People v. Trombini

THE PEOPLE, Plaintiff and Respondent, v. EMANUELE TROMBINI, Defendant and Appellant.

E073991

California Court of Appeals, Fourth District, Second Division

July 1, 2021

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. INF1600301 Timothy J. Hollenhorst, Judge. Affirmed as modified.

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, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Introduction

While driving from a speed of 107, and coasting to 89 miles per hour, defendant Emanuele Trombini rear-ended a vehicle that had just entered the roadway from a driveway, killing the driver of that vehicle and injuring the passengers of both cars. He was charged with murder (Pen. Code, § 187 subd. (a)) based on his past history of speed-related violations and ingestion of three times the therapeutic dosage of Xanax and use of marijuana throughout the day, and two counts of felony driving under the influence of drugs and causing bodily injury with enhancement allegations of causing great bodily injury. (Veh. Code, § 23153, subd. (e).) Following jury trials, ^[1] defendant was convicted on all counts, and he was sentenced to an aggregate term of six years, with a consecutive indeterminate term of 15 years to life. He appeals.

On appeal, defendant argues the trial court erred by (1) excluding defense evidence that the decedent's driving violated the Vehicle Code, (2) refusing to instruct the jury on the Vehicle Code sections violated by the decedent, (3) failing to instruct the jury on vehicular manslaughter as a lesser included offense of murder, (4) refusing to instruct on vehicular manslaughter as a lesser related offense of murder, (5) the cumulative effect of these errors, and (6) separate convictions for driving under the influence are unlawful. We modify and affirm.

Background

On February 24, 2016, defendant headed out on State Route 111 with his girlfriend, Samantha Varner, after smoking several bowls of marijuana during the day and consuming three times the therapeutic dose of Xanax, for which he did not have a prescription. As he entered Cathedral City, his speed reached up to 107 miles per hour as he argued with his girlfriend over a lighter that was not where he thought it should be.

While driving, he changed lanes without signaling on several occasions, nearly sideswiping two other vehicles traveling in the same direction. He also hit the center median more than once. At traffic signals, he had to stop abruptly to avoid rear-ending the car in front of him, and he did not promptly respond when the light changed.

In Cathedral City, while defendant was speeding down the highway, which became East Palm Canyon, Caryn Clemente and her son were pulling out of the Del Taco parking lot in a Toyota Camry. Peter, the passenger and son of Caryn Clemente looked to the left as his mother looked both ways. The Camry entered the number two lane first, at 3.7 miles per hour, and accelerated as she changed to the number one lane. Moments later, the Camry was struck from behind by the defendant's BMW, scattering debris over a wide field.

Information downloaded from the two vehicles indicated that at the time of the accident, the Toyota was traveling at 6.2 miles per hour. At the point where the Toyota entered the roadway defendant was approximately 667 feet away. From this distance, a driver would feel safe entering the roadway.

Five seconds before impact, defendant was driving at 107 miles per hour, 745.4 feet from the point of impact. Because of a dip in the road, defendant's headlights might not have been visible until after it crested the rise in the road. The dip in the road also would have prevented the defendant from seeing the Camry. At a point 4.5 seconds prior to impact when the Camry began to enter the roadway, the BMW was 667 feet away.

At the actual time of impact, defendant's vehicle was traveling at a speed of approximately 90 miles per hour in a 40 mph zone.^[2] If defendant had been driving the speed limit, the BMW would have still been 451 feet away from the victim's Camry when it entered the number one lane of the roadway.

Two drivers were nearly sideswiped by the defendant's BMW as it sped down Highway 111 as it entered Cathedral City, driving erratically. One of the drivers, James B., who had nearly been sideswiped by defendant just seconds before the collision, was in the process of calling 9-1-1 when he saw the smoke from the collision ahead of him. After reporting the collision, he stopped at the scene, saw that defendant was alert, and then checked the occupants of the Camry.

Brian B., another driver who was traveling along Highway 111 as it enters Cathedral City on the way to Palm Springs, also had a close encounter with defendant's BMW. Brian was a traveling X-ray technician on his way home from work. As the highway turned into East Palm Canyon Drive, he was stopped at a traffic signal when he saw the BMW behind him, as it slammed on its brakes after nearly striking Brian from behind.

At the next traffic signal, as Brian was telling his wife on the phone about the BMW's erratic driving, defendant lurched into the intersection and nearly struck the center divider, swerved back into the lane, and then “gunned it.” Brian hung up the call with his wife and was ready to call 9-1-1 when he saw a cloud of smoke and realized there had been a collision. He, too, stopped at the scene and, along with the proprietor of the smoke shop located next door to the Del Taco, who had witnessed the collision from the parking lot in front of the shop, extricated Peter Clemente from the vehicle and escorted him to the curb.

As Peter was being led away from the vehicle, Brian leaned into the Camry to check on Caryn Clemente, who had a slight pulse at first. However, by the time they tried to remove Caryn from the vehicle, she had already expired.

By this time, police and paramedics were arriving at the scene and Sergeant Chapman attended to Caryn. Because the driver door would not open, the officer had to climb in through the passenger door to extricate her, but she was not breathing. He turned off the ignition as a safety measure due to the presence of fuel under the vehicle, and cut her seatbelt. He and another person gently pulled her out through the passenger side, and carried her to the center median. By this time, paramedics had arrived, at which time Caryn was pronounced dead at the collision scene.

Caryn's death was attributed to blunt impact injuries due to the traffic collision. There was hemorrhaging in both the scalp area and the area overlying the brain itself. Her brain was partially torn from the brain stem and the ligaments and membranes of the first cervical vertebrae were loose and bloody. Peter suffered a serious head injury with epidural hematoma requiring a craniotomy. Samantha Varner, defendant's then girlfriend and passenger in the BMW was also injured in the collision, suffering fractures to her collar bone and a ribs, in addition to an abrasion from the seatbelt. Two years after the collision, her full strength still had not returned and she suffered from anxiety.

Defendant, who suffered a facial injury, was found to have marijuana and Xanax in his blood.^[3] The amount of Delta-9 THC (the active ingredient in marijuana) was consistent with recent use. The amount of Xanax, a benzodiazepine, detected in defendant's blood was more than three times the therapeutic dosage. The toxicologist, testifying as an expert, expressed the opinion that the combined effect of marijuana and Xanax can cause driving impairment. Defendant's driving pattern in the moments leading up to the collision, and the results of the toxicology testing, led the toxicologist to the opinion that defendant's driving was impaired.

At the hospital, defendant was interviewed and initially told the officers that had not smoked marijuana that day or taken any drugs, and that he was traveling at the speed limit when the Toyota came out from nowhere. After being informed that Samantha had told the officers they had smoked pot and that he was going faster than the speed limit, defendant admitted to having smoked marijuana, but denied that it affected him because he used it daily. He denied going 80 miles per hour as Samantha had estimated, saying he usually cruised at 60 miles per hour on that road. However, he eventually admitted he had smoked weed and ingested Xanax, which he obtained from a friend, that day.

Defendant was charged with one count of murder (count 1, Pen. Code, § 187, subd. (a)), and two counts of driving under the influence of drugs causing bodily injury (counts 2, 3, Veh. Code., former § 23153, subd. (e)^[4]). At trial, Investigator Snider, the prosecution's accident reconstruction expert, offered an opinion as to the factors involved in the collision based on information downloaded from the ACM, using CDR software. He examined both vehicles, as well as the crime scene photographs and the crime scene itself; he also watched surveillance video showing the collision from various aspects. The ACM monitors a vehicle's systems and measures acceleration, while also recording nondeployment events, that is, shocks big enough to “wake up” the system, but not enough to deploy the airbags.

The information from the BMW showed that five seconds before the collision, the vehicle was traveling at a speed of 107 miles per hour, but that there was no acceleration at that point. The speed decreased in the absence of acceleration and was measured by the ACM at 0.5...