People v. Kidane

Filed 2/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303213
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA095262)
v.
ABSADI TEWELDE KIDANE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Lauren Weis Birnstein, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
A jury found defendant and appellant Absadi Tewelde
Kidane guilty of gross vehicular manslaughter while intoxicated
and resisting arrest and found true the allegation that defendant
fled the scene of the accident. He contends there is insufficient
evidence supporting the vehicular manslaughter conviction and
the true finding on the special allegation. Defendant also argues
the trial court erred in imposing an upper term sentence and his
trial counsel was ineffective in failing to object to the court’s
reliance on factually unsupported aggravating factors.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of March 21, 2017, defendant sped
through the parking lot of the Los Angeles Superior Court in
Santa Monica, fatally striking Donald Thomas, Jr., before finally
coming to a stop after crashing into a parked car on Main Street.
Defendant fled the scene on foot. He was charged with gross
vehicular manslaughter while intoxicated (Pen. Code, § 191.5,
subd. (a); count 1), vehicular manslaughter (Pen. Code, § 192,
subd. (c)(1); count 2) and resisting an executive officer (Pen. Code,
§ 69; count 3). It was alleged as to counts 1 and 2 that defendant
fled the scene of the accident (Veh. Code, § 20001, subd. (c)). The
testimony at trial established the following material facts.
Around 3:30 p.m. on March 21, 2017, William Caneda
Rathje, a security guard for the RAND Corporation, was at his
post on the east side of the RAND property bordering Main
Street, looking east toward the courthouse. There was a lot of
vehicle and pedestrian traffic at the time with people leaving the
courthouse and students getting off from the nearby high school.
Mr. Rathje noticed a car traveling at “a very high rate of speed”
through the courthouse parking lot. The car was heading
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westbound through the parking lot. It rammed through a control
arm parking gate and headed toward the car port shelters under
which were several self-pay ticket machines. The car hit one of
the ticket machines and became “airborne.” The car continued
westward over an area of grass, the sidewalk and then onto Main
Street, finally coming to a stop after crashing into a car parked
on the west side of Main Street in front of the RAND building.
Mr. Rathje saw a man in a red shirt get out of the car and
start running south down Main Street. The man ran to the
intersection with Pico Boulevard, turned left and disappeared
from view. Sometime later, Mr. Rathje saw an officer performing
CPR on a man lying in the street. From his vantage point on the
RAND property, Mr. Rathje had not seen the car strike the man.
Syniah R. was walking home from school that afternoon.
She left the Santa Monica High School campus, walked through
the courthouse parking lot and was crossing to the west side of
Main Street when she heard a loud noise. She turned around
and saw a “body flying” through the air and a gray car going “at a
rapid pace” across Main Street from the grassy area bordering
the parking lot. It came to a stop after crashing into a parked
car. At some point thereafter, she saw a man wearing a red
hoodie walking quickly away from the crashed car, heading
toward Pico Boulevard.
From the window in her office at the RAND Corporation,
Terresa Cooper saw a car speeding through the courthouse
parking lot. The car struck a man near the ticket machines,
throwing him into the air. He landed in the street near the curb.
Juan Cozzarelli, a security guard, was screening visitors at
the front entrance of the courthouse. He heard the crash and ran
outside. Mr. Cozzarelli saw a man lying face down and
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motionless near the curb, bleeding profusely. He yelled for a
coworker to call 911. He then walked across Main Street to check
on the driver of the crashed car. A small crowd had started to
gather around the car. The driver’s eyes were closed. The
airbags were deployed and the driver’s side door was open.
Mr. Cozzarelli checked the driver’s pulse which was rapid.
Mr. Cozzarelli’s supervisor arrived on the scene and asked
him to perform traffic control. Shortly thereafter, Mr. Cozzarelli
heard people yelling “he’s fleeing.” He turned and saw the driver
running down Main Street toward Pico Boulevard.
Mr. Cozzarelli yelled to another officer that the driver was
running away. Mr. Cozzarelli ran after the man, repeatedly
yelling for him to stop to no avail. Mr. Cozzarelli continued
chasing the man down Main Street and then eastbound on Pico
Boulevard until several patrol cars arrived and the responding
police officers apprehended the driver.
Santa Monica Police Officer Andrew Sanchez was one of
the responding officers. He saw defendant, wearing a red shirt
and white shorts, running down Pico Boulevard being pursued by
another patrol car using lights and siren and broadcasting a
command to stop from its PA system. After a brief pursuit,
Officer Sanchez was able to catch up to defendant and tackle him
to the ground. Defendant kicked and “thrash[ed]” for a time
before several of the officers were able to place handcuffs on him
and a hobble around his ankles.
Santa Monica Police Officer Evan Raleigh, a certified drug
recognition expert, arrived on scene and attempted to evaluate
defendant. Defendant was evasive, averting his eyes and putting
his chin down to his chest. Before defendant looked away, Officer
Raleigh saw that defendant’s eyes were “bloodshot and watery”
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and his pupils were “slightly dilated.” Officer Raleigh also
noticed other signs indicative of someone under the influence of a
controlled substance, including dried debris in the corners of the
mouth (resulting from saliva production being inhibited),
repeated licking of the lips, grayish lip color and a rapid heart
rate.
Before defendant was taken to the police station, both
Mr. Rathje and Mr. Cozzarelli were brought over to make a field
identification. Both identified defendant as the man in the red
shirt who got out of the crashed car. Defendant refused to stand
up for the identification procedure.
After defendant arrived at the police station, Officer
Raleigh again tried to evaluate him. He saw that defendant
exhibited additional symptoms characteristic of someone under
the influence of marijuana, including “eyelid flutters” (rapid eye
movement when eyes are closed), periodic body tremors (similar
to shivering) and a fluctuating respiration rate. Defendant’s
blood was drawn pursuant to a warrant to determine whether he
was under the influence of any drug.
After charges were filed, defendant moved for mental
health diversion pursuant to Penal Code section 1001.36. The
motion was denied. Thereafter, defendant entered a plea of not
guilty by reason of insanity. (§ 1017.)
Trial by jury proceeded in August 2019. In addition to the
above evidence, the following additional facts were established.
During the investigation of the accident, surveillance video
was obtained that captured a portion of the route driven by
defendant through the parking lot, including when the car hit
Mr. Thomas. The surveillance video and numerous photographs
were shown to the jury. Footage from the body camera of one of
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the officers who assisted in detaining defendant after the
accident showed defendant telling the officers, “I just want to
smoke some weed.”
The investigation showed that defendant’s car hit one of
the control arms of the parking gate at the east side of the
parking lot, ran into and dislodged two concrete-filled steel
bollards and then collided with one of the self-pay ticket
machines before continuing on into the street and into a parked
car. Mr. Thomas had been standing near one of the ticket
machines when he was struck by defendant. Mr. Thomas was
thrown into the air, landing almost 90 feet away near the curb on
the east side of Main Street. Damage to the driver’s side
windshield was in a “spiderweb” pattern consistent with
Mr. Thomas’s body hitting the windshield before being thrown
into the air.
An autopsy confirmed Mr. Thomas died from multiple
traumatic injuries.
An inspection of the “black box” data from defendant’s car
showed that just before the airbags deployed the car had been
accelerating. At the point of impact, the car was traveling
53.4 miles per hour. The data also showed the brake pedal was
not employed at any time during this period.
Ariana Adeva, a forensic toxicologist, testified about the
effects of cannabis use on the human body, its impact on
performing certain activities like driving, and defendant’s test
results. The blood sample taken from defendant approximately
three hours after the accident showed the presence of
3.1 nanograms per milliliter of Delta-9 Tetrahydrocannabinol or
THC, the psychoactive element in marijuana or cannabis that
causes the “high” associated with its use. Approximately
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75 percent of Delta-9 THC leaves the blood within two hours of
use. The body eventually metabolizes Delta-9 THC into Carboxy
THC and it can stay at detectable levels in the body for weeks
after use. Defendant’s blood showed 42.8 nanograms of Carboxy
THC which is indicative of frequent use.
Ms. Adeva also offered her opinion based on a hypothetical
that someone with defendant’s test results and exhibiting similar
symptoms and behavior was under the influence and would have
been impaired.
Evidence was presented showing that defendant’s social
media accounts included many images related to marijuana use,
as did texts on his cell phone which was recovered from his car.
Carlos Silva, one of defendant’s friends, said he knew defendant
used marijuana, sometimes to get the “creative juices flowing”
when he was working on his music.
Defendant presented the testimony of Dewayne Beckner, a
forensic chemist. He testified there is no consensus in the
scientific community regarding what concentration of marijuana
will cause impairment. He stated his opinion that the level of
Delta-9 THC reported in defendant’s blood sample was too low to
cause the erratic driving seen in the surveillance video.
Dr. Gordon Plotkin, a forensic psychiatrist, testified that he
interviewed defendant and did not believe marijuana use was the
cause of his behavior on the day of the incident. He said that
defendant suffered from delusions and the onset of mental illness
and experienced a psychotic break that day. Defendant also told
him he was trying to kill himself by driving into a pole.
The prosecution presented rebuttal witnesses, including
Dr. Joel Peel Leifer, a clinical psychologist who interviewed
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defendant. Dr. Leifer stated his opinion that defendant did not
show any signs of suffering from any severe mental disorder.
The jury found defendant guilty of gross vehicular
manslaughter while intoxicated and found true the allegation
that defendant fled the scene of the accident within the meaning
of Vehicle Code section 20001, subdivision (c). The jury acquitted
defendant of resisting an executive officer and guilty of the lesser
included offense of misdemeanor resisting or obstructing a peace
officer.
The sanity phase of the trial then proceeded in accordance
with Penal Code section 1026, subdivision (a). Defendant
testified that in the months preceding the accident he dropped
out of school, had trouble sleeping and began to feel paranoid. He
said he was using a lot of marijuana. On the day of the accident,
he said he wanted to kill himself and did not intend to hurt
anyone else. Dr. Plotkin testified again and restated his opinions
about defendant’s mental health.
The jury found defendant was sane at the time he
committed the offenses.
The court imposed a 10-year upper term on count 1, plus a
consecutive five-year term for the enhancement, and a concurrent
jail term of 364 days on count 3 for a total sentence of 15 years in
state prison. The court awarded defendant 1,904 days of
presentence custody credits and imposed various fines and fees.
This appeal followed.
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DISCUSSION
1. Substantial Evidence Supports the Jury’s Verdict
Defendant contends his vehicular manslaughter conviction
and the fleeing the scene enhancement are unsupported by the
factual record. We are not persuaded.
It is well established that in resolving a question of
substantial evidence in a criminal case, our role “is a limited
one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The proper
test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of
fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Jones (1990) 51 Cal.3d 294, 314.) “[W]e must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (Ibid.) It is
not within the scope of our review to reweigh the evidence or to
make determinations based on viewing isolated bits of evidence.
“[I]t is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of
the facts on which that determination depends. [Citation.] Thus,
if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.”
(Ibid.)
Defendant argues it was undisputed there was no evidence
of marijuana in his car and his blood showed relatively low levels
of the drug in his system. However, we do not view this evidence
in isolation.
The jury was instructed with CALCRIM No. 2110 which
provides in relevant part that “[a] person is under the influence if,
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as a result of taking a drug, his mental or physical abilities are so
impaired that he is no longer able to drive a vehicle with the
caution of a sober person, using ordinary care, under similar
circumstances.”
There was ample evidence establishing that defendant was
under the influence. Defendant drove his car in an erratic and
reckless manner through the courthouse parking lot, during a
busy time of day, breaking through a parking gate arm and
careening into two concrete-filled steel bollards and then into the
ticket machine where Mr. Thomas was standing. At the time of
his detention by police officers shortly after the accident
defendant had bloodshot, watery eyes and his pupils were
dilated. Officer Raleigh attested to additional facts regarding
defendant’s appearance and demeanor that were consistent with
defendant being under the influence of marijuana, including body
tremors, grayish lips and dry mouth. The prosecution’s expert
toxicologist, Ms. Adeva, attested to the level of THC in
defendant’s system. She explained that 75 percent of Delta-9
THC leaves the blood within two hours of use and defendant’s
blood draw was almost three hours after the accident. A
reasonable inference could be drawn that defendant’s THC levels
were significantly higher at the time of the accident. Ms. Adeva
also stated her opinion, based on a hypothetical framed from the
factual record, that a person exhibiting similar symptoms and
behavior would have been impaired. Further, there was evidence
from defendant’s social media accounts, cell phone and friends
that he was a frequent user of marijuana.
As for the enhancement, defendant says the evidence
showed that his car struck, in very quick succession, multiple
stationary objects, any one of which may have triggered the
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airbags to deploy, and there was no evidence he knew he had also
hit and injured a person.
Constructive knowledge of injury satisfies the statute.
“[C]riminal liability attaches to a driver who knowingly leaves
the scene of an accident if he actually knew of the injury or if he
knew that the accident was of such a nature that one would
reasonably anticipate that it resulted in injury to a person.”
(People v. Holford (1965) 63 Cal.2d 74, 80, italics added; accord,
People v. Harbert (2009) 170 Cal.App.4th 42, 52 (Harbert).)
The jury saw photographs of the scene and surveillance
video which captured the violence of the incident. They heard
testimony from multiple witnesses that defendant got out of his
crashed vehicle just a few car lanes away from where
Mr. Thomas’s motionless body lay in the street and he took off
running. They also heard that the shattered windshield on the
driver’s side of defendant’s car was consistent with Mr. Thomas’s
body slamming into the windshield before being thrown into the
air. The jury thus had ample evidence before it upon which to
rest its determination that defendant knew, or reasonably should
have known, he had struck and injured someone before fleeing
the scene. “A pedestrian struck with sufficient force that he or
she reaches the hood or windshield is treated as virtually
unignorable.” (Harbert, supra, 170 Cal.App.4th at p. 56.)
2. The Upper Term Sentence on Count 1
Defendant contends the trial court erred in imposing the
upper term because the evidence did not support the aggravating
factors relied upon by the court and the court disregarded
defendant’s mental health issues as a mitigating factor.
Defendant forfeited this argument by failing to specifically
object on these grounds in the trial court. (People v. Scott (1994)
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9 Cal.4th 331, 353 [forfeiture doctrine applies “to claims involving
the trial court’s failure to properly make or articulate its
discretionary sentencing choices”].)
Defendant asks us to find in the alternative that his trial
counsel was ineffective in failing to specifically object to the
court’s sentencing choices. The contention is without merit as
defendant cannot demonstrate either element of an ineffective
assistance claim.
At the sentencing hearing, the court heard lengthy victim
statements from Mr. Thomas’s widow, his two minor children, his
parents and his twin sister. The court also allowed defendant to
make a statement in which among other things, he apologized to
the victim’s family. The court said it had read both parties’
sentencing memoranda and the probation report. Before
entertaining argument, the court told counsel it was inclined to
find that either a midterm or high term was warranted given the
evidence at trial. The court also asked counsel to specifically
address the sanity phase evidence and the weight any mental
health factors should be given.
After allowing lengthy argument from counsel, the court
imposed the upper term of 10 years. The court acknowledged
that defendant had no prior criminal record but said that the
seriousness of the facts as reflected in the trial evidence far
“outweigh[ed] the fact that the defendant had no record. It
involved such great violence, great bodily harm. I do believe
there is an element of callousness based on the defendant’s prior
knowledge of what marijuana use could do to him, where he could
hardly walk across the street, and that was shown in the texts
that we had in evidence at this trial. And the fact that he was
driving previously under the influence of marijuana . . . . He just
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cared about himself. And that all indicates a very grave danger
to the safety of the community.” A single factor in aggravation is
sufficient to support the trial court’s exercise of discretion in
imposing an upper term sentence. (See, e.g., People v. Osband
(1996) 13 Cal.4th 622, 728; People v. Quintanilla (2009)
170 Cal.App.4th 406, 413.)
Moreover, contrary to defendant’s assertion the mental
health evidence was disregarded, the court, at several different
points during the hearing, asked questions of counsel and
specifically identified the mental health testimony it found
relevant. For instance, the court said, “[O]ne of the things that
stands out in the testimony of Dr. Leifer was that he, in his
opinion, found it hard to believe that [defendant] would have
such a detailed recollection of the events and circumstances on
the day of the crime, just before the crime, just after the crime, if
it was, in truth, a true psychotic break.”
The court provided a thorough and reasonable explanation
for its sentencing choices in accordance with the statutory
requirements. (Pen. Code, § 1170, subd. (b) [“In determining the
appropriate term, the court may consider the record in the case,
the probation officer’s report, other reports, . . . and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the
sentencing hearing. The court shall select the term which, in the
court’s discretion, best serves the interests of justice. The court
shall set forth on the record the reasons for imposing the term
selected.”].)
No abuse of discretion has been shown and defendant
cannot demonstrate that defense counsel was ineffective for
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failing to object to the upper term sentence or make a frivolous
objection that the court disregarded certain evidence. Nor can
defendant show he would have obtained a more favorable
outcome had such an objection been made. (See, e.g., People v.
Cudjo (1993) 6 Cal.4th 585, 623 [a defendant “must show both
that trial counsel failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates, and
that it is reasonably probable a more favorable determination
would have resulted in the absence of counsel’s failings”].)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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