People v. Ferdin CA5 ( 2024 )

Filed 2/20/24 P. v. Ferdin CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084836
Plaintiff and Respondent,
(Super. Ct. No. CR-19-005536)
v.
FELIX FERDIN, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A.
Leo, Judge.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Driving intoxicated and at a high rate of speed, Felix Ferdin (appellant) drove his
car into the side of a residence, killing a mother and her three young daughters.
A jury convicted appellant of four counts of second degree murder (Pen. Code,
§ 187, subd. (a))1 and four counts of gross vehicular manslaughter (§ 191.5, subd. (a)). In
a bifurcated proceeding, the trial court found appellant suffered a prior strike conviction
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction
(§ 667, subd. (a)). The trial court sentenced appellant on each murder count to 15 years
to life, doubled to 30 years by the strike prior, plus 5 years on each count for the prior
serious felony conviction enhancement, for a total sentence of 120 years to life plus 20
years in state prison.
On appeal, appellant contends his murder convictions must be dismissed because
there was insufficient evidence he acted with implied malice. We conclude the jury’s
verdicts were supported by substantial evidence.
However, we agree with appellant that the trial court erred in failing to conduct an
evidentiary hearing on his Sumstine2 motion to dismiss his prior conviction for failure to
comply with his Boykin-Tahl3 rights. We vacate appellant’s sentence and remand the
matter to the trial court to conduct an evidentiary hearing, and to resentence appellant.
Appellant also raises several sentencing claims. He argues the trial court abused
its discretion in denying his motion to dismiss his prior strike pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and his motion to dismiss his
prior serious felony conviction enhancements pursuant to section 1385, subdivision
(b)(1). In addition, he contends the trial court erred in failing to dismiss his prior strike
and prior serious felony conviction enhancements pursuant to certain provisions of
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 People v. Sumstine (1984) 36 Cal.3d 909 (Sumstine).
3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
2.
section 1385, subdivision (c), which were added by Senate Bill No. 81 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 721, § 1). Because appellant must be fully resentenced, we need
not address the merits of these claims. In all other respects, we affirm.
BACKGROUND
I. Appellant Drinks Heavily at a Family Barbecue.
Appellant lived with his adult sons Isaiah Ferdin and Felix Villela4 and their
families at a house on Holm Avenue in Modesto. On June 8, 2019, they had a barbecue
at their house. Throughout the barbecue, appellant and his sons drank beer and played a
drinking game called “beer pong.” As the evening progressed and appellant and his sons
became more intoxicated, they began to argue and yell. Eventually, Isaiah had to push
appellant away from Felix because he thought appellant was going to harm him. Isaiah
and appellant then began to argue, and Felix had to separate them. At one point,
appellant said, “I’m going to die. I’m going to die soon. I don’t care if I die today or
tomorrow. I don’t care about nobody.”
Isaiah testified he had never seen appellant intoxicated before. He did not
remember how much appellant drank that evening, but assumed appellant was drunk
because they had consumed “heavy alcohol and beer.” Felix testified that he and
appellant had drunk “a couple of beers” together in the past, but they never drank heavily
together like they did that night. Isaiah testified he never knew alcohol to be “an issue”
in appellant’s life, but knew appellant used to abuse drugs.
II. Appellant Leaves the Family Barbecue in his Car, Driving at Least 78 Miles
Per Hour Down a Residential Street. He Collides Into the Side of a
Residence, Killing Four People.
Appellant and his sons continued to argue and yell, and Felix eventually told
appellant to leave. Appellant got into his car, a midsize sports utility vehicle that was
4 To avoid confusion, we refer to Isaiah and Felix by their first names. No
disrespect is intended.
3.
parked in front of the house. Felix’s wife told Felix to try to stop appellant because he
was too intoxicated to drive. Felix went outside and told appellant to stop, but appellant
kept reversing, scraping the side of a van that was parked next to his car.
Appellant’s neighbor testified he heard arguing coming from appellant’s house
and went outside. He looked toward appellant’s house and saw appellant back his car
into the street. The neighbor heard a man who lived across the street start yelling and
cursing at appellant, accusing him of nearly hitting his car. Appellant’s car did not move
for one to two minutes, then accelerated westbound on Holm Avenue. The neighbor
testified appellant did not stop at the intersection of Holm Avenue and Musick Avenue,
which is four houses west of appellant’s house. The intersection is controlled by a stop
sign. The neighbor estimated appellant was driving 65 to 70 miles per hour. The speed
limit on Holm Avenue is 25 miles per hour.
Appellant continued driving westbound on Holm Avenue at a high rate of speed.
An officer described this stretch of Holm Avenue as “a fairly narrow street, about 20 feet
wide, with cars parked on either side.” According to data recovered from the airbag
control module on appellant’s car, appellant reached speeds of at least 78 miles per hour.
Appellant continued to the intersection of Holm Avenue and Herndon Road.
There, Holm Avenue dead ends into Herndon Road, forming a “T” shaped intersection.
Westbound traffic on Holm Avenue is controlled by a stop sign.
Surveillance footage of appellant’s car traveling through the intersection was
admitted into evidence and played for the jury. The camera was facing west along Holm
Avenue toward the Herndon Road intersection. At approximately 1:30 a.m., appellant’s
vehicle entered the view of the camera. The vehicle can be seen travelling at a high rate
of speed but with its brake lights on. Appellant’s vehicle appeared to decelerate but did
not stop at the stop sign at Herndon Road. Instead, it continued through the intersection,
striking the cement curb on the opposite side. The vehicle then traveled through a wood
fence lining the west side of Herndon Road and crashed into the side of a residence.
4.
Felix heard the collision from his residence and immediately drove to the crash
site. When he arrived, he saw appellant get out of his car and come towards him. Felix
testified appellant “was out of it.” Felix told appellant, “Look what just happened,” and
appellant replied, “I don’t know what you are talking about. I didn’t do nothing.” When
Felix pointed out there were children inside of the residence he had hit, appellant
responded, “What children?” Soon after, appellant told Felix that he had been diagnosed
with HIV.
At trial, Felix denied physically restraining appellant after the collision. However,
in a prior statement to police, he admitted to grabbing appellant by the neck and holding
him down on the ground to stop him from leaving the scene.
Police and other emergency personnel responded to the crash site. They
discovered appellant’s vehicle had travelled through the outside wall of the house and
into a bedroom, pushing furniture and other debris up against the back wall. Inside, they
located a woman and her three daughters, ages 10, five, and three, all seriously injured
from the crash. Despite the efforts of medical personnel, all four victims died from their
injuries.
III. Driving Under the Influence Investigation.
A California Highway Patrol officer contacted appellant at the scene of the
collision. Appellant told the officer he was driving from his home on Holm Avenue.
When the officer asked appellant where he was going, appellant responded he “just
wanted to get away.” Appellant estimated he was driving 20 to 30 miles per hour.
However, he admitted he did not stop at the stop sign at Herndon Road because he was
traveling too fast, and because he was not paying attention.
While speaking with appellant, the officer observed objective signs of
intoxication, including red, watery eyes, slurred speech, and the odor of alcohol coming
from appellant’s breath and person. The officer asked appellant if he had consumed any
5.
alcohol, and appellant stated he drank three beers plus five small cups of beer while
playing beer pong. When asked if he had consumed any other drugs, appellant stated he
consumed one line of cocaine. He admitted he was “buzzing” at the time of the crash.
The officer administered several field sobriety tests, including the horizontal gaze
nystagmus test, the one-leg stand test, and the walk-and-turn test. Appellant performed
poorly on each test, suggesting to the officer that appellant was under the influence of
drugs or alcohol. The officer then administered the preliminary alcohol screening device
test and obtained readings of .111 percent and .113 percent blood-alcohol content.5
The officer placed appellant under arrest, and appellant elected to submit to a
breath test. The test was administered at 3:34 a.m., and yielded results of .11 and .10
percent blood-alcohol content. The officer then transported appellant to the hospital,
where a sample of his blood was drawn at 5:47 a.m.
Appellant’s blood tested negative for cocaine, but positive for benzoylecgonine, an
inactive metabolite of cocaine. A criminalist testified the presence of this metabolite in
blood indicates cocaine use within 30 to 36 hours. He explained that cocaine leaves of a
user’s bloodstream within about five hours of ingestion, and that it continues to break
down in a blood sample outside of the body. Therefore, it is common for the blood test
of a recent cocaine user to show the presence of the metabolite, but not cocaine itself. He
also explained that a cocaine user will generally feel its stimulant effects for two to three
hours, and the “residual effects” of the drug for another two to three hours.
Appellant’s blood also tested positive for methamphetamine. A criminalist
testified that methamphetamine can usually be detected in a blood sample for two to three
days after ingestion. She also explained that a user generally feels the effects of
methamphetamine for four to eight hours after ingestion, followed by a withdrawal effect.
5 It is unclear from the record when the preliminary alcohol screening device test
was administered.
6.
Appellant’s blood sample contained a blood-alcohol content of .067 percent. A
criminalist explained that the human body eliminates alcohol from the bloodstream at an
average rate of .0186 percent per hour. Based on this average rate, the results of
appellant’s breath tests and blood test, and the times those tests were administered, the
criminalist used a process called retrograde extrapolation to calculate appellant’s blood-
alcohol content at the time of the collision. She estimated that when appellant drove, his
blood-alcohol content was approximately .156 percent. The criminalist opined that no
person can safely operate a motor vehicle with a blood-alcohol content of 0.08 percent,
let alone .156 percent.
A California Highway Patrol sergeant with the Multi-Disciplinary Accident
Investigation Team collected electronic data from the airbag control module on
appellant’s car. The module recorded data at half-second intervals starting at 2.5 seconds
before the collision. At the 2.5 second mark, appellant’s vehicle was traveling at 78
miles per hour, and the brakes had not been applied. At 2.0 seconds before the collision,
the brakes had been applied, and the vehicle had slowed to 70 miles per hour. The
vehicle continued to decelerate until it struck the cement curb in front of the victims’
residence. The sergeant opined that, based on the rate of deceleration, appellant’s vehicle
was traveling approximately 45 miles per hour when it hit the curb. He further opined
that the vehicle was traveling between 31.9 miles per hour and 36.8 miles per hour when
it struck the residence.
IV. Defense Evidence.
Appellant called an expert in accident investigation and reconstruction. He
measured the distance from appellant’s residence to the intersection of Holm Avenue and
Herndon Road to be approximately 1,600 feet. He explained the airbag control module
showed the brakes on appellant’s vehicle were “fully applied” during the two-second
7.
window before the collision. He opined that if appellant had applied his brakes .8
seconds earlier, his car would have stopped before striking the side of the residence.
Appellant called several character witnesses, including two church pastors, and a
friend and fellow parishioner. They described appellant as a caring person who actively
participated in church activities. Each of the witnesses met appellant around the time he
was going through Nirvana, a drug and alcohol treatment center. Appellant was also
heavily involved in recovery programs through the church and eventually assumed
leadership roles. In Nirvana and the church recovery programs, the participants discussed
the dangers of drug and alcohol abuse and addiction.
DISCUSSION
I. The Murder Convictions Were Supported by Substantial Evidence.
Appellant contends his murder convictions must be dismissed because there was
insufficient evidence he acted with implied malice. He relies on various evidentiary
factors, such as his lack of prior driving under the influence convictions, and lack of
apparent predrinking intent to drive. We disagree. We conclude based on the totality of
the circumstances, including appellant’s high level of intoxication, extraordinarily
dangerous driving, and other conduct before and after the crash, that the jury’s finding of
implied malice was supported by substantial evidence.
A. Standard of review.
“To determine the sufficiency of the evidence to support a conviction, we review
the entire record in the light most favorable to the prosecution to determine whether it
contains [substantial] evidence that is reasonable, credible and of solid value, from which
a rational trier of fact could find that the elements of the crime were established beyond a
reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be
8.
convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether
‘ “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ ” (People v. Tripp, supra, 151 Cal.App.4th at p. 955, italics
omitted.)
B. Applicable legal standards.
Murder is the unlawful killing of another with express or implied malice
aforethought. (§§ 187, subd. (a), 188; see People v. Rangel (2016) 62 Cal.4th 1192,
1220.) In People v. Watson our high court held that an impaired driver who causes a fatal
collision may be guilty of second degree murder if the circumstances demonstrate the
driver acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 300–301
(Watson).) Malice may be implied where a person deliberately engages in conduct, the
natural and probable consequences of which were dangerous to life, knowing the conduct
was dangerous and a conscious disregard of that danger. (Id. at p. 300; People v. Elmore
(2014) 59 Cal.4th 121, 133.) This is distinct from gross negligence, the mental state for
the crime of gross vehicular manslaughter (§ 191.5, subdivision (a)), which instead
involves “the exercise of so slight a degree of care as to raise a presumption of conscious
indifference to the consequences.” (Watson, supra, 30 Cal.3d at p. 296.) “Phrased 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.’ The state of mind of the person who acts with conscious indifferences to the
consequences is simply, ‘I don't care what happens.’ ” (People v. Olivas (1985) 172
Cal.App.3d 984, 987–988.) Thus, unlike gross negligence, “a finding of implied malice
depends upon a determination that the defendant actually appreciated the risk involved.”
(Watson, supra, 30 Cal.3d at pp. 296–297.) “In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the life of another—no
more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143.)
9.
In Watson, the defendant drove himself to a bar, then left after drinking heavily.
(Watson, supra, 30 Cal.3d at pp. 293, 300.) He drove through a red light and avoided a
collision with another car by slamming on his brakes. (Id. at p. 293.) He then drove
away at a high rate of speed, reaching at least 84 miles per hour. (Id. at p. 294.) As he
approached another intersection, he swerved from one lane into another lane, then
suddenly applied his brakes and skidded into the intersection, colliding with another car
at approximately 70 miles per hour, killing two people. (Id. at pp. 293–294.) Thirty
minutes after the collision, the defendant’s blood-alcohol content was measured at .23
percent. (Id. at p. 294.)
The People filed an information charging the defendant with two counts of second
degree murder, but the trial court dismissed the murder counts. (Watson, supra, 30
Cal.3d at pp. 293–294.) On appeal, the Supreme Court reversed the dismissal, holding
the evidence was sufficient to support a finding that the defendant acted with implied
malice. (Id. at p. 300.) Specifically, the court observed the defendant drank enough
alcohol to raise his blood-alcohol content above the legal limit knowing he would have to
drive later, drove at high speeds on city streets creating a great risk of harm or death, and
was aware of the risk of harm his conduct created, as evidenced by the near collision and
his attempt to brake before the fatal collision. (Id. at pp. 300–301.)
Watson clarified, however, that it was not suggesting the facts of the case
“conclusively demonstrate implied malice,” but only that the evidence before it was
sufficient to uphold the second degree murder charges in the information. (Watson,
supra, 30 Cal.3d at p. 301.) As one appellate court observed, Watson does not state “that
all of the factors present in that case are necessary to a finding of second degree murder.
Rather, the opinion states that the presence of those factors was sufficient in that case to
support a murder conviction.” (People v. Olivas, supra, 172 Cal.App.3d at p. 988.)
Following Watson, appellate courts “have relied upon some or all of the following
factors in upholding drunk-driving-murder convictions: (1) a blood-alcohol level above
10.
the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards
of driving while intoxicated; and (4) highly dangerous driving.” (People v. Talamantes
(1992) 11 Cal.App.4th 968, 973.) Other relevant evidence may include prior driving
under the influence convictions (People v. McCarnes (1986) 179 Cal.App.3d 525, 532),
mandatory driving under the influence related classes (People v. Murray (1990) 225
Cal.App.3d 734, 746), and evidence a defendant was warned prior to driving that he or
she was too intoxicated to drive. (People v. Johnigan (2011) 196 Cal.App.4th 1084,
1091.)
However, appellate courts recognize that there is no formula used to analyze
vehicular homicide cases. Instead, a case-by-case approach is employed. (People v.
Superior Court (Costa) (2010) 183 Cal.App.4th 690, 698; People v. Olivas, supra, 172
Cal.App.3d at p. 989.) Accordingly, appellate courts have upheld numerous murder
convictions where defendants have caused death while driving in a variety of different
factual circumstances. (See, e.g., People v. Murray, supra, 225 Cal.App.3d at pp. 746–
747 [driving with a blood-alcohol content between .18 and .23 on the wrong side of the
freeway]; People v. Olivas, supra, 172 Cal.App.3d at p. 989 [extremely dangerous
driving while under influence of PCP and “negligible” amount of alcohol]; People v.
Moore (2010) 187 Cal.App.4th 937, 942 [extremely dangerous driving while sober];
People v. Canizalez (2011) 197 Cal.App.4th 832, 842 [street racing].)
C. Substantial evidence supported the jury’s finding of implied malice.
In the instant matter, there was ample evidence appellant acted with implied
malice. The evidence that appellant drove while highly intoxicated was overwhelming.
Investigating officers observed objective signs of intoxication, and appellant admitted to
consuming alcohol and ingesting cocaine, and to “buzzing.” Appellant’s performance on
field sobriety tests demonstrated impairment, and the preliminary alcohol screening test
and breath tests showed appellant’s blood-alcohol content was over the legal limit.
11.
Appellant’s blood test revealed a cocaine metabolite, suggesting recent cocaine use.
Based on the results of appellant’s breath tests and blood test, and the times those tests
were administered, the People’s criminalist estimated appellant’s blood-alcohol content
was .156 at the time of the collision—almost twice the legal limit.
Additionally, appellant engaged in extraordinarily dangerous driving. Appellant
struck a parked car while backing out of the driveway, and nearly struck another car
while backing into the street. He then rapidly accelerated his midsize sports utility
vehicle to at least 78 miles per hour over a short distance. While driving at this high rate
of speed on a narrow residential street, he ran two stop signs, then collided with a
concrete curb, a fence, and eventually the victims’ residence. When an officer asked
appellant why was unable to stop at the stop sign at Herndon Road, he admitted it was
because he was driving too fast and was not paying attention.
Appellant’s conduct leading up to and immediately after the crash also
demonstrated he drove with a conscious disregard for the safety of others. While arguing
with his sons, appellant stated he did not care if he died, and that he did not care about
anyone else. He got into the car knowing he was intoxicated, as evidenced by his
statement to law enforcement that he was “buzzing.” As he backed out of the driveway,
he ignored his son, who was telling him to stop because he was too intoxicated to drive.
His collision with a parked car as he was backing out gave him notice that he was not
able to drive safely. He also ignored his neighbor, who was yelling that he nearly hit his
car. Following the collision, appellant’s son had to physically restrain him to stop him
from leaving the scene, and he exhibited no concern for the victims of the collision.
Appellant contends that despite his high level of intoxication and dangerous
driving, there was insufficient evidence he was subjectively aware his conduct was
dangerous. He notes that he had no prior convictions for driving under the influence, and
never attended a class on the dangers of impaired driving. He also relies on his sons’
12.
testimony that they never saw him drink heavily, which he claims shows he did not
understand the impact alcohol would have on his driving.
We are not persuaded. “[A] finding of implied malice in the context of vehicular
murder does not require ‘a “predicate act” ’ such as a prior driving under the influence
(DUI) conviction, a DUI-related accident, or a judicial or drug rehabilitation-related
admonition of the dangers of driving while intoxicated.” (People v. Murphy (2022) 80
Cal.App.5th 713, 728.) Thus, while a prior driving under the influence conviction, class,
or admonition may constitute evidence of subjective knowledge of the dangers of
intoxicated driving, it is not a prerequisite to a finding of implied malice.
The totality of the evidence supported the jury’s finding appellant was subjectively
aware of the danger his conduct posed. Appellant had previously drunk beers with his
son, and thus, was not oblivious to the effects of alcohol. Appellant had a long history of
drug abuse and was involved in drug treatment for many years. This included
participation in Nirvana, a drug and alcohol treatment center, weekly meetings at a
church group for men transitioning to a life of sobriety, and 12-step meetings. In these
treatment programs, participants learned about and addressed the dangers of drug and
alcohol addiction.
Even assuming appellant was not educated on the dangers of driving under the
influence in his drug treatment programs, it strains credulity to suggest he was not
subjectively aware of the extreme dangerousness of his driving. In People v. Moore, the
defendant, who was sober, drove 70 miles per hour on a street with a 35-mile-per-hour
speed limit, crossed into the opposing lane of traffic, ran a red light, and struck a car in
the intersection, killing a passenger. (People v. Moore, supra, 187 Cal.App.4th at
pp. 939–940.) In finding the defendant’s murder conviction was supported by substantial
evidence, the court reasoned his actions “went well beyond gross negligence. He acted
with wanton disregard of the near certainty that someone would be killed.” (Id. at
p. 941.) Addressing the defendant’s claim that the evidence did not establish he was
13.
subjectively aware of the risk his driving posed, the court stated, “Whether Moore was
subjectively aware of the risk is best answered by the question: how could he not be? It
takes no leap of logic for the jury to conclude that because anyone would be aware of the
risk, Moore was aware of the risk.” (Id. at p. 941.)
Here, as in Moore, appellant’s driving was so dangerous that it created a high
probability that someone would be killed. Appellant drove at speeds of at least 78 miles
per hour on a narrow residential street and ran multiple stop signs. This conduct,
combined with his high level of intoxication, was so obviously dangerous that any person
would be aware of the risk created. Accordingly, the jury’s finding that appellant was
subjectively aware that his conduct was dangerous to human life, and that he consciously
disregarded that danger, was reasonable and supported by the evidence.
We agree with appellant’s contention that there was no evidence he intended to
drive before he started drinking. Appellant was drinking at home with his family and
appears to have left because of the argument with his sons. However, appellant ignored
Felix’s attempt to get him to stop driving as he backed his car out of the driveway. He
also ignored his collision with a parked car, and his neighbor, who yelled at him for
nearly hitting his parked car in the street. Despite these warnings that he was too
intoxicated to drive safely, he elected to drive off at a high rate of speed, demonstrating a
conscious disregard for life.
Next, appellant claims that while there was evidence of cocaine and
methamphetamine in his blood, there was no evidence he was actually under the
influence of those drugs at the time of driving. According to the criminalists, appellant’s
blood tests only established that he had used cocaine within 36 hours of the blood draw,
and methamphetamine within two or three days. We agree these test results left open the
possibility that appellant used cocaine and methamphetamine long enough before the
collision that he was not under their influence at the time of driving. However, appellant
admitted to the investigating officer that, in addition to drinking alcohol, he had used a
14.
line of cocaine, and was “buzzing,” suggesting recent use. Based on this admission and
the testimony of the criminalist, the jury could have reasonably inferred appellant was
under the influence of cocaine at the time of driving.
Appellant also argues the evidence that he attempted to flee the scene after the
collision was irrelevant to his state of mind prior to or during the killing. He relies on
People v. Anderson, which held the defendant’s attempts to cover up a murder by lying to
the victim’s brother and mother after the murder were irrelevant to whether the murder
was premeditated and deliberate. (People v. Anderson (1968) 70 Cal.2d 15, 32.)
People v. Anderson is inapplicable here because there was no allegation appellant
acted with premeditation and deliberation. The only issue before the jury regarding
appellant’s state of mind at the time of the collision was whether he acted with conscious
disregard for life. In making that determination, the jury was entitled to consider his
postcollision conduct. (People v. Ogg (1958) 159 Cal.App.2d 38, 51.) For example, in
People v. Canizalez, supra, 197 Cal.App.4th at p. 844, the court reasoned the defendants’
“callous disregard for the safety of others was no more evident than by their conduct after
the crash,” including fleeing from the scene, attempting to hide evidence, and
demonstrating no remorse or concern. Here, similarly, appellant attempted to flee the
scene after the crash and demonstrated no apparent remorse for his victims. These
actions supported the conclusion appellant knew his conduct was dangerous but did not
care if someone was hurt or killed because of that conduct.
Finally, appellant argues he did not act with implied malice because he stepped on
his brakes to try to avoid the collision, and expert testimony established that if he had
applied his brakes .8 seconds earlier, his car would have stopped before it struck the
residence. These facts do not assist appellant. Regardless of his belated attempt to brake,
the fatal collision was the result of his extraordinarily dangerous conduct, including
driving 78 miles per hour on a residential street while highly intoxicated. That he
attempted to apply the brakes after it was too late to avoid the collision does not negate
15.
his prior conduct. If anything, his attempt to brake suggested “an actual awareness of the
great risk of harm which he had created,” supporting the conclusion that he acted with
conscious disregard for life. (Watson, supra, 30 Cal.3d at p. 301.)
On review for substantial evidence, our role is to determine whether any rational
jury could find appellant guilty beyond a reasonable doubt. (People v. Tripp, supra, 151
Cal.App.4th at p. 955.) Whether appellant acted with implied malice was an issue for the
jury to determine based on the totality of the circumstances, without adherence to any
specific formula or factual prerequisites. (People v. Superior Court (Costa), supra, 183
Cal.App.4th at p. 698; People v. Olivas, supra, 172 Cal.App.3d at p. 989.) Based on this
record, the jury’s finding of implied malice was reasonable. The evidence established
appellant was highly intoxicated, drove in an extremely dangerous manner, ignored
warnings as he left the house that driving in his intoxicated state would be dangerous, and
expressed and demonstrated a lack of concern for the safety of others. While appellant
points to specific factors that weighed against a finding of implied malice, such as
appellant’s lack of prior driving under the influence convictions or predrinking intent to
drive, these factors are insufficient to establish the jury’s verdict was unreasonable in
light of all of the other evidence. Accordingly, our review for substantial evidence
reveals that on this record, a rational jury could have found appellant acted with implied
malice, and this claim lacks merit.
II. The Trial Court Erred in Failing to Conduct an Evidentiary Hearing on
Appellant’s Sumstine Motion. We Remand the Matter for the Trial Court to
Conduct an Evidentiary Hearing.
In the first amended information, the People alleged appellant was convicted in
2003 of assault with a deadly weapon (§ 245, subd. (a)(1)), which constitutes a prior
serious felony conviction (§ 667, subd. (a)) and a strike conviction. (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d).)
16.
Following trial, appellant filed a Sumstine motion to dismiss this prior conviction
on the ground that his plea was obtained in violation of his Boykin-Tahl rights. The trial
court denied the motion without holding an evidentiary hearing.
Appellant and respondent both contend the record supports their respective
positions that the motion should have been granted or denied. In the alternative, they
both request we remand the matter for the trial court to conduct an evidentiary hearing.
We conclude the record is inadequate to review the merits of the motion, because
the trial court was obligated to conduct an evidentiary hearing and allow both parties to
present evidence if they so choose. Accordingly, we vacate appellant’s sentence, and
remand the matter for the trial court to conduct an evidentiary hearing before ruling on
the motion.
A. Background.
Appellant agreed to bifurcation of the prior strike and prior serious felony
allegations and waived his right to a jury trial on proof of the allegations. During the
court trial, the court admitted certified copies of appellant’s California Law Enforcement
Telecommunications System (CLETS) rap sheet, the minute order from the date of
appellant’s prior conviction, and the abstract of judgment for the prior conviction. At the
conclusion of the hearing, the trial court found the allegations true.
Prior to sentencing, appellant filed a Sumstine motion to dismiss his prior
conviction. In support of the motion, appellant attached a declaration alleging that during
the plea hearing he was not informed of his rights to confront and cross-examine
witnesses, remain silent, or to put on a defense, and that if he had fully been informed of
these rights, he does not believe he would have entered the plea. Appellant also
submitted a copy of the minute order from his 2003 plea hearing. The minute order
contains check-marked boxes indicating he was “advised of” and “waives his
Constitutional rights,” but does not identify the specific constitutional rights. It also
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contains a check-marked box next to the following language: “Court finds Def. has made
an intelligent waiver of his rights; plea was freely and voluntarily made; and there is a
factual basis for the plea.” Appellant also attached a copy of a “CASE CALENDAR
REQUEST” form in which he requested a copy of the 2003 plea hearing transcript. The
form states the request was denied by the trial court, because the statutory period for the
court reporter to maintain her notes had expired, the court reporter stated she no longer
has her notes from the hearing, and a copy of the plea transcript no longer appears in the
file.
In their written opposition to the motion, the People only stated that if the court
reaches the merits of appellant’s claim, “the People are entitled to a full hearing on the
matter in which Defendant would be subject to cross examination.”
At sentencing, the trial court asked defense counsel if he wished to be “heard” on
his motion to strike the prior conviction. Defense counsel responded:
“But I submit to the Court … as to the constitutionality of the prior, I don’t
believe that it’s been proven—that it can be allowed to stand in its present
situation.
“If the Court or Counsel wishes to examine my client based upon his
declaration that was filed in conjunction with that motion, that’s certainly a
possibility at this time.”
The trial court then asked the People if they would “like to put something on the
record relative to [the] motion that [appellant] filed.” The People argued appellant failed
to establish he was not advised of his constitutional rights during the plea hearing because
the minute order stated he was advised of his constitutional rights and waived them.
Thus, according to the People, appellant’s declaration was “insufficient given the minute
order.” The People also reiterated that if the court wished to reach the merits of
appellant’s claim, they would request a full evidentiary hearing.
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The trial court denied appellant’s motion as follows: “Having considered the
moving papers and also the People’s response, the Court did find that the prior, the 667
(d) and (a) prior were valid and will not address the constitutionality of that any further
on that.”
Here, appellant asserts the record was insufficient to establish compliance with his
Boykin-Tahl rights in the prior plea hearing because the minute order only references
“constitutional rights” without identifying the specific rights appellant was advised of and
waived. Respondent counters that the minute order is sufficient to show compliance, and
the trial court was justified in denying the motion because the only evidence of a Boykin-
Tahl violation was appellant’s “own self-serving statement.” Both parties also contend
that, at a minimum, the matter must be remanded for the trial court to conduct an
evidentiary hearing.
As we explain below, the trial court erred by failing to comply with the Supreme
Court’s clear directive that an evidentiary hearing must be held once a defendant
affirmatively alleges a Boykin-Tahl violation. Because neither party had the opportunity
to present additional evidence, it would be premature for this court to reach the merits of
appellant’s motion. Instead, we remand the matter for the trial court to conduct an
evidentiary hearing.
B. The procedural requirements of Sumstine motion.
The California Supreme Court held in Sumstine that a defendant may move to
strike a prior felony conviction as invalid because the trial court in the prior proceeding
failed to comply with the defendant’s Boykin-Tahl rights. (Sumstine, supra, 36 Cal.3d at
p. 914; People v. Allen (1999) 21 Cal.4th 424, 435 (Allen).) Boykin-Tahl rights refer to
the requirement that, before a trial court may accept a defendant’s guilty plea, a defendant
must be advised of and waive the privilege against self-incrimination, the right to a jury
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trial, and the right to confront one’s accusers. (See People v. Mosby (2004) 33 Cal.4th
353, 359–360.)
The Supreme Court set forth specific procedural requirements for this type of
motion in Sumstine and reaffirmed them in Allen. First, the defendant must
“affirmatively allege that at the time of his prior conviction he did not know of, or did not
intelligently waive” his Boykin-Tahl rights. (Sumstine, supra, 36 Cal.3d at p. 914.) Once
such an allegation is made, the trial court “must hold an evidentiary hearing … to
determine the truth of the allegation.” (Ibid.) “At the hearing, the prosecution bears the
initial burden of producing evidence that the defendant did indeed suffer the conviction.
The defendant must then produce evidence to demonstrate his Boykin-Tahl rights were
infringed. The prosecution then has the right to rebuttal, at which point [the
prosecution’s] reliance on a silent record will not be sufficient.” (Allen, supra, 21 Cal.4th
at p. 435.) “At the conclusion of the hearing, the trial court must determine whether the
defendant has carried his burden of establishing the constitutional invalidity of the prior
conviction by a preponderance of the evidence.” (Curl v. Superior Court (1990) 51
Cal.3d 1292, 1307.)
In assessing the validity of the prior plea, the trial court’s inquiry is not limited to
whether the defendant was advised of his Boykin-Tahl rights on the record and waived
them. (Allen, supra, 21 Cal.4th at pp. 438–439.) Rather, the trial court must determine
whether the plea was intelligent and voluntary because it was given with an
understanding of the rights waived. (Id. at pp. 439–440.) Accordingly, the trial court
must examine “the totality of the circumstances to determine the voluntariness and
intelligence of the plea.” (Id. at p. 440.) For this reason, neither party “is limited to the
face of the record in the prior proceeding, but may offer any evidence germane to the
defendant’s contention he was unaware of his rights when he pleaded in the prior
proceeding.” (Id. at p. 439.)
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C. The trial court was required to conduct an evidentiary hearing on
appellant’s Sumstine motion. We remand for the trial court to conduct
such a hearing, rule on the motion, and resentence appellant.
In the instant case, appellant’s allegation that he was not advised of his Boykin-
Tahl rights and does not believe he would have entered the plea if he had been fully
advised, was sufficient to trigger the evidentiary hearing requirement. (See Sumstine,
supra, 36 Cal.3d at p. 914.) The trial court was then obligated to hold an evidentiary
hearing to determine the truth of this allegation. (Ibid.) The Supreme Court has made
this requirement clear: “When a defendant has made allegations sufficient to justify a
hearing, the court must conduct an evidentiary hearing.” (Id. at p. 923, italics added; see
Allen, supra, 21 Cal.4th at p. 439 [trial court is “specifically required” to hold an
evidentiary hearing].)
Instead of conducting an evidentiary hearing, the trial court ruled on the motion
during sentencing based on the parties’ moving papers, appellant’s declaration, and the
minute order. While the trial court allowed the parties to comment on the merits of the
motion, it did not invite them to present additional evidence, despite defense counsel’s
suggestion that his client testify regarding the allegations in his declaration. This
deprived appellant of the ability to produce additional evidence, beyond his initial
allegation, to “demonstrate his Boykin-Tahl rights were infringed.” (Allen, supra, 21
Cal.4th at p. 435.) Of course, neither party was obligated to produce additional evidence,
and was free to submit on the evidence then before the court. But the record does not
affirmatively demonstrate the trial court complied with the procedures set forth by the
Supreme Court by giving the parties the opportunity to produce additional evidence to
meet their respective burdens.
Accordingly, we conclude the trial court erred in failing to conduct an evidentiary
hearing on appellant’s Sumstine motion. Because appellant’s sentence was elevated by
the prior conviction, we vacate appellant’s sentence. The matter is remanded for the trial
court to conduct an evidentiary hearing in accordance with the procedure set forth by the
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Supreme Court in Sumstine and Allen. At the conclusion of the hearing, the trial court
must determine whether appellant has met his burden of establishing the constitutional
invalidity of the plea by a preponderance of the evidence. (See Allen, supra, 21 Cal.4th
at p. 435; Curl v. Superior Court, supra, 51 Cal.3d at pp. 1303–1306.) After the trial
court rules on the motion, it must resentence appellant. We express no opinion on the
merits of appellant’s Sumstine motion, or how the trial court should exercise its discretion
upon resentencing.
III. We Need not Address Appellant’s Claims that the Trial Court Abused its
Discretion in Denying his Romero Motion and Motion to Strike his Prior
Serious Felony Conviction Enhancements Because Appellant Must be
Resentenced.
Appellant contends the trial court erred in denying his Romero motion to dismiss
his prior strike conviction and his motion to dismiss his prior serious felony conviction
enhancements pursuant to section 1385, subdivision (b)(1). We need not resolve
appellant’s claims because we have already concluded the matter must be remanded for a
full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela
(2019) 7 Cal.5th 415, 424–425 [“[T]he full resentencing rule allows a court to revisit all
prior sentencing decisions when resentencing a defendant.”].) If appellant so chooses, he
may make these motions again during resentencing. We express no opinion how the trial
court should resentence appellant or otherwise exercise its sentencing discretion upon
remand.
IV. We Need not Address Appellant’s Claims Relating to the Potential
Applicability of Senate Bill No. 81 Because Appellant must be Resentenced.
Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add
subdivision (c), which provides, in part:
“(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.
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“(2) In exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to
prove that any of the [listed] mitigating circumstances ... are present. Proof
of the presence of one or more of these circumstances weighs greatly in
favor of dismissing the enhancement, unless the court finds that dismissal
of the enhancement would endanger public safety.” (§ 1385, subd. (c)(1)-
(2).)
Appellant claims the following three enumerated mitigating circumstances listed
in section 1385, subdivision (c) are applicable here and warranted dismissal of the prior
serious felony enhancements: section 1385, subdivision (c)(2)(B) provides: “Multiple
enhancements are alleged in a single case. In this instance, all enhancements beyond a
single enhancement shall be dismissed”; section 1385, subdivision (c)(2)(C) provides:
“The application of an enhancement could result in a sentence of over 20 years. In this
instance, the enhancement shall be dismissed”; section 1385, subdivision (c)(2)(H)
provides: “The enhancement is based on a prior conviction that is over five years old.”
He also argues that while section 1385, subdivision (c) only references dismissal of
enhancements, it also applies to prior strikes.
Respondent agrees Senate Bill No. 81 was effective at the time of appellant’s
sentencing, but contends appellant forfeited his claims by failing to raise them at
sentencing. Appellant argues the claims were preserved by his Romero motion and
motion to dismiss the prior serious felony enhancements pursuant to section 1385,
subdivision (b)(1). In the alternative, appellant contends defense counsel’s failure to
address the applicability of Senate Bill No. 81’s amendments at sentencing was
ineffective assistance of counsel.
We need not resolve appellant’s claims because we have already concluded the
matter must be remanded for resentencing.6 At resentencing, appellant will have the
6 While we need not resolve the issues of forfeiture or ineffective assistance of
counsel, we agree with respondent that defense counsel did not raise the potential
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opportunity to raise claims based on the potential applicability of Senate Bill No. 81’s
amendments to section 1385. (See People v. Buycks, supra, 5 Cal.5th at p. 893; People v.
Valenzuela, supra, 7 Cal.5th at pp. 424–425.) Again, we express no opinion how the trial
court should resentence appellant or otherwise exercise its sentencing discretion upon
remand.
DISPOSITION
Appellant’s sentence is vacated, and the matter is remanded for the trial court to
conduct an evidentiary hearing on appellant’s motion to dismiss his prior felony
conviction for failure to comply with his Boykin-Tahl rights, in accordance with the
procedures set forth in Sumstine, supra, 36 Cal.3d 909 and Allen, supra, 21 Cal.4th 424.
The trial court shall then resentence appellant. Following resentencing, the court shall
forward a new abstract of judgment to the appropriate authorities. In all other respects,
appellant’s judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
FRANSON, J.
MEEHAN, J.
applicability of Senate Bill No. 81’s amendments at sentencing. The merits of the claims
were not litigated below or addressed by the trial court.
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