P. v. Zapata

Filed 3/9/07 P. v. Zapata CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Brad R. Hill, Judge.

Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent.

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At the end of a 15-mile high-speed car chase, defendant Agustine Zapata caused an accident that killed the other driver and defendants pregnant passenger. He was convicted of three counts of second degree murder. On appeal, he argues that one instruction the court gave the jury was too confusing to be understood. We conclude the instruction was proper and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On the day of the crash, an acquaintance of defendant named Ramon Tienda reported to police in Sanger that defendant had taken his car. Tienda had lent the car to defendant the night before. Defendant had then returned and said he had been in a high-speed chase. Tienda wanted the car back, but defendant drove away again.

Afterward, police spotted Tiendas car and tried to pull it over, leading to a second chase. Defendant headed out of town. He covered a 15-mile route from Sanger to Fowler at an average speed of 97 miles per hour, running 14 stop signs and one red light. As he approached an intersection at the end of the chase, another car pulled into the intersection and defendants car struck it at 104 miles per hour. The other driver, who happened to be a sheriffs deputy engaged in an unrelated investigation in an unmarked car, was killed. Defendants girlfriend, then 16 to 18 weeks pregnant, was riding with him and also was killed.

The district attorney filed an information charging defendant with three counts of second degree murder. (Pen. Code,  187, subd. (a).) His first prosecution ended in a mistrial when the jury could not reach a verdict.

At the second trial, evidence was admitted of statements defendant made to police after the crash. He admitted to police that he was the driver and that he was intoxicated during the chase from using methamphetamine, which he took daily. Tests confirmed that he had a toxic level of methamphetamine in his blood after the crash. Defendant said he had warned his girlfriend against riding with him because he did not intend to stop if police tried to pull him over. He also admitted that he was on probation for a prior conviction for evading police in a high-speed car chase.

The prosecution introduced additional evidence of this prior offense. A witness testified that in 2002 she was riding in a truck driven by defendant; when police tried to pull the truck over, defendant fled at a high speed. The officer who attempted to stop defendant that time also testified. Defendant pleaded guilty in the prior incident to a charge of felony evasion of a police officer. (Veh. Code,  2800.2.)

Defense counsel argued that the crime was involuntary manslaughter, not murder, because the methamphetamine defendant had taken prevented him from appreciating the danger of the car chase. A defense expert testified about the psychological effects of methamphetamine intoxication, including delusions, paranoia, hallucinations, and misperceptions of time and distance.

The prosecutor argued that defendants prior conviction for evading police in a high-speed car chase helped to establish that defendant had the mental state necessary for the offense. It showed, according to the prosecutor, that defendant did have knowledge of the dangerous nature of high-speed car chases, particularly since the conviction was of felony evasion, which requires willful and wanton disregard for the safety of persons or property.

The jury found defendant guilty as charged. The court sentenced him to three terms of 15 years to life in prison, two of which were to be served consecutively and one concurrently.

DISCUSSION

The only issue defendant raises in this appeal is the propriety of the instruction the court gave the jury about the use of the evidence that defendant had a prior conviction arising from another car chase. A trial court in a criminal case is requiredwith or without a requestto give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) An appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendants substantial rights. (Pen. Code,  1259.)

As explained by the prosecutor in his closing argument, the purpose of the prior-offense evidence was to show that defendant understood the dangers of high-speed car chases and to help show that he had the mental state necessary for murder, not only involuntary manslaughter. The court gave the following instructiona modified version of CALJIC No. 2.50about the proper use of this evidence:

Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the mental state which is a necessary element of the crime charged.

The existence of the mental state, which is a necessary element of the crime, charged the defendant had knowledge necessary for the commission of the crime charged or for the limited purpose for which you may consider such evidence. You must weigh it in the same manner as you do all the other evidence in the case. You are not permitted to consider such evidence for any other purpose.

This differed from the pertinent parts of the unmodified pattern instruction in two ways. First, in the two places where the instruction given refers to the mental state which is a necessary element of the crime charged, CALJIC No. 2.50 says, the intent which is a necessary element of the crime charged . Second, where the instruction given refers to knowledge necessary for the commission of the crime charged, CALJIC No. 2.50 says, knowledge of the nature of things found in [the defendants] possession .

Defendant concedes that the prior-offense evidence was admissible to show that [he] knew, at the time of the incident, that high speed chases were dangerous. He also concedes that an instruction stating that it was admissible to show this knowledge was appropriate. He contends, however, that the instruction given was so vague and inappropriate that the jury did not likely receive the intended message, and therefore used the prior act evidence to show [his] propensity to commit crimes.

Defendant asserts that the instruction was confusing for three reasons. First, the reference to a characteristic method, plan, or scheme was inapplicable because defendant conceded he drove the car and caused the crash. Second, it was cumbersome and obfuscatory to address whether defendant knew of the dangers of high-speed chases by referring to the mental state which is a necessary element of the crime charged. Third, although the instruction rightly discussed the knowledge necessary for the commission of the crime charged, it was muddled because it did not define knowledge.

We conclude there is no reason to believe the jury would have been confused by the instruction. The modifications the court made to the pattern instruction were sensible. [M]ental state appropriately was substituted for intent in a case in which the jury had to consider murder based on implied malice as well as involuntary manslaughter. This language was not obfuscatory.

The omission of a specific description of the knowledge the crime required was not erroneous. The pattern instructions reference to knowledge of the nature of things found in a defendants possession is designed for use in cases involving contraband. Here, the court adapted it to address the prosecutions burden of showing that defendant knew engaging in car chases was dangerous and defendants claim that, at the time of the crash, he did not appreciate this fact. In making this adaptation, the court was not obligated to be more specific about the knowledge required. Other instructions explained the mental elements of the charged and lesser-included offenses. An instruction saying you may consider defendants prior car chase as evidence that he understood the dangers of car chases might or might not have been a correct one, but it was not required. In any event, there is no reason to think an instruction like that would have helped defendant.

The language about a characteristic method, plan, or scheme was not inapplicable. The jury could find that the second car chase had a high degree of similarity to the first; it could conclude that defendant was acting pursuant to the same method or design in the second as he did in the first. (People v. Balcom (1994) 7 Cal.4th 414, 424-425; People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.) Defendants claim that this language was inappropriate because he conceded some factual elements of the crime is mistaken. The prosecution has the burden of proving all the elements, even those defendant does not contest. (People v. Moon (2005) 37 Cal.4th 1, 28; People v. Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) The prior-offense evidence could properly be used to show a common method or plan, tending to prove that defendant committed the acts constituting the crime. Further, even if the language were unnecessary surplus, there is no reason to believe it led the jury astray.

In sum, the instruction said the jury could use the prior-offense evidence to prove a specific element or elements of the crime. Defendant does not argue that it could not be used for that purpose. Further, there is no reason to conclude that the jury could not understand how to apply the instruction since it was no more confusing than many other correct instructions. Jurors are presumed able to understand and correlate instructions . (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Based on our conclusion, we need not address the Peoples contention that defendant waived the issue by failing to object to the instruction at trial. By the same token, we also do not address defendants argument that if the issue were waived, his trial counsel provided ineffective assistance.

DISPOSITION

The judgment is affirmed.

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Wiseman, Acting P.J.

WE CONCUR:

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Levy, J.

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Gomes, J.

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