Filed 3/6/15 P. v. Coleman CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B254073

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA098859)
         v.

BRIAN VANCE COLEMAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Mike Camacho, Judge. Affirmed.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II, Supervising Deputy Attorney General, Brendan Sullivan, Deputy Attorney General,
for Plaintiff and Respondent.
                                   INTRODUCTION


       Defendant and appellant Brian Vance Coleman (defendant) was convicted of
second degree murder (Pen. Code, § 187, subd. (a)1) (count 1); gross vehicular
manslaughter (§ 192, subd. (c)(1)) (count 2); evading an officer causing death (§ 2800.3,
subd. (b)) (count 4); leaving the scene of an accident (§ 20001, subd. (a)) (count 5); and
unlawful taking of a vehicle with a prior (§ 666.5) (count 6). On appeal, defendant
contends that former section 22 violated his constitutional due process and equal
protection rights; and that imposition of sentence on count 6 for the unlawful taking of a
motor vehicle should have been stayed pursuant to section 654. We affirm the judgment.


                                   BACKGROUND


       A.     Factual Background


              1.     Prosecution Evidence
       On July 28, 2012, Kimberly McWilliam parked her Ford F-350 truck on the street
in a residential area. On July 29, 2012, at about 6:30 a.m., McWilliam noticed that her
truck was missing, and she called the police department and reported that it been stolen.
McWilliam did not know defendant and did not give him permission to take her truck.
       On July 29, 2012, Claremont Police Officer Christopher Casas received a dispatch
notification of a stolen vehicle traveling south on Towne Avenue. Officer Casas drove to
the area and activated the recording camera mounted on the dashboard of his marked
patrol vehicle. The video recording was played before the jury. Officer Casas traveled
north on Towne Avenue, started to make a u-turn to go south on Towne Avenue, and the
truck, later identified as being driven by defendant, went south on Towne Avenue past
Officer Casas.

1
       All statutory citations are to the Penal Code unless otherwise noted.


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       After Officer Casas completed his u-turn, he stopped behind the truck as it was
stopped for a red traffic light. Officer Casas noticed that defendant was looking at him
from the truck’s side mirrors.
       Shortly after the traffic light turned green, the truck accelerated at a high rate of
speed, changed lanes several time during which he “cut[] off” another vehicle, and drove
through a red light. Officer Casas activated his lights and siren and initiated a pursuit of
the truck. Defendant was driving approximately 70 to 75 miles per hour. Defendant then
again changed lanes, and slowed abruptly to avoid colliding with vehicles stopped at an
intersection. Thereafter, Officer Casas saw defendant enter an intersection, drive through
the red light, and collide with a Toyota Camry. Officer Casas then saw defendant exit the
truck; Officer Casas was able to see clearly defendant’s face. Jesus Bugarin Mercado, the
driver of the Toyota, died.
       At approximately 5:45 p.m., Sharon and Glenn Wright were in their vehicle on
Towne Avenue, stopped at a red traffic light at an intersection. As the Wrights were
waiting for the traffic light to turn green, Mrs. Wright saw a truck drive pass them and
enter the intersection through a red light. She heard a collision and saw the truck hit a
tree. Mr. Wright witnessed the truck collide with a small car and then a tree. Both the
Wrights saw the driver of the truck get out of it and flee.
       Officer Casas pursued and ultimately detained defendant. The transcript of the
audio portion of the video recording from Officer Casas’s patrol vehicle consisted of
three pages. As represented by the prosecutor, and based on what the transcript appears
to indicate, Officer Casas’s pursuit of the truck and ultimate apprehension of defendant
took about 10 minutes and 24 seconds.
       Upon apprehending defendant, Officer Casas was with defendant for about 15
minutes, and during that time asked him questions and observed him. According to
Officer Casas, defendant appeared to be responsive, coherent, and aware of his
surroundings.
       On July 29, 2012, Emergency Physician Benjamin Squire treated defendant in the
emergency room of Pomona Valley Hospital for injuries sustained in a car accident.

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Defendant’s urine tested positive for marijuana, methamphetamine, amphetamine, and
opiates. Defendant’s blood tested positive for amphetamine, methamphetamine, and
morphine.
       The level of methamphetamine in defendant’s blood was, depending on what
lower therapeutic range it is measured against, was either 12 or 60 times higher than
therapeutic levels. Los Angeles County Sheriff’s Department Criminalist Meena Shinn
testified that methamphetamine affects an individual’s mental state. An individual under
the influence of methamphetamine believes time is elapsing faster than it is actually, is
more willing to take risks, and may develop paranoia or hallucinations.


              2.     Defendant’s Evidence
       Defendant did not testify or present any evidence in his defense.


       B.     Procedural Background
       Following a trial, the jury found defendant guilty of second degree murder in
violation of section 187, subdivision (a) (count 1); gross vehicular manslaughter in
violation of section 192, subdivision (c)(1) (count 2); evading an officer causing death in
violation of section 2800.3, subdivision (b) (count 4); leaving the scene of an accident in
violation of section 20001, subdivision (a) (count 5); and unlawful taking of a vehicle
with a prior in violation of section 666.5 (count 6). Defendant admitted all prior
conviction allegations made by the District Attorney of Los Angeles County in the
information filed against him.
       The trial court sentenced defendant to state prison for a term of 46 years to life,
consisting of a term of 15 years to life on count 1 for second degree murder, plus 15 years
for the prior strike conviction; one year for each of the three prior prison terms pursuant
to 667.5, subdivision (b); 5 years pursuant to 667, subdivision (a)(1); and 8 years on
count 6 for unlawful taking of a vehicle with a prior conviction. The remaining counts
were stayed pursuant to section 654.



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       The trial court awarded defendant custody credit, and ordered him to pay various
fees, fines and penalties. Defendant filed a timely notice of appeal.


                                      DISCUSSION


       A.     Former Section 22, Subdivision (b)
       Defendant contends that former section 22, which precluded the admissibility of
voluntary intoxication evidence as a basis for negating the mental state requirement of
implied malice aforethought for second degree murder, violated his constitutional due
process and equal protection rights. We disagree.


              1.     Applicable Law
       “‘Murder is the unlawful killing of a human being . . . with malice aforethought.’
[Citation.] ‘Such malice may be express or implied. It is express when there is
manifested a deliberate intention unlawfully to take away the life of a fellow creature.’
[Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1265-1266.) “Implied malice
does not require an intent to kill. Malice is implied when a person willfully does an act,
the natural and probable consequences of which are dangerous to human life, and the
person knowingly acts with conscious disregard for the danger to life that the act poses.
[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 653; People v. Taylor (2010) 48
Cal.4th 574, 623-624; CALCRIM No. 520.) The trial court here instructed the jury with
a modified version of CALCRIM No. 520 only as to implied malice.
       Former section 22, subdivision (b),2 in effect at the time defendant committed the
criminal acts, expressly prohibited consideration of voluntary intoxication evidence as a
basis for negating the mental state requirement of implied malice aforethought. It
provided in part, “Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or, when charged

2
       Effective January 1, 2013, section 22, subdivision (b) was renumbered as section
29.4, subdivision (b). (Stats. 2012, ch 162, § 119).

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with murder, whether the defendant premeditated, deliberated, or harbored express
malice aforethought.” (Former § 22, subd. (b); italics added.)
       Prior to 1995, section 22, subdivision (b), provided in part, “Evidence of voluntary
intoxication is admissible on the issue of whether or not the defendant actually formed a
required specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored malice aforethought.” (Stats. 1982, ch. 893, § 2.)
Thus, prior to 1995, evidence of voluntary intoxication was admissible with regard to
whether the defendant harbored malice aforethought, either express or implied. (People
v. Whitfield (1994) 7 Cal.4th 437, 448-451.)
       Thereafter, section 22, subdivision (b) was amended by adding the word “express”
before the phrase “malice aforethought.” (Stats 1995, ch. 793, § 1.) By this amendment
the Legislature intended to preclude evidence of voluntary intoxication on the issue of the
implied malice form of second degree murder. (People v. Reyes (1997) 52 Cal.App.4th
975, 984, fn. 6; Legis. Counsel’s Dig., Sen. Bill No. 121 (1995-1996 Reg. Sess.),
Summary Dig., p. 334.)


              2.     Analysis


                     a)     Due Process
       Defendant acknowledges that the California Supreme Court has rejected the
argument that former section 22 violated his constitutional due process rights. In People
v. Sorden (2005) 36 Cal.4th 65, the Supreme Court affirmed its prior opinion in People v.
Atkins (2001) 25 Cal.4th 76, “reject[ing] the argument that exclusion of evidence, under
section 22, of the defendant’s voluntary intoxication ‘violate[d] his due process rights by
denying him the opportunity to prove he did not possess the required mental state
(Montana v. Egelhoff (1996) 518 U.S. 37, 39-40, 56[].)’ (Atkins, at p. 93.)” (People v.
Sorden, supra, 36 Cal.4th at p. 72, fn. omitted; People v. Carlson (2011) 200 Cal.App.4th
695, 706-707 [citing People v. Martin (2000) 78 Cal.App.4th 1107 and People v. Timms
(2007) 151 Cal.App.4th 1292, and stating, “California appellate courts have followed

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[People v.] Egelhoff[, supra,] 518 U.S. 37] in upholding the current version of section 22
against due process attacks”].)
       As defendant concedes, we are bound by our Supreme Court’s holding in People
v. Sorden, supra, 36 Cal.4th 65, and People v. Atkins, supra, 25 Cal.4th 76, both of which
cases were decided after Montana v. Egelhoff, supra, 518 U.S. 37, upon which defendant
relies. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Former
section 22 did not violate defendant’s due process rights.


                     b)     Equal Protection
       It is a fundamental principle that, “[t]o succeed on [a] claim under the equal
protection clause, [a defendant] first must show that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner. [Citation.]”
(Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) A defendant charged with
implied-malice second degree murder is not similarly situated to a defendant charged
with express-malice second degree murder. For example, a defendant cannot be
convicted of a conspiracy to commit murder based on implied malice. (People v. Swain
(1996) 12 Cal.4th 593, 607 [“a conviction of conspiracy to commit murder requires a
finding of intent to kill, and cannot be based on a theory of implied malice”].) A
murderer who acts with intent to kill (express malice) is not similarly situated to a
murderer who intentionally performs an act dangerous to human life with knowledge of
the danger with conscious disregard for human life (implied malice).
       Even if defendants convicted of express-malice murder and implied-malice
murder are similarly situated, the prohibition on admitting evidence of voluntary
intoxication for a charge of implied malice murder does not violate equal protection
principles. People v. Timms, supra, 151 Cal.App.4th 1292 rejected the defendant’s
contention that former section 22 violates one’s federal constitutional equal protection
rights. The court held that former section 22 does not offend equal protection principles
because there is a rational basis for not recognizing voluntary intoxication as a defense in
an implied malice case, but allowing it as a defense for express malice. The court stated,

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“Criminal classifications determining gradations of culpability do not implicate strict
scrutiny. [Citation.] A defendant does not have a fundamental interest in the specific
term of imprisonment or the definition or designation of a particular crime. [Citation.]
‘Application of the strict scrutiny standard in this context would be incompatible with the
broad discretion the Legislature traditionally has been understood to exercise in defining
crimes and specifying punishment.’ [Citation.] [¶] The Legislature had a rational basis
for not allowing voluntary intoxication to serve as a defense in an implied malice case.
. . . [T]he Legislature deemed it confusing, in a vehicular homicide case, to allow
evidence of voluntary intoxication to aggravate as well as to mitigate the offense. More
fundamentally, by withholding voluntary intoxication as a defense to implied malice
murder, the Legislature bolstered the deterrent effect of section 22 by underscoring the
long-standing principle in California law that voluntary intoxication is no excuse for
crime.” (People v. Timms, supra, 151 Cal.App.4th at p. 1302.)
       Defendant contends that a strict scrutiny analysis should apply to his equal
protection claim regarding section 22. We disagree.
       A statute is reviewed for a violation under the equal protection clause under
different levels of scrutiny based upon the nature of the classification. The most exacting
scrutiny is applied to classifications based on race or national origin or classifications
affecting fundamental rights. An intermediate level of scrutiny is applied to
classifications based on sex or illegitimacy. The minimum standard for equal protection
purposes is that the statutory classification must be rationally related to a legitimate
governmental purpose. (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837.)
       People v. Carlson, supra, 200 Cal.App.4th 695 agreed with the holding in People
v. Timms, supra, 151 Cal.App.4th 1292, that the rational basis standard of review applied
in rejecting the defendant’s argument that section 22 “violates her right to equal
protection of the law, claiming it ‘purports to eliminate voluntary intoxication as a
defense only in implied malice circumstances but retains it for express malice.’” (People
v. Carlson, supra, 200 Cal.App.4th at p. 708.) The court stated, “Timms rejected an equal
protection challenge based on the same premise. Declaring ‘[a] defendant does not have

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a fundamental interest in the specific term of imprisonment or the definition or
designation of a particular crime’ (People v. Timms, supra, 151 Cal.App.4th at p. 1302),
the court held the twin goals of avoiding confusion arising from the simultaneous use of
intoxication evidence to both aggravate and mitigate criminal culpability and
‘bolster[ing] the deterrent effect of section 22 by underscoring the long-standing
principle . . . that voluntary intoxication is no excuse for crime’ (ibid.), provided ‘a
rational basis for not allowing voluntary intoxication to serve as a defense in an implied
malice case’ (ibid.). [W]e find this reasoning equally applicable in this case.” (People v.
Carlson, supra, 200 Cal.App.4th at p. 708.)
       We agree with the reasoning in People v. Carlson, supra, 200 Cal.App.4th 695,
and People v. Timms, supra, 151 Cal.App.4th 1292. Former section 22 did not violate
defendant’s equal protection rights.


       B.     Section 654
       Defendant contends that imposition of sentence on count 6—the unlawful taking
of a motor vehicle—should have been stayed pursuant to section 654. We disagree.


              1.      Standard of Review
       The applicability of section 654 is a question of fact for the trial court, which is
vested with “broad latitude” in making its determination. (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1377-1378.) We review the trial court’s determination for substantial
evidence. We do so in a light most favorable to the respondent, and we presume the
existence of every fact that reasonably could be deduced from the evidence. (People v.
Jones (2002) 103 Cal.App.4th 1139, 1143.)


              2.      Analysis
       Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case

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shall the act or omission be punished under more than one provision.” Section 654
prohibits only multiple punishment, not multiple convictions, for the same act. (People v.
Britt (2004) 32 Cal.4th 944, 950; People v. Harrison (1989) 48 Cal.3d 321, 335.)
       “‘Section 654 has been applied not only where there was but one “act” in the
ordinary sense . . . but also where a course of conduct violated more than one statute and
the problem was whether it comprised a divisible transaction which could be punished
under more than one statute within the meaning of section 654.’ [Citation.]” (Neal v.
State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds as stated in
People v. Sanders (2012) 55 Cal.4th 731, 742.)
       To determine “‘[w]hether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654 depends on the intent
and objective of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.’
[Citation.] [C]ases have sometimes found separate objectives when the objectives were
either (1) consecutive even if similar or (2) different even if simultaneous. In those cases,
multiple punishment was permitted. [Citation.]” (People v. Britt, supra, 32 Cal.4th at
pp. 951-952.)
       Section 654 is applicable “in those instances wherein the accused entertained a
principal objective to which other objectives, if any, were merely incidental.” (People v.
Beamon (1973) 8 Cal.3d 625, 639, fn. omitted.) “[I]f the evidence discloses that a
defendant entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for the independent violations
committed in pursuit of each objective even though the violations were parts of an
otherwise indivisible course of conduct. [Citations.]” (People v. Perez (1979) 23 Cal.3d
545, 551-552, fn. omitted.) “[A] course of conduct divisible in time, although directed to
one objective, may give rise to multiple violations and punishment.” (People v. Beamon,
supra, 8 Cal.3d at p. 639, fn. 11.)
       Defendant contends that imposition of sentence on his offense for the unlawful
taking of a motor vehicle (count 6) should have been stayed pursuant to section 654

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because before he fled from Officer Casas after unlawfully taking the vehicle, he never
reached a place of temporary safety. Defendant argues, therefore, that the criminal act of
unlawful taking the vehicle constituted an indivisible course of action that included the
evasion and homicide offenses.
       The record, however, supports a reasonable inference that defendant had reached a
place of temporary safety before he fled from Officer Casas and collided with the Toyota.
There is evidence that at about 6:30 a.m. on July 29, 2012, McWilliam called the police
department and reported that her truck had been stolen. Approximately seven to eight
hours later, defendant fled from Officer Casas, during which time defendant collided with
the Toyota, killing Mercado, the driver of that vehicle.
       The evidence is sufficient to support a reasonable inference that defendant had
reached a place of temporary safety in the seven to eight hours before the pursuit by
Officer Casas that culminated in defendant’s fatal collision with the Toyota. Thus, for
purposes of section 654, substantial evidence supports the trial court’s implied finding
that defendant harbored multiple criminal objectives and thus there are multiple acts or
omissions.




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                                 DISPOSITION


     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                          MOSK, J.


We concur:



             TURNER, P. J.



             KRIEGLER, J.




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