w]hile driving [the] vehicle, the defendant
committed an infraction[.]”  The
information alleged four infractions of the Vehicle Code:  unsafe lane change (Veh. Code, § 22107),
failure to stay in one’s lane (Veh. Code, § 21658, subd. (a)), following too
closely (Veh. Code, § 21703), and failure to dim high beams (Veh. Code, §
24409, subd. (b)).  Defendant asserts on
appeal that, if the jury based its verdict of guilty on flashing the high beams
or following too closely, then the verdict was unsupported because those
actions did not cause the death. 
However, as we noted in part I, the evidence was sufficient to sustain
the verdict based on defendant’s lane change, which caused the death.

            “If [an]
inadequacy of proof is purely factual, of a kind the jury is fully equipped to
detect, reversal is not required whenever a valid ground for the verdict
remains, absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.”  (People
v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).)
 â€œ[I]nstruction on an unsupported theory
is prejudicial only if that theory became the sole basis of the verdict of
guilt; if the jury based its verdict on the valid ground, or on both the valid
and the invalid ground, there would be no prejudice, for there would be a valid
basis for the verdict. . . .  [T]he appellate court should affirm the
judgment unless a review of the entire record affirmatively demonstrates a
reasonable probability that the jury in fact found the defendant guilty solely
on the unsupported theory.”  (>Id. at p. 1130; see also >People v. Seaton (2001) 26 Cal.4th 598,
645 [applying Guiton]; >People v. Poindexter (2006) 144
Cal.App.4th 572, 586-587 [same].)

            Here, there
is no reasonable probability that the jury found defendant guilty based solely
on the theory that defendant failed to dim his lights or followed too
closely.  Indeed, it is unreasonable to
conclude that the jury convicted based on anything other than defendant’s lane
change, which caused the collision.

            Defendant
asserts that Guiton should be
overruled, but he concedes that we cannot overrule it.  (Auto
Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

            Therefore,
the conviction is sound.

III

>Booking and Classification Fees

            Defendant
contends that the $287.78 booking fee and the $59.23 classification fee must be
reversed because the trial court did not make express findings about the actual
administrative costs or defendant’s ability to pay.  The contention, however, was forfeited.

            When a
defendant is convicted, the county may recoup the “actual administrative costs
. . . incurred in booking or otherwise processing arrested persons,” subject to
“the defendant’s ability to pay.”  (Gov.
Code, § 29550.2, subds. (a) & (c); see People
v. Rivera (1998) 65 Cal.App.4th 705.) 


            Here, as
defendant claims, there is no evidence in the record about exactly how the
county determined its administrative costs for booking and classifying him.  Defendant, however, accepted as appropriate
the amount imposed.  Neither he nor his
attorney objected to the amount of the fine.

            This court
has previously held that if a defendant does not object in the trial court to
the imposition of a fee or fine, the issue is forfeited.  (People
v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine]; >People v. Hodges (1999) 70 Cal.App.4th
1348, 1357 [jail booking fee]; People v.
Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 [restitution
fine].)  We have applied the forfeiture
rule even when the defendant claims on appeal that there is insufficient
evidence to support the imposition of the fine or fee.  (People
v. Gibson, supra, 27 Cal.App.4th at pp. 1467-1469.)

            Defendant
claims that the issue of the sufficiency of the evidence to support his ability
to pay the fees is not forfeited, citing People
v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco).  That case struck a probation supervision fee
where there was “no evidence in the record that anyone . . . made a
determination of [the defendant’s] ability to pay the $64 per month probation
supervision fee” and where “the statutory procedure provided at [Penal Code]
section 1203.1b for a determination of [the defendant’s] ability to pay
probation related costs was not followed.” 
(Pacheco, supra, 187
Cal.App.4th at p. 1401.)  >Pacheco held that the defendant’s
challenge to the sufficiency of the evidence supporting the probation
supervision fee was not forfeited on appeal by his failure to assert the same
in the trial court.  (>Id. at p. 1397.)

            The Supreme
Court disapproved Pacheco in >People v. McCullough (2013) 56 Cal.4th
589 at page 599.  The court held that the
defendant forfeited his challenge to the sufficiency of the evidence supporting
the finding that he had the ability to pay a jail booking fee by failing to
object in the trial court.  (>People v. McCullough, supra, at pp. 591,
598.)  “Defendant may not ‘transform . .
. a factual claim into a legal one by asserting the record’s deficiency as a
legal error.’  [Citation.]  By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’  [Citations.]” 
(Id. at p. 597.)  “[A] defendant who does nothing to put at
issue the propriety of imposition of a booking fee forfeits the right to
challenge the sufficiency of the evidence to support imposition of the booking
fee on appeal, in the same way that a defendant who goes to trial forfeits his
challenge to the propriety of venue by not timely challenging it.”  (Id.
at p. 598.)

            Accordingly,
defendant’s contention that the booking and classification fees must be
reversed is without merit.

IV

Restitution Fine

            Defendant
contends that the trial court improperly imposed two restitution fines.  The Attorney General asserts that there was
only one restitution fine imposed pursuant to Penal Code section 1202.4, but
the trial court failed to compute properly the suspended restitution fine
pursuant to Penal Code section 1202.45. 
The Attorney General has the better argument.

            “In every
case where a person is convicted of a crime, the court shall impose a separate
and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so, and states those reasons on the record.”  (Pen. Code, § 1202.4, subd. (b).)

            At
sentencing, the trial court made the following statements with regard to a
restitution fine:

            “It is
. . . the judgment and sentence of this Court that the defendant pay
a restitution fine of $1,800 pursuant to Penal Code Section 1202.4, payable
forthwith or as provided by Penal Code Section 2085.5.

            “Pursuant
to Penal Code Section 1202.45 the Court is imposing an additional restitution
fine in the same amount as that just imposed. 
Payment of this fine is suspended, and will remain suspended unless
defendant’s parole is revoked.  [¶] 

. . .  [¶]

            “With
regard to Count 2, the defendant shall pay a restitution fine pursuant to Penal
Code Section 1202.4 in the amount of $100, payable through the court’s
installment process.” 

            Defendant
argues that imposing more than one restitution fine is an unauthorized
sentence.  For this proposition, he cites
People v. Ferris (2000) 82
Cal.App.4th 1272, at pages 1276-1277.  >Ferris, however, involved a different
situation.  In that case, the trial court
sentenced the defendant for two cases in one unified proceeding and imposed the
maximum $10,000 restitution fine in each case. 
The court held that, under such circumstances, the trial court could not
impose a separate restitution fines for each case.  (Ibid.)  The court stated:  “The provisions of both [Penal Code] section
1202.4, subdivision (b) and [Penal Code] section 1202.45 apply ‘in >every case where a person is convicted
of a crime.’  (Italics added.)  Those statutes do not specify whether the
phrase ‘every case’ means every separately charged and numbered case or every
jointly tried case. . . .  We
conclude the phrase ‘every case’ in [Penal Code] sections 1202.4, subdivision
(b) and 1202.45 includes a jointly tried case although it involves charges in
separately filed informations.”  (>People v. Ferris, supra, at p. 1277.)

            The
proceedings in this case were never separate cases but instead just one.  Although the trial court stated the amount of
the restitution as to each count, the restitution fine for the >case was the total of the stated amounts
for each count.  In other words, the
trial court imposed only one restitution fine.

            Therefore,
defendant’s contention that the sentence with regard to the restitution fine
was unauthorized is without merit. 
However, the sentence was unauthorized in one other aspect.

            Penal Code
section 1202.45 requires the court to “assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to subdivision (b)
of [Penal Code] Section 1202.4 . . . .” 

            To the
extent that the restitution fine pursuant to Penal Code section 1202.45 was not
“in the same amount as that imposed pursuant to subdivision (b) of [Penal Code]
Section 1202.4,” the sentence was unauthorized. 
The total amount of the restitution fine under Penal Code section 1202.4
was $1,900, but the amount of the restitution fine imposed under Penal Code
section 1202.45 was $1,800.

            We must
correct an unauthorized sentence (see People
v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256); therefore, we must
modify the restitution fine under Penal Code section 1202.45 to be equal to the
restitution fine under Penal Code section 1202.4.

DISPOSITION

            The
judgment is modified by amending the amount of the suspended restitution fine
under Penal Code section 1202.45 to $1,900. 
As modified, the judgment is affirmed. 
The trial court is directed to prepare an amended abstract of judgment
and send it to the Department of
Corrections and Rehabilitation.

 

 

 

                                                                                              NICHOLSON              , Acting P. J.

 

 

 

We concur:

 

 

 

          BUTZ                            ,
J.

 

 

 

          DUARTE                      , J.