People v. Klein

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ERROL KLEIN, Defendant and Appellant.

B295039

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

October 14, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA115987)

Appeal from a judgment of the Superior Court of Los Angeles County, Thomas Falls, Judge. Affirmed and remanded with directions.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.

Arthur Errol Klein appeals from the judgment entered after a jury convicted him of the second degree murder of Martin Razo, whom Klein had struck and killed while driving under the influence of alcohol. Klein, sentenced to an indeterminate state prison term of 15 years to life, contends his conviction was not supported by substantial evidence. He also asserts the trial court improperly instructed the jury on the issues of malice and causation and erred by failing to instruct on vehicular manslaughter as a lesser included offense of murder. We affirm but remand to give Klein an opportunity to request a hearing on, and present evidence concerning, his ability to pay the fine, fee and assessment the court imposed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Klein was charged by information with second degree murder (Pen. Code, § 187)¹ (count 1) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (count 2). As to count 2, it was specially alleged Klein had suffered two prior convictions within the meaning of section 191.5, subdivision (d). Klein pleaded not guilty and denied the special allegations.

2. The Evidence at Trial

On the afternoon of August 9, 2017 a teenager riding his bicycle north on Underhill Drive in Glendora saw a black truck driving toward him. As the truck rounded a broad curve in the road, it swerved suddenly to avoid a white utility truck parked on the side of the road and struck Razo, who had been standing nextto his truck replacing his landscaping tools. Klein, the driver of the black truck, stopped and went over to Razo, who was lying on the ground bleeding from a serious head wound and other injuries. A neighbor, a nurse, came from a nearby house, called the emergency hotline and tried to help Razo. Klein sat on the side of the street with his head in his hands, visibly distraught. Police and paramedics arrived several minutes later, but Razo was nonresponsive and no longer had a pulse.

Glendora Police Officer Josh Price spoke to Klein, who said he had been on his way home and had not seen Razo standing next to his truck. Price smelled alcohol on Klein's breath and initiated a field sobriety investigation. Although Klein performed fairly well on some of the field sobriety tests, his gaze demonstrated significant horizontal and vertical nystagmus. After first denying he had been drinking that day, Klein later admitted to having consumed a couple of rum drinks and a beer during the hours before the incident.² About 30 minutes after the accident a preliminary alcohol screening of Klein's blood alcohol content (BAC) measured .22 percent. Klein admitted to feeling the effects of the alcohol. About two hours after the accident arepeated screening measured Klein's BAC as .20 percent. After six hours Klein's blood sample yielded a BAC of .14 percent. A senior criminalist from the Los Angeles County Sheriff's Department opined that, based on Klein's drinking pattern, a BAC reading of .20 percent two hours after the accident meant that someone of Klein's weight would have had a BAC of as much as .25 percent at the time of the accident. People with blood alcohol content levels of .08 percent or higher are impaired to drive a vehicle safely.

Glendora Police Officer William Turnley testified as a traffic collision expert and opined that Klein's intoxication caused him to strike Razo. Turnley saw no evidence Klein had been speeding but concluded Klein's truck struck Razo after Klein made an unsafe turning movement.³

At the police station Klein told an officer he had previously been convicted of driving under the influence of alcohol and that, looking back, he must have been too intoxicated to drive safely at the time of the collision. Court records showed Klein had twice been convicted of driving under the influence of alcohol and had received several Watson advisements he could be convicted of murder if he killed someone while driving under the influence of alcohol. (See People v. Watson (1981) 30 Cal.3d 290, 296(Watson).)⁴ On February 24, 2006 Klein had pleaded guilty to driving under the influence of alcohol and acknowledged with his initials that he had been given the following advisement: "[B]eing under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, I can be charged with murder." On June 28, 2010 Klein pleaded no contest to driving under the influence of alcohol (after turning left against a red light and colliding with another vehicle) and was given the same Watson advisement. On January 29, 2011 Klein attended a Mothers Against Drunk Diving program in which he was again informed about the dangers of drinking and driving and told that, if he continued to drive while intoxicated and, as a result, killed someone, he could be charged with murder.

Klein did not testify and presented no other defense.

3. The Verdict and Sentencing

After deliberating for less than two hours, the presiding juror sent a request for another copy of the verdict form finding Klein guilty and, within half an hour, a note asking whether the jury needed to reach a verdict on count 2 if it had reached a verdict on count 1. The parties agreed to hear the verdict on count 1 before the jury reached a verdict on count 2. After thejury's verdict of guilty on count 1 was read, the court granted the prosecutor's motion to dismiss count 2.

The court sentenced Klein to an indeterminate state prison term of 15 years to life and ordered him to pay a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities assessment fee (Gov. Code, § 70373) and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)).

DISCUSSION

1. Substantial Evidence Supports Klein's Conviction for Second Degree Murder

Klein contends the evidence at trial was insufficient to prove he acted with implied malice when he drove his truck while intoxicated and killed Razo.⁵ He argues there was no evidence hedrove in a highly dangerous manner, displayed outward signs of intoxication or actually knew he was too impaired to drive safely.

To be guilty of murder, a defendant must kill "with malice aforethought." (§ 187.) "[M]alice may be express or implied." (§ 188.) It is express when the defendant "manifest[s] a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) Measured by a subjective, rather than objective, standard, "malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Watson, supra, 30 Cal.3d at p. 296, italics omitted; accord, People v. Knoller (2007) 41 Cal.4th 139, 143.) So long as these elements are met, a defendant who kills someone as a result of driving under the influence of alcohol or drugs may be convicted of murder under an implied malice theory. (See Watson, at p. 298; People v. Wolfe (2018) 20 Cal.App.5th 673, 681 (Wolfe) ["[m]alice may be implied when a person willfully drives under the influence of alcohol"].)

Klein reminds us the Watson Court cautioned that a charge of second degree murder should not become routine for intoxicated drivers who cause the death of another person: "[W]e neither contemplate nor encourage the routine charging of second degree murder in vehicular homicide cases." (Watson, supra, 30 Cal.3d at p. 301.) As described in Wolfe, supra, 20 Cal.App.5th at pages 682-683, "Generally, [courts] 'have relied on some or all of the followingfactors' that were present in Watson: '(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.'"

Based on this language from Watson and Wolfe and the facts involved in a number of prior cases, Klein suggests a charge of second degree murder should be reserved for those who are observed to have violated traffic laws in a demonstrably dangerous manner in the moments before an accident occurs. For instance, the Watson Court noted that, just before colliding with the victims' car, the defendant, who had been drinking at a bar, returned to his car, drove at excessive speeds, ran a red light and narrowly avoided hitting another car. Rather than stop, the driver resumed his excessive speed before colliding with the victims' car. (Watson, supra, 30 Cal.3d at pp. 300-301.) Likewise, in People v. McCarnes (1986) 179 Cal.App.3d 525 the defendant passed several cars at a high rate of speed by driving on the wrong side of the road before he hit the decedents' vehicle head-on. (Id. at p. 533; see also Wolfe, supra, 20 Cal.App.5th at p. 679 [defendant failed...