Filed 3/28/24 P. v. Lerena CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B324924
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA078159)
v.
PRECIOSA IRENE LERENA,
Defendant and Appellant.
APPEAL from the Superior Court of the County of Los
Angeles, Robert G. Chu, Judge. Affirmed, in part, and
conditionally reversed and remanded with instructions.
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne and Kim Aarons,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Preciosa Lerena guilty of second
degree murder, among other crimes resulting from a carjacking
and subsequent reckless driving spree. On appeal, she raises
challenges to the sufficiency of the evidence, her sentence, and
the juvenile court’s order transferring the case to the adult
criminal court. We affirm, in part, and conditionally reverse, as
explained in detail below.
II. FACTUAL BACKGROUND
A. Prosecution’s Case
1. Carjacking
On February 18, 2018, at approximately 2:20 p.m., Michael
Dilworth, while parked in the lot of a Palmdale Walmart, saw
defendant1 attempt to take Patricia Levins’s purse and then
punch her multiple times in the face. He then observed
defendant enter Levins’s white Toyota RAV4. Dilworth tried to
grab the car’s door handle, but it was locked. Defendant reversed
the RAV4 into two other vehicles before she “took off” through the
parking lot at over 20 miles per hour. Dilworth observed Levins
at the scene bleeding from a cut on her face. The wind blew
Levins’s blood onto Dilworth’s clothes and his car.
Following her encounter with defendant, Levins, who was
63 at the time, had a laceration on her forehead. Levins’s
1 At the time she committed the February 18, 2018, offenses,
defendant was 17 years old.
2
daughter took her to the hospital where she received treatment
for her injuries, including sutures for the laceration, a CT scan,
and x-rays. Photographs taken after treatment showed bruising
around her eyes, as well as on her forearm and wrist.
2. Pursuit and Collision
At approximately 2:34 p.m., a 911 dispatcher received a
call2 reporting a vehicle driving erratically westbound on
Avenue S. The caller stated that a female in a white Toyota
RAV4 was driving “in and out of lanes” and “ran several [traffic
signals].”
Shortly after 3:00 p.m. that afternoon, Kenny Ramirez was
driving his truck westbound on Lake Elizabeth Road (Lake
Elizabeth) in Palmdale when he noticed two cars behind him in
the rearview mirror. One of the vehicles, a white RAV4, “seemed
to be driving very erratic[ally], and the other one was just trying
to get out of the way.” As Ramirez kept driving, he saw the
RAV4 almost hit a pole at an intersection. When Ramirez
attempted to make a left turn, the RAV4, which was still behind
him, swerved around the left side of his truck into oncoming
traffic and almost collided head on with another vehicle before
swerving back in front of Ramirez and almost hitting him.
Ramirez called 9113 while following the RAV4 westbound
on Lake Elizabeth as it continued “[d]riving very erratic[ally],”
swerving from the left curb to the right curb of the two-lane road.
2 An audio recording of the 911 call was played for the jury.
3 An audio recording of Ramirez’s 911 call was played for the
jury.
3
During his conversation with the dispatcher, Ramirez reported
that “she’s out of control”; “that girl is flying”; and “if she gets
into an accident . . . this is gonna be a bad accident.” He also
reported that the driver was reaching speeds of between 80 and
100 miles per hour.
At some point, Ramirez saw the RAV4 pull over to the side
of the road and park. He “parked right behind” it and exited his
truck. As he approached the RAV4, he observed defendant alone
inside and told her, “‘You need to stop your vehicle. Turn it off.’”
Defendant ignored Ramirez’s admonition, instead gave him “a
blank stare,” and then started to reverse her vehicle.
Defendant executed a U-turn and sped off eastbound on
Lake Elizabeth, back into town, at speeds of 75 to 90 miles per
hour as Ramirez tried to follow behind for four to five minutes.
As defendant neared town, she reached 100 miles per hour, after
which Ramirez lost sight of her.
Los Angeles County Sheriff’s Deputy George Hanley and
his partner were patrolling in their marked black and white
Sheriff’s vehicle on the afternoon of February 18, 2018, when
they received a call about a carjacking suspect. They activated
their lights and siren and drove to the area where the suspect
vehicle—a white Toyota RAV4—was last seen. Traveling north
on Tierra Subida4, the deputies turned left to westbound Lake
Elizabeth and, shortly after completing their turn, they saw the
4 Investigators determined that it was approximately four
miles from the place where defendant executed the U-turn to the
intersection at Lake Elizabeth and 10th Street West (10th
Street). On the south side of the intersection with Lake
Elizabeth, 10th Street becomes Tierra Subida Avenue (Tierra
Subida). We therefore refer to that intersection as Lake
Elizabeth and 10th Street/Tierra Subida.
4
RAV4 pass them going eastbound at approximately 95 to 100
miles per hour.5 Deputy Hanley estimated that the deputies
were between one-half and three-quarters of a mile west of the
intersection at 10th Street/Tierra Subida when defendant passed
them going back towards that location.
In an effort to pursue and stop the RAV4, the deputies
executed a U-turn so that they were driving eastbound on Lake
Elizabeth directly behind another marked patrol vehicle with its
lights and sirens also activated. At that point, the RAV4 was
about a quarter mile from the intersection at 10th Street/Tierra
Subida. The RAV4 continued eastbound and, as it approached
the intersection at 10th Street/Tierra Subida,6 there were
vehicles stopped in front of it in the eastbound lanes waiting for
the signal. The RAV4 veered into the westbound traffic lanes,
passed the vehicles stopped at the signal, and entered the
intersection at 10th Street/Tierra Subida against a red light.
Matthew Newells was in his Ford Flex SUV, stopped in the
left turn lane on northbound Tierra Subida. His wife, Christine
Jackson Newells, and their three children were passengers in the
car.7 Tevye was in the front passenger seat, Taviere was in the
5 The speed limit on that portion of Lake Elizabeth was 55
miles per hour, and it reduced to 50 miles per hour just before the
10th Street/Tierra Subida intersection.
6 Deputy Hanley estimated that, from the time the deputies
executed their U-turn, it took the RAV4 “seconds” to reach the
intersection at 10th Street/Tierra Subida.
7 Because Matthew and his wife share the last name, we will
refer to them by their first names. Their three children were one-
5
right-rear passenger seat, Matthew, Jr., was in the middle-rear
position in a car seat, and Christine was next to him in the left-
rear passenger seat.
Matthew waited there for the left arrow to turn green so he
could make the turn to westbound Lake Elizabeth. As he waited,
Matthew heard sirens and saw three patrol cars coming up
behind him on his left. One of the cars pulled in front of
Matthew’s SUV, and the deputy signaled for him to wait while
the other two patrol cars entered the intersection and made the
left turn to westbound Lake Elizabeth. The left arrow turned
green while the deputy’s car was still in front of Matthew. When
the deputy made a U-turn and followed the other two patrol cars
westbound on Lake Elizabeth, Matthew waited at the signal for a
moment.
With the left arrow still green, Matthew pulled out into the
intersection to make the left turn. At that moment, he saw a
white car coming toward him “like a flash . . . .” It collided with
the SUV.
Deputy Hanley and his partner saw the collision between
the RAV4 and the SUV. Upon reaching the scene, they observed
other deputies rendering aid to the people in the SUV, so they
approached the RAV4. Deputy Hanley’s partner “‘told
[defendant] to show her hands,’” and she replied, “‘“Fuck you.”’”
Deputy Hanley and his partner detained defendant at the scene.
When Deputy Mario Villalobos arrived at the scene of the
collision, he was assigned to ride in an ambulance with defendant
to the hospital. During the trip, he asked defendant for her name
and date of birth. She gave him a false name and date of birth.
year-old Matthew Jr. N., 17-year old Tevye N., and 15-year old
Taviere N.
6
3. Aftermath of the Collision
a. The Victims
Following the collision, Taviere and Matthew, Jr., were
airlifted to the hospital and Tevye and Christine were
transported there by ambulance. Matthew followed in a separate
ambulance. He learned later at the hospital that Christine had
died from her injuries.
At the time of trial, Taviere was still suffering from
complications of the injuries that he sustained during the
accident.8 Among other issues, he had a plate and two screws in
his back and surgeons needed to repair his aorta. Matthew
suffered “a contusion, a right adrenal hemorrhage[,] and
fractures.” Tevye suffered a collapsed lung, and Matthew, Jr.
suffered trauma to his chest and experienced bleeding in his
brain.
b. Investigation
On February 18, 2018, Deputy Scott Shean, a Sheriff’s
traffic investigator, went to the scene of the collision at Lake
Elizabeth and 10th Street/Tierra Subida. He arrived at
approximately 3:15 p.m. and noted that all of the traffic signals
at the intersection were functioning properly. Following his
investigation, the deputy determined that “[t]he cause, the
primary collision factor, [was] failing to stop at a red light with
8 Taviere’s medical records showed that he suffered “multiple
significant trauma, including multiple fractures, injuries to the
spleen, kidney, liver, and bladder, and dissection of the aorta.”
7
an associated factor of unsafe speed given the present traffic
conditions.”
On the evening of February 19, 2018, Deputy Theodor
Baljet, a Sheriff’s homicide investigator assigned to investigate
Christine’s death, went with his partner to the hospital to
interview defendant.9 During the interview, defendant told
investigators that, earlier in the day, she was drinking straight
from the bottle and drank “a good amount.”10 Afterwards, her
“homies” dropped her near the Walmart. She decided to take the
RAV4 because it was “just right there,” so she thought, “fuck it
I’m just gonna take the car.” According to defendant, Levins
fought her for the RAV4’s keys, so she hit her in the face.
Defendant, who did not have a driver’s license but had
taught herself to drive,11 decided to drive the RAV4 to visit her
“homies” and, because “there were no cars like that much in the
way,” she decided to “drive fast.” She was “just driving all over,”
but then stopped; and that was when “the guy told [her] . . . like
9 The video recording of the interview with defendant was
played for the jury.
10 Defendant’s blood was drawn on the evening of the collision
at 5:50 p.m. Chemical analysis showed no measurable blood
alcohol content, but tests for cannabinoids and carboxy-THC were
positive. A California Highway Patrol officer trained in drug
recognition evaluated defendant at the hospital on the day of the
collision at 8:15 p.m. and determined that defendant was not
under the influence of drugs.
11 At the time defendant took the RAV4, she had not driven in
three years.
8
stop the car.” She instead made the U-turn because, “if [she was]
gonna get busted, [she] might as well just waste the gas.”
According to defendant, she saw the deputies who were
trying to stop her, but because “there wasn’t that much [traffic]”,
she decided “fuck it” and continued driving. She admitted that
she should have stopped and that, before she collided with the
SUV, the traffic signal was red. She also claimed that she did not
“intentionally mean to crash into [the SUV]” and that she
attempted to stop the RAV4 by putting her foot on the brake, but
“it was not stopping.” At the conclusion of the interview,
defendant said, “‘I fucked up. I fucked up bad because I injured
people . . . .’”
Detective Aaron Percy, a Sheriff’s traffic collision and
accident reconstruction investigator, retrieved the event data
recorders (EDRs) from the RAV4 and the SUV. The report
generated from the RAV4’s EDR showed that four seconds before
the collision it was travelling 93 miles per hour and that, at the
time of the collision, it was travelling at 83 miles per hour. The
report also showed that, during that interval, “both . . . the gas
pedal[] and the brake were being applied at the same time.” The
EDR from the SUV showed that five seconds before the collision
it had been at a stop and that, at the time of the collision, it was
traveling at 16 miles per hour.
Detective Rowell Quemuel conducted a vehicle inspection of
the RAV4. According to the detective, “[e]verything appeared to
be normal.” There was no damage to the brake lines or anything
else to indicate that the brake system was faulty.
9
B. Defense Case
Defendant called one witness, a developmental
psychologist, Elizabeth Cauffman. She was not a clinical
psychologist, did not perform patient assessments, and did not
evaluate defendant or review police reports or transcripts in this
case. Therefore, she could not provide any insight as to
defendant and could not address why she engaged in the conduct
at issue in this case. Instead, she was a researcher who
examined “how people develop and change over the life course.”
According to Dr. Cauffman, adolescence begins “as young
as age 10 and extends out until age 25.” Around age 16 or 17,
adolescents are “very similar” to adults in their “cognitive
functioning.” But there is “a gap between cognitively what
[adolescents know at that age] and emotionally what [they] can
control.” Although their “cognitive system” is at an adult level,
their “emotional system [is not] fully developed [until] into [their]
late 20s.” That difference in development is “why adolescents
may know the right behaviors and the right things to do but still
perform or do things in the more risky or irresponsible way.” It
explains “why you see risky behavior during adolescence.”
Specifically, they engage in such behaviors because the frontal
lobe of the brain, which controls impulsivity and long-term
thinking, is the last part of the brain to develop and it does not
fully develop until “about 25 years of age.”
Dr. Cauffman also examined the effect of substance abuse
on emotional development in adolescents and determined that it
slowed that development. Such abuse by adolescents caused
“more impulsivity” and “decreased inhibitory control.”
10
III. PROCEDURAL BACKGROUND
In an amended information filed August 11, 2022,12 the Los
Angeles County District Attorney charged defendant in count 1
with second degree murder in violation of Penal Code section 187,
subdivision (a);13 in count 2 with vehicular manslaughter with
gross negligence in violation of section 192, subdivision (c)(1); in
count 4 with fleeing or eluding a pursuing police officer’s vehicle
causing death in violation of Vehicle Code section 2800.3,
subdivision (b); in count 8 with carjacking in violation of section
215, subdivision (a); in counts 9 and 10 with hit and run causing
property damage in violation of Vehicle Code section 20002,
subdivision (a); and in count 13 with giving false information to a
police officer in violation of Vehicle Code section 31.
The District Attorney further alleged as to count 4 that, in
the commission of that crime, defendant inflicted great bodily
injury on the five victims within the meaning of section 12022.7,
subdivision (a) and as to count 8 that, in the commission of that
crime, defendant inflicted great bodily injury of Levins, a person
12 On February 21, 2018, the prosecution filed in the juvenile
court a 17-count petition against defendant alleging, among other
offenses, murder and manslaughter. On February 22, 2018, the
prosecution filed a motion to transfer jurisdiction over defendant
to the adult criminal court. On November 13, 2019, the juvenile
court commenced a hearing on the prosecution’s motion to
transfer defendant’s case to the adult criminal court. On
January 30, 2020, the juvenile court entered an order granting
the transfer motion.
13 All further references are to the Penal Code unless
otherwise indicated.
11
over 60 years of age, within the meaning of section 1203.09,
subdivision (a) and inflicted great bodily injury on Levins within
the meaning of section 12022.7, subdivision (a).
The jury found defendant guilty on all counts and found
true the great bodily injury enhancement allegations, except the
allegation as to count 8 under section 1203.09, subdivision (a),
which it found not true.
On October 25, 2022, the trial court sentenced defendant on
count 1 to a term of 15 years to life and on count 8 to a
consecutive upper term sentence of nine years, plus three
additional years under section 12022.7, subdivision (a), for an
aggregate sentence of 27 years to life. The court also sentenced
defendant on counts 9, 10, and 13 to three concurrent terms of
180 days in county jail. And, the court imposed on count 2 an
upper term sentence of six years, plus an additional three years
under section 12022.7, subdivision (a), but stayed that sentence
under section 654; and imposed on count 4 an upper term
sentence of seven years, plus an additional three years under
section 12022.7, subdivision (a), but also stayed execution of that
sentence under section 654.
IV. DISCUSSION
A. Substantial Evidence Challenges
Defendant challenges the sufficiency of the evidence in
support of the jury’s findings on: (1) the great bodily injury
allegation on count 8; (2) the “pursuing” peace officer element of
count 4; (3) the intent to evade element of count 4; and (4) the
12
implied malice element of count 1. We address each challenge
below.
1. Standard of Review
“When a defendant challenges the sufficiency of the
evidence for a jury finding, we review the entire record in the
light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable and
credible evidence of solid value, has been disclosed, permitting
the trier of fact to find guilt beyond a reasonable doubt.
[Citation.] ‘“The standard of review is the same in cases in which
the prosecution relies mainly on circumstantial evidence.”’
[Citation.] [¶] We review the sufficiency of the evidence
supporting convictions and enhancements using the same
standard, presuming ‘“every fact in support of the judgment the
trier of fact could have reasonably deduced from the evidence.”’
[Citation.]” (People v. Vargas (2020) 9 Cal.5th 793, 820.) “We do
not reweigh evidence or reevaluate a witness’s credibility.
[Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
2. Evidence of Great Bodily Injury—Count 8
Defendant contends that the evidence of Levin’s injuries
was insufficient to establish that she suffered great bodily injury
within the meaning of section 12022.7, subdivision (a). According
to defendant “the short, shallow laceration of less than one inch
that required four stiches with some minor bruising did not
constitute [great bodily injury].”
13
Section 12022.7, subdivision (a) imposes a three-year
sentence enhancement for any person who intentionally and
personally inflicts “great bodily injury” in the commission or
attempted commission of a felony. Subdivision (f) defines great
bodily injury as constituting “a significant or substantial physical
injury.” “[T]o be significant or substantial the injury need not be
so grave as to cause the victim ‘“permanent,” “prolonged,” or
“protracted”’ bodily damage. [Citation.]” (People v. Cross (2008)
45 Cal.4th 58, 64.)
Here, the evidence showed that the then 63-year-old Levins
was repeatedly punched by defendant in an effort to obtain the
keys to the RAV4. That assault left Levins with a laceration on
her forehead that required sutures, as well as bruising under her
eyes, on her arms, and on her wrists. Her injuries were described
by Dilworth—who not only saw blood on her face at the scene, but
also had her blood on his clothes and his car—and Levins’s
daughter, who confirmed the severity of her mother’s injuries as
shown in photos taken at the hospital. Medical records and
photographs taken at the hospital before and after she was
examined and treated corroborated the nature and extent of her
injuries. Viewed in a light most favorable to the jury’s finding,
that evidence supported a reasonable inference that Levins
suffered significant and substantial physical injuries. (See, e.g.,
People v. Clay (1984) 153 Cal.App.3d 433, 459–460 [sufficient
evidence of great bodily injury; victims suffered head wounds
inflicted by a pistol, requiring three to seven stitches]; People v.
Saez (2015) 237 Cal.App.4th 1177, 1189 [sufficient evidence of
great bodily injury as “many of the victim’s injuries were to her
head”].) It was therefore sufficient to support the true finding on
the great bodily injury allegation on count 8.
14
3. Evidence of Initiation of Pursuit—Count 4
Defendant maintains that there was insufficient evidence
that the deputies initiated a pursuit before the collision within
the meaning Vehicle Code section 2800.3. As she views the trial
evidence, the prosecution failed to show that the deputies were
ever behind defendant with their lights and sirens activated.
A violation of Vehicle Code section 2800.3 requires a
showing of the elements of the offense of fleeing or eluding a
pursuing police officer as set forth in Vehicle Code section 2800.1.
(People v. Jones (2000) 82 Cal.App.4th 663, 667.) In addition to
showing willful flight from or an attempt to elude “a pursuing
peace officer’s motor vehicle” (Veh. Code, § 2800.1), that statute
further “requires four distinct elements, each of which must be
present: (1) a red light, (2) a siren, (3) a distinctively marked
vehicle, and (4) a peace officer in a distinctive uniform” (People v.
Hudson (2006) 38 Cal.4th 1002, 1008). Proof of those additional
elements is necessary “‘to ascertain whether a person fleeing is
on reasonable notice that pursuit is by a peace officer.’” (Ibid.)
Contrary to defendant’s assertion, there was sufficient
evidence to show that defendant was on reasonable notice that
she was being pursued by the deputies’ police vehicles. Deputy
Hanley testified that he and his partner were in their marked
patrol car, with its lights and sirens activated, when they saw
defendant going in the opposite direction at 95 to 100 miles per
hour. They immediately executed a U-turn behind another
marked police vehicle with its lights and sirens activated and the
two cars began to follow defendant. They were at that point
about a quarter mile from the intersection with 10th
15
Street/Tierra Subida and in close enough proximity for Deputy
Hanley to see defendant run the red light at the intersection, and
collide with the SUV.
In addition, during her interview at the hospital with
investigators, defendant admitted that she saw the deputies who
were trying to stop her and that she nevertheless decided to
continue driving. She also admitted that she should have
stopped for the deputies and that she instead ran the red light at
the intersection just prior to the collision. The jury’s finding that
defendant was fleeing a pursuing peace officer’s vehicle prior to
the collision was therefore supported by substantial evidence.
4. Evidence of Intent to Evade—Count 4
Defendant also argues that there was insufficient evidence
on count 4 to show that: (1) she had the specific intent to flee
from or elude the deputies and (2) her conduct in fleeing from or
eluding deputies was the proximate cause of Christine’s death.
According to defendant, there was no evidence that her
admittedly dangerous driving before the pursuit changed during
the brief period of time that deputies were behind her and,
similarly, no evidence that, in attempting to flee from or elude
the deputies, she took any action inconsistent with her prior
erratic conduct that caused Christine’s death.
“The elements of the crime of flight from pursuing officer
proximately causing death under Vehicle Code section 2800.3 are
willful flight or attempt to elude a peace officer proximately
causing death. More specifically, . . . to find a defendant guilty of
that crime, the People [must] prove that a peace officer was
pursuing the defendant and the defendant was driving a vehicle,
16
intended to evade the peace officer, while driving willfully fled
from or tried to elude the pursuing officer, and in doing so caused
the death of someone else.” (People v. Campbell (2023) 98
Cal.App.5th 350, 387, fn. omitted.)
The evidence here showed that defendant began driving in
an erratic and dangerous manner almost from the outset of the
carjacking. But, as noted above, it also showed that once
defendant made the U-turn to eastbound Lake Elizabeth and saw
the deputies’ vehicles with lights and sirens activated, she knew
they were trying to stop her, but she refused to stop. Instead, she
decided to continue driving at speeds in excess of 90 miles per
hour. Then, as she approached the intersection with 10th
Street/Tierra Subida with the deputies in pursuit, she
encountered traffic directly ahead of her in the eastbound lanes
waiting for the signal. Without slowing, she maneuvered into the
westbound lanes, saw the red light signal, ignored it, and
proceeded into the intersection at a high rate of speed. That
conduct was sufficient to support a reasonable inference that,
with the specific intent to evade the pursing deputies, defendant
attempted to elude them by maneuvering into traffic lanes
reserved for oncoming vehicles and then running a red light.
That same evidence also demonstrated that defendant’s
conduct in fleeing the pursuit, that is, entering opposing traffic
lanes and running the red light at the intersection at a high rate
of speed, caused Christine’s death.
5. Evidence on Implied Malice—Count 1
Defendant argues that there was insufficient evidence to
support the jury’s finding on the second degree murder charge
17
(count 1), that she acted with the requisite implied malice. She
claims that there is no evidence that she was subjectively aware
her actions were dangerous to human life or that she acted with
conscious disregard for human life, as opposed to acting with
gross negligence.
“Malice is implied when the killing is proximately caused
by ‘“an act, the natural consequences of which are dangerous to
life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.”’ [Citation.] In short, implied malice
requires a defendant’s awareness of engaging in conduct that
endangers the life of another—no more, and no less.” (People v.
Knoller (2007) 41 Cal.4th 139, 143.)
“‘Implied malice is determined by examining the
defendant’s subjective mental state to see if [the defendant]
appreciated the risk of [the defendant’s] actions. [Citations.]
Malice may be found even if the act results in a death that is
accidental. [Citation.] It is unnecessary that implied malice be
proven by an admission or other direct evidence of the
defendant’s mental state; like all other elements of a crime,
implied malice may be proven by circumstantial evidence.’
[Citation.]
“. . . [The requirement of ] . . . conscious disregard for the
danger to life distinguishes implied malice from gross negligence,
which involves ‘the exercise of so slight a degree of care as to
raise a presumption of conscious indifference to the
consequences.’ [Citation.] ‘Phrased in everyday language, the
state of mind of a person who acts with conscious disregard for
life is, “I know my conduct is dangerous to others, but I don’t care
if someone is hurt or killed.” The state of mind of the person who
18
acts with conscious indifference to the consequences is simply, “I
don’t care what happens.”’ [Citation.] The standard for implied
malice is subjective and requires the defendant appreciate the
risk involved.” (People v. Murphy (2022) 80 Cal.App.5th 713,
726.)
The trial evidence here showed that defendant—who had
no formal driver’s training and knew on the day of the collision
that she had not driven in three years—nevertheless decided that
afternoon to take the RAV4 and “drive fast”. Two eye witnesses
independently reported her driving “erratically,” “moving . . . all
over the road,” “in and out of lanes,” and “out of control” at speeds
between 80 and 100 miles per hour. Ramirez described her
passing cars on the wrong side of the road and almost colliding
with at least two other vehicles and a pole. He was so concerned
about her driving, that he told the 911 operator, if she was
involved in an accident, it was “gonna be a bad accident.”
At some point, defendant pulled over to the side of the road
and parked, long enough for Ramirez to approach her car and tell
her to stop driving and turn off her engine. Instead of heeding
Ramirez’s admonition, defendant executed a U-turn and headed
back toward town at over 90 miles an hour, in disregard for the
risk to others. Before she reached the intersection with 10th
Street/Tierra Subida, defendant passed deputies heading in the
opposite direction and knew they were trying to stop her. She
ignored their lights and sirens, thinking “fuck it”, and continued
toward the intersection at over 90 miles per hour, well in excess
of the posted 50 miles per hour speed limit. Then, when she
encountered traffic stopped in front of her as she neared the
intersection, she did not slow down, choosing instead to veer into
the opposing westbound traffic lanes. Finally, she admittedly
19
saw that the light controlling access to the intersection was red,
but decided to ignore that signal and enter the intersection at an
excessive speed, braking ineffectively and too late to avoid the
collision. (See e.g. People v. Moore (2010) 187 Cal.App.4th 937,
940.)
That evidence supported a reasonable inference that
defendant was aware her conduct endangered the lives of others
and that she nevertheless proceeded to act in disregard for
human life. The jury’s finding of implied malice was therefore
based on substantial evidence.
B. Great Bodily Injury Enhancement on Counts 2 and 4
Defendant contends that the trial court erred by applying
the great bodily injury enhancement under section 12022.7,
subdivision (a) to her convictions on count 2 for vehicular
manslaughter and count 4 for fleeing or eluding a pursuing peace
officer in violation of section 2800.3. According to defendant,
because great bodily injury is an element of the offenses charged
in both counts, the enhancements were unauthorized under
section 12022.7, subdivision (g)—which expressly prohibits
application of the subdivision (a) enhancement to an underlying
offense, if “[great bodily injury] is an element of the offense.”
Even if we were to assume, without deciding, that the trial
court erred by imposing the section 12022.7, subdivision (a)
enhancements on the sentences for counts 2 and 4, we would
nevertheless conclude that reversal is not warranted because any
such error was rendered harmless by the court’s orders staying
enforcement of the sentences on those counts pursuant to section
654. The purpose of the section 12022.7, subdivision (g)
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prohibition is to avoid double punishment for the same conduct,
that is, causing great bodily injury in the commission of an
offense. (See People v. Cook (2015) 60 Cal.4th 922, 930
[acknowledging that section 12022.7, subdivision (g) is intended
to avoid “‘dual punishment’”].) The section 654 stays on
enforcement were based on similar grounds and therefore
accomplished the same result. (See People v. Liu (1996) 46
Cal.App.4th 1119, 1135 [“The purpose of section 654 is to prevent
multiple punishment for a single act or omission . . .”].)
Therefore, because there are no challenges (or at least no
meritorious challenges) to the other custodial components of
defendant’s sentence, she cannot demonstrate the prejudice
required for reversal. (See People v. Brockman (1936) 15
Cal.App.2d 256, 258 [“If error arose in the decisions and
judgments[,] it was rendered harmless by the act of the court in
ordering the two sentences to be served concurrently”].)
C. Resentencing on Counts 2, 4, and 8—Senate Bill No. 567
Defendant also contends that the matter should be
remanded for resentencing in light of the “retroactive”
amendments to section 1170, subdivision (b) implemented by
Senate Bill No. 567 (2020–2021 Reg. Sess.; Stats. 2021, ch. 731,
§ 1.3). The Attorney General agrees that the Senate Bill No. 567
amendments to section 1170, subdivision (b) are “retroactive in
[defendant’s] case” but contends, among other things, that
defendant forfeited her Senate Bill No. 567 challenges to her
upper term sentences on counts 2, 4, and 8 by failing to raise
those issues with the trial court.
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We agree with the Attorney General that defendant
forfeited her challenges to her upper term sentences under the
amendments implemented by Senate Bill No. 567. Those
amendments to section 1170 became effective January 1, 2022,
and defendant was not sentenced until October 25, 2022.
Defendant therefore was obligated to raise her objection in the
trial court in order to preserve her argument on appeal. (See
People v. Stowell (2003) 31 Cal.4th 1107, 1113.)
Defendant contends, in the alternative, that if her trial
counsel failed to preserve her Senate Bill No. 567 sentencing
issues, she received ineffective assistance of counsel. But, other
than citing Strickland v. Washington (1984) 466 U.S. 668, she
does not adequately develop her argument or articulate how she
was prejudiced by her trial counsel’s inaction. (See Holden v.
City of San Diego (2019) 43 Cal.App.5th 404, 418–419; People v.
Ham (1970) 7 Cal.App.3d 768, 783, disapproved on other grounds
in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) We therefore
do not address her argument further.
D. Reversal for New Transfer Hearing—Assembly Bill
No. 2361
Defendant’s final contention is that she is entitled to a
conditional reversal and remand of the matter for a new transfer
hearing pursuant to Assembly Bill No. 2361’s amendments to
Welfare and Institutions Code section 707 (section 707) which
became effective after defendant’s transfer hearing and
conviction and sentencing in this case. The Attorney General
agrees that Assembly Bill No. 2361 applies to this case and that
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it requires conditional reversal and remand for a new transfer
hearing.
“Effective January 1, 2023, the Legislature amended
section 707, adding the following language: ‘In order to find that
the minor should be transferred to a court of criminal
jurisdiction, the court shall find by clear and convincing evidence
that the minor is not amenable to rehabilitation while under the
jurisdiction of the juvenile court.’ (§ 707, subd.(a)(3), as amended
by Stats. 2022, ch. 330, § 1.) This changed the finding a juvenile
court must make before ordering a transfer in two ways:
(1) raising the standard of proof and (2) requiring a new specific
finding regarding amenability to rehabilitation.” (In re S.S.
(2023) 89 Cal.App.5th 1277, 1284.)
We agree that Assembly Bill No. 2361 applies to
defendant’s case, that she is entitled to its ameliorative benefits,
and that conditional reversal and remand thus are warranted for
the limited purpose of conducting a new transfer hearing under
the requirements of that enactment. We will therefore
conditionally reverse the judgment of conviction and remand the
matter to the trial court with instructions.
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V. DISPOSITION
The judgment of conviction is conditionally reversed and
remanded to the juvenile court for a new hearing under section
707, as amended, to determine whether that court would have
transferred the case to the criminal court under the current law.
If the juvenile court determines that it would not have
transferred the case under the current law, it shall treat
defendant’s convictions as juvenile adjudications and order an
appropriate disposition in light of this opinion. If the juvenile
court determines that it would have transferred the case to the
criminal court under current law, the judgment of conviction
shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J. LEE, J.
Judge of the San Bernardino Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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