Filed 11/13/18 P. v. Schweizer CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

Defendant Tyler Christopher Schweizer crashed his truck into the victim’s truck, killing the victim. Seconds before the crash, defendant was driving over 99 miles per hour (mph) in a 60-mph zone. A jury found him guilty of vehicular manslaughter and second degree murder. On appeal, defendant contends insufficient evidence satisfied the implied malice element of second degree murder. We will affirm.

BACKGROUND

The charged incident

The fatal collision occurred around 10 in the morning. It was a clear and sunny day, the roads were dry, and few cars were out. Defendant was driving his 2004 Chevrolet Silverado pickup truck on a highway with a 60-mph speed limit. The highway had two lanes in each direction.

Another driver, going about 60 mph in the fast lane, was passed by defendant. The driver described being passed as, “[l]ike I was standing still. Somebody flew by me, and I wasn’t moving.” That driver then saw, in the distance, the victim’s truck entering the highway via an intersecting road.

Defendant swerved, trying to avoid the victim’s truck. Then, just before impact, defendant hit the brakes. Defendant’s truck collided with the victim’s truck. The victim was killed.

An accident investigation determined defendant’s truck hit the victim’s truck at 60.42 mph. When defendant’s truck began leaving skid marks, it was moving at 89.26 mph. The airbag control module recorded defendant’s speed in the five seconds before the crash. Five seconds before impact, he was going 98.2 mph; four and three seconds before, his speed was 99.37 mph; two seconds before, he slowed to 87.68 mph; and one second before the crash, his speed was 66.63 mph.[1]

Investigating officers found no evidence defendant was intoxicated.

Defendant’s priors

At trial, the jury heard evidence of three past driving incidents involving defendant. In 2009, an officer saw defendant driving 55 mph in a 45-mph zone and pulled him over. Defendant was arrested for driving under the influence and for driving without a license. He was given probation and ordered to serve two days in jail.

In February of 2011, an officer heard the sound of a car either speeding or rapidly accelerating, followed by the sound of a large crash. The officer found a car crashed into an unoccupied truck on a residential street with a 25-mph speed limit. The officer believed defendant, the driver, was under the influence of amphetamine. Defendant was given probation and ordered to serve 10 days in jail.

Six months later, an officer tried to pull defendant over in a residential area with a 25-mph speed limit. Defendant accelerated to 70 mph, leading the officer on a chase. Defendant drove on both sides of the road, nearly hitting several parked cars. When he reached a dead end, he braked hard and spun 180 degrees. Then going 20 to 25 mph he drove into the officer’s squad car’s push bumper, knocking it several feet. He accelerated to about 80 mph, driving on both sides of the road, and swerved into oncoming traffic. He then accelerated to 100 mph. He was eventually stopped with a spike strip. He was given probation and ordered to serve 253 days in jail.

Jury verdict and sentencing

The jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a)) and vehicular manslaughter with gross negligence. The trial court imposed a 15-year-to-life term for second degree murder. Execution of a six-year upper term for vehicular manslaughter was stayed under Penal Code section 654.

DISCUSSION

On appeal, defendant challenges the sufficiency of the evidence to support the implied malice element of second degree murder.

Unlike vehicular manslaughter, which requires gross negligence, second degree murder requires malice, which may be implied where the defendant knows his conduct endangers the life of another but “nonetheless acts deliberately with conscious disregard for life.” (People v. Watson (1981) 30 Cal.3d 290, 296.) Implied malice requires a higher degree of culpability and involves an element of wantonness not present in gross negligence. (Ibid.) Implied malice contemplates a subjective awareness of a higher degree of risk than gross negligence. (Ibid.)

Different tests determine the existence of gross negligence and implied malice. (People v. Watson, supra, 30 Cal.3d at p. 296.) Gross negligence exists if a reasonable person in the defendant’s position would have been aware of the risk. (Ibid.) By contrast, implied malice exists if the defendant actually appreciated the risk. (Id. at pp. 296-297.) These states of mind have been articulated as “I don’t care what happens” for gross negligence, and “I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed” for implied malice. (People v. Olivas (1985) 172 Cal.App.3d 984, 987-988.)

Here, defendant contends insufficient evidence supported a finding of implied malice, maintaining his case is no more than vehicular manslaughter. He argues he lacked the hallmarks of implied malice seen in reported decisions. He points to, inter alia, the lack of evidence he was intoxicated, driving an unsafe truck, crossing a double yellow line, running a signal, driving on the wrong side, or racing. He notes he made no callous statements about the victim after the collision and said nothing to reflect subjective awareness his driving was dangerous. Further, the highway was a straightaway with dry pavement and good visibility, and he was not on a city or residential street with a lower speed limit. He tried to avoid the collision--showing awareness of and concern for others’ safety. His prior offenses involved no injury and thus failed to show his awareness of risk of death. Finally, he maintains the victim substantially contributed to the crash by slowly entering the highway and failing to notice defendant’s approaching truck. We cannot agree.

Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is “reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) From the evidence, we draw all inferences supporting the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can be set aside for insufficient evidence, “it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here, substantial evidence supports the verdict in that a reasonable jury could conclude defendant understood the risks but nonetheless acted deliberately with conscious disregard for life. Defendant drove his truck nearly 100 mph, in a 60-mph zone. Doing so, he passed another car at such speed the other driver described it as like he was standing still. And defendant had thrice served jail terms for dangerous driving. The fact that defendant did not engage in behavior seen in other implied malice driving cases does not render his conduct insufficient to support an implied malice finding. (See People v. Moore (2010) 187 Cal.App.4th 937, 942 [though other cases have factors not present here, those cases do not hold that implied malice could not be found in their absence].) Similarly, that defendant swerved and braked just before impact does not preclude a finding of implied malice--nor does defendant’s attempt to foist blame on the victim.

DISPOSITION

The judgment is affirmed.

/s/
Blease, Acting P. J.

We concur:

/s/
Mauro, J.

/s/
Renner, J.