Filed 11/16/18 P. v. Pendergrass CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant and appellant Chanowk Pendergrass (appellant) was convicted after jury trial of gross vehicular manslaughter while intoxicated (Pen. Code § 191.5, subd. (a))[1] and other offenses. On appeal he contends the trial court made several evidentiary errors and abused its discretion in imposing the upper term for the manslaughter conviction. We affirm.

Procedural Background

In October 2016, the Sonoma County District Attorney filed an information charging appellant with second degree murder (§ 187, subd. (a); count one); gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count two); driving under the influence of alcohol (DUI) causing injury within 10 years of another DUI offense (Veh. Code, §§ 23153, subd. (a), 23560; count three); driving with 0.08 percent or more blood alcohol content (BAC) causing injury within 10 years of another DUI offense (Veh. Code, §§ 23153, subd. (b), 23560; count four); driving with a license suspended or revoked for a DUI offense (Veh. Code, § 14601.2, subd. (a); count five); and possession of nitrous oxide (§ 381b; count six). Subsequently, a seventh count was added for driving a motor vehicle without a valid driver’s license (Veh. Code, § 12500, subd. (a)). The information alleged personal infliction of great bodily injury as to counts one, three, and four (§ 12022.7), and alleged appellant’s BAC exceeded 0.15% as to counts two through four (Veh. Code, § 23578).

A jury found appellant guilty on counts two, three, four, six, and seven, as well as the associated great bodily injury and BAC allegations. The jury acquitted appellant on counts one and five. The trial court vacated the convictions in counts three and four as lesser included offenses of count two.

In June 2017, the trial court sentenced appellant to the upper term of ten years in prison on count two.

Factual Background

The victim in the present case was appellant’s sister, Abigail W.[2] On May 21, 2016, appellant and Abigail W. met two friends, Zakar Orear and Kalah Delozier, at a bar/restaurant in Santa Rosa. The group consumed alcoholic beverages and then drove to Orear’s house; the group then proceeded to a dance club in appellant’s pickup truck.

The group left the dance club between 1:30 and 2 a.m. Orear called an Uber because he had consumed alcohol and did not want to drive. Appellant appeared intoxicated, and Orear told him he should take an Uber as well.

Orear asked appellant for his car keys, and appellant complied. Abigail W. told him she was “okay to drive” because “[s]he’d only had a couple drinks.” When Orear’s Uber arrived, he suggested that appellant and Abigail W. take it, offering to cover the cost. Appellant was willing, but Abigail W. said she could pay for her own Uber. She asked Orear to give her appellant’s keys, and he did so. Orear saw appellant and Abigail W. walk toward the parking lot where appellant parked his truck.

Subsequently, appellant’s truck was found “upside down, and very mangled” on the side of a road. The passenger, determined to be Abigail W., had no pulse. The driver, determined to be appellant, was pulled from the driver’s seat by the two people who discovered the crash. California Highway Patrol Officers arrived at approximately 2:33 a.m. Abigail W. had suffered extreme internal injuries and died almost immediately in the crash.

One of the officers who arrived at the scene of the crash testified he smelled alcohol on appellant from five feet away. A breath sample taken at approximately 2:45 a.m. showed that appellant’s BAC was 0.245%. Appellant was arrested and taken to a hospital. At 3:10 a.m., appellant’s BAC was 0.247%. An expert testified a 190-pound male would have to ingest 18 drinks to reach a BAC of 0.247% over a five-hour period.

The speed limit near the crash site was 50 miles per hour. An expert testified appellant’s truck’s speedometer was stuck at around 70 miles per hour. Another expert testified data retrieved from the truck showed it was traveling 77 miles per hour two seconds before the collision.

The prosecution presented evidence appellant pleaded no contest in July 2014 to an August 2013 misdemeanor DUI offense. At the time, appellant signed a notice stating, “You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, you can be charged with murder.”

Abigail W.’s teenage son, A.W., and a teenage friend of his testified regarding a drunk driving incident that occurred in Virginia in 2015. A.W. was in eighth grade at the time. Appellant drove A.W. and the friend to an afternoon school football game an hour away in Baltimore. On the way, appellant stopped at a liquor store and bought a bottle of bourbon. Appellant appeared to be drunk after the game. On the way home, appellant drove recklessly; he was speeding, “swerving in and out of lanes,” “almost hitting traffic cones,” and “going off the road.” He continued to drink while driving, and the bottle was almost empty. He also smoked marijuana while driving. A.W. was concerned for their safety and asked appellant to slow down, and appellant did so. The incident was only disclosed following Abigail W.’s death.

Discussion

Appellant contends the trial court made evidentiary errors and erred in imposing the aggravated term for the gross vehicular manslaughter while intoxicated conviction. Appellant has not demonstrated any prejudicial errors by the trial court.

I. Any Error in Admission of the 2015 Virginia Drunk Driving Was Harmless

Appellant’s principal alleged evidentiary error is admission of the testimony regarding the 2015 Virginia drunk driving. Evidence Code section 1101, subdivision (a) “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) In particular, evidence of uncharged misconduct may be admitted when relevant to prove facts such as “motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident.” (Evid. Code, §1101, subd. (b).) We review the trial court’s ruling admitting the testimony for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

The trial court admitted the evidence of the 2015 Virginia drunk driving incident over appellant’s objection, reasoning “the events as described by the two young men in the vehicle during the driving event in Virginia could absolutely, if believed, lead one to conclude that [appellant] absolutely had a subjective understanding and awareness of the inherent risk to driving while intoxicated.” The court continued, “I believe the evidence concerning the events in Virginia are relevant, I believe that they are probative, and I do not believe there is a reason or purpose to exclude them.” During a break in A.W.’s testimony, the court instructed the jury that the testimony of A.W. and his friend had been admitted “for a limited purpose of considering whether, on May 21st through May 22nd, 2016, [appellant’s] alleged actions were not the result of mistake or accident, and/or whether he knew his act was dangerous to human life, and deliberately acted with conscious disregard for human life. Do not consider this evidence for any other purpose.” After the close of evidence, the court instructed the jury that the testimony could only be considered for the limited purpose of “determining whether [appellant] knew his act was dangerous to human life and deliberately acted with conscious disregard for human life.” The court directed the jury not to “conclude from this evidence that [appellant] has a bad character or is disposed to commit crime.”

Count one alleged appellant committed second degree murder, which required a showing of “implied malice”—that “a person, knowing that his conduct endangers the life of another, nonetheless act[ed] deliberately with conscious disregard for life.” (People v. Watson (1981) 30 Cal.3d 290, 296.) “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (Id., at pp. 296–297.)

The decision in People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz), considered in detail the relevance of past driving incidents to a vehicular murder charge. There, the defendant struck another car after crossing a highway double-yellow line at high speed, killing two and seriously injuring two others. (Id. at p. 106.) The prosecution sought to meet its burden of showing implied malice in part by presenting “documentary and oral testimony concerning seven past incidents in which defendant had either been convicted of reckless driving, convicted of reckless drunk driving, or been observed driving recklessly, and his participation in a mandatory educational program . . . on the dangers of drinking and driving.” (Id. at p. 110.) The prosecution argued the evidence “tended to establish a subjective awareness on the part of defendant of the disastrous consequences that can follow in the wake of recklessly operating a motor vehicle on a public highway.” (Id. at pp. 111–112.) The Ortiz court agreed, observing that “courts have recognized repeatedly that a motor vehicle driver’s previous encounters with the consequences of recklessness on the highway . . . sensitizes him to the dangerousness of such life-threatening conduct. This is so because apprehensions for drunk driving, and the citations, arrests, stiff fines, compulsory attendance at educational programs, and other consequences do not take place in a vacuum.” (Id. at pp. 112–113.)

The present case is distinguishable from Ortiz because appellant was not prosecuted for the 2015 incident. Accordingly, that incident did not result in the sorts of sanctions that Ortiz stated sensitize people to the dangerousness of reckless driving, including driving while intoxicated. We need not determine whether the reasoning of Ortiz should be extended to encompass the facts in the present case, because it is not “reasonably probable” the verdict would have been more favorable to appellant had the trial court excluded the testimony regarding the 2015 Virginia drunk driving incident. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

At the outset, the evidence of the 2015 incident was only relevant to the second degree murder charge, and the jury acquitted appellant on that count. The trial court told the jury the testimony at issue could only be considered for the purpose of determining whether appellant’s actions on May 22, 2016 “were not the result of mistake or accident, and/or whether he knew his act was dangerous to human life, and deliberately acted with conscious disregard for human life.” Thus, the evidence was only admitted for the purpose of demonstrating appellant’s subjective state of mind. The charge on which appellant was sentenced, vehicular manslaughter with gross negligence, is based on an objective standard. The charge required a showing of “conscious indifference to the consequences.” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 (Bennett).) “The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved.” (Ibid.) The jury could determine that question without reference to the 2015 Virginia drunk driving incident.

Furthermore, the evidence supporting the charge of vehicular manslaughter with gross negligence was overwhelming. As appellant acknowledges, he “did not dispute his high level of intoxication, nor the fact he was driving at a high rate of speed when he lost control of his truck . . . .” The undisputed evidence showed appellant’s BAC was exceptionally high, appellant’s friend Orear told him he was too intoxicated to drive, and appellant drove at a recklessly fast speed just prior to the accident. We acknowledge the testimony about the 2015 incident carried an inherent risk of undue prejudice because it involved Abigail W.’s son and because appellant was not prosecuted for the incident. (See Ortiz, supra, 109 Cal.App.4th at p. 118.) Nevertheless, given the extreme intoxication involved, the warning appellant received from Orear, and the recklessness of his driving, there is no probability the jury would have failed to conclude “a reasonable person in the defendant’s position would have been aware of the risk involved.” (Bennett, supra, 54 Cal.3d at p. 1036.) Any error was harmless.

II. Any Error in Exclusion of Abigail W.’s BAC Percentage Was Harmless

Appellant contends the trial court abused its discretion in excluding evidence the victim, Abigail W., had a 0.16 percent BAC when she died. He argues the court’s ruling “removed from the jury the possibility that appellant’s negligence was born from a Hobson’s choice of two evils. The jury could not consider that [appellant] chose to try and protect his sister from her folly of driving intoxicated by his own, mistaken concept he could do a better job of it, which they conceivably could have found as a lesser form of negligence than the gross negligence in his conviction.”

It is not “reasonably probable” the verdict would have been more favorable to appellant had he been allowed to argue he chose to drive because Abigail W. was intoxicated, as evidenced by her 0.16 percent BAC. (Watson, supra, 46 Cal.2d at p. 836.) The undisputed evidence showed appellant’s BAC was far higher than Abigail W.’s, appellant’s friend Orear told him he was too intoxicated to drive, and appellant drove at a recklessly fast speed just prior to the accident. Even if the jury concluded Abigail W. was also too intoxicated to drive, that did not excuse appellant’s decision to drive or undermine the prosecution’s showing a reasonable person would have been aware of the risk involved. Any error was harmless, even if the trial court also erred in admitting evidence of the 2015 Virginia drunk driving incident.

III. Evidence of Appellant’s Childhood

Appellant contends the trial court abused its discretion by excluding evidence of his childhood in an “extremist, reclusive fundamentalist cult.” Appellant’s counsel argued below that his reclusive upbringing in the “Twelve Tribes” community “left him entirely unexposed to information and education around the dangers of driving under the influence.” Appellant argues he had the right to present evidence “he was not subjectively aware” of the risk of drunk driving. (People v. Ochoa (1993) 6 Cal.4th 1199, 1211 (conc. & dis. opn. of Panelli, J.).)

However, as the trial court observed, the proffered evidence was “over-broad, vague, and nebulous” and posed “a substantial danger of confusing the jury” and “calling upon the jury to substitute sympathy and perhaps even bias or prejudice in determining the legal issues they must determine.” The court said it would have allowed “testimony concerning specific schooling on the . . . issue of driving . . . in the relationship to alcohol and the dangers of driving with alcohol,” but no such testimony had been offered. On appeal, appellant points to no proffered evidence that would have undermined the evidence of his subjective awareness of the dangers of drunk driving arising out of the 2014 conviction and advisement. Appellant has not shown the trial court abused its discretion in excluding the evidence under Evidence Code section 352.

IV. Imposition of the Upper Term

Appellant contends the trial court abused its discretion by imposing the upper term on appellant’s conviction for gross vehicular manslaughter while intoxicated. The claim fails.

Under section 1170, subdivision (b), “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” A trial court abuses its discretion when “it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A court is “free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions,” including that facts underlying an enhancement or that are elements of the offense may not be the basis for imposition of the upper term. (Id. at p. 848; see also People v. Moberly (2009) 176 Cal.App.4th 1191, 1197–1198.) “However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.” (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) “An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary’ ” and makes the offender “deserving of punishment more severe than that merited for other offenders in the same category.” (People v. Black (2007) 41 Cal.4th 799, 817.)

In the present case, the probation department recommended the midterm sentence of six years, but the trial court imposed the upper term of ten years after a contested hearing. Among other things, the prosecutor had argued as aggravating circumstances that appellant engaged in conduct indicating a serious danger to society; that his criminal conduct was of increasing seriousness; that he had an exceptionally high BAC percentage; that he had been formally warned of the dangers of drunk driving after his 2014 conviction; and that he was still on probation at the time of the offense. The trial court expressed concern about the extent of appellant’s acceptance of responsibility and that appellant continued to engage in his dangerous behavior despite his DUI conviction. The court stated that it had considered “all the aggravating and mitigating factors,” that it was “extremely concerned about the safety of the public,” and that the aggravating factors prevailed.

Appellant argues the trial court abused its discretion in selecting the upper term by “overemphasiz[ing] the uncharged conduct and rel[ying] upon factors [that] were inherent in this offense.” Appellant’s argument is misplaced. Appellant presents no reasoned argument why it was improper for the trial court to rely on appellant’s failure to learn from the 2014 conviction and 2015 incident in imposing the upper term.[3] And the trial court could reasonably conclude the particular circumstances in the present case—including appellant’s extreme BAC percentage, Orear’s warning that appellant should not drive, and the high rate of speed before the accident—made appellant “deserving of punishment more severe than that merited for other offenders in the same category.” (Black, supra, 41 Cal.4th at p. 817.) Appellant has not shown the trial court abused its discretion.

Disposition

The trial court’s judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

(A152086)