People v. Tevaseu CA1/3 ( 2022 )

Filed 1/25/22 P. v. Tevaseu CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A158436
v.
LOGOLOGOA TEVASEU, (Sonoma County
Super. Ct. No. SCR-709679)
Defendant and Appellant.
Defendant Logologoa Tevaseu drove at high speed on the wrong side of
a highway while intoxicated. He crashed head-on into a car coming in the
opposite direction, killing the driver and causing three additional vehicles to
collide. A jury found him guilty of second-degree murder, gross vehicular
manslaughter while intoxicated, and two other counts relating to driving
while intoxicated.
On appeal, defendant contends that the jury was improperly instructed
on the meaning of “conscious disregard” in the context of implied malice
murder and that the trial court abused its discretion in admitting crime scene
photos and cumulative evidence of a prior conviction for driving under the
influence. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
About 9:00 on the evening of November 5, 2017, defendant drove a full-
sized pickup truck southbound on the two-lane Lakeville Highway in Sonoma
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County, on a stretch that had a double yellow line between the lanes of traffic
going in opposite directions. Traffic was moving at about 50 or 60 miles per
hour, and there were cars coming in both directions. A motorist travelling in
the southbound direction at the same speed as the rest of the traffic saw a
pickup truck approach her car quickly from behind, cross into the northbound
lane to pass her, and return quickly to the southbound lane, cutting her off
and startling her. The motorist slowed down and saw the truck accelerate
toward the vehicles in front of it, cross the double yellow lines to move back
into the northbound lane, and hit a car heading north, causing a violent
collision “like a big explosion” that sounded “like a bomb went off.” The car
came to a stop straddling the yellow lines, heavily damaged, and the truck
spun and veered to the right off the roadway. Three additional vehicles
crashed into the car in rapid succession.
The driver of the car that defendant’s truck hit head-on was Paulette
Quiba, a 21-year-old college student returning from dinner with her family.
She died immediately from the impact of the collision. An autopsy revealed
that she suffered multiple blunt force injuries, broken bones, injuries to
internal organs, lacerations including one on the head that exposed the skull,
fractures and hemorrhage in the head, and significant brain injuries. There
was no evidence of intoxication.
Five occupants of the other three vehicles involved in the collisions
were injured. Four of them were transported to hospitals by ambulance that
night and one sought medical attention the next day.
Defendant did not suffer serious injuries. He called 911 before highway
patrol officers arrived and reported that someone had swerved out on the
road, tried to get around a car, and hit him head-on. An officer spoke to
defendant, and defendant again said someone had come into his lane and hit
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him. The officer smelled alcohol and thought defendant’s speech pattern was
“off.” The officer asked what defendant had been drinking that night, and
defendant replied, “Nothing.” The officer carried out field sobriety tests,
determined defendant was under the influence, and arrested him for driving
while intoxicated.
A blood test performed at 11:41 p.m. revealed a blood alcohol level of
.174 percent, more than twice the legal driving limit of .08 percent.
Assuming defendant consumed his alcohol much earlier in the day, his blood
alcohol level at the time of the accident, more than two and a half hours
before the blood draw, would have been approximately .22 percent. At 1:00 in
the afternoon that day, it would have been .366 percent, and .42 percent at
10:00 in the morning. It would take a man of defendant’s size about 10.8
standard drinks (or 13.5 ounces of 80 proof liquor) to reach a blood alcohol
level of .174 percent, 13.8 drinks (or 17.25 ounces of liquor) to reach .22
percent, 22 and a half drinks (or 28 ounces of liquor) to reach a level of .36
percent, and 26 and a quarter drinks (or 32 ounces of liquor) to reach a level
of .42 percent.
Defendant told police officers later that he had “a little tequila” the
previous night at a family gathering, then changed his response to say he had
“maybe eight to ten” shots, some of them doubles, and had been drinking
until 6:00 in the morning or later. He went to sleep around 9:00 or 10:00 in
the morning and slept until 1:00 in the afternoon. At the time of the
accident, he was returning home after driving his daughter from his home in
Santa Rosa to her mother’s house in Pleasant Hill.
The jury heard evidence that defendant was previously convicted of
driving under the influence of alcohol and attended a drunk driving
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prevention program. We will discuss the evidence regarding that conviction
in greater detail below.
The theory of the defense was that defendant did not realize he was
intoxicated because he had developed a tolerance to alcohol, and therefore he
did not act with implied malice—conscious disregard for life—so as to be
guilty of second degree murder. In support of this theory, he called as a
witness his sister-in-law, who testified that defendant had two or three shots
of tequila on the evening before the accident, then went to bed in the home
where he lived with her and her husband. The next morning, defendant took
his two children and two other children to an outing, returning about 4:30 or
5:00 that afternoon, and then to a park, returning around 5:30 p.m. Around
6:00, defendant left the house to take his daughter to her mother’s house.
Defendant did not show signs of alcohol impairment that day. There was also
testimony from a friend of defendant’s who played basketball with him for
several hours on Sunday afternoon, another friend with whom defendant
spoke on the telephone that evening, and the mother of defendant’s daughter
who saw him when he brought the child back to her home about 7:45 the
evening of the accident, all of whom said he did not appear impaired.
Defendant introduced expert evidence that he had an acquired
tolerance to alcohol, leading to a lower awareness of impairment, and that
someone with his background who engaged in his activities on the day of the
accident without showing signs of intoxication likely would not have known
he was impaired that evening.
A jury found defendant guilty of second degree murder (Pen. Code,
§ 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a); count 2); driving under the influence causing
injury (Veh. Code, § 25153, subd. (a); count 3), and driving with a blood
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alcohol concentration of 0.08 percent or more and causing injury (Veh. Code,
§ 23153, subd. (b); count 4), and found true a variety of enhancement
allegations. The trial court sentenced defendant to a prison term of 15 years
to life for count 1, a consecutive term of three years for count 4, with sentence
for the remaining counts and the enhancements stayed or stricken, for a total
term of 18 years to life. This timely appeal ensued.
DISCUSSION
I. Instruction on Conscious Disregard for Human Life
When giving instructions on the mental state required for second
degree murder under a theory of implied malice, the trial court informed the
jury that defendant acted with implied malice if he intentionally committed
an act the natural and probable consequences of which were dangerous to
human life, that he knew his act was dangerous to human life, and that “he
deliberately acted with conscious disregard for human life.” (CALCRIM
No. 520.)
During its deliberations, the jury asked the trial court, “Is there a legal
definition of ‘conscious disregard’ or do we use [the] common meaning of [the]
phrase?” With the agreement of both counsel, the court answered, “There is
no legal definition of conscious disregard. Please use the common meaning of
the phrase.”
Defendant contends that this response to the jury’s inquiry was
improper, that it prejudiced him because the jury might have convicted him
without knowing the prosecution was required to prove he deliberately drove
knowing he was dangerously intoxicated, and that his counsel rendered
ineffective assistance in agreeing to it. Because he did not object to the trial
court’s response to the jury’s question—and indeed, he agreed to it—he has
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forfeited the issue. (People v. Davis (2009) 46 Cal.4th 539, 616–617; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1193.)
In any case, defendant’s contention lacks merit. If a deliberating jury
wishes “to be informed on any point of law arising in the case,” the court
must provide the information. (Pen. Code, § 1138.) But this rule “does not
mean that the court must always elaborate on the standard instructions.
Where the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations
are sufficient to satisfy the jury’s request for information. [Citation.] Indeed,
comments diverging from the standard are often risky.” (People v. Beardslee
(1991) 53 Cal.3d 68, 97.) We review for abuse of discretion the trial court’s
decision to instruct, or not to instruct, in response to a jury’s question.
(People v. Ramirez (2021) 10 Cal.5th 983, 1032.) Even if the court violates
Penal Code section 1138, reversal requires a showing of prejudice.
(Beardslee, at p. 97.)
There was no reversible abuse of discretion here. “When a term is
commonly understood by those familiar with the English language and is not
used in a technical sense peculiar to the law, an instruction as to its meaning
is not required in the absence of a request.” (People v. Williams (1988) 45
Cal.3d 1268, 1314–1315; accord, People v. Estrada (1995) 11 Cal.4th 568,
574.) A word or phrase with a technical, legal meaning requires clarification
if that definition differs from the nonlegal meaning. (Estrada, at p. 574.)
Even in the face of a jury request for a legal definition, the trial court need
not provide one if “there is no legal definition of the term.” (People v. Raley
(1992) 2 Cal.4th 870, 901.) In such a case, “[t]he jurors’ common
understanding of the term [is] all that [is] required,” and “ ‘[t]here is no need
to instruct a jury on the meaning of terms in common usage, which are
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presumed to be within the understanding of persons of ordinary
intelligence.’ ” (Ibid.)
Here, the jury did not ask the court what “conscious disregard” meant.
Rather, its question indicated it understood the common meaning of the
phrase and wondered whether it was appropriate to apply it. Defendant has
not shown the term has a technical legal meaning that differs from the
common meaning of the phrase and required further definition for the jury to
understand it.
Against this conclusion, defendant contends the meaning of the term
“conscious disregard” is unclear and requires explication. For this argument,
he points to People v. Chun (2009) 45 Cal.4th 1172, but that case in
inapposite. In Chun, our high court explained that the statutory definition of
implied malice—“ ‘when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant
heart’ ”—is “quite vague” and “permits, even requires, judicial
interpretation.” (Id. at p. 1181, citing Pen. Code, § 188, subd. (a)(2).) But
Chun does not suggest that the term at issue here—“ ‘ “conscious disregard
for life” ’ ”—is similarly vague. Rather, the court explained that the term
“ ‘ “conscious disregard for life” ’ ” provides the interpretation that the
statutory language (“ ‘abandoned and malignant heart’ ”) requires. (Chun, at
pp. 1181, 1184.) Elsewhere, our high court has emphasized that “juries
should be instructed that malice is implied ‘when the killing results from an
intentional act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with conscious disregard
for life’ ”—almost precisely as the jury was here. (People v. Blakeley (2000) 23
Cal.4th 82, 87, italics added, quoting People v. Dellinger (1989) 49 Cal.3d
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1212, 1215.) This language, reflected in CALCRIM No. 520, is
“straightforward” and “ ‘more comprehensible to the average juror’ ” than
alternative formulations that have been used. (Dellinger, at pp. 1221–1222;
People v. Knoller (2007) 41 Cal.4th 139, 152.)
For his argument that “conscious disregard” has a legal definition
different from its common meaning, defendant also points to authorities that
explain the meaning of the phrase. For instance, the court in People v. Olivas
(1985) 172 Cal.App.3d 984, 987–988 said that, “[p]hrased in everyday
language, the state of mind of a person who acts with conscious disregard for
life is, ‘I know my conduct is dangerous to others, but I don’t care if someone
is hurt or killed.’ ” And certain pattern instructions in civil cases explain the
meaning of “conscious disregard” and similar terms; for instance, 2 CACI
3944, given when assessing punitive damages against an employer, states, “A
person acts with knowing disregard when the person is aware of the probable
dangerous consequences of the person’s conduct and deliberately fails to
avoid those consequences.” (Accord, BAJI 7.47.) But these authorities do not
suggest the instruction on implied malice requires further explanation for a
jury to understand its meaning.
Defendant has not shown that the instruction the court provided was
insufficient to inform the jury of the applicable legal principles or that the
jury did not understand the common meaning of “conscious disregard.”
II. Evidence of Prior Conviction and Sentence
Before trial, the People sought to admit evidence of defendant’s driving
history, including his plea of no contest to driving under the influence of
alcohol in 2011 and completion of a court-ordered treatment program (the
2011 incident), contending the evidence was relevant to prove implied malice.
The trial court allowed the jury to hear some, but not all, of the evidence the
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People proffered, explaining as it did so that there could be “some truncated
presentation of evidence related to the facts and circumstances,” but not “a
detailed trial within a trial.”
The jury heard evidence that defendant was involved in an accident in
Santa Rosa in October 2011. A witness, Joshua Green, testified that he was
outside in an area that had a “big bar scene,” heard a crash, turned, and saw
a car “scrape off a truck and slowly veer left across the street,” going through
four lanes of traffic and coming to a stop across the street. The car was
“[p]retty banged up,” and Green thought someone might be injured. The sole
occupant of the car, defendant, seemed “out of it, dazed,” and “not too great.”
A police officer who came to the scene saw that the rear of the truck
that had been hit was damaged and the truck had been pushed partially onto
the sidewalk and into a street sign, which had collapsed. Defendant’s car had
suffered extensive damage, the windshield was shattered, and the airbags
had been deployed. The jury viewed pictures of the accident scene and
defendant’s damaged vehicle. Defendant was taken to a hospital by
ambulance. The officer went to the hospital, saw defendant, and concluded
he was under the influence of alcohol.
In February 2012, defendant pled no contest to misdemeanor driving
with a blood alcohol level of .08 percent or more (Veh. Code, § 23152,
subd. (b)) and admitted an enhancement that his blood alcohol level had been
greater than .15 percent (Veh. Code, § 23578). He put his initials in a box on
the plea form indicating he understood that being under influence of alcohol
impaired his ability to drive, that it was extremely dangerous to human life
to drive under the influence, and that if he continued to drive under the
influence and killed someone, he could be charged with murder. As part of
his probation, he attended a drunk driving prevention program. His license
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was suspended for several months as a result of the incident. His records
from the Department of Motor Vehicles were admitted into evidence, as were
a redacted complaint and redacted docket in the 2011 case.
Stacy Jonas, who works with Sonoma County’s three-month driving
under the influence program, testified that the purpose of the program is to
educate people who have already suffered convictions. Students are taught
about blood alcohol concentrations, how alcohol is absorbed by the body, the
rate at which the body can process and remove alcohol, the dangers of
drinking and driving, and risks of fatal collisions when driving with high
blood alcohol levels. Throughout the classes, students are taught about
tolerance to alcohol, that is, that a person who has developed tolerance may
feel fine subjectively but still have a high blood alcohol level and impaired
driving. Defendant attended a first offender program in 2012.
The trial court instructed the jury that evidence related to the 2011
incident was relevant only for the specific purpose of demonstrating that
defendant had knowledge of the dangers of drinking and driving, and that it
should not be considered for any other purpose. The court reiterated at least
five times that the evidence of the 2011 offense was admitted only for the
limited purpose of showing whether defendant had subjective knowledge that
his actions were dangerous to human life and deliberately acted in conscious
disregard of the danger to human life.
In both his opening statement and his closing argument, the prosecutor
pointed to the 2011 incident to argue that defendant knew the dangers of
driving under the influence because he had caused a major crash under the
influence of alcohol, was injured, suffered penal consequences, and was
educated about the dangers of combining alcohol and driving.
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Defendant acknowledges that his prior drunk driving conviction, the
fact that it involved a collision, and his completion of the driver safety classes
were properly admitted to show he knew of the dangers of driving under the
influence of alcohol. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 112
(Ortiz) [driver’s previous encounters with consequences of driving under the
influence “sensitize[] him to the dangerousness of such life-threatening
conduct”].) He contends, however, that the trial court improperly allowed
cumulative evidence that went beyond these relevant facts and that he
suffered prejudice thereby. In particular, he argues, there was no reason to
allow an eyewitness to the accident to testify about its details, no reason to
allow the officer who arrested defendant in 2011 to testify about the damage
to the vehicles, and no reason to allow Jonas to provide detail about
irrelevant aspects of the program defendant attended, including that some of
the programs were for multiple offenders. And, he argues, the jury viewed
records that improperly revealed he had committed additional unrelated
offenses.
Under Evidence Code section 1101, subdivision (a), evidence of a
person’s character, including evidence of specific instances of his or her
conduct, is inadmissible to prove conduct on a specific occasion. However,
that rule does not bar admission of evidence that a person previously
committed a crime when relevant to prove some other fact, including the
person’s knowledge, if the evidence is relevant and not more prejudicial than
probative. (Evid. Code, §§ 350, 352, 1101, subd. (b).) Such prejudice exists
when evidence “uniquely tends to evoke an emotional bias against defendant
as an individual and . . . has very little effect on the issues.” (People v.
Brogna (1988) 202 Cal.App.3d 700, 709–710 (Brogna); People v. Battle (2021)
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11 Cal.5th 749, 799.) We review a trial court’s rulings on these questions for
abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Defendant has not shown an abuse of discretion here. “ ‘One who
willfully consumes alcoholic beverages to the point of intoxication, knowing
that he thereafter must operate a motor vehicle, thereby combining sharply
impaired physical and mental faculties with a vehicle capable of great force
and speed, reasonably may be held to exhibit a conscious disregard of the
safety of others.’ ” (People v. Watson (1981) 30 Cal.3d 290, 300–301.) And
evidence that a person was subjectively aware that driving under the
influence of alcohol is dangerous may be relevant to show implied malice.
(See, e.g., People v. Wolfe (2018) 20 Cal.App.5th 673, 682–683.) Particularly
pertinent here, “evidence that a defendant has suffered a prior conviction and
participated, as a condition of probation, in some form of alcohol education
program which emphasized the dangers of driving while intoxicated is
relevant to prove the accused’s awareness of the life threatening risks caused
by his conduct.” (Brogna, supra, 202 Cal.App.3d at p. 709; see Ortiz, supra,
109 Cal.App.4th at pp. 112–115.)
The evidence relating to the 2011 collision was properly admitted. A
certain amount of detail about the accident was relevant to show that
defendant knew from first-hand experience that an alcohol-fueled crash could
cause significant property damage and personal injury. The evidence of the
drunk driving program showed he had been taught about the dangers of
driving while intoxicated and the difficulty of assessing his own level of
impairment. The jury knew the program defendant attended in 2012 was for
first-time offenders, and it had no reason to think he had suffered other
convictions for driving under the influence. The criminal records were
redacted to eliminate references to any other prior convictions. The evidence
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before the jury was relevant, it was not calculated to cause an emotional bias
against defendant that outweighed its probative effect, and the jury was
instructed repeatedly to consider it only for a limited and proper purpose.
Defendant has not persuaded us the trial court abused its discretion in
admitting the evidence.
III. Photographs of Accident Scene
Defendant’s final contention is that the trial court abused its discretion
in admitting what he describes as “ ‘gruesome’ ” photographs of the crash
scene. He argues that since he did not dispute he caused the accident while
under the influence of alcohol and the only question was whether he
consciously disregarded the threat to human life, there was no need for the
People to introduce photographs to illustrate the manner of the crash.
Although defendant does not identify the particular photographs he
challenges, he appears to refer to two pictures showing Quiba’s lifeless body
in her car after the accident and several pictures depicting the extensive
damage to her car as well as the damage to the other vehicles involved in the
accident.
During a discussion with counsel, the trial court examined a number of
photographs the People sought to introduce. As to the pictures showing
Quiba after her death, two showing Quiba in her car were admitted. The
court said it understood the pictures were “terrible,” “gruesome,” and
“inflammatory,” but concluded that in a “death case” they were “probative of
the issues.” The court allowed several photographs from the scene showing
the damage to the vehicles, but limited the number of pictures of the
damaged vehicles away from the crash scene, in better light, allowing “two or
three” of defendant’s truck and “three or four” of Quiba’s vehicle, which was
“completely demolished.”
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Although admission of “particularly gruesome photographs” may be an
abuse of discretion in some circumstances (People v. Booker (2011) 51 Cal.4th
141, 170), photographs may properly be used to assist the jury in
understanding and evaluating the witnesses’ testimony (People v. Pollock
(2004) 32 Cal.4th 1153, 1170–1171 (Pollock)). “ ‘The jury can, and must, be
shielded from depictions that sensationalize an alleged crime, or are
unnecessarily gruesome, but the jury cannot be shielded from an accurate
depiction of the charged crimes that does not unnecessarily play upon the
emotions of jurors.’ ” (People v. Watson (2008) 43 Cal.4th 652, 684.) We
review for abuse of discretion the admission of such photographs. (Ibid.; see
Evid. Code, § 352.)
Our high court has explained that “ ‘[p]hotographs of a murder victim
“are always relevant to prove how the charged crime occurred, and the
prosecution is ‘not obliged to prove the details solely from the testimony of
live witnesses,’ ” even in the absence of a defense challenge to particular
aspects of the prosecution’s case.’ ” (People v. D’Arcy (2010) 48 Cal.4th 257,
299, italics added.) In People v. Lewis (2001) 25 Cal.4th 610, 641, the
defendant made a similar contention to that made here—that victim and
crime-scene photographs and videotape were inadmissible because they had
no bearing on his mental state, the only disputed issue at trial. The court
rejected this contention on the ground that “the absence of a defense
challenge to particular aspects of the prosecution’s case or its witnesses does
not render victim photographs irrelevant.” (Accord, Pollock, supra, 32
Cal.4th at p. 1170.)
With these standards in mind, we have examined the photographs
admitted into evidence. The images of Quiba’s body still in her car, while
undoubtedly distressing, do not show gratuitous detail and serve to illustrate
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both the testimony about the accident scene and the force of the collision
caused by defendant’s driving. (See Pollack, supra, 32 Cal.4th at pp. 1170–
1171.) Similarly, the images of the damaged vehicles are relevant not only to
illustrate the testimony but also to show the great violence of the collision
and, by extension, the level of hazardousness of defendant’s conduct, a matter
that could bear both on his mental state for purposes of second degree
murder and on whether he acted with gross negligence for purposes of the
gross vehicular manslaughter charge. (Pen. Code, § 191.5; People v. Ochoa
(1993) 6 Cal.4th 1199, 1208 [gross negligence may be shown from all relevant
circumstances, including manner in which defendant operated vehicle].) The
trial court limited the number of photographs admitted, and they do not
appear to be unduly inflammatory. The court did not abuse its discretion in
admitting them.
Defendant makes a cursory challenge to the jury viewing videos of the
accident scene, but he does not point to any part of any video that was
inadmissible. In discussing the videotape evidence, the prosecutor said that
it demonstrated the position of the vehicles but that it did not dwell enough
on any individual vehicle to show the damage, and defendant’s counsel did
not challenge this characterization. Defendant has not shown the video
evidence was improperly admitted.
DISPOSITION
The judgment is affirmed.
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TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
People v. Tevaseu (A158436)
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