California Court of Appeal Jun 20, 2013 No. D061931Unpublished
Filed 6/20/13 P. v. Espiritu CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061931
Plaintiff and Respondent,
v. (Super. Ct. No. SCE307352)
THOMAS REYES ESPIRITU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.
Brannigan, Judge. Affirmed in part, reversed in part, and modified in part.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie F.
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Thomas Reyes Espiritu of gross vehicular manslaughter while
intoxicated (Pen. Code,1 § 191.5, subd. (a); count 1), driving under the influence causing
injury (Veh. Code, § 23153, subd. (a); count 2), and driving with a measurable blood
alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and
Admission of Accident Reconstruction Expert Testimony
Espiritu contends the court erred by admitting Pittsley's expert accident
reconstruction testimony because the testimony was based on two false premises: (1)
Dickinson was an experienced motorcycle rider, and (2) Dickinson was sober at the time
of the accident. We review a court's decision to admit expert testimony for abuse of
discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
"[A]n expert's opinion based on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural factors [citation], has no evidentiary value
[citation] and may be excluded from evidence." (Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; accord, People v. Richardson (2008)
43 Cal.4th 959, 1008.) In this case, however, the record does not show Pittsley's trial
testimony was based on unsupported assumptions.
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Espiritu has not identified nor have we located any place in the record indicating
Pittsley based his trial testimony on the assumption Dickinson was sober.2 In addition,
while Pittsley testified experienced motorcycle riders tend to ride in a particular place in
the roadway and he believed the collision occurred in this place, he did not base his belief
on the assumption Dickinson was an experienced rider. He acknowledged he did not
know anything about Dickinson's experience or ability riding motorcycles. Rather, he
based his belief solely on the physical evidence at the collision scene. Accordingly,
Espiritu has not established the court abused its discretion in admitting Pittsley's
testimony. Given this conclusion, we need not address the People's assertion that Espiritu
forfeited this contention by failing to object to Pittsley's testimony below.
III
Exclusion of Evidence of Dickinson's Drug Use
A
Before trial, defense counsel sought to admit and the prosecutor sought to exclude
under Evidence Code section 352 evidence of Dickinson's narcotics use. Defense
counsel argued the court should allow admission of the evidence as it was relevant to
2 At the preliminary hearing, during cross-examination by defense counsel, Pittsley testified the collision in this case was not consistent with the scenario of Dickinson's motorcycle having cut off Espiritu's car. He based this opinion in part on the assumption Dickinson was maintaining his lane and a consistent speed at the time of the accident. He acknowledged an intoxicated person would have a difficult time doing either. He also acknowledged blood tests showed there were controlled substances in Dickinson's system at the time of the accident and there was a possibility Dickinson was impaired. However, he further testified this information did not change his opinion that Dickinson was not at fault for the accident.
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Dickinson's cause of death because methamphetamine use increases hemorrhaging,
which caused him to bleed more and faster, leading to his death. The prosecutor
responded that the medical examiner determined the cause of death to be multiple blunt
force trauma, not methamphetamine use. The court found the evidence irrelevant and
excluded it.
During trial, defense counsel renewed her request to admit evidence of Dickinson's
narcotics use, arguing the evidence was necessary to counter Pittsley's assumption
Dickinson was riding in the right third of the left lane at the time of the accident because
that is what an experienced, sober motorcycle rider would do. In response, the prosecutor
pointed out Pittsley's opinions had more to do with where the physical evidence placed
Dickinson than with any assumption about the behavior of an experienced motorcycle
rider. Therefore, the prosecutor argued admission of the evidence of Dickinson's
narcotics use would be far more prejudicial than probative. The court agreed with the
prosecutor's position, particularly absent the existence of any evidence indicating
Dickinson was driving in an erratic manner before the collision, and reaffirmed its
pretrial ruling excluding the evidence.
B
Espiritu contends the court prejudicially erred in excluding the evidence because
its admission was necessary for him to counter Pittsley's assumption Dickinson was sober
at the time of the accident. We review a trial court's ruling on the admissibility of
evidence for abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)
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As we noted in part II, ante, nothing in the record indicates Pittsley based his
opinions about how the collision occurred on the assumption Dickinson was sober. To
the contrary, the record shows Pittsley knew Dickinson was possibly impaired at the time
of the collision. Consequently, Espiritu has not established the evidence of Dickinson's
narcotics use was probative, much less more probative than prejudicial, and we cannot
conclude the court abused its discretion in excluding it.
IV
Refusal of Pinpoint Gross Negligence Instruction
A
To instruct the jury on the crime of gross vehicular manslaughter while
intoxicated, the court used a tailored version of CALCRIM No. 590. The instruction
informed the jury, "Gross negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with gross negligence when: [¶]
1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
[¶] [and] [¶] 2. A reasonable person would have known that acting in that way would
create such a risk. [¶] In other words, a person acts with gross negligence when the way
he or she acts is so different from the way an ordinarily careful person would act in the
same situation that his or her act amounts to disregard for human life or indifference to
the consequences of that act. [¶] The combination of driving a vehicle while under the
influence of an alcoholic beverage and violating a traffic law is not enough by itself to
establish gross negligence. In evaluating whether the defendant acted with gross
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negligence, consider the level of the defendant's intoxication, if any; the way the
defendant drove; and any other relevant aspects of the defendant's conduct."
Defense counsel requested the court also give the jury a pinpoint instruction on the
definition of gross negligence. The proposed instruction read: " 'Gross negligence'
requires more than ordinary carelessness, inattention or mistake in judgment. [¶] 'Gross
negligence' means conduct which is more than ordinary negligence. Ordinary negligence
is the failure to exercise ordinary or reasonable care. [¶] 'Gross negligence' refers to a
negligent act which is aggravated, reckless or flagrant and which is such a departure from
what would be the conduct of an ordinarily prudent, careful person under the same
circumstances as to be contrary to a proper regard for danger to human life or to
constitute indifference to the consequences of those acts. [¶] The facts must be such that
the consequences of the negligent act could reasonably have been foreseen and it must
appear that the death or danger to human life was not the result of inattention, mistaken
judgment or misadventure but the natural and probable result of an aggravated, reckless
or flagrantly negligent act."3
The prosecution objected to the pinpoint instruction, arguing the definition of
gross negligence was adequately covered by CALCRIM No. 590 and the pinpoint
instruction might confuse the jury. The court agreed CALCRIM No. 590 adequately
covered the definition and declined to give the pinpoint instruction.
3 In his opening brief, Espiritu states the proposed pinpoint instruction was based on language in People v. Penny (1955) 44 Cal.2d 861, People v. Bennett (1991) 54 Cal.3d 1032, People v. Costa (1953) 40 Cal.2d 160, and CALJIC No. 3.36. 14
B
Espiritu contends the proposed pinpoint instruction expanded on CALCRIM No.
590 and clarified the distinction between ordinary and gross negligence by: (1) adding
"aggravated" and "flagrant" to the definition, (2) requiring the consequences of the
negligence to be reasonably foreseen, and (3) informing the jury gross negligence is "not
the result of inattention, mistaken judgment or misadventure." As the pinpoint
instruction supported his defense theory (i.e., he acted with ordinary negligence rather
than gross negligence), he contends the court was obliged to give the instruction and
prejudicially erred by refusing to do so.
The propriety of a decision to give or refuse any particular instruction in any
particular case involves a mixed question of law and fact. As the question is a
predominantly legal one, we independently review it. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
" ' "[A] defendant has a right to an instruction that pinpoints the theory of the
defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction
offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by substantial evidence.' "
(People v. Burney (2009) 47 Cal.4th 203, 246; accord, People v. Bivert (2011) 52 Cal.4th
96, 120; People v. Canizalez (2011) 197 Cal.App.4th 832, 856–857.)
In this case, the pattern instruction the court used adequately covered each of the
points for which Espiritu sought the pinpoint instruction. The pattern instruction
conveyed the need for grossly negligent conduct to be "aggravated" and "flagrant" by
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informing the jury the conduct had to create "a high risk of death or great bodily injury"
and had to be "so different from the way an ordinarily careful person would act in the
same situation" that it amounted to "disregard for human life or indifference to the
consequences" of the conduct. (CALCRIM No. 590.) The pattern instruction conveyed
the need for the consequences of the grossly negligent conduct to be reasonably foreseen
by informing the jury "[a] person acts with gross negligence when: [¶] . . . [¶] [a]
reasonable person would have known that acting in that way would create such a risk."
(CALCRIM No. 590.) Finally, the pattern instruction clarified that gross negligence is
"not the result of inattention, mistaken judgment or misadventure" by informing the jury
gross negligence "involves more than ordinary carelessness, inattention, or mistake in
judgment." (CALCRIM No. 590.) A court is not required to give a pinpoint instruction
on a matter adequately covered by another instruction. (People v. Clark (2011) 52
Cal.4th 856, 975.) Accordingly, we conclude the court did not err by failing to give
Espiritu's requested pinpoint instruction on gross negligence.
Even if the court should have given a pinpoint instruction, the error was harmless.
Defense counsel's closing argument fully presented the defense theory that Espiritu's
conduct amounted to only ordinary negligence and nothing in the court's instructions
precluded the jury from so finding. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th
1083, 1144-1145.)
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V
Cumulative Error
Espiritu contends we must reverse his convictions because the cumulative effect of
the above claimed errors prejudiced him. We reject this argument as "[w]e have found
no error that, either alone or in conjunction with others, prejudiced [him]." (People v.
Williams (2013) 56 Cal.4th 165, 201.)
VI
Dismissal of Counts 2 and 3 as Lesser Included Offenses
Espiritu contends, the People concede, and we agree we must reverse Espiritu's
convictions for counts 2 and 3 because they are lesser included offenses of count 1. A
defendant may not be convicted of both a greater and a lesser included offense. (People
v. Medina (2007) 41 Cal.4th 685, 701.) Thus, when a jury finds a defendant guilty of
both a greater and a lesser included offense and there is substantial evidence to support
the conviction for the greater offense, the greater offense controls and the lesser included
offense must be reversed. (Id. at pp. 701-702; People v. Moran (1970) 1 Cal.3d 755,
763.)
VII
Custody Credits
Espiritu was initially confined December 19, 2010, was released the same day,
was confined again on January 11, 2011, and released on January 12, 2011, and was
confined again on December 22, 2011. The court subsequently sentenced him on
April 30, 2012. The court awarded him 200 days of presentence custody credit,
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consisting of 134 days of actual custody credit and 66 days of conduct credit. Based on
amendments to section 4019, which took effect on October 1, 2011, Espiritu contends he
is entitled to additional presentence conduct credit for the time he served after that date.
He further contends failure to award him additional presentence conduct credit for this
time deprives him of equal protection of the law. We disagree.
Section 4019, which specifies the rate of presentence conduct credit an inmate in
local custody may earn, had undergone numerous revisions in the past several years.
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-50 (Rajanayagam) [detailing the
history of recent amendments]; People v. Garcia (2012) 209 Cal.App.4th 530, 533-540
[same].) At the time of Espiritu's offense, section 4019 allowed an inmate in local
custody to earn up to six days of conduct credit for every four days of actual custody.
Sept. 21, 2011, operative Oct. 1, 2011; People v. Ellis, supra, at pp. 1549-1550.)
Of pertinence here, subdivision (h) of amended section 4019 states, "The changes
to this section . . . shall apply prospectively and shall apply to prisoners who are confined
to a county jail . . . for a crime committed on or after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
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law." According to Espiritu, the latter sentence creates an ambiguity, which should be
interpreted to allow him to earn credits for local time served after October 1, 2011, even
though he committed his crime before then.
However, as the Rajanayagam court explained, "subdivision (h)'s first sentence
reflects the Legislature intended the enhanced conduct credit provision to apply only to
those defendants who committed their crimes on or after October 1, 2011. Subdivision
(h)'s second sentence does not extend the enhanced conduct credit provision to any other
group, namely those defendants who committed offenses before October 1, 2011, but are
in local custody on or after October 1, 2011. Instead, subdivision (h)'s second sentence
attempts to clarify that those defendant's who committed an offense before October 1,
2011, are to earn credit under the prior law. However inartful the language of
subdivision (h), we read the second sentence as reaffirming that defendants who
committed their crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law. [Citation.] To imply the enhanced conduct credit provision
applies to defendants who committed their crimes before the effective date but served
time in local custody after the effective date reads too much into the statute and ignores
the Legislature's clear intent in subdivision (h)'s first sentence." (Rajanayagam, supra,
211 Cal.App.4th at p. 52, fn. omitted; see also, People v. Ellis, supra, 207 Cal.App.4th
at p. 1553 ["The second sentence does not extend the enhanced rate to any other group,
but merely specifies the rate at which all others are to earn conduct credits"]; People v.
Garcia, supra, 209 Cal.App.4th at p. 541 [the language of amended section 4019 does
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not entitle a defendant who was sentenced after its effective date but whose crimes
occurred prior to its effective date to additional conduct credit].)
This interpretation and its application to Espiritu does not deprive him of equal
protection of the law because, assuming he is similarly situated to inmates who
committed their offenses after the effective date of amended section 4019, the Legislature
nonetheless had a rational basis for treating the latter inmates differently. Amended
section 4019 was part of larger legislation whose purpose was to "to reduce recidivism
and improve public safety, while at the same time reducing corrections and related
criminal justice spending.' " (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) "[I]n
choosing October 1, 2011, as the effective date of [amended section 4019], the
Legislature took a measured approach and balanced the goal of cost savings against
public safety. The effective date was a legislative determination that its stated goal of
reducing corrections costs was best served by granting enhanced conduct credits to those
defendants who committed their offenses on or after October 1, 2011. To be sure,
awarding enhanced conduct credits to everyone in local confinement would have
certainly resulted in greater cost savings than awarding enhanced conduct credits to only
those defendants who commit an offense on or after the amendment's effective date. But
that is not the approach the Legislature chose in balancing public safety against cost
savings. [Citation.] Under the very deferential rational relationship test, we will not
second-guess the Legislature and conclude its stated purpose is better served by
increasing the group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced
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conduct credit to only those defendants who committed their offenses on or after
October 1, 2011." (Rajanayagam, at pp. 55-56.)
DISPOSITION
The convictions for counts 2 and 3 are reversed. The trial court is directed to
modify the abstract of judgment accordingly and to send a copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for gross vehicular manslaughter while intoxicated but reversed his convictions for driving under the influence causing injury and driving with a measurable blood alcohol level causing injury, as they were lesser included offenses. The court found no error in the admission of an autopsy photograph, the admission of expert accident reconstruction testimony, the exclusion of evidence regarding the victim's narcotics use, or the refusal of a pinpoint instruction on gross negligence.
Issues
Did the trial court abuse its discretion by admitting an autopsy photograph?
Did the trial court abuse its discretion by admitting expert accident reconstruction testimony?
Did the trial court abuse its discretion by excluding evidence of the victim's narcotics use?
Did the trial court err by refusing a requested pinpoint instruction on the definition of gross negligence?
Disposition. Affirmed in part, reversed in part, and modified in part.
Quotations verified verbatim against the opinion
“The People concede and we agree we must reverse his convictions for counts 2 and 3. In all other respects, we affirm the judgment.”
“A defendant may not be convicted of both a greater and a lesser included offense.”
“A court is not required to give a pinpoint instruction on a matter adequately covered by another instruction.”