P. v. Sanchez 4/21/06 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B180113

Case Date: 07/26/2006

Preview:Filed 4/21/06

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. VICENTE SANCHEZ, Defendant and Appellant.

B180113 (Los Angeles County Super. Ct. No. KA065072)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION Appellant Vicente Sanchez challenges his second degree murder and related convictions on the ground that exclusion of defense evidence of voluntary intoxication under authority of Penal Code section 221 violated due process, equal protection, and the express terms of the statute. He further contends that admission of 911 calls made by persons who did not testify at trial violated his confrontation rights. We conclude that exclusion of appellant's proffered voluntary intoxication evidence did not violate due process, equal protection, or the terms of section 22. Further, the admission of tapes and transcripts of eyewitnesses' 911 calls did not violate appellant's confrontation rights, as the callers' statements were not testimonial in nature. BACKGROUND AND PROCEDURAL HISTORY A white Eagle Talon driven by appellant collided with a Ford Explorer driven by Brenda Casillas at the junction of the 60 and 71 Freeways. The Explorer overturned. Casillas was killed, and her two passengers, Ludivina Caro and Ofelia Llamas, were ejected from the vehicle and seriously injured. Witnesses described appellant's car as driving at high speed up to 120 miles per hour, passing other cars by driving on the shoulder, making a rapid lane change across several lanes of traffic, and striking the rear of Casillas's vehicle. Appellant fled the scene, and later called the police from a gas station about two miles from the scene of the accident. He admitted colliding with Casillas's vehicle, but claimed he was cut off by another car. The accident occurred at about 8:30 p.m. At 10:37 p.m., appellant's blood alcohol level measured 0.14 percent. A jury convicted appellant of second degree murder; gross vehicular manslaughter while intoxicated; driving under the influence, causing injury; driving with a 0.08 percent or greater blood alcohol level, causing injury; and leaving the scene of an accident. The jury found appellant fled the scene of an accident and personally inflicted great bodily injury upon the three victims. The court sentenced appellant to prison for 19 years to life.
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All further statutory references are to this code.

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DISCUSSION 1. Exclusion of appellant's proffered voluntary intoxication evidence did not violate due process. Defense counsel informed the trial court he intended to call an expert witness to testify regarding the physiological effects of alcohol in order to establish "a diminished actuality" with respect to the mental state of implied malice. Counsel attempted to distinguish the defense he hoped to present from that barred by section 22, but also added that there was "a constitutional dimension" to the issue. The court ultimately ruled the testimony was inadmissible under section 22 and People v. Martin (2000) 78 Cal.App.4th 1107 (Martin). Appellant contends that the 1995 amendment to section 22 violates his due process right to present a defense of voluntary intoxication to a charge of second degree murder based upon implied malice. Implied malice requires, inter alia, proof that the defendant knew that his conduct endangered the life of another and acted with a conscious disregard for life, i.e., that he actually appreciated the risk posed by his dangerous conduct. (People v. Hansen (1994) 9 Cal.4th 300, 308; People v. James (1998) 62 Cal.App.4th 244, 277.) Appellant argues evidence of implied intoxication is relevant to negate this element. Before 1995, evidence of voluntary intoxication could be introduced to negate the subjective component of implied malice. Section 22, subdivision (a), which states the general rule that, "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition," was qualified by section 22, subdivision (b), which then provided, " `Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.' " (People v. Whitfield (1994) 7 Cal.4th 437, 446 (Whitfield).) In Whitfield, the Supreme Court held that this reference to " `malice

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aforethought, when a specific intent crime is charged' " was sufficiently broad to cover implied malice. (Id. at pp. 446, 450.) In reaction to the holding in Whitfield, the Legislature amended section 22, subdivision (b) in 1995. (People v. Mendoza (1998) 18 Cal.4th 1114, 1126.) That subdivision now provides, "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." Evidence of voluntary intoxication is therefore no longer admissible to negate implied malice. (People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6.) As appellant acknowledges, his contention regarding section 22 was rejected in Martin, supra, 78 Cal.App.4th 1107. In that case, the defendant was convicted of second degree murder, gross vehicular manslaughter while intoxicated, and related charges. (Id. at p. 1110.) After conducting an extensive analysis of the history of section 22 and the cases applying it, the Martin court rejected the argument that the amendment to section 22 violated the defendant's right to present a defense: "The Legislature's most recent amendment to section 22 is closely analogous to its abrogation of the defense of diminished capacity. . . . The 1995 amendment to section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited. We find nothing in the enactment that deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt . . . ." (Id. at p. 1117.) Appellant argues that Martin was wrongly decided in light of in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff). There, a four justice plurality upheld the constitutionality of a Montana statute that provided that evidence of voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of the offense . . . ." (Mont. Code Ann.,

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