P. v. Reyes

Filed 3/9/06 P. v. Reyes CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

John Jacob Reyes was convicted by a jury of second degree murder (Pen. Code, § 187, subd. (a)); one count of vehicular manslaughter with gross negligence (id., § 192, subd. (c)(1); one count of automobile theft (Veh. Code, § 10851, subd. (a)); two counts of driving without a license (id., § 12500, subd. (a)); giving false information to a peace officer (id., § 31); and evading a peace officer with reckless driving (id., § 2800.2, subd. (a)). True findings were made that he had two prior prison convictions (Pen. Code, § 667.5, subd. (b)), and as to the automobile theft conviction, Reyes had been previously convicted of an automobile theft-related crime (id., § 666.5, subd. (a)). The court sentenced Reyes to 15 years to life for the murder plus an additional three years and eight months.

On appeal, Reyes contends reversal is required because the court denied his motion to sever counts, instructed the jury second degree murder is a general intent crime, refused to give his requested instructions on implied malice, and used an improper mandatory presumption when defining the crime of evading a peace officer with reckless driving. Reyes also contends the evidence is insufficient to support his second degree murder conviction. We affirm the judgment.

FACTS

Background

In 2001, Reyes was imprisoned following his conviction of a felony. He was paroled in 2002 but was returned to prison when he violated parole. In November 2002, he told his mother he hated prison and did not like the people he was with--murderers and rapists. In February 2003, he was released on parole. He moved in with his grandparents in Escondido.

One of the conditions of Reyes's parole was that he not drive without a valid California driver's license, registration and insurance.

Offenses on May 6, 2003

On May 6, 2003, about 6:30 p.m., Reyes drove to the parole office for an appointment with his parole officer and to provide a urine sample. His parole officer, believing Reyes was unlicensed, asked two Escondido police officers to see if Reyes had driven to the parole office. The officers followed Reyes out of the parole office and saw Reyes walking in the direction of a parking lot. Reyes, however, noticed the officers and returned to the building. The officers decided to look for a vehicle Reyes might have driven. Around the corner from the parole office, the officers found a parking lot with a single vehicle, a mid-1980's silver Camaro with a handwritten for sale sign in the back window. This Camaro had been stolen sometime the previous night. The Camaro's owner had not been trying to sell the car and had not given Reyes permission to drive it.

The officers parked their patrol car behind a building and watched the car. Eventually, they saw Reyes get into the driver's seat of the Camaro. The officers tried to block Reyes from leaving the parking lot. Reyes did not stop when the officers activated their overhead lights and siren. Instead, he increased his speed, reaching speeds of 90 miles per hour on surface streets with speed limits of 30 miles per hour. Without slowing, Reyes went through four red lights and twice crossed the double yellow line. At one busy intersection, Reyes went into the lane of opposing traffic to make a left turn while the light was red. Amazingly, Reyes did not hit any other vehicles during the pursuit. The police were not able to keep up with Reyes.

Shortly thereafter, a resident living on Poppyfield Glen, a cul-de-sac, in Escondido called the police about a suspicious car. He saw the Camaro drive onto Poppyfield Glen, drive half on the sidewalk and half on the street, park in a guest parking lot area and then saw the driver walk away. The police conducted a surveillance on the Camaro. About 30 minutes later, Reyes returned to the Camaro in his grandparents' maroon Lincoln. Reyes removed the car ignition key, a pipe, and a jacket containing his mail from the Camaro.

The police decided to arrest Reyes at his grandparents' home in Escondido. About 9:00 p.m., officers from the Escondido Police Department and the San Diego County Sheriff's Department gathered at the residence. They parked vehicles across the driveway to block anyone from leaving the residence. They planned to telephone Reyes and convince him to come out of the house where they would arrest him. Reyes's phone line, however, was busy. The Escondido police dispatch operator conducted an emergency break-through to Reyes's phone to inform him the police were trying to contact him. Reyes's phone line remained busy.

Abruptly, Reyes emerged from the house, entered the maroon Lincoln and drove up the driveway while the officers yelled at him to stop and shined their flashlights at him. Reyes headed toward the police barricade at a high rate of speed, hit a berm, went airborne over a patrol vehicle, narrowly missed hitting a police officer who had to dive out of the way, and crashed through a number of mailboxes. As the car was going airborne, a sheriff's deputy shot at Reyes but Reyes kept driving. A San Diego County Sheriff's Department helicopter followed Reyes as he drove northbound at high speed with his headlights off on North Broadway, a two-lane rural road. Due to the low cloud ceiling and high-tension power lines, the helicopter crew lost Reyes when he fled from the car. The police found the Lincoln crashed into a brick embankment on the south side of North Broadway with the door open and the wheels spinning because the car was still in gear. The car was partially in a ditch about one or two miles from the grandparents' residence. They did not locate Reyes.

The next day, a sheriff's deputy spoke with Reyes's mother to see if she knew where Reyes was located. She said she had spoken with Reyes earlier that morning but did not know where he was. Reyes told her that the only way he was going to go back to prison was if the police shot him.

Offenses on May 10, 2003

On May 10, 2003, about 8:45 a.m., Reyes was driving a white Acura on Highway 67 heading north toward Ramona. His passenger was his friend, Jeffrey King. The car was stolen; the owner did not know either Reyes or King and had not given Reyes permission to drive the car. Reyes saw a California Highway Patrol (CHP) car heading southbound. The CHP officer, who estimated Reyes was driving at least 80 miles per hour in a 55 miles per hour zone, made a u-turn, activated his lights and accelerated to catch up to Reyes. Reyes, driving at about 90 miles per hour, approached a small white car being driving by Nicki Narvaez as the two northbound lanes were merging to a single lane. Narvaez swerved to the right to avoid a collision since Reyes did not appear to be braking and the lane was ending. As Reyes passed her, about half his car crossed the double yellow line. Narvaez was both angry and terrified by the incident.

The CHP officer momentarily slowed behind Narvaez's car because he thought it was the small white car he was looking for, but then he saw Reyes's car about one-fourth mile ahead traveling at 90 to 100 miles per hour.

Shortly thereafter, when there was only one lane in each direction, Reyes neared a car being driven by Cory Stollfuss. Stollfuss, afraid he was going to be rear-ended, moved to the right. There was oncoming traffic but Reyes passed Stollfuss, lost control of the car and slid off the side of the road into some trees. An expert testified Reyes was traveling 99 to 106 miles per hour at the time of the collision. Stollfuss stopped his car and went down to Reyes, who was sitting in the driver's seat. King, who was sitting in the front passenger seat, was nonresponsive and was later declared dead at the scene.

Reyes climbed out of the driver's side window and walked up the embankment to the CHP officer. Reyes appeared a little dazed and had some blood on him. He kept repeating he was not the driver and a woman was driving. Concerned that there might be another victim to the crash other than King, a search was conducted. When the CHP officer again questioned Reyes, stating they had only found a man, Reyes said, "No. That's not right. So if she wasn't with me, then . . . [King] was with me."

When the officer asked Reyes for identification, Reyes handed the officer a wallet containing a Colorado driver's license for "Justin Thomas." Reyes confirmed to the officer that was his identification, and said he still lived in Colorado and worked in a pulp factory.

Defense

May 6, 2003

Reyes testified he did not steal the Camaro. Although his grandfather had offered to give him the maroon Lincoln once he got his driver's license, Reyes was interested in buying a cheap car. A friend of his from prison agreed to sell Reyes the Camaro for $1,500 and to let him drive it to a medical appointment and, when the medical appointment ran late, to drive it to the parole office. Reyes had decided not to buy the car because it started shaking on the freeway, the muffler was broken and his grandfather was going to give him the Lincoln for free.

Reyes testified he did not notice the police officers when he walked out of the parole office; he had walked outside because he had been unable to give a urine sample, smoked a cigarette, and then returned to the building to give a sample. When he drove away from the parking lot, he did not understand why he was being pulled over; he hadn't done "anything to violate the city ordinance or anything." He was afraid that once again he was going to be wrongfully returned to prison for something he had not done.^[1] On cross-examination, he admitted he knew he was then violating his parole by driving without a license and that would be a legitimate reason for the police to stop him.

Reyes testified that while he may have violated some traffic laws during the pursuit, he drove safely. He went through only one red light; the other lights were yellow. The one red light had just turned red and there was a gap in traffic so it was safe to make a left turn. At no time during the pursuit did he have to avoid a collision with another vehicle and he did not see any vehicle brake or take evasive action to avoid a collision. On cross-examination, Reyes admitted it is generally unsafe to go through a

red light unless there is no traffic.

Reyes testified he knew there were police officers outside his grandparents' house and he was afraid he was going to be shot. He did not see the police barricade because it was very dark that night and his vision was impaired by the police shining flashlights at him. The only way to avoid crashing into the barricade was to go around the left side of the cars, which he did. If he had gone to the right, he would have gone down a cliff and "flipped" the car. He did not see an officer near the cars. He heard multiple gunshots.

He never intended to completely turn off the Lincoln's headlights; he only wanted to change the headlights from an automatic to a manual mode. He drove 65 to 70 miles per hour on North Broadway, a street he had driven many times before. At no time was his speed unsafe. He parked the car near a group of eucalyptus trees so the helicopter would not be able to see him. He did not crash the car into an embankment; all the damage to the Lincoln had occurred when he went around the police cars. He hid in a palm tree nursery that night and thereafter stayed with friends.

May 10, 2003

Reyes testified he was not involved in stealing the Acura and did not know it was stolen; the car belonged to King, whom he called early on May 10 for a ride to Ramona to see his mother. King asked Reyes to drive because he was not feeling well. Reyes noticed the ignition wires were hanging down and asked King about that. King told him the ignition key had broken. Reyes believed him because in the past King had another car with a broken key and Reyes "never associated him with being in stolen cars." Before driving, Reyes took off his shoes because they were still wet from fleeing the police on May 6.

Reyes testified it's not unusual for him to drive 90 to 100 miles per hour on Highway 67; he always drives the road "very fast." He always felt safe driving that road at that speed. He denied seeing the patrol car heading southbound. He quickly approached Narvaez's car but safely passed her. She did not need to swerve to avoid a collision, and she could have remained where she was. He decided to pass Stollfuss because Stollfuss had moved to the right to let him pass. Reyes would not have hit Stollfuss's vehicle if Stollfuss had not moved. Reyes believed his tires may have touched the double yellow line when he passed Stollfuss. When he passed Stollfuss, there was no oncoming traffic.

Concerned about one of his shoes being under the brake pedal, Reyes decided to move the shoe. While driving on a straight section of the road, he looked down to move the shoe. He then heard a "squealing sound" and his tires going over the double-yellow line into the opposing traffic lane. He swerved to the right, lost control of the car and blacked out. He believed the car had crossed into the opposing traffic lane because the car "had such a strong pull to the right."^[2]

He did not remember telling the CHP officer that he was not driving. He remembered telling the officer his name was "John" and handing him a wallet containing the license of Justin Walker. He had found the license in a friend's car, thought he recognized the photo on the license and was going to return it to the individual. He did not remember having a conversation with the officer about Colorado. He has never been to Colorado.

A few weeks after the collision, his mother visited him in the jail. He did not tell her he had seen a police car or that the accident had occurred because the Acura's steering wheel had "locked up."Rebuttal

Reyes's mother testified that when she spoke with Reyes about two weeks after the collision he told her he and King had stolen the Acura together and King had "jimmied" the Acura's ignition. He told her he had seen the patrol car on Highway 67. He told her the accident had occurred because the Acura's steering wheel locked up, the car started "shaking and shimmying" and King, in response to his request for help, had tried to pull the steering wheel at which point the car swerved off the road.

The CHP officer testified that contrary to Reyes's direct testimony, he did not cry at the scene of the collision and he was aware King had died at the scene.

DISCUSSION

I

Severance of Counts

Reyes contends the court should have severed the counts occurring on May 6 from those occurring on May 10. He contends the joint trial resulted in substantial prejudice and denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution.

Reyes initially sought three separate trials: (1) a trial on the offenses occurring on May 10; (2) a trial on the counts of driving without a license and assaulting a police officer on May 6; and (3) a trial on the remaining counts of May 6--evading a police officer, vehicle theft with a prior vehicle theft conviction, and driving without a license. At the hearing on the severance motion, he moved for two separate trials; one for the offenses occurring on May 6, the other for the offenses occurring on May 10. The court indicated it believed the counts were connected in their commission because they had occurred within a five-day period in North County and had all involved the use of automobiles. The court stated it was inclined to rule the May 6 offenses were cross-admissible as to the May 10 offenses. The court severed the two May 6 counts relating to an alleged assault on a police officer while driving without a license because the court believed the evidence was weak as to those counts and the jury might be inflamed by evidence of the May 10 homicide.^[3] The court ruled there would be a joint trial on the remaining counts.

The People may charge a defendant with multiple offenses in one accusatory pleading if the offenses are of "the same class" or are "connected together in their commission." (Pen. Code, § 954.) "Because consolidation ordinarily promotes efficiency, the law prefers it." (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

The trial court may order separate trials "in the interests of justice and for good

cause shown." (Pen. Code, § 954.) The defendant must " 'clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.' " (People v. Davis (1995) 10 Cal.4th 463, 508.) "[C]ross-admissibility [of evidence] ordinarily dispels any inference of prejudice . . . ." (People v. Mason (1991) 52 Cal.3d 909, 934.) Cross-admissibility of evidence, however, is not required for joint trials; "[b]ecause of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." (People v. Arias (1996) 13 Cal.4th 92, 127; see also Pen. Code, § 954.1.) To discharge the burden of showing prejudice, the defendant must show, in addition to lack of cross-admissibility, some other factor is present, for example, that one of the offenses was substantially more inflammatory than the others or was supported by significantly stronger evidence. (Frank v. Superior Court (1989) 48 Cal.3d 632, 641.)

A denial of a motion to sever charges is reviewed under an abuse of discretion standard. (See People v. Kraft (2000) 23 Cal.4th 978, 1030.) The court's denial must fall " 'outside the bounds of reason.' " (People v. Osband (1996) 13 Cal.4th 622, 666.)

Here, some of the counts on May 6 and May 10 were of the same class, indeed of the same crime; Reyes was charged with counts of vehicle theft and driving without a license on both May 6 and May 10.

Reyes argues there was no cross-admissibility of evidence, asserting "nothing in the facts of May 6 would provide [him] with subjective awareness that his conduct was dangerous to life, and because motive to avoid capture was not relevant to such awareness." We disagree.

Evidence of the events on May 6, including Reyes's driving a stolen vehicle, ignoring police orders to stop, engaging in reckless driving that endangered the police and the public, and hiding from the police, was relevant to establishing Reyes's state of mind on May 10. This evidence showed that on May 10, Reyes was not merely in violation of parole because he was driving without a license. He was not merely driving a stolen car. Rather, Reyes was a fugitive who had indicated he would not return to prison unless shot by the police. The events of May 6 supported an inference that Reyes was subjectively aware of the dangers of a high speed police pursuit on May 10. For example, Reyes admitted it was generally unsafe to run red lights and yet he ran four red lights, including while making a left turn in a large, busy intersection. He also admitted that he had been driving too fast on May 6 to stop at the police barricade; that he could not safely stop in time to avoid a collision. Additionally, on May 6, Reyes while fleeing from the police was unable to avoid hitting several mailboxes and he crashed his grandparents' car. Reyes's unsafe driving during the May 6 police pursuits was admissible to show that he was subjectively aware of the dangers of high speed police pursuits, even though, fortuitously, he collided with no other vehicles during the pursuits. The evidence relating to the May 6 counts was also relevant to establishing Reyes's motive--that is, to avoid capture by the police and return to prison--a motive that supports an inference he made a conscious decision to engage in dangerous driving despite the hazards to others.

Reyes's reliance on differences between his case and others involving automobile collisions where the defendants' had had prior drunk- or drug-related vehicular accidents does not lead to a conclusion the events of May 6 were not relevant to proving he acted with implied malice on May 10. The facts of each case must be judged on their own merits; the existence of a case with stronger and more compelling incidents of dangerous driving do not necessarily lead to a conclusion the evidence of the May 6 incidents did not tend to prove he acted with malice on May 10.

Moreover, some of the same witnesses would have testified in both trials, including Reyes's mother and parole officer. None of the counts was particularly inflammatory. While the May 10 counts included the death of an individual, that death occurred in the context of an automobile accident and was not likely to inflame the jury to wrongly convict Reyes of any of the May 6 counts, which involved simple, straightforward evidence. We reject Reyes's argument the May 10 murder charge was weak since "[i]t was based entirely on circumstantial evidence related to implied malice and involved conduct that is rather common on our highways, namely speeding." The murder charge did not involve merely speeding but flight from the police to avoid being returned to prison and there was strong evidence to support a finding Reyes was attempting to elude the police at the time the death occurred.

We conclude the trial court properly denied Reyes's motion to sever the May 6 counts from the May 10 counts. The counts were properly joined. There was no due process violation.

II

Instruction that Murder is a General Intent Crime

Reyes contends the court erred by instructing the jury that second degree murder was a general intent crime and that this error requires reversal. We agree the court erred but conclude the error was harmless in light of the other instructions given to the jury.

(A) Instructions Given to the Jury

The court instructed the jury:

"In the crimes charged in Count One -- Murder; Count Two -- Vehicular Manslaughter with Gross Negligence; Count Five -- False Information to a Peace Officer; Counts Six and Eleven -- Unlicensed Driver; and the lesser offense of: Vehicular Manslaughter without Gross Negligence, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful." (Italics added.)

The court instructed the jury that taking or driving a stolen vehicle, evading a peace officer with reckless driving and the lesser offense of evading a peace officer were specific intent crimes. The court also instructed the jury that for the crime of murder:

"there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed.

"This mental state required is included in the definition of the crime set forth elsewhere in these instructions." (CALJIC No. 3.31.5, italics added.)

The court gave detailed instructions on murder, second degree murder, and defining malice aforethought. In the instructions defining murder, the court said the prosecutor was required to prove: "The killing was done with malice aforethought." (CALJIC No. 8.10.)

Additionally, the court instructed the jury on the different mental states of gross negligence and implied malice:

"A finding of 'implied malice' requires a subjective awareness of a higher degree of risk than does gross negligence, and involves a conscious disregard of that risk, which is absent in 'gross negligence.'

"A finding of 'gross negligence' requires the application of an objective test: whether a reasonable person in defendant's position would have been aware of the risk involved.

"A finding of 'implied malice' requires that there must be proof beyond a reasonable doubt that while driving, the defendant actually and personally knew that the natural consequences of driving in the manner he did were dangerous to human life."

(B) Analysis

The Attorney General argues the crime of which Reyes was convicted, that is, second degree implied malice murder, is a general intent crime. This is plainly wrong.

A general intent crime is one where " 'the definition of [the] crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence.' " (People v. Whitfield (1994) 7 Cal.4th 437, 449, italics added, superseded by statute, as stated in People v. Mendoza (1998) 18 Cal.4th 1114, 1126.) In a general intent crime, the question is " 'whether the defendant intended to do the proscribed act' " and " '[t]his intention is deemed to be a general criminal intent.' " (People v. Whitfield, at p. 449.)

Continue…….. on Part II………..

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^[1] Reyes's mother testified Reyes believed he had been wrongly accused of violating parole the last time he had returned to prison. Reyes testified he was aware that he had been recently accused of breaking into a car and using a stolen credit card, things he said he had not done.

^[2] The car's owner testified the car "pulled some to the right."

^[3] Upon the motion of the prosecutor, the court later dismissed the two counts relating to the assault on the police officer while driving without a license.