Filed 1/20/21 P. v. Robledo CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
A158002
Plaintiff and Respondent,
(Contra Costa County
v. Super. Ct. No. 51817816)
BO ROBLEDO
Defendant and Appellant.
Defendant Bo Robledo, while driving under the influence of
alcohol, caused a head-on collision that killed the other driver
(“decedent”) and resulted in permanent serious injuries to the
passenger in decedent’s car. A jury found defendant guilty of second-
degree murder (Pen. Code, §187, subd. (a)) and gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), together
with a true finding of two prior convictions for driving under the
influence (Pen. Code, § 191.5, subd. (d)); driving under the influence
(DUI) and driving with a .08 per cent blood alcohol level, causing injury
within 10 years of another DUI conviction (Veh. Code, §§ 23153, subds.
(a), (b), 23560), together with true findings of great bodily injury
causing brain injury and paralysis (Pen. Code, § 12022.7, subd. (b));
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and driving when privilege suspended or revoked for a DUI conviction
(Veh. Code, § 14601.2, subd. (a)). He was sentenced to an aggregate
term of 22 years to life.
On appeal, defendant contends the trial court made prejudicial
errors by: (1) excluding evidence of decedent’s acute cocaine
intoxication; and (2) admitting evidence of the underlying facts of
defendant’s prior DUI convictions. We affirm.
Factual and Procedural Background
There were no witnesses to the November 2017 collision
(collision) that killed decedent and caused her passenger permanent
serious injuries. Consequently, the People presented their case
through the expert testimony of the Sheriff’s crime lab criminalist
concerning defendant’s alcohol intoxication, a police officer qualified as
a traffic reconstruction expert, other police officers and transportation
witnesses who evaluated the collision scene, and the testimony of the
driver of a third car that collided with the cars involved in the primary
collision (secondary collision). The traffic reconstruction expert
(hereinafter “the expert”) based his opinions regarding how the collision
happened on the physical evidence at the site (shown to the jury in a
myriad of photographs and 3D laser scanner images), the electronic
data retrieved from the air bag module control in defendant’s car, and
the statements made by the driver involved in the secondary collision.
The People’s theory, as presented through the experts and other
witnesses, was that the cars were traveling in opposite directions on an
unlit rural two-lane (north/south) road at almost midnight on a cold
and cloudy night. The lanes were separated by “box dots” simulating a
double-yellow line and there was a posted speed limit of 45 miles per
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hour for both lanes. Just south of the collision site, the northbound
lane veered slightly so that a northbound driver who did not follow the
curve of the road would cross over the double-yellow line into the
opposing southbound lane. The alcohol-impaired defendant was
driving at an excessive speed in the northbound lane when he crossed
over the double-yellow line and struck decedent’s vehicle virtually
head-on; at that time, decedent was driving at or below the speed limit
and entirely in the southbound lane. Seconds before the impact,
defendant turned his car’s steering wheel sharply to the right and hit
the brakes but was unable to avoid the high-speed collision. Decedent’s
car did not have a similar diagnostic air bag module control, but it was
estimated her car was traveling at a speed no greater, and likely less,
than 45.9 miles per hour and she had not been driving in any fashion
that contributed to the collision.
After the collision both vehicles were “completely destroyed” and
they came to rest entirely in the southbound lane, with car debris
strewn in both lanes. The secondary collision occurred when the driver
of a third vehicle traveling in the southbound lane came upon the
wreckage but was unable to stop before striking both cars. There was
no evidence that the secondary collision contributed to decedent’s death
or passenger’s injuries.
Defendant did not testify or present any evidence.
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DISCUSSION
I. Exclusion of Evidence of Decedent’s Acute Cocaine
Intoxication
a. Relevant Facts
The People filed motions in limine under Evidence Code sections
350 and 3521 to exclude evidence that decedent was driving under the
influence of cocaine (described in the autopsy report as an acute cocaine
intoxication). Defendant opposed, arguing that the collision necessarily
called into question decedent’s driving skills and acute cocaine
intoxication would adversely affect her ability to drive. Defendant did
not seek to present its own expert, but instead asked to question the
prosecution’s criminalist from the Sheriff’s crime lab as well as the
traffic reconstruction expert. In response, the prosecutor informed the
court that no criminalist was prepared to testify as to the probable
effects of decedent’s acute cocaine intoxication on her driving skills and
no prosecution witness was prepared to testify that decedent had done
anything other than drive at or below the speed limit within her own
traffic lane.
The trial court tentatively ruled it would exclude evidence of
decedent’s acute cocaine intoxication as not relevant and prejudicial.
However, the court was amenable to a section 402 hearing at which
time it would consider any proposed testimony regarding the effect of
1 All further undesignated statutory references are to the Evidence
Code. Section 350 reads: “No evidence is admissible except relevant
evidence.” Section 352 reads: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.”
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decedent’s acute cocaine intoxication on her driving skills and the
extent to which it may have contributed to the collision. Thereafter, at
the joint request of the parties, the trial court held a section 402
hearing at which the sole witness was the prosecution’s traffic
reconstruction expert, Police Officer Lee Lawrence. The officer opined
that decedent’s driving had not contributed in any way to the collision.
When asked to explain, the witness stated decedent was “driving like
she should have,” and if her vehicle was in her traffic lane then it
would not have any causal effect on a collision due to defendant’s
vehicle crossing into the oncoming traffic lane.
At the conclusion of the section 402 hearing, defendant renewed
his request to admit the evidence of decedent’s acute cocaine
intoxication. The trial court again tentatively refused to admit the
evidence, stating, “Without there being some connection between the
cocaine that was detected in [the victim’s] system and the cause of this
collision, I do not believe that the fact that cocaine was detected is
relevant to the issues in this case.” The court also found the evidence
would be “highly prejudicial” as it would impugn decedent’s character
without having any bearing on what caused the collision. Nonetheless,
the court stated it would reconsider its ruling “if there’s some other
evidence that you learn of or have an expert or witness who will provide
relevant testimony to that issue, I would allow you to ask for a further
hearing on the issue.” (Italics added.) Defense counsel made no further
effort to renew his request to admit evidence of decedent’s acute cocaine
intoxication and did not later ask for another section 402 hearing.
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b. Analysis
Defendant challenges the trial court’s in limine rulings excluding
evidence of the decedent’s acute cocaine intoxication on two grounds:
(1) the trial court erred when it excluded the evidence on the basis that
the defense would not be calling an expert, asserting that no expert
testimony is needed to establish the “rather elementary” and
“irrefutable” proposition that “being under the influence of cocaine
adversely affects a person’s driving skills;” and (2) defense counsel
made an adequate offer of proof that “fully satisfied any requirement to
use expert testimony,” by proposing to call as his witness the
prosecution’s designated criminalist from the Sheriff’s crime lab and
question her concerning the probable impact of decedent’s acute cocaine
intoxication on her driving skills. Neither contention warrants
reversal.
First, we reject defendant’s contention that the evidence of
decedent’s acute cocaine intoxication was admissible in the absence of
expert testimony that would explain the probable impact of acute
cocaine intoxication on decedent’s driving skills at the time of the
collision. While “ingestion of intoxicating substances is generally
known to alter a person[’s] perception and behavior to some degree[,]
the precise degree of alteration, or the precise effects that are likely to
be associated with a particular amount of cocaine, however, is not
something that is generally known and would require expert
testimony.” (Lopez v. Banuelos (2014 E.D. Cal.) 2014 U.S. Dist. Lexis
46420 at p.*9; see People v. Balderas (1985) 41 Cal.3d 144, 191
[“[e]vidence of habitual narcotics or alcohol use is not admissible to
impeach perception or memory unless there is expert testimony on the
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probable effect of such use on those facilities”]; Hernandez v. County of
Los Angeles (2014) 226 Cal.App.4th 1599, 1614 [“[w]here the complexity
of the causation issue is beyond common experience, expert testimony
is required to establish causation,” and “ ‘[t]he probable effect of
intoxicants other than alcohol is a topic “sufficiently beyond [the]
common experience” of most jurors that expert testimony is required’ ”];
People v. Cox (1990) 221 Cal.App.3d 980, 989 (Cox) [expert testimony is
required to determine the potential impact of methamphetamine on
defendant’s conduct; “[i]t is indeed possible that there are those in our
society who know full well the effects of the use of various drugs on the
human system,” but . . . “the ordinary juror probably does not have
such knowledge”].) Accordingly, we see no reason to reverse based on
this claim of error. In the absence of expert testimony connecting
decedent’s acute cocaine intoxication with her driving skills, “ ‘[t]he
inference[s] which defendant [sought] to have drawn from the [evidence
would have been] clearly speculative, and evidence which produces only
speculative inferences is irrelevant evidence,’ ” inadmissible under
section 350. (People v. Babbitt (1988) 45 Cal.3d 660, 682, italics in
original; see Cox, supra, 221 Cal.App.3d at pp. 989-990 [“[b]ased on the
lack of expert testimony in this case, it would have been pure
speculation for the jurors to determine what impact the ingestion of an
undermined amount of methamphetamine might have had on [the
defendant’s] mental capabilities”]; see also People v. Kelly (1992) 1
Cal.4th 495, 523 [trial court properly disallowed, as irrelevant,
proposed testimony of autopsy pathologist regarding the amount of
alcohol or cocaine in the victims’ systems; trial court is “not required to
admit evidence that merely makes the victim of a crime look bad;” and
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evidence of victims’ “substance abuse, without more, would be
meaningless to a jury’s consideration of the victims’ conduct”].)
Second, we reject defendant’s argument that the trial court
erroneously precluded him from presenting expert testimony on the
topic of decedent’s acute cocaine intoxication. The record shows that, at
the in limine hearing, the court made it quite clear to defense counsel
that the defense did not have to call its own expert but could call and
question the prosecution’s criminalist on the probable impact of acute
cocaine intoxication on decedent’s driving skills on the night of
collision. The court’s only limitation was that the proposed testimony
would first have to be presented for the court’s consideration at a
section 402 hearing outside the presence of the jury, to which defense
counsel lodged no objection. At the conclusion of the section 402
hearing, the court again informed defense counsel that its in limine
ruling excluding the evidence would be reconsidered, “of course,” if
defense counsel proposed any additional expert or witness who was
prepared to give relevant testimony.
We see nothing in the court’s comments to dissuade defense
counsel from asking the court to conduct another section 402 hearing
when the prosecution called its criminalist at trial. Because defense
counsel did not do so, defendant has forfeited any contention that the
court’s in limine ruling was in error on that basis. (See People v. Smith
(2003) 30 Cal.4th 581, 632 [because defendant failed to renew request
to admit certain evidence for specific reasons, he “may not now argue
on that basis that its exclusion was error,” citing § 354]; see also People
v. Morris (1991) 53 Cal.3d 152, 190 [a pretrial or in limine motion
preserves an evidentiary issue only if, among other things, “the motion
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is made at a time before or during the trial when the trial judge can
determine the evidentiary question in its appropriate context”].)
II. Admission of Underlying Facts of Defendant’s Prior DUI
Convictions
a. Relevant Facts
The People moved in limine to admit, and defendant moved in
limine to exclude, evidence of defendant’s two prior DUI convictions
including the facts leading to his arrests in 2006 (at the age of 21) and
2012 (at the age of 28). The court ruled the testimony concerning the
prior DUI convictions including the underlying facts would be allowed
as the evidence was relevant to prove the elements of intent and
knowledge necessary to support a vehicular second-degree murder
charge under People v. Watson (1981) 30 Cal.3d 290 (Watson) and
People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz), and the evidence
would not be otherwise unduly prejudicial.
Police Officer Christopher Anaya testified regarding defendant’s
2006 DUI arrest following a one-car collision. When the police arrived
at the scene, defendant’s car was lying on its side after striking three
trees lining a road. Defendant’s car was “completely total[ed]” with
“really extensive damage” mostly to the passenger side of the car that
struck the trees; and the front bumper and parts of the molding and
paneling had also fallen off the car. Without objection, the officer
testified he was not able to estimate the speed of defendant’s car, but
opined that defendant was driving at a “high rate of speed”. Defendant
was found sitting on the street curb. His eyes were red, bloodshot, and
watery; there was a strong smell of alcohol, and when he stood up he
was unsteady on his feet. After defendant was only able to partially
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perform field sobriety tests due to his intoxication, the officer
terminated the tests and arrested him. The jury also heard evidence
that following the 2006 arrest defendant was convicted of driving under
the influence of alcohol.
Police Officer Romey Alvarez testified concerning the 2012 DUI
arrest. In response to a dispatch report, the officer arrived at the scene
and found defendant sitting in the driver’s seat of a car stopped in a
road; the car engine was on and the keys were in the ignition.
Defendant looked like he was “passed out” – his head was tilted to his
shoulder and eyes were “really droopy” and “half closed.” The officer
verbally woke defendant and asked him if he was okay. After a while
defendant said he was waiting for the car (actually a truck) in front of
him to move past the stop sign. Defendant denied drinking, but he
smelled of alcohol, was slurring his words, and his eyes were bloodshot.
Based on defendant’s performance of field sobriety tests, the officer
concluded defendant was under the influence (“[h]e was drunk”) and
arrested him. At the police station, defendant consented to breath
tests; his first breath test registered .29 and .27, and his second breath
test registered .28 and .29, with the tests showing an alcohol level over
the legal limit of .08. The jury also heard evidence that following the
2012 arrest defendant was convicted of driving with a blood alcohol
level greater than 0.08.
b. Analysis
Defendant does not challenge the trial court’s ruling allowing the
jury to hear evidence that he had sustained prior DUI convictions, but
contends the court abused its discretion in allowing introduction of the
underlying facts. We see no merit to this claim of error.
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The law governing the admission of prior convictions, including
the underlying facts, is well settled. “Evidence that a person committed
a crime . . . may be admitted, . . . not to prove a person’s predisposition
to commit such an act, but rather to prove some other material fact,
such as that person’s intent or [knowledge].” (People v. Harris (2013) 57
Cal.4th 804, 841 (Harris), citing § 1101, subd. (b).) The evidence of the
prior crimes “must be relevant to prove a fact at issue (Evid. Code,
§ 210), and its admission must not be unduly prejudicial, confusing, or
time consuming (Evid. Code, § 352).” (People v. Leon (2015) 61 Cal.4th
569, 597-598.) Reviewing the trial court's admission of the underlying
facts of the two prior DUI convictions for an abuse of discretion (Harris,
supra, at p. 841), we see none.
Relying on Watson, supra, 30 Cal.3d. 290, and Ortiz, supra, 109
Cal.App.4th 104, the trial court reasonably found that the underlying
facts of the prior DUI convictions were highly probative as the evidence
would tend to support the prosecution’s theory that defendant
possessed the requisite implied malice mental state and knowledge
elements necessary to sustain a vehicular second-degree murder
charge. As the Ortiz court explained, since Watson was decided in
1981, the courts “have recognized repeatedly that a motor vehicle
driver’s previous encounters with the consequences of recklessness on
the highway – whether provoked by the use of alcohol, of another
intoxicant, by rage, or some other motivator – sensitizes him to the
dangerousness of such life-threatening conduct.” (Ortiz, supra, at p.
112.) And, from such prior recklessness, “through a series of
inferences, a jury could conclude that, at the time of the charged
misconduct, the defendant possessed a ‘wanton disregard for life, and . .
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. a subjective awareness of the risk created,’ from which ‘malice may be
implied,’ ” to support a vehicular second-degree murder conviction. (Id.
at p. 113, italics in original, quoting, in part, Watson, supra, at p. 298.)
In challenging the trial court’s ruling, defendant argues the
nature of the 2006 and 2012 arrests did not show his subjective
knowledge of the dangers created by drunk driving. As to the 2006
arrest, defendant complains the jury should not have heard testimony
that he was speeding because his car would have been badly damaged
if it struck three trees “at almost any speed.” As to the 2012 arrest,
defendant complains that the fact that he fell asleep and was passed
out behind the wheel shows that he was not conscious; therefore, he
could not have been aware of anything, including the dangers of drunk
driving. We find these arguments unavailing.
It is well settled that a person “ ‘who wilfully consumes alcoholic
beverages to the point of intoxication, knowing that he thereafter must
operate a motor vehicle, thereby combining sharply impaired physical
and mental faculties with a vehicle capable of great force and speed,
reasonably may be held to exhibit a conscious disregard of the safety of
others.’ ” (Watson, supra, 30 Cal.3d at pp. 300-301, quoting Taylor v.
Superior Court (1979) 24 Cal.3d 890, 897; People v. Brogna (1988) 202
Cal.App.3d 700, 709 (Brogna) [“[o]ne who drives a vehicle while under
the influence after having been convicted of that offense knows better
than most that his conduct is not only illegal, but entails a substantial
risk of harm to himself and others”]; see Ortiz, supra, 109 Cal.App.4th
at p. 115 [“[a] jury is entitled to infer that regardless of the mental
state or condition that accompanies an instance of reckless driving—
whether intoxication, rage, or willful irresponsibility—the driver’s
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subsequent apprehension and prosecution for that conduct must impart
a knowledge and understanding of the personal and social
consequences of such behavior”].)
Despite defendant’s arguments to the contrary, his “requisite
mental state” – “one supporting a subsequent finding of an awareness
of the dangers of [drunk driving] – was not formed [at the time of his
arrests] so much as before and after the resulting traffic incident[s].”
(Ortiz, supra, 109 Cal.App.4th at p. 113; italics added.) In 2006,
defendant drank, drove, and struck three trees with such force that his
car flipped over. In 2012, he again drove while intoxicated and was
found asleep at the wheel of his running car behind another vehicle at a
stop sign. These incidents provide ample evidence from which the jury
could reasonably infer that defendant was subjectively aware of what
can happen when one drives drunk and showed a conscious disregard
for the safety of himself and others. Accordingly, we find no abuse of
discretion in the trial court’s ruling that the underlying facts of the
prior DUI convictions were admissible as the evidence did possess
“substantial relevance on the issues of knowledge and conscious
disregard raised by the charge of second degree murder.” (Brogna,
supra, 202 Cal.App.3d at p. 710.)
Lastly, we see no abuse of discretion in the trial court’s ruling
that the probative value of the underlying facts of the prior DUI
convictions was not outweighed by the substantial danger of undue
prejudice under section 352. The factual circumstances clearly tended
to demonstrate defendant was subjectively aware of the consequences
of drunk driving and showed a conscious disregard for the safety of
himself and others. Weighed against the high probative value of the
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evidence, any prejudice was minimal. Indeed, the testimony
concerning the arrests was far less inflammatory “ ‘than the testimony
concerning the charged offenses,’ ” making it “ ‘unlikely . . . that the
jury’s passions were inflamed’ ” by the challenged evidence. (Ortiz,
supra, 104 Cal.App.4th at p. 118, quoting People v. Ewoldt (1994) 7
Cal.4th 380, 405.) “Moreover, defendant had been punished – via
convictions – for the prior [DUI arrests] introduced before the jury,”
thereby minimizing the chance that the jury “ ‘would punish [him] for
the prior offense[s], for which he had already been punished.’ ” (Ortiz,
supra, at p. 118, quoting People v. Kelley (1997) 52 Cal.App.4th 568,
579.)
III. No Cumulative Error
Defendant contends reversal is required because the “cumulative
prejudice” of the purported evidentiary errors violated his due process
rights to a fair trial under the 5th and 14th Amendments. “Because
defendant has failed to demonstrate any error, there is no prejudicial
cumulative effect.” (People v. Covarrubias (2016) 1 Cal.5th 838, 910.)
DISPOSITION
The judgment is affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Jackson, J.
People v. Robledo/A158002
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