People v. Suazo

95 Cal.App.5th 681

313 Cal.Rptr.3d 649

The PEOPLE, Plaintiff and Respondent,

v.Jesus SUAZO, Defendant and Appellant.

F082140

Court of Appeal, Fifth District, California.

Filed September 19, 2023

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P. J.

INTRODUCTION

Defendant Jesus Suazo was convicted of second degree murder ( Pen. Code,¹ § 187, subd. (a) ; count 1); gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2); driving under the influence and causing bodily injury ( Veh. Code, § 23153, subd. (a) ; count 3); driving with a blood-alcohol level of 0.08 percent or more and causing bodily injury ( Veh. Code, § 23153, subd. (b) ; count 4); leaving the scene of an accident ( Veh. Code, § 20001, subd. (a) ; count 5); and driving on a suspended license ( Veh. Code, § 14601.2, subd. (a) ; count 6). Additionally, as to counts 2, 3, and 4, the jury found defendant had suffered a prior conviction for driving under the influence (§ 191.5, subd. (d); Veh. Code, § 23152, subd. (b) ). As to count 2, the jury found defendant fled the scene of the crime. ( Veh. Code, § 20001, subd. (c) ). As to counts 3 and 4, the jury found defendant inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).)

Defendant was sentenced on count 5 to the upper term of four years, and on count 1 to a term of 15 years to life. A lower-term sentence on count 2, and middle-term sentences on counts 3 and 4, were imposed and stayed. ( § 654.) No sentence was imposed on count 6. As relevant here, the court ordered defendant to pay $5,000 in restitution to Garton Tractor Company (Garton) under section 1202.4, subdivision (f).

On appeal, defendant contends the evidence was insufficient to support his conviction of second degree murder in light of his testimony that he drank alcohol without intending to drive afterward, then drove while unconscious. He additionally contends the trial court erred in failing to give, or his trial counsel was ineffective in failing to request, instructions on unconsciousness and voluntary intoxication with regard to count 5 and the fleeing-the-scene allegation to count 2. He also contends remand is required for the court to resentence him in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), statutes 2021, chapter 731 (Senate Bill No. 567), and Assembly Bill No. 124 (2021-2022 Reg. Sess.), statutes 2021, chapter 695 (Assembly Bill No. 124), and the court erred in ordering restitution in favor of Garton because the company was not a direct or derivative victim of a crime of which defendant was convicted.

We accept the People's concession that remand is required for resentencing consistent with Senate Bill No. 567 and Assembly Bill No. 124. We reject defendant's remaining contentions and otherwise affirm the judgment.

FACTS

Defendant, while having an elevated blood-alcohol level, drove his 2008 Ford Focus at a high rate of speed off the highway, through a fence, and into agricultural equipment parked in an adjacent yard. His passenger, Anna Maria Solorio Zuniga (Solorio), was ejected from the vehicle and killed.

I. THE ACCIDENT SCENE

On May 13, 2017, at approximately 4:00 a.m., California Highway Patrol Sergeant N. Hunt was dispatched to a traffic collision on southbound Highway 99, just north of Avenue 200 in Tulare County. She was told that a vehicle had possibly rolled over and was unoccupied. Hunt was the first officer to arrive on scene at approximately 4:11 a.m. She observed a silver sedan in a grassy area on the west side of the highway, between a chain link fence and the edge of the roadway. The passenger door of the vehicle was detached and missing.

Hunt located an unresponsive female, who appeared to have been ejected from the vehicle, a few feet in front of the sedan's front bumper. She was deceased.²

Hunt began to survey the area, looking for other persons who may have been ejected from the vehicle. She noticed a chain link fence toward the passenger side of the vehicle was severely damaged. She determined that the vehicle must have gone through the fence into an area occupied by an adjacent tractor supply business.

Hunt walked through the area, which contained heavy agricultural equipment, and located the passenger side door of the vehicle wedged onto a large piece of equipment. Hair, consistent with that of the female Hunt had located, was found next to the door. This information, as well as the presence of blood on both interior airbags of the vehicle, led Hunt to conclude the female was likely the passenger. Hunt therefore began to look for the driver.

Soon thereafter, additional units and emergency personnel arrived on scene and began looking through the yard of the agricultural equipment business. Hunt initially remained with the vehicle to preserve the blood evidence but, after about 20 minutes, joined the search. After a few minutes, Hunt spotted a shadow of an occupant sitting in the cab of a trailer about a hundred feet from the vehicle. The door of the cab was closed. Hunt walked up the steps to the cab and knocked on the door, announced herself as law enforcement, and told the occupant to come out. The occupant, who Hunt identified at trial as defendant, did not make eye contact and, using "the F word," said he would not come out. Hunt opened the door and said, "If you don't come out, I'll have to physically remove you." Defendant responded something to the effect of, "Go ahead, remove me." Hunt said, "Okay," and stepped into the cab, at which point defendant stood up. Hunt backed down the stairs and defendant came out on his own. Inside the cab, Hunt noticed a little bit of blood or blood residue on the seat and the steering wheel. Defendant had open wounds that were bleeding.

At that point, California Highway Patrol Officer B. Elliott took over the investigation. Elliott noticed that defendant's eyes were bloodshot and watery, his gait was unsteady and off balance, he walked slowly and with deliberate steps, and an odor of alcoholic beverage emitted from his breath while conversing. These signs were consistent with someone who is under the influence. Defendant denied any medical or mechanical issues that might have contributed to the collision. Defendant denied having any injuries, although he had lacerations on his forehead and seemed disoriented and confused. Defendant was aware and conscious during the interaction and his answers were responsive to the questions asked.

Defendant admitted driving the vehicle. He informed Elliott that he had come from his sister-in-law's birthday party at a restaurant in Tulare and was driving to Pixley. He acknowledged he had been drinking and said "they [had] two buckets" of beer. Defendant reported that he started drinking at 10:00 p.m. the night before and stopped drinking at 1:00 a.m. He reported he was no longer feeling the effects of alcohol by the time he was speaking with Elliott. He did not drink any more alcohol after the collision. When asked if he should have been driving, defendant responded, "No, I shouldn't have been driving at all," and stated, "My brother told me not to drive." Additionally, "[h]e said he fucked up, he fucked up his car. He said he fucked everything up." Defendant repeatedly stated he should not have been driving.

Elliott performed field sobriety tests on defendant, which included the horizontal gaze nystagmus, the one-legged stand, and the finger count, before administering testing with a preliminary alcohol screening (PAS) device. On the horizontal gaze nystagmus, defendant's response indicated a blood-alcohol level of 0.10 percent or higher. Defendant performed poorly on the one-legged stand, to the point that Elliott discontinued the test because he was concerned defendant would fall to the ground. Defendant also had difficulty understanding Elliott's instructions regarding the test. During the finger count test, defendant miscounted and fumbled every count, before discontinuing the test part way through and beginning to cry. Elliott performed two PAS tests on defendant. The first registered defendant's blood-alcohol level at 0.139 percent; the second registered 0.148 percent. Based on all of the foregoing, Elliott formed the opinion that defendant was unable to safely operate a motor vehicle because he was under the influence of an alcoholic beverage.

Elliott placed defendant under arrest. He found Solorio's identification card and cell phone in defendant's pocket. Another cell phone was found in the vehicle. Elliott transferred defendant to a hospital where he underwent a blood test. The blood sample was taken at 6:04 a.m. and revealed a blood-alcohol content of 0.14 percent.

II. INVESTIGATION

On Highway 99, Elliott observed tire friction marks leading into dirt tracks, and eventually through weeds or grass in a straight line directly through the fence into the agricultural equipment yard. The posted speed limit in this area of Highway 99 was 70 miles per hour. Elliott also observed a piece of agricultural equipment with vehicle parts attached to it and tire friction marks on it. There were no tracks or marks on the ground nearby, indicating to Elliott that the vehicle was airborne at the time it struck the equipment. He also located a bloody fingerprint and bloody palmprint on the top of the driver's side door, near the rear of the door. This indicated to Elliott that the driver had exited the driver's side door after the collision, eliminating Solorio as the potential driver. Elliott noticed that the passenger seatbelt was severed and removed from the vehicle.

The airbag control module of defendant's Ford Focus recorded that the vehicle was traveling just over 100 miles per hour four seconds prior to the crash and the accelerator was 64 percent depressed. Two seconds prior...