People v. Sale

THE PEOPLE, Plaintiff and Respondent, v. LOUIS SALE, Defendant and Appellant.

A154474

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

June 26, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. 16NF005462)

Louis Sale was convicted of second degree murder and related offenses following a fatal accident that occurred while he was driving under the influence of alcohol. He was sentenced to state prison for a term of 15 years to life. He raises several challenges on appeal, contending that the evidence is insufficient to support the murder conviction, the results of a blood draw should have been suppressed, the trial court erred in admitting evidence of a prior arrest for driving under the influence, the trial court failed to clarify the meaning of implied malice for the jury, and he was prejudiced by the cumulative impact of these alleged errors. Finding no error, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, appellant was charged by information with murder of Vivaldo Veloso (Pen. Code,¹ § 187, count 1); gross vehicular manslaughter while intoxicated (Veh. Code, § 191.5, subd. (a), count 2); felony driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a), count 3); felony driving with a blood-alcohol level above the legal limit causing injury (Veh. Code, § 23153, subd. (b), count 4); and misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a), count 5). The information also alleged that appellant personally inflicted great bodily injury on Veloso (§§ 1203.075, subd. (a), 12022.7), proximately caused great bodily injury to Veloso and two others while driving under the influence and with a blood alcohol level above the legal limit (Veh. Code, § 23558), and had previously been convicted of a DUI (Veh. Code, § 23540).

Jury trial commenced on December 12, 2017. Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the evidence established the following.

A. The Prosecution's Evidence

i. Appellant's Prior DUI Arrests and Conviction

Around 2:00 a.m. on September 6, 2014, Justin Lagman, an off-duty sheriff's deputy, was stopped at a red light when he noticed a white pickup truck approaching rapidly from the rear. The truck went around him using the left-turn lane and ran through the red light, shaking Lagman's car and almost hitting his driver-side mirror. After the light changed, Lagman followed the truck and saw it stop and start several times as it continued down the road while straddling both lanes of the two-lane roadway. After thetruck pulled into a 7-Eleven store parking lot, Lagman called 911 to report the unsafe driving.

Officer Tyrus Moulder of the City of Oceanside Police Department located appellant at the 7-Eleven store parking lot inside a white Dodge Ram pickup truck. The interior of the vehicle smelled of stale beer. Appellant's eyes were bloodshot and watery, and his speech was slurred. He said he had consumed five beers earlier that evening. After he failed to satisfactorily perform field sobriety tests, Officer Moulder placed him under arrest. Told he was required to submit to breath or blood testing, appellant elected to take the breath test, which revealed a blood-alcohol content of .25 percent.

Appellant pleaded guilty to driving under the influence (DUI). On his plea form he indicated that he understood he could be charged with murder if someone were killed while he drove under the influence. He was placed on five years' probation. As a condition of probation, appellant was required to enroll in an enhanced nine-month first offender program and was prohibited from driving with any measurable level of alcohol or drugs in his system.

Appellant attended all six of the offender program's two-hour educational modules, along with 30 group sessions lasting one-and-a-half hours each, 32 self-help sessions, and 18 one-on-one sessions that emphasized the dangers of drinking and driving. The program's educational modules address how alcoholism and drugs can impair individuals both physically and mentally. Coursework covers the effects of alcohol on the brain. Participants were also shown a chart that explains how many drinks it takes to reach a certain blood-alcohol level. Program participants view a film called, "Drinking and Driving: The Toll and the Tears," which describes cases involving people who have been killed or injured in DUI-related crashes and shows the impact on the victims' families. The film includes the story of a driver who was convicted of murder following a DUI fatality. The film is"emotionally powerful," and the associated education materials stress that someone can be killed in a DUI crash.

While appellant completed the bulk of the offender program, including group counseling and all of the educational modules, he missed his final two individual counseling sessions for nonpayment of $205 in fees. He was discharged from the program in October 2015 for nonpayment after having been granted an extension.

On November 1, 2015, California Highway Patrol (CHP) Officer Daniel Blanco pulled over an Audi sedan that was going 75 to 80 miles per hour in a 65 mile per hour zone at about 10:30 in the morning. Appellant was driving the vehicle. The officer noticed a strong odor of alcohol and decided to conduct a DUI investigation. Appellant said he had consumed eight beers the night before. After he failed field sobriety tests, a preliminary alcohol screening test showed he had a blood-alcohol content of .110 percent. Appellant was placed under arrest and submitted to a breath test at 11:00 a.m. The results showed a .08 percent blood-alcohol content. Officer Blanco confiscated appellant's driver's license.

ii. The Fatal Accident

On April 9, 2016, at around 3:40 a.m., two CHP officers responded to reports of a collision while driving south on Highway 101 just north of San Francisco International Airport. They decided to conduct a traffic break so that the damaged cars could be safely removed from the freeway. A traffic break is accomplished by activating a patrol vehicle's emergency lights and driving in a zigzag motion, crossing all lanes of the freeway in order to corral motorists driving behind. The maneuver is designed to place as many vehicles as possible within the resulting traffic bottleneck so that their red brake lights can provide a visual warning to oncoming drivers.

The southbound freeway near the airport has five lanes of traffic and is relatively straight. The freeway is flat for well over a mile. There was a light rain that night but visibility was at least one mile. The CHP officers began the traffic break about two miles north of the roadway hazard. Vehicles amassed behind them, including several big rig trucks that served to enhance the traffic break's visibility.

The victim, Vivaldo Veloso, had been working that evening as an Uber driver and was driving home in his 2013 Honda Civic Hybrid. He was behind the traffic break in the far left lane. About one minute after completing the traffic break, CHP Officer Alfonso Hernandez heard the sound of a collision to the north. A 5,000-pound white Dodge Ram pickup truck had collided with several vehicles that were stopped for the traffic break. The pickup truck careened across the freeway lanes from left to right, sideswiping several cars before coming to a stop after hitting a semi truck. A total of nine vehicles were damaged in the accident.

Veloso's Honda was the first car hit by the pickup truck. The resulting collision was devastating and his car was totaled. Veloso suffered blunt force trauma to his head. Witnesses described the Honda as having been "squished." It was later determined that the Honda had suffered two crashes 0.3 seconds apart—the impact of the pickup truck to its left rear side, followed by an impact on the driver's side when the Honda rotated clockwise and hit the back of a Mazda sedan that was stopped in front of it. The Mazda sustained moderate to major rear end damage. The driver and a passenger in the Mazda were still suffering from back pain at the time of trial. The driver testified that he was a mile away when he saw the brake lights from the traffic stoppage. He had sufficient time to slow down and come to a gradual stop over the course of two minutes. He was stopped for about five minutes when he was hit from behind.

Jonathan Van Ness was driving for Uber on the night of the accident. He saw the traffic break ahead of him from 200 to 300 yards away. Between 40 to 60 vehicles were stopped in front of him across the freeway. As he was coming to a stop, he heard a crash followed by a screeching sound and saw several cars spinning and sliding out of control. He later saw people getting out of their cars, but did not see anyone exit the Honda. Having CPR and emergency medical response training, he went over to help. The driver's side of the Honda was damaged and inaccessible, so he entered on the passenger side. The driver was breathing but was not responsive. Firefighters extricated Veloso from the car and he was transported to Stanford Medical Center where he later died.

iii. The DUI Investigation

After the accident, appellant left his pickup truck and jogged to the side of the freeway. His truck was severely damaged and its airbags had deployed. Officer Hernandez spoke to appellant and asked for his driver's license, which was suspended. He handed Officer Hernandez a California ID card. Appellant said he was fine and did not need an ambulance.

After Officer Hernandez addressed the injured parties and helped open the...