People v. Contreras

THE PEOPLE, Plaintiff and Respondent, v. RODOLFO ALBERTO CONTRERAS, Defendant and Appellant.

F074151

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

December 13, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF160614A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

While under the influence of marijuana, defendant Rodolfo Alberto Contreras caused a traffic collision in Bakersfield that killed another driver, David A., and injured David's wife, Kathleen A. Defendant was charged with and convicted by jury of second degree murder (Pen. Code, § 187, subd. (a) (count 1)),¹ gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a) (count 2)), and driving under the influence and causing bodily injury to Kathleen (Veh. Code, § 23153, former subd. (e) (count 3)).² In addition, the jury found true the multiple victims sentence enhancement allegation attached to count 2 (as to Kathleen) and count 3 (as to David), and it found true the sentence enhancement for personal infliction of great bodily injury (GBI) attached to count 3 (as to Kathleen).³

The trial court sentenced defendant to a total term of 15 years to life plus five years in state prison. On count 1, the court imposed a term of 15 years to life. On count 2, the court imposed the middle term of six years, plus an additional one year for the multiple victims enhancement, stayed under section 654. On count 3, the court imposed the middle term of two years, plus an additional three years for the GBI enhancement and an additional one year for the multiple victims enhancement. The court stayed the one-year multiple victims enhancement term under section 654, and ordered the term on count 3 to run consecutive to the term on count 1.

On appeal, defendant advances five claims. He challenges both his murder conviction and his gross vehicular manslaughter conviction as unsupported by substantial evidence. He also claims the trial court erred under Evidence Code sections 1101, subdivision (b), and 352 when it permitted the prosecution to introduce evidence that one month prior to the fatal collision, he drove at a high rate of speed and rolled his car; erred when it permitted a lay witness for the prosecution to testify that he appeared to be under the influence of marijuana at the time of the collision; and erred when it imposed a consecutive sentence on count 3.

The People dispute defendant's entitlement to any relief on his claims. We agree and affirm the judgment.

FACTUAL SUMMARY

I. The Collision

On March 8, 2014, in the late morning, defendant was driving southbound on Gosford Road in Bakersfield at a high rate of speed. He lost control of his white Honda, crossed over the center median into oncoming traffic and hit a blue Ford Explorer. The force of the impact split defendant's Honda in two. The engine compartment dropped at the point of impact. The passenger compartment traveled through the air and skimmed the top of a second blue Explorer driven by M.J., causing only minor roof damage.⁴ A third vehicle, a silver Toyota, was also struck. David, who was driving the first Explorer hit, died at the scene from severe head injuries. His wife, Kathleen, was injured but survived.

After defendant's Honda collided with David's Explorer and split apart, the contents of the passenger compartment spilled into the roadway. In this debris field, responding law enforcement personnel located a bong for smoking marijuana wax.⁵Inside the passenger compartment of defendant's Honda, they located several containers of marijuana wax, several bags of marijuana, a pipe and a bottle of cannabis from a marijuana dispensary.⁶

II. Percipient Witness Testimony

A. Kathleen

Kathleen testified that she and David were on their way to look at houses that day. David was in the left northbound lane on Gosford Road approaching Stockdale Highway and he was slowing in preparation to turn. Kathleen was in the front passenger seat talking to David when he said, "Oh, God, babe." Their vehicle was then hit. Kathleen told David she could not breathe, but he did not respond and she could not see him due to the vehicle damage.

Someone helped Kathleen out of the Explorer and she ran around to David's side but was unable to get to him because the vehicle was so badly damaged. Kathleen was then pulled away from the wreck by other people and subsequently treated by paramedics before being transported to the emergency room at Kern Medical Center (KMC). She sustained cuts to her face from glass and a fractured finger, had to have glass surgically removed from her foot, developed a neck infection, and testified she continues to suffer from neck, shoulder and hip issues. She also testified she was scheduled to have neck and shoulder surgery soon.

B. Eric E.

Prior to the collision, Eric E. was approaching the same intersection as David and Kathleen from the southbound direction. The windows to his truck were rolled down and he had been watching defendant's white Honda in his mirrors "[f]or quite a bit." Erictestified the Honda was going very fast and he could hear it accelerating as it approached him from behind. As Eric came to a stop at the red light, the Honda swerved around him, ran the red light and became airborne with all four tires off the ground. Eric testified defendant was "flying" and he estimated defendant was going "close to 100 when he hit the intersection." The Honda crossed the center median and, at a tilt, collided with David's and Kathleen's vehicle and split in two pieces.

After the light turned green, Eric drove through the intersection, parked his truck and got out to help. He and two other men tried without success to get David's door open. Eric then walked over to the curb where Kathleen was being assisted by another woman. The two of them removed glass from Kathleen's face before Eric left to check on the other vehicles involved. As he approached the passenger compartment of defendant's Honda, which was upside down in the road, defendant crawled out of the car on all fours and complained his toe hurt.

Eric testified defendant seemed "kind of out of it," like he did not know what was going on. Eric also testified he had seen people impaired by marijuana and defendant looked like that: dilated eyes, slow to respond and lethargic. Upset and frustrated, Eric cursed at defendant and was told by someone else to walk away, which he did before again returning. Eric explained to the jury that he was agitated because someone just died and defendant was complaining about his toe.

C. Theresa A.

The wall at the rear of Theresa A.'s backyard abutted Gosford Road. After hearing a loud crash, Theresa, a registered nurse, hopped over the wall to the roadway on the other side. She approached David's and Kathleen's Explorer and determined David had no pulse. Kathleen was conscious and hysterical. Theresa was able to coax Kathleen out of the car and get her to the curb, where Theresa focused on keeping Kathleen away from the wreckage until paramedics came.

While at the scene, Theresa also approached defendant's Honda. She testified he was still inside and screaming, "I want my pot," "I want my marijuana," "I want my wax," "It's not my day to die," "[M]y toe," and "[W]here is my puff?" He also stated, "I have a card," and "[I]t's legal." Theresa asked defendant if he realized he just killed someone, but he did not respond to the question and kept repeatedly screaming about his marijuana and wax. Theresa testified defendant was alert, but she did not check if he was oriented to time and place. She stated his eyes were open and he made sense when he talked, but he never asked about anyone else.

D. M.J.

M.J. was driving northbound on Gosford Road and was positioned behind David's and Kathleen's vehicle. M.J.'s wife, Christy S., and their son were also in the vehicle. M.J. was slowing down as the light changed to red when she saw something white flash through the air. She hit the brakes and ducked as the passenger compartment of defendant's Honda flew over the top of her Explorer, leaving only some scratches. M.J. and Christy exited their vehicle and Christy, also a registered nurse, approached defendant's Honda as he crawled out. M.J. testified defendant said this was the second time he flipped a car and he was saying, "Just fucking kill me now," "I wish God would kill me," and "I want to get high. I just want to get high."

After determining that defendant seemed fine except for an injured toe, M.J. heard Kathleen screaming. Christy ran over to David's and Kathleen's vehicle and took Kathleen in her arms. Christy shook her head at M.J., which M.J. interpreted as a signal that David did not make it.

M.J. told an officer that defendant was awake and alert but "fitsy." She explained she meant defendant did not seem able to focus on what had just occurred or the severity of it. He did not answer when asked if he was okay, did not seem to realize that his doghad flown out of his car and underneath a smashed vehicle, and did not appear to have a grasp on what had just happened.⁷

III. Defendant's Statements at Hospital

A. Dr. Heer

Defendant was also transported to KMC. Dr. Jagdipak Heer, who was the supervising physician on duty at the emergency room that day, testified that defendant complained of...