Filed 1/24/14 P. v. Lewis CA5




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064694
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF130438A)
                   v.

DAVID WAYNE LEWIS,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-
       David Wayne Lewis, with a blood alcohol content of .22 percent, drove through a
red light and collided with a truck. His passenger, Michael Rogers, died at the scene. A
jury found Lewis guilty of second degree murder (Pen. Code, § 187, subd. (a))1 and gross
vehicular manslaughter (§ 191.5, subd. (a)).
       Lewis argues the trial court abused its discretion when it overruled his objection to
evidence (1) that Lewis had suffered three prior convictions for driving while under the
influence of alcohol, (2) he had attended courses to regain his driver license, (3) evidence
of the topics presented at these courses, and (4) Lewis’s response to topics presented
during these courses. Since the charge of second degree murder required the prosecution
to prove beyond a reasonable doubt that Lewis acted with implied malice when the
accident occurred, the evidence was relevant and admissible. Accordingly, we affirm the
judgment.
                     FACTUAL AND PROCEDURAL SUMMARY
The Charges
       The amended information charged Lewis with second degree murder (§ 187, subd.
(a)), and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)).2 The gross
vehicular manslaughter count also alleged that because of Lewis’s prior convictions for
driving under the influence, if convicted, he was subject to a prison term of 15 years to
life. (§ 191.5, subd. (d).)



1      All statutory references are to the Penal Code unless otherwise stated.
2       The amended information also contained two additional charges, causing bodily
injury to another while driving under the influence of alcohol (Veh. Code, § 23153, subd.
(a)), and causing bodily injury to another while driving with a blood alcohol level greater
than .08 percent (Veh. Code, § 23153, subd. (b)). These charges were dismissed at the
request of the prosecutor prior to trial.



                                               2.
The Testimony
       Janet Castro was driving home with her boyfriend, Sisco Vijil, and her son on
December 21, 2009. They were traveling northbound on Highway 43, and had stopped
for a red light at the intersection of Kimberlina Road. Vijil, who was driving, was
waiting for a tractor-trailer rig to complete a left turn onto Kimberlina from southbound
Highway 43. Vijil made a comment that a vehicle (Lewis’s vehicle) approaching from
the rear was traveling very fast. When Castro looked for the approaching vehicle she saw
it “fly by” on the right side of the vehicle she was in, and then run into the tractor-trailer
rig. The truck did not appear to move very much with Lewis’s vehicle taking most of the
impact. Castro did not hear any brakes before the collision. The light controlling
northbound traffic on Highway 43 was red when Lewis’s vehicle entered the intersection.
Castro immediately called for emergency services.3
       Kern County Fire Department personnel arrived at the scene and were informed by
ambulance personnel that Rogers was deceased. It was determined that because of the
extensive damage to the automobile the fire department would have to extricate the driver
from the vehicle. This was accomplished by removing the doors from the vehicle.
       When paramedic Andrew Farrell arrived at the scene, he observed an accident
between a tractor trailer and passenger automobile. The driver of the tractor trailer
appeared uninjured. The passenger in the automobile was deceased, and the driver had
several lacerations on his head and appeared to be in a confused state. The driver
identified himself as Lewis. The Kern County Fire Department had to extricate Lewis
from the vehicle before paramedics provided treatment.
       Kern County Senior Deputy Sheriff Bob Venable was dispatched to the hospital to
interview Lewis. Before driving to the hospital he had seen beer cans at the scene so he


3      Vijil also testified in a substantially similar manner.



                                               3.
thought alcohol may have been involved in the accident. At the hospital, Lewis first
admitted he had been driving the vehicle, but later indicated that Rogers may have been
driving the vehicle because Lewis was not certain about what occurred. Venable smelled
the odor of alcoholic beverage when speaking with Lewis, and also observed that Lewis
had red watery eyes. Lewis admitted he and Rogers had drunk several beers at their
house, and then the two drove to a bar and consumed more beer. The two were on their
way home when the accident occurred.4
       The parties stipulated that on the night of the incident, blood was drawn from
Lewis twice and each sample was tested for blood alcohol levels. The first blood draw
occurred at 7:45 p.m. and the blood alcohol level was .218 percent. The second blood
draw occurred at 10:35 p.m. and the blood alcohol level was .11 percent.
       Ronald Bailey, a criminalist for the Kern County Crime Lab, explained that the
type of test done by the hospital, a serum alcohol test, actually concentrates the alcohol in
the blood, so the reported level is higher than a whole blood test. He estimated the
alcohol was approximately 18 percent more concentrated than a whole blood test. Using
the 18 percent figure, Bailey concluded that the test performed by the hospital, if
performed on whole blood instead of serum, would have resulted in an alcohol level of
.185. Using this information, Bailey calculated the alcohol elimination rate for Lewis.
He then opined that at the time of the accident, Lewis’s blood alcohol content was .22
percent.
       The remainder of the testimony related to Lewis’ past infractions. California
Highway Patrol Officer Jeffrey Douglas Nousch testified that he arrested Lewis in 1999
for driving while intoxicated. Lewis’s blood alcohol content tested at .13 percent. Both




4      Lewis and Rogers were roommates.



                                             4.
Lewis and his passenger were taken to the hospital for treatment of minor injuries. Lewis
pled guilty to a misdemeanor violation of Vehicle Code section 23153, subdivision (a).
       Katherine Sons is an alcohol and drug counselor for TAASK, a program for
people arrested for driving while under the influence of alcohol. The program lasts three
months for first time offenders, and 18 months for repeat offenders. The State of
California has a specific curriculum for first time offenders. She confirmed that Lewis
enrolled in a three month program in 1999, and completed that program in 2000. During
the program it would have repeatedly been explained to Lewis that if you drive while
intoxicated you could seriously injury or kill someone.
       The prosecution next introduced evidence that Lewis was arrested and convicted
for driving while under the influence on March 13, 2004, and on March 27, 2004.
       Linda Eviston, the executive director at STEPS, another program for individuals
who have been convicted of driving under the influence of alcohol, confirmed that Lewis
enrolled in one of the 18 month multiple offender programs at STEPS on September 20,
2005, and completed the program on May 8, 2007.
       Christine Joy Essepian was Lewis’s counselor at the STEPS program. She
explained the goals of the program and how the program works. Essepian testified that in
every group she teaches she reminds the clients that driving while intoxicated can result
in the death of the driver or someone else. The prosecutor reviewed some of the forms
filled out by Lewis while he was enrolled in the program. As an example, one of the
forms asked Lewis how he would feel if he were involved in a fatal collision while
intoxicated. Lewis replied, “I have been in several accidents and I am very fortunate that
I haven’t killed somebody or even myself. That is one of the … main reasons why I
don’t drink anymore.” Another question was whether Lewis believed he made logical
choices when he received his driving under the influence ticket. Lewis responded, “No, I
didn’t. I should have … never got behind the wheel when I drank. That is why I will
never drink again. It has caused me nothing but trouble.” Another comment made by

                                            5.
Lewis was that he “learned that 6,568 people have died from alcohol-related accidents,
drunk driving.”
The Verdict and Sentencing
       The jury found Lewis guilty of each charge, and found each enhancement to be
true. The trial court sentenced Lewis to a term of 15 years to life for the second degree
murder charge, but stayed the sentence on the gross vehicular manslaughter charge
pursuant to section 654.
                                       DISCUSSION
       The only issue is whether the trial court abused its discretion when it denied
Lewis’s motion to exclude evidence of his prior drunk driving arrests and the DUI classes
he took to regain his driving privilege. Lewis admits the evidence was relevant and
probative, but asserts the amount of evidence admitted, and the inflammatory nature of
some of that evidence, required the trial court to limit the evidence offered by the
prosecution. We do not agree.
       Lewis objected to this evidence pursuant to the provisions of Evidence Code
section 352. This section grants the trial court discretion to exclude relevant evidence if
the probative value of the evidence is substantially outweighed by the probability that its
admission will (1) necessitate the undue consumption of time, or (2) create substantial
danger of undue prejudice, or (3) create substantial danger of confusing the issues, or (4)
create substantial danger of misleading the jury. The statute grants the trial court broad
discretion in making determinations under Evidence Code section 352. (People v. Clark
(2011) 52 Cal.4th 856, 893.) We review the rulings of the trial court under the
deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
We will interfere with the trial court’s ruling only if the record demonstrates the trial
court acted in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)



                                              6.
       Lewis faced two charges at trial, second degree murder and gross vehicular
manslaughter while intoxicated. The murder charge was based on the theory of implied
malice. Malice is implied “when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant heart.” (§ 188.)
Recognizing that the statutory definition of implied malice is vague and, therefore,
requires judicial interpretation (People v. Bryant (2013) 56 Cal.4th 959, 964), the
Supreme Court has explained that implied malice exists when (1) a person commits an
act, (2) the natural consequences of the act are dangerous to life, (3) the person knew his
conduct endangered the life of others, and (4) the person deliberately acted with
conscious disregard for life. (People v. Watson (1981) 30 Cal.3d 290, 300.) This
definition of implied malice includes “ ‘both a physical and a mental component. The
physical component is satisfied by the performance of “an act, the natural consequences
of which are dangerous to life.” [Citation.] The mental component is the requirement
that the defendant “knows that his conduct endangers the life of another and ... acts with a
conscious disregard for life.” [Citation.]’ [Citation.]” (People v. Chun (2009) 45 Cal.4th
1172, 1181.) The mental component is a subjective standard requiring the prosecution
prove the “ ‘defendant’s awareness of engaging in conduct that endangers the life of
another .…’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507.) Accordingly, the
prosecution was required to prove beyond a reasonable doubt that Lewis was aware that
driving a vehicle while intoxicated endangered the life of another, and he decided to drive
while intoxicated even though he knew doing so was dangerous to the lives of others.
       The evidence about which Lewis complains was aimed at proving the mental
component of implied malice. The primary type of evidence offered by the prosecution
to prove this element of the crime related to DUI classes Lewis took to regain his driver
license. In those classes, Lewis was required to fill out forms relating what he had
learned in each session, and his plan to avoid future offenses. The forms Lewis filled out



                                             7.
were admitted into evidence, and the counselor who led Lewis’s class testified about the
following portions of the forms:

      Lewis was asked to describe how he behaved when intoxicated. He wrote
      “blackouts, loss of memory, judgment is messed up, I feel I am o.k. but in
      reality I am not.”

      Lewis wrote that he learned “that 90% of date rapes involve alcohol.
      Bottom line alcohol is no good and is a evil thing for me. Thats why I
      don’t drink anymore.”

      One form asked Lewis “How would you feel if you were involved in a fatal
      collision while under the influence, and it was your fault?” Lewis wrote “I
      have been in several accidents and I am very fortunate that I haven’t killed
      somebody or even myself. That is one of the main reasons why I don’t
      drink anymore.”

      Lewis wrote that he learned in class that “1 in 4 Drivers are on something
      or have been drinking. Increase your chances of living or not getting in a
      accident by driving sober, it’s hard enough to concentrate driving sober.”

      When asked whether he made a logical choice when he was cited for
      driving under the influence, Lewis wrote “No I didn’t, I should have never
      got behind the wheel when I drank. That is why I will never drink again. It
      has caused me nothing but trouble and I am happier when I do not drink.”

      One class apparently dealt with individuals who are opinionated and
      judgmental. Lewis wrote “I am criticizing because I do analyze and
      evaluate almost everything I do now. I didn’t used to when I was a drunk (I
      didn’t care).”

      In one session Lewis was asked to respond to the question of who was
      responsible for his DUI conviction. He responded “Myself and I am glad I
      got a DUI because I feel that I was out of control and this is what it took for
      me to realize that I needed to stop drinking all together and that I had a
      problem.”

      After one session, Lewis wrote that he learned “that 6,568 people have died
      from alcohol related accidents (drunk driving).”

      Lewis stated on one form that three positive things that occurred as a result
      of his conviction were “stopped drinking, being more responsible, grateful
      that nothing else happened.”


                                            8.
       In response to a question asking whether he knew how much damage he
       was doing to himself as a result of his substance abuse, Lewis wrote “No,
       and at that time I just did not care. Now am paying the consequences but I
       am at the end of my damage control and I am thankful that it is finally
       over.”

       As part of his exit plan, Lewis was asked to write six things that would
       prevent him from using alcohol again. Lewis listed the following:

       “(1) My son.

       “(2) My drivers license.

       “(3) The long struggle I went through that I will not do to myself again.

       “(4) My happiness.

       “(5) Me being an example for my son, family and friends.

       “(6) I will not drink or use drugs again let alone drive under the influence.”
       In addition to this evidence, the prosecution introduced evidence that Lewis was
convicted for driving under the influence of alcohol in 1999 after he had an accident.
Lewis’s blood alcohol content tested at .13, and Lewis and his passenger were both
treated for minor injuries. In addition, the prosecution introduced evidence that Lewis
completed a three month program in 2000, and during this program Lewis was repeatedly
informed that he could seriously injure or kill someone if he continued to drive while
intoxicated. The prosecution also introduced evidence that Lewis was convicted of
driving while under the influence twice in 2004, for incidents that occurred in the month
of March.
       Lewis concedes the statements were relevant and probative to prove implied
malice, but contends the trial court should have limited the amount of information
presented to the jury. Lewis opines the prosecution should have been limited to evidence
of the prior arrests and the three month program because this evidence was ample to
ensure his conviction.




                                             9.
       As stated above, to prove Lewis acted with implied malice, the prosecution was
required to prove (1) Lewis intentionally committed an act, (2) the natural and probable
consequence of the act was dangerous to human life, (3) Lewis knew the act was
dangerous to human life, and (4) Lewis deliberately acted with conscious disregard for
human life, i.e., he deliberately acted even though he knew his actions would endanger
human life. (CALCRIM No. 520.) There was no dispute that Lewis intentionally drove a
motor vehicle while he was intoxicated, and Lewis conceded that he knew that if he got
into a vehicle it would be dangerous to human life, satisfying elements one and three.
       Lewis questioned whether there was evidence that the natural and probable
consequence of driving while intoxicated was dangerous to human life, pointing out that
many intoxicated drivers arrive at their destination without harming anyone. His primary
argument, however, was that he did not act with a conscious disregard for human life
when he drove while intoxicated. Defense counsel argued in closing that (1) the fact that
Lewis drove with a blood alcohol content of .22 did not conclusively establish that Lewis
acted with a conscious disregard for human life, (2) Lewis’s cooperation with law
enforcement suggested he was acting responsibly, (3) there was no evidence that Lewis
drove dangerously at any time before the accident, and (4) he attempted to stop before the
collision, an act suggesting Lewis was concerned about human life. Each of these
arguments, according to defense counsel, suggested that Lewis did not have a conscious
disregard for human life.
       The evidence about which Lewis complains suggests otherwise. This evidence
established that Lewis knew it was dangerous to drive while intoxicated and that people
frequently were killed by intoxicated drivers. In the words of the jury instruction, the
evidence established that Lewis was conscious (aware) that driving while intoxicated
could result in the loss of human life. Lewis then deliberately acted (chose to drive while
intoxicated) thereby disregarding his knowledge that driving while intoxicated
endangered his life and the life of others. In other words, the evidence was necessary to

                                            10.
prove that Lewis deliberately acted with conscious disregard for life. The trial court did
not abuse its discretion in so concluding.
       Lewis’s suggestion that this probative evidence should have been excluded admits,
in essence, the evidence to prove Lewis’s guilt was overwhelming. Accordingly, logic
compels the conclusion that Lewis could not have suffered any prejudice by the
admission of the evidence. If the evidence did not establish Lewis’s guilt
overwhelmingly, then the trial court’s ruling was correct and the evidence should have
been admitted in an attempt to prove guilt beyond a reasonable doubt. If, on the other
hand, the evidence was overwhelming, then, theoretically, the trial court could have
limited that evidence to the point where it conclusively established Lewis’s guilt. The
impossibility of knowing exactly when evidence reaches the point of conclusively
establishing a defendant’s guilt is why the trial court is granted wide discretion when
ruling on such motions (People v. Clark, supra, 52 Cal.4th at p. 893), and also explains
why the trial court did not err in denying Lewis’s motion.
       The evidence introduced by the prosecution about Lewis’s prior convictions and
his attempts at rehabilitation was not excessive. The only witness of any length was
Essepian. The fact Essepian was emotionally distraught during her testimony simply
demonstrated that she was concerned about her students, and devastated when Lewis
caused a fatal accident after all of her efforts to prevent just such an outcome. Moreover,
we note that defense counsel never sought to exclude Essepian’s testimony on the basis
that her presentation would be too emotional. To the extent such an objection could be
made, it was forfeited. (People v. Virgil (2011) 51 Cal.4th 1210, 1276.)
       Finally, the type of prejudice Evidence Code section 352 was designed to prevent
was not present in this case. “ ‘The prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or

                                             11.
cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien
(1993) 4 Cal.4th 929, 958.)
       There was little if any danger the evidence of past convictions for driving under
the influence would cause the jury to prejudge Lewis. The circumstances of the current
offense were far more serious than the prior offenses. Only one of the prior incidents
involved injury, and the injuries were not serious. The testimony about the topics
covered in the classes Lewis took, and his written responses to the topics discussed, did
not generate the type of prejudice at which Evidence Code section 352 is directed. This
information established Lewis’s knowledge about the dangers of driving while
intoxicated, but would not cause any reasonable juror to prejudge him.
       Accordingly, we conclude Lewis’s argument must be rejected for the three reasons
outlined above: (1) The trial court did not abuse its discretion when overruling Lewis’s
objection, (2) the evidence was not prejudicial in the sense described in Evidence Code
section 352, and (3) even if there was error, Lewis did not suffer any prejudice because of
the error.5
       Lewis also argues the introduction of this evidence violated the due process clause
of the Fourteenth Amendment to the United States Constitution rendering his trial
fundamentally unfair. As we have demonstrated, the evidence was material and
probative on the issue of whether Lewis subjectively knew his actions were dangerous,
and whether he acted in conscious disregard of life. The evidence harmed Lewis’s case
because it defeated his only possible defense to the charges, not because it had the
potential for causing the type of prejudice prohibited by Evidence Code section 352.
Because the evidence was relevant and was not impermissibly prejudicial, the evidence


5      For the same reasons, we also reject Lewis’s suggestion that this evidence was
also inadmissible to prove that he acted with gross negligence. (People v. Ochoa (1993)
6 Cal.4th 1199, 1204-1206.)



                                            12.
did not render the trial fundamentally unfair within the meaning of the Fourteenth
Amendment.
                                    DISPOSITION
      The judgment is affirmed.

                                                               _____________________
                                                                     LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
POOCHIGIAN, J.




                                           13.
