People v. Underwood

1

THE PEOPLE, Plaintiff and Respondent, v. TYLER UNDERWOOD, Defendant and Appellant.

A165026

California Court of Appeals, First District, Second Division

January 26, 2024

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. 18-CR-018052)

STEWART, P. J.

Tyler Underwood appeals from convictions of murder and multiple other offenses after he lost control of the car he was driving while under the influence of alcohol and, in the resulting collision, one passenger was killed and others injured. Underwood believes he was guilty of at most gross vehicular manslaughter or involuntary manslaughter and challenges several rulings preventing him from presenting the jury with these alternative offenses. Additionally, he contends certain sentence enhancements were not authorized by statute and must be stricken. We agree with the latter argument and otherwise affirm the judgment.

BACKGROUND

I. Factual Background

A. The Collision

On the evening of October 9, 2018, Underwood was with Wint Kyaw Chris Stubbs, Darren Walker, Ron Mauck and Sean Johnson talking and drinking in the parking lot of the Fanwood Terrace apartment complex in Fremont. Underwood's four-year-old daughter, Jane Doe, was with him; Underwood had recently won full custody of her. After an hour or two, Underwood, Doe and Kyaw drove to McDonald's, bought more beer and returned to the apartments. A short time later, they went to the house where Underwood was living, a few minutes drive away. Outside the house, Underwood, Kyaw, Walker and others including Daniel Cameron and Blake Blevins, continued drinking and talking.

Johnson testified that he left the group at the apartments after getting into an argument with Underwood when Johnson said Underwood should not be drinking and driving with his daughter in the car. Johnson could tell when Underwood was impaired and he was not showing signs of being intoxicated, but Johnson thought it was wrong to be drinking and driving with your child in the car. He believed Underwood had a high tolerance for alcohol and did not think beer "really affects" him. Johnson testified that Underwood had "at least two" beers but acknowledged having told the defense investigator that Underwood had "one to two" tall cans.

Kyaw testified that she drank three tall (24 ounce) cans of Mickey's beer and saw Underwood drinking Mickey's tall cans. Before they left the apartments to go to Underwood's house, Stubbs asked Underwood if he was "okay to drive" and said he should not drive with his daughter. Underwood said he was fine and "[i]t's just beer. It's just water." At Underwood's house, Kyaw saw Underwood drink "[m]aybe . . . two" Mickey's cans and a shot of Fireball whiskey, then acknowledged on cross examination that she did not actually remember whether he drank any Fireball. Cameron testified that Underwood drank at least two tall cans of beer, but he did not remember exactly how much.

The group decided to get food from a restaurant in Milpitas. Blevins drove one car, with Cameron as a passenger, and Underwood drove the other, with Kyaw, Walker and Underwood's daughter as passengers. Kyaw testified that she knew Underwood was intoxicated because he had had "too many beers," he was stumbling and his face was red. She offered to drive but he said he was okay, and she believed him. Blevins testified that Underwood did not show any signs of being impaired by alcohol. Cameron testified that he was intoxicated and believed Underwood was too, and that from his experience drinking with Underwood, Underwood drank "to actually get drunk."

Kyaw sat in the front seat of Underwood's BMW, with Doe behind her and Walker behind Underwood. They stopped at a gas station a few minutes from Underwood's house. After watching a clip from the surveillance video showing Underwood filling the tank and walking around, Kyaw testified that he appeared to be intoxicated because he was stumbling.

After getting gas, Underwood got on the freeway, driving about 80 miles per hour. Blevins's car was behind them, and then passed them going at what Kyaw believed was around 100 miles per hour. Underwood caught up with Blevins and the two cars raced. Kyaw did not feel safe because Underwood was "driving and drinking." She felt like he was driving faster and faster and when she looked at the speedometer, it said 140 miles per hour. The car started to swerve, Kyaw thought she heard a tire pop, and she could feel the bumps of the lane dividers as the car moved to the right. She and Walker had both told Underwood to slow down and he did, but the car was already out of control.

The car flipped over a "cliff" and rolled three or four times. Kyaw hit her head and briefly lost consciousness, then came to and heard Doe crying. Kyaw's head and ankle were bleeding. She wanted to get Doe out of the car, which was smoking, and she climbed out the window because the car door would not open. Cameron and Blevins helped get Doe out. Kyaw testified that as she walked up the hill with Underwood, he told everyone that he was not driving, Cameron was, and asked Kyaw, Cameron and Blevins to lie to the police about who was driving. Everyone agreed; Kyaw testified that she did so because she was in shock. She told California Highway Patrol (CHP) officers that Cameron had been driving, which was not true. Kyaw had an immunity agreement providing that her testimony could not be used against her.

Blevins testified that as he was driving on the freeway at about 75 miles per hour with Underwood behind him, Underwood passed him on the left, going about 100 miles per hour, and they jokingly threw hand signals at each other. Underwood had told him his car could go 140 miles per hour. As the gap between the cars grew, Blevins commented to Cameron that Underwood needed to slow down because it was reckless to drive as fast as he was driving. Blevins then suddenly saw Underwood's taillights "starting to go sideways" and realized Underwood had lost control of the car, which veered across the freeway to the right. Cameron estimated that Underwood was driving at least 90 miles per hour when he passed their car. He did not feel like the cars were "interacting or racing." He testified that Underwood "hit a bump or something" and the car veered right and went down the embankment.

Blevins pulled over and both he and Cameron ran down the embankment. Underwood's car was behind or against a tree and Doe and Kyaw were screaming. Underwood was standing outside the car, by the driver's door according to Cameron and near the right-side passenger door according to Blevins. Blevins and Cameron helped Doe out of her car seat. Underwood asked Cameron to "take the fall" for him, saying he could not "get another DUI" (Driving Under the Influence) and he would owe Cameron his life. Cameron did not immediately reply.

Once they were back at the top of the hill, Cameron saw the police coming and realized he had to answer Underwood. Cameron asked Underwood, Kyaw and Blevins," 'who was driving?' "; when Kyaw said Underwood, Cameron said, "no, I was." Cameron testified that he was thinking he would "get a DUI" and "maybe sit in the jail for a day" but "just get out . . . pretty soon." Asked why he was willing to be arrested for Underwood, Cameron testified that he thought about Underwood having just gotten custody of Doe and that he was always trying to help people.

Blevins testified that Underwood told him Cameron was going to "take the fall" for the accident and at first Blevins said he "wasn't okay with that," then he agreed when Cameron told him it was alright. When the police arrived, both Cameron and Blevins told them Cameron was driving.

B. Emergency Responders' Observations

When CHP Officer Logan Dysert arrived at the scene, Cameron and Kyaw each separately told him Cameron was the driver. Both had red, watery eyes and Kyaw had the odor of alcohol on her breath.^[1] Underwood said the car was his, but Cameron was the driver. Underwood, too, had red, watery eyes, as well as a strong odor of alcohol on his breath and slurred speech. Underwood answered Dysert's questions very quickly, "like he wanted to get out of there," but he was cooperative, coherent and followed Dysert's directions. Dysert believed Underwood, Cameron and Kyaw were all under the influence of alcohol. He conducted field sobriety tests with Cameron, who did poorly, and placed him under arrest.

Several of the first responders at the scene testified, based on their training and experience, that Underwood appeared to be intoxicated. Paramedic David Eastin testified that Underwood was "very loud, very belligerent" and did not appear to be cooperating appropriately with emergency responders given the severity of the accident. At one point Underwood appeared to lose his balance and "sidestepp[ed] into the freeway" and someone grabbed him. Eastin testified that it was "apparent that there was some substance on board." Firefighter and paramedic Frank Carlucci testified that Underwood was "very aggressive," "belligerent" and "all over the place," "mak[ing] the scene very difficult to control"; "his hands were on everybody," he was not listening to what the paramedics were trying to tell him and he did not appear to comprehend what Carlucci said to him. Carlucci smelled alcohol on Underwood from a foot away. Fremont Fire Department Captain and emergency medical technician Ronald Martin described Underwood's behavior as "erratic to the point where it was making things very hard to assess our patients" and the responders "were worried about his safety." Underwood was moving a lot and yelling, and there was concern that he was going to walk into traffic. Martin thought Underwood was intoxicated based on his "loud, slurred speech" and "bellige...