Filed 12/13/13 P. v. Singh CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064865
         Plaintiff and Respondent,
                                                                         (Merced Super. Ct. No. MF50024)
                   v.

GURMUKH SINGH,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. John D.
Kirihara, Judge.
         Jean M. Marinovich, 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, Charles A. French and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Gurmukh Singh (defendant) was charged with one count of gross
negligence vehicular manslaughter. (Pen. Code1 § 192, subd. (c)(1).) Defendant was

         1   All statutory references are to the Penal Code unless otherwise noted.
convicted by a jury and sentenced to four years in state prison. He now appeals,
contending that expert testimony was improperly admitted at trial, the prosecutor
committed error under Griffin v. California (1965) 380 U.S. 609 (Griffin), and the
sentencing court abused its discretion in denying probation. We affirm.
                                    TRIAL EVIDENCE
         The Accident Scene
         On August 30, 2008, California Highway Patrol Officers Richard Pereira and Noe
Lomeli responded to the scene of a traffic accident in Merced County at the intersection
of Pepper Street and Bradbury Road.
         A collision had occurred between a commercial truck driven by defendant and a
Toyota vehicle driven by Harjevan Rai. The Toyota and the tractor portion of
defendant’s truck were found in a canal near the intersection. The Toyota was “wedged”
between the defendant’s truck and a concrete wood bridge. Scene photographs showed
damage to the front nose of the tractor portion of defendant’s vehicle.
         The Toyota was found submerged in water with Harjevan Rai inside. Harvjevan
Rai had died from a subdural hemorrhage, subarachnoid hemorrhage and contusion of the
brain.
         At its intersection with Pepper Street, Bradbury Road has stop signs facing east
and westbound traffic. There is no dispute that defendant was traveling on Bradbury
Road, subject to a stop sign at Pepper Street, when the accident occurred.
         A marking on the roadway facing westbound traffic on Bradbury Road read:
“Stop Ahead.” There is also a white limit line where Bradbury Road intersects Pepper
Street. The text, “STOP,” is printed on the roadway before the limit line.
         There were no stop signs facing traffic traveling on Pepper Street through its
intersection with Bradbury Road. There was conflicting evidence regarding whether
Harjevan Rai was traveling on Pepper Street or Bradbury Road immediately before the
accident. Officer Lomeli concluded Harjevan Rai had been traveling southbound on

                                              2.
Pepper Street. At the scene, Officer Lomeli testified that defendant claimed the Toyota
was traveling ahead of him on Bradbury Road immediately before the accident.
       Officer Jerry Elrod testified that there was an orchard near the intersection of
Bradbury Road and Pepper Street. Due to the size and configuration of the trees in the
orchard, “traffic coming on westbound Bradbury or southbound [on] Pepper Street could
not see each other until they’re very close to the intersection….”
       Reconstruction of the Accident
              Prosecution Witnesses’ Reconstruction
       Officer Lomeli reconstructed the accident as follows: “… Mr. Singh failed to stop
at the posted stop sign at the intersection of Bradbury Road and Pepper Street, and …
Harjevan Rai … had the right-of-way. He had no stop sign, so there was no reason for
him to stop at this intersection … proceeding southbound. And when Mr. Gurmukh
Singh failed to stop at the stop sign, broadsided him pretty much. The front of
[defendant’s truck] collided with the left side of the Toyota Corolla Rai was driving.”
       Officer Lomeli was asked why he says defendant did not stop at the stop sign.
Officer Lomeli testified the physical evidence was consistent with defendant failing to
stop at the stop sign. Specifically, the tire friction marks attributed to defendant’s truck
started “pretty much right at the limit line.” Officer Lomeli also opined that if defendant
had stopped at the stop sign, he would have been able to avoid colliding with the Toyota.
       Officer Elrod opined that “even if one wasn’t aware of the stop sign that was there,
just the fact you’re approaching the intersection and you can’t see cross traffic, you don’t
know possibly if there’s a vehicle there, or not, that just due diligence would tell you
[you] need to slow down and be watching for cross traffic.”
              Defendant’s Reconstruction Expert
       Defendant’s accident reconstruction expert testified that the collision was
consistent with either scenario: defendant stopping at the stop sign or defendant failing to
stop at the stop sign.

                                              3.
       Defendant’s Statements to Law Enforcement2
       Officer Lomeli spoke with defendant at the scene of the accident. Defendant only
spoke Punjabi, so a translator assisted Officer Lomeli in taking defendant’s statement.
Defendant’s employer, Mr. Kullar, also assisted in translating defendant’s statement.
Defendant told Officer Lomeli that he had been traveling westbound on Bradbury Road
at approximately 25 to 30 miles per hour.3 Defendant said the Toyota was ahead of him
traveling westbound on Bradbury Road. Defendant said the Toyota suddenly came to a
stop, so defendant moved to the eastbound lane to pass the Toyota. Then, defendant
stated, the Toyota passed him and again came to a stop. Defendant then passed the
Toyota again, and defendant came to a stop at the stop sign on Pepper Street. Defendant
then proceeded westbound into the intersection. The Toyota passed defendant again and
slammed on its brakes. Defendant applied his brakes to avoid hitting the Toyota.
       Officer Elrod told defendant that he did not “believe” defendant’s account based
on the evidence. Officer Elrod testified as to defendant’s response: “[Defendant] told me
that there was [sic] no witnesses to the accident; it was only him and the other driver; and
since the other driver was dead, that nobody would really know what really happened.”
       Officer Lomeli also concluded defendant’s version of the accident was not
consistent with the physical evidence, which showed that the front of defendant’s truck
had collided with the left side of the Toyota. Officer Elrod also concluded the Toyota
had been traveling southbound on Pepper Street, based on the location of the gouges in
the roadway and the resting points of the vehicles.




       2This heading refers to statements attributed to defendant. Defense counsel
argued that the translation of defendant’s statement could have been inaccurate.
       3   The speed limit on Bradbury Road is 55 miles per hour.


                                             4.
              Mr. Murphy
       Officer Lomeli interviewed a man named Mr. Murphy at the scene. On the day of
the accident, Mr. Murphy described the sun as blinding and conveyed that he did not see
the stop sign that day. However, he was familiar with the stop sign and did stop at it.
              Mr. Camp
       Officer Lomeli testified that another officer spoke with a man named Shane Camp.
Mr. Camp was standing in his driveway a quarter mile east of the traffic collision. “The
freightliner” (presumably a reference to defendant’s truck) passed by traveling westbound
on Bradbury Road at about 20 to 30 miles per hour. Mr. Camp heard tires skidding and
an impact noise, he “walked out” and saw the accident.
              Mrs. Camp
       Defense counsel had Officer Lomeli review a “statement” from Mrs. Camp. The
statement indicated that Mrs. Camp was traveling in a car behind defendant with her
husband. They became impatient with defendant’s slow speed and passed him.
Eventually, they pulled into their driveway and defendant waved at Mrs. Camp.
              Defendant’s Trucking Experience
       Defendant was working as a truck driver for Jasvinder Kullar’s company when the
accident occurred. Defendant told Officer Elrod that he had been working for Mr. Kullar
for “almost a year” before the accident.4 Defendant said he averaged four trips per month
for Mr. Kullar.
       On the day of the accident, defendant had picked up the truck involved in the
accident from Kullar’s office in Ballico, as he had done in the past. Defendant’s
destination was Detroit, Michigan. Kullar testified that when his drivers left his business
heading northbound, they would use Bradbury Road to get to the freeway.


       4
       Kullar testified that he thought defendant had been a driver for seven or eight
months before the accident.


                                             5.
       Closing Argument
       During closing argument, both sides referenced defendant’s statements to law
enforcement. Defense counsel said, “Mr. Singh’s statement, it’s partially unsubstantiated
by the facts. If Mr. Singh said that the boy stopped in front of him after playing some
passing – after doing some passing, if he said that, that is unequivocally wrong. If Mr.
Singh said that, that is false.… So we know that statement of Mr. Singh is at least
partially untrue.”
       During the prosecutor’s rebuttal argument, the following exchanged occurred:

             “[PROSECUTOR]: … But when you think about the defendant’s
       conduct here, obviously, there’s – there’s tragedy and very likely he was
       nervous on August 30, after this crash, came up with this – with this lie.
       Doesn’t he have an obligation to tell the truth at some point?

              “[DEFENSE COUNSEL]: Objection. Objection.

              “THE COURT: Counsel, yes. Grounds?

              “[DEFENSE COUNSEL]: An amendment issue, your Honor.

              “[PROSECUTOR]: I’m talking about Officer Elrod, your Honor, to the
       Officer Elrod interviews.

              “THE COURT: Thank you.”
                                       ANALYSIS
                                             I.
  DEFENDANT WAS NOT PREJUDICED BY THE ADMISSION OF OFFICER
    ELROD’S TESTIMONY REGARDING HIS FAMILIARITY WITH THE
                        INTERSECTION
       Defendant argues the trial court erred by “permitting” Officer Elrod to testify that
defendant was familiar with the intersection where the accident occurred and was
therefore aware of the stop sign. We conclude that any error was not prejudicial.
       The erroneous admission of expert testimony is reviewed under the harmless error
test of People v. Watson (1956) 46 Cal.2d 818 (Watson). (E.g., People v. Moore (2011)



                                             6.
51 Cal.4th 386, 406-407.) Under that test, we ask whether it is reasonably probable that
defendant would have received a more favorable result in the absence of the error.
(Watson, supra, 46 Cal.2d at p. 836.)
       Here, any error in admitting Officer Elrod’s testimony regarding defendant’s
familiarity with the intersection was not prejudicial. We reach this conclusion for two
reasons. First, there was other, more direct, evidence defendant saw the stop sign.
Notably, Officer Elrod testified that defendant said he “saw the stop sign.” Second, there
was other evidence defendant acted negligently, apart from his alleged familiarity with
the intersection. There was evidence that vision of cross-traffic was impaired for vehicles
along defendant’s path of travel. Thus, Officer Elrod opined that “even if one wasn’t
aware of the stop sign that was there, just the fact you’re approaching the intersection and
you can’t see cross traffic, you don’t know possibly if there’s a vehicle there, or not, that
just due diligence would tell you [you] need to slow down and be watching for cross
traffic.” Moreover, there was evidence that “Stop Ahead” and a limit line were marked
on the roadway surface. As a result, the jury was presented with significant evidence of
gross negligence apart from Officer Elrod’s testimony that defendant was familiar with
the intersection. Even if the testimony at issue had been excluded, we are not “of the
opinion” that it is “reasonably probable” defendant would have obtained a “more
favorable” result. (Watson, supra, 46 Cal.2d at p. 836.)
                                             II.
   THE PROSECUTOR’S COMMENTS AT CLOSING ARGUMENT DID NOT
                  AMOUNT TO GRIFFIN ERROR
       Defendant contends the prosecutor committed Griffin error during closing
argument. As noted above, the prosecutor made the following comment during closing
argument: “But when you think about the defendant’s conduct here, obviously, there’s –
there’s tragedy and very likely he was nervous on August 30, after this crash, came up
with this – with this lie. Doesn’t he have an obligation to tell the truth at some point?”


                                              7.
       The parties offer two competing interpretations of the prosecutor’s comments.
Defendant contends the comments influenced the jury to consider defendant’s “moral
obligation to testify at trial.” The Attorney General submits the prosecutor was referring
to allegedly false statements defendant made to Officer Elrod.
       When a defendant contends an ambiguous prosecutorial statement constitutes
Griffin error, we must determine whether there is a “reasonable likelihood” the comments
could have been understood to refer to defendant’s failure to testify. (People v. Clair
(1992) 2 Cal.4th 629, 662-663.) “ ‘[A] court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning or that a jury, sitting
through a lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.’ ” (People v. Tully (2012) 54 Cal.4th 952, 1048, quoting, Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 647 (DeChristoforo); see also United States v.
Wihbey (1st Cir. 1996) 75 F.3d 761, 770 [applying DeChristoforo standard to Griffin
error analysis].)
       We understand how the prosecutor’s rhetorical question, viewed in isolation,
might have created momentary ambiguity. However, “prosecutorial comment must be
examined in context .…” (United States v. Robinson (1988) 485 U.S. 25, 33.)
Immediately after the prosecutor made the comments in question, defense counsel
objected. The prosecutor then said, “I’m talking about Officer Elrod, your Honor, to the
Officer Elrod interviews.” The prosecutor then continued his argument: “When the
defendant on November 4, this is several weeks in August, September, October. This is
over two months later when the defendant speaks to Officer Elrod.…” The context
makes it clear the comment referred to defendant’s pretrial statements, not his intrial
silence. And even if the context were not so clear, we would not lightly infer that the jury
drew the most damaging meaning from the comment (i.e., criticizing defendant’s failure
to testify) rather than a less damaging meaning (i.e., arguing defendant made false pretrial
statements). We find no Griffin error.

                                             8.
                                             III.
    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
                          PROBATION
       At sentencing, the court denied probation. When stating the reasons for the
decision on the record, the trial court focused on the seriousness of the offense. (See Cal.
Rules of Court, rule 4.414(a)(1).) The court also noted defendant’s “somewhat
ambiguous expression of remorse” and prior traffic infractions. (See Cal. Rules of Court,
rule 4.414(b)(1) & (7).)
       “ ‘In reviewing [a trial court’s determination whether to grant or deny probation,]
it is not our function to substitute our judgment for that of the trial court. Our function is
to determine whether the trial court’s order granting [or denying] probation is arbitrary or
capricious or exceeds the bounds of reason considering all the facts and circumstances.’
[Citation.]” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, citing People v.
Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
       Defendant contends that the seriousness of the results of a vehicular manslaughter
may not support denial of probation because “the degree of harm is inherent in the crime
of vehicular manslaughter.” He cites our decision in People v. McNiece (1986) 181
Cal.App.3d 1048, 1058, overruled on another point by People v. Flood (1988) 18 Cal4th
470, for support. The Attorney General contends we wrongly decided McNiece and that
the “collision” at issue here was “more serious than other vehicular manslaughter cases.”
       We agree that the trial court’s denial of probation based on the “seriousness[] and
circumstances of the crime” (Cal. Rules of Court, rule 4.414(a)(1)) was not an abuse of
discretion. However, we focus not on the seriousness of the collision or resultant harm as
an end in itself, but rather emphasize the seriousness of defendant’s negligence in light of
the circumstances. As the trial court noted, “there is a special responsibility on the part of
commercial truck drivers to exercise due caution because the result of an accident – a
lack of attention, a small mistake – can be tragic.” In other words, the increased potential



                                              9.
for deadly accidents makes negligent conduct by commercial truck drivers all the more
serious. While the commercial truck’s size contributed to the severity of the accident, it
is not the severity of the accident itself that makes defendant’s crime more serious under
California Rules of Court, rule 4.414(a)(1).5 Rather, it is the potential for devastating
accidents inherent in commercial truck driving that makes defendant’s negligence more
serious. Given the heightened risk of danger associated with commercial vehicles, the
trial court concluded defendant’s failure to exercise due care was a more serious breach
than that involved in some other vehicular manslaughters.
       As an appellate court, it is not our role to evaluate whether we would have granted
probation if we had sat in place of the trial court. Rather, our function is “ ‘to determine
whether the trial court’s order granting [or denying] probation is arbitrary or capricious or
exceeds the bounds of reason considering all the facts and circumstances.’ [Citation.]”
(Weaver, supra, 149 Cal.App.4th at p. 1311.) We cannot say the trial court’s conclusion
was “ ‘arbitrary or capricious’ ” or that it “ ‘exceeds the bounds of reason.’ ” (Ibid.)
                                      DISPOSITION
       The judgment is affirmed.


                                                                 ______________________
                                                                 Poochigian, J.
WE CONCUR:


_____________________
Cornell, Acting P.J.


_____________________
Franson, J.

       5As a result, we need not address the Attorney General’s criticism of McNiece,
supra, 181 Cal.App.3d 1048.


                                             10.
