People v. Villarreal-Guzman CA1/1 ( 2021 )

Filed 2/5/21 P. v. Villarreal-Guzman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A157824
v.
ZULEMA VILLARREAL-GUZMAN, (Contra Costa County
Super. Ct. No. 05-181249-4)
Defendant and Appellant.
A jury convicted defendant of felony driving under the influence of
alcohol causing injury and felony driving with a 0.08 percent blood-alcohol
content causing injury. As to both counts, the jury found true defendant
inflicted great bodily injury. On appeal, defendant contends the trial court
erroneously denied her Penal Code section 17, subdivision (b) (section 17(b))
motion to reduce her felony convictions to misdemeanors because the court
was not aware it had the discretion to do so. She further contends the court
failed to adequately investigate defense claims that one of the jurors had
slept during portions of the trial. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a car accident. Because defendant does not
challenge the sufficiency of the evidence to support her convictions or the
associated enhancements, we briefly set out the essential facts. We will also
set out more fully facts pertinent to defendant’s contentions in the discussion
section of this opinion.
After Jose G. finished working in Concord, he drove his company’s
flatbed truck westbound on Highway 24, toward Oakland. It had bench-style
seating with room to fit three people. Two of his coworkers, Juan A. and
Raymundo V., were seated on the bench. Raymundo sat in the middle and
Juan sat by the passenger window. Jose was wearing a seatbelt.
Jose got on the road around midnight. As he was driving in the second
lane from the barrier on Highway 24, at approximately 55 miles per hour, he
felt an impact on the right rear of the truck and lost control of it. The impact
“tilted to the driver’s side,” and when the truck came to a stop, it was flipped
on the driver’s side in the fast lane. By kicking out the front windshield, Jose
was able to extricate himself from the truck. While he was standing on the
highway, he saw Juan located 10 feet away from the truck in the fast lane
and Raymundo on the right-hand side of the truck. Juan was laying
facedown and Raymundo was face up. Both had visible injuries and were
screaming in pain. Each suffered serious injuries.
Following the accident, Jose observed a car parked on the right-hand
side of the highway with damage to the hood and the front bumper. He also
saw a “scared” woman calling 911.
California Highway Patrol (CHP) Officer Nelson Fulgencio arrived at
the accident scene between 12:15 a.m. and 12:16 a.m. He initially observed
an overturned “work truck” turned on the driver’s side, blocking the center
median and the fast lane. Two women, including defendant, were talking
with CHP Officer Martinez on the right shoulder of the freeway where a
Nissan sedan was parked nearby. The Nissan had major front-end damage, a
crushed bumper, a crushed grille, and the windshield was shattered. The
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vehicle was partially blocking the slow lane and partially on the right
shoulder of the freeway.
Fulgencio spoke with defendant who admitted she had been driving the
Nissan. The officer asked defendant how the collision occurred. Defendant
responded she was in the slow lane when she tried to change lanes and must
have hit a car. Defendant indicated she had been traveling at 65 miles per
hour.
As Fulgencio spoke with defendant, he noticed she had red, watery
eyes, and he could smell an odor of an “alcoholic beverage emitting from her.”
He asked defendant if she had been drinking prior to the accident. At first,
defendant stated she had not been drinking. Dissatisfied with defendant’s
response, the officer asked her about the last time she consumed an alcoholic
beverage. At this point, defendant admitted consuming two bottles of beer
between 4:00 p.m. and 5:00 p.m. Because Fulgencio suspected defendant was
under the influence of alcohol, he administered various field sobriety tests to
her. He first administered the horizontal gaze nystagmus test, requiring
defendant to watch a moving object, in this case, the officer’s pencil, without
moving her head. The officer observed defendant’s eyes drift and jerk
through the test, providing six “clues” confirming Fulgencio’s suspicion
defendant was under the influence of alcohol. Additionally, defendant had
difficulty performing aspects of the other field sobriety tests.
Approximately 40 to 45 minutes after contacting defendant, Fulgencio
had defendant breathe two times into a preliminary alcohol screening device
to determine her blood-alcohol content. The first result obtained at
12:59 a.m., showed defendant had a blood-alcohol content of 0.126 percent.
The second result obtained at 1:01 a.m., showed a blood-alcohol content of
0.140 percent. Less than an hour later at the CHP station, a breath test was
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administered to defendant. Tests were administered at 1:39 a.m. and
1:42 a.m., showing a blood-alcohol content of 0.13 percent.
According to Criminalist Denise Gallagher, alcohol impairs a person’s
judgment and driving skills. All drivers are considered legally impaired
when their blood-alcohol content is greater than 0.08 percent, and some
people are physically impaired at lower levels. If a person shows six “clues”
on the horizontal gaze nystagmus test, those clues would confirm the
presence of a central nervous system depressant in the person’s blood.
Dr. Paul Herman, a defense accident reconstruction expert, used a
three-dimensional simulation called “PC-Crash.” It takes into account the
terrain, the technical specifications of the vehicles, and “does the dynamics of
the movement of the vehicles over that terrain and through crashes.” Using
photographs of the area and the CHP reports, Dr. Herman “input all the
information [he had] into the code,” including details about the vehicles—
whether they are sitting still, moving, direction of movement, braking, and
turning. According to Dr. Herman, the code “takes the input information,
applies it to the equations, and then solves the equations.” Dr. Herman
assumed Jose G.’s truck and the Nissan had collided in a “sideswipe” or “rear-
ender” on Highway 24; however, he did not think it was possible to determine
which vehicle had been “the aggressor.”
In an amended information, defendant was charged with one count of
felony driving under the influence of alcohol causing injury (Veh. Code,
§ 23153, subd. (a)) and one count of felony driving with a 0.08 percent blood-
alcohol content causing injury (id., § 23153, subd. (b)). As to each count, it
was alleged defendant personally inflicted great bodily injury. (Pen. Code,
§ 12022.7, subd. (a).)
A jury found defendant guilty as charged.
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II. DISCUSSION
A. Section 17(b) Motion to Reduce the Felony Convictions to
Misdemeanors
Defendant contends section 17(b) and the federal due process clause
require a conditional reversal of the judgment and a remand to the trial court
for a new sentencing hearing because the court erroneously believed it did
not have the discretion to reduce defendant’s felony convictions to
misdemeanors. We disagree because the record does not support her claim.
1. Background
Following the conclusion of the trial, defendant filed a sentencing
memorandum seeking to have her felony convictions reduced to
misdemeanors under section 17(b). The memorandum emphasized defendant
was 30 years old with no prior criminal history, had completely abstained
from alcohol since the accident, and had regularly attended Alcoholics
Anonymous meetings. Although defendant’s father was an alcoholic, and she
had witnessed many alcohol-induced arguments between her parents, she
managed to graduate from high school, maintained steady employment, and
was a devoted mother to her three-year-old child. Her friends and coworkers
believed she had a good character. Lastly, the memorandum noted defendant
was “exceptionally remorseful.”
At the sentencing hearing, the prosecutor responded to defendant’s
sentencing memorandum seeking a section 17(b) reduction of her felonies to
misdemeanors. Even though a first-time violation of Vehicle Code
section 23153 is a “wobbler” offense, punishable as a felony or misdemeanor
(Veh. Code, § 23554; Pen. Code, § 17, subd. (a)), the prosecutor, nonetheless,
argued the court did not have “jurisdiction” to reduce the two felony
convictions to misdemeanors under section 17(b). Because the jury found the
great bodily injury enhancements were true, the prosecutor maintained that
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defendant’s crimes were “serious and violent felon[ies],” not subject to
reduction to misdemeanors.
Contrary to the prosecutor’s assertion, defense counsel insisted there
was case law holding that a finding of great bodily injury does not, pursuant
to section 17(b), preclude a court from reducing a felony conviction to a
misdemeanor. However, counsel told the court she had left the case law in
her office on the printer.
The court responded, “Well, I want to tell you right now that was not—
that is not one of the things I was thinking about in terms of a disposition for
this case.” Defense counsel stated, “Understood.”
The court then sentenced defendant to five years of probation, on
condition she serve one year in the county jail.
2. Applicable Legal Principles
“A ‘wobbler’ is an offense that, in the trial court’s discretion, may be
punished as either a felony or a misdemeanor.” (People v. Lee (2017)
16 Cal.App.5th 861, 866 (Lee), citing § 17(b); People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Indeed, when the statutory
definition of a crime makes it a wobbler, a related enhancement that requires
the defendant’s imprisonment does not necessarily “fix” the crime as a
straight felony for purposes of Penal Code section 17. (Lee, at p. 872.)
In Alvarez, our Supreme Court examined the extent of the trial court’s
discretion to reduce a wobbler to a misdemeanor. “[S]ection 17(b), read in
conjunction with the relevant charging statute, rests the decision whether to
reduce a wobbler solely ‘in the discretion of the court.’ By its terms, the
statute sets a broad generic standard. [Citation.] The governing canons are
well established: ‘This discretion . . . is neither arbitrary nor capricious, but
is an impartial discretion, guided and controlled by fixed legal principles, to
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be exercised in conformity with the spirit of the law, and in a manner to
subserve and not to impede or defeat the ends of substantial justice.
[Citations.]’ [Citation.] ‘Obviously the term is a broad and elastic one
[citation] which we have equated with “the sound judgment of the court, to be
exercised according to the rules of law.” [Citation.]’ [Citation.] Thus ‘[t]he
courts have never ascribed to judicial discretion a potential without
restraint.’ [Citation.] ‘Discretion is compatible only with decisions
“controlled by sound principles of law, . . . free from partiality, not swayed by
sympathy or warped by prejudice . . . .’ [Citation.]’ [Citation.] ‘[A]ll exercises
of legal discretion must be grounded in reasoned judgment and guided by
legal principles and policies appropriate to the particular matter at issue.’ ”
(Alvarez, supra, 14 Cal.4th at p. 977.)
On appeal, the Alvarez court noted, “ ‘The burden is on the party
attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not
be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be
reversed merely because reasonable people might disagree. “An appellate
tribunal is neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.” ’ ” (Alvarez, supra, 14 Cal.4th at pp. 977–
978.)
3. Analysis
Here, our review of the record leads us to conclude that the trial court
understood it had the discretion to reduce defendant’s felony convictions to
misdemeanors but chose not to do so. The court plainly considered the
available options as evinced by its response to defense counsel’s request for a
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reduction—“that is not one of the things I was thinking about in terms of a
disposition for this case.” (Italics added.) Moreover, it was the prosecutor,
not the court, who argued the court lacked jurisdiction to reduce the felonies
to misdemeanors, after which defense counsel stated she had authority she
could provide to the court showing it had such discretion.1
We do not presume the trial court was unaware of its discretion to
reduce the felony convictions to misdemeanors when (1) the law so provides,
(2) the court never said it believed it lacked discretion, and (3) defense
counsel offered to provide authority showing the court had such discretion.
The clear implication of the court’s statement is that it was not considering a
reduction of the felony crimes to misdemeanors, even assuming it had the
authority. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [remand
not required if record shows trial court would not have exercised its
discretion even if it believed it could do so]; Lee, supra, 16 Cal.App.5th at
pp. 866–867 [error will not be presumed absent affirmative showing trial
court misunderstood its sentencing discretion]; People v. Brown (2007)
147 Cal.App.4th 1213, 1228–1229 [remand is unnecessary if record is silent
concerning whether trial court misunderstood its sentencing discretion; error
is not presumed from a silent record; and court is presumed to have been
aware of and followed the law].) And notably, rather than seeking
clarification of the trial court’s understanding of its discretionary authority,
defense counsel merely responded, “Understood.”
We also find defendant’s reliance on People v. Almanza (2018)
24 Cal.App.5th 1104, 1110–1111, misplaced because in that case, there was a
retroactive change in the law (Pen. Code, § 12022.53, subd. (h)), providing the
1 Defendant incorrectly asserted in her opening brief that the court
stated it did not have the discretion to reduce the felonies to misdemeanors.
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trial court with discretion to strike or dismiss a firearm enhancement that it
lacked at the initial sentencing. In contrast, here, at the time of sentencing,
section 17(b) provided the court with the discretion to reduce wobblers from
felonies to misdemeanors.
In short, under the facts of this case, we cannot conclude the trial court
failed to understand its discretionary authority to reduce the convictions.
B. Juror Misconduct
Defendant contends her convictions must be reversed because the trial
court failed to investigate defense allegations that one of the seated jurors
had slept during portions of the trial. We reject defendant’s contention.
1. Background
After the court and counsel finished settling the jury instructions,
defense counsel, for the first time, raised an issue regarding Juror No. 6,
stating, “I have a concern that juror number 6 has been asleep during
substantial portions of the testimony, at least this morning. I did see her
dosing [sic] off yesterday as well, but I saw it more pronounced today. I’m not
sure—.” The court responded, “It is hard to stay awake through a DUI.”
Defense counsel said she understood the court’s comment, but her concern
was “that [Juror No. 6] is not necessarily listening and hearing all of the
testimony and taking in this case in a way that would allow her to fairly
evaluate the facts and determine my client’s guilt.” The court offered to
speak “directly” to Juror No. 6 while the whole jury was present, and “say,
you know, that it’s been noted by my staff that you are sometimes—it looks
like you’re sleeping. I need you to be awake. I need you to be paying
attention. Can I give her that lecture in front of everybody?” Defense counsel
expressed concern that lecturing the juror in front of the other jurors would
make the juror “more reluctant to admit that maybe she has been sleeping.”
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The court responded this juror was “not going to be [sic] admit it. None of
them have ever admitted it. They always say, I was listening, but I had my
eyes closed.” Though the prosecutor agreed with the court, defense counsel
continued, “I think this is a serious case and to have a juror that potentially
was not listening during a portion or was actively or passively asleep is a big
problem.” The court replied, “Right. Okay. I think we’re done.”
The following day, at the beginning of the court session, the trial court
spoke to the jurors telling them, “First of all, I want to mention that it’s very
important that you all keep your eyes open, pay attention and not fall asleep.
During the course of the trial, I think a few people did that, and I have to
assure the record and myself that you are actually listening and paying
attention. [¶] I mentioned it because this, too, right now, I’m about to read to
you jury instructions, and they could make you go to sleep. But I’m going to
be reading these to you, so I don’t want you to take any notes. You’re going to
have this book back in the deliberation room with you. So, just follow on with
what I’m saying.”
Once the jurors retired to deliberate, however, defense counsel asked to
put on the record “one thing,” that is she “noticed again, Juror Number 6
seeming to drift off throughout the closing of both [the prosecutor] and
myself, so that’s troublesome to me, and I—.” The court asked her if she
wished the court to substitute in an alternate. Defense counsel responded, “I
don’t think that that would be inappropriate in this case. I think that if we
have a juror that’s been asleep during a substantial portion of the testimony
and/or counsel’s arguments, that that’s a problem.” When the court asked
the prosecutor for her opinion, she commented, “I was looking at [Juror No. 6]
because of what we discussed yesterday. I saw there were times, very short
times she had her eyes closed. I didn’t interrupt [sic] anything as sleeping.
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She didn’t look super engaged, but that’s no change of facts. I did not notice
her fall asleep.” The court agreed with the prosecutor, stating, “I can’t say
that I did either. So, with the record the way it is, I’m going to leave it. I’m
going to let her stay.”
2. Applicable Legal Principles
Penal Code section 1089 provides in part: “If at any time, whether
before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable
to perform his or her duty, the court may order the juror to be discharged
. . . .” (Pen. Code, § 1089, 5th par.) “[A] juror’s serious and wilful misconduct
is good cause to believe that the juror will not be able to perform his or her
duty.” (People v. Daniels (1991) 52 Cal.3d 815, 864.)
“The trial court’s decision whether or not to discharge a juror under
[Penal Code] section 1089 is reviewed for abuse of discretion and will be
upheld if supported by substantial evidence; to warrant discharge, the juror’s
bias or other disability must appear in the record as a demonstrable reality.”
(People v. Holloway (2004) 33 Cal.4th 96, 124–125.) In reviewing the trial
court’s decision, we are mindful that the trial court is in the best position to
observe the juror’s demeanor. (See People v. Beeler (1995) 9 Cal.4th 953, 989,
abrogated on another ground as recognized in People v. Edwards (2013)
57 Cal.4th 658, 705.)
A trial judge “must conduct a sufficient inquiry to determine facts
alleged as juror misconduct ‘whenever the court is put on notice that good
cause to discharge a juror may exist.’ ” (People v. Davis (1995) 10 Cal.4th
463, 547; People v. Bradford (1997) 15 Cal.4th 1229, 1348 (Bradford).) In
order to justify investigation, there must be more than mere speculation of
juror misconduct. The juror’s inability to perform must appear as a
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“ ‘ “demonstrable reality.” ’ ” (People v. Williams (1997) 16 Cal.4th 153, 231.)
Both the decision to investigate and the decision as to whether there was
misconduct justifying discharge rest in the trial court’s sound discretion.
(Bradford, at p. 1348.)
3. Analysis
We reject defendant’s contention that the court abused its discretion by
failing to hold a hearing to inquire further into the allegation that Juror
No. 6 was sleeping during the testimony.
The issue of a dozing juror was specifically addressed in Bradford,
supra, 15 Cal.4th 1229. In Bradford, our Supreme Court found that the trial
court did not abuse its discretion by failing to conduct an inquiry into a
juror’s fitness despite the fact the trial court had observed the juror sleeping
at one point during the trial, and was aware the juror had slept all day on the
previous day. (Id. at pp. 1347–1348.) Bradford set a high threshold for
overturning a verdict based on the failure to adequately investigate a juror’s
inattentiveness: “We have observed that ‘[a]lthough implicitly recognizing
that juror inattentiveness may constitute misconduct, courts have exhibited
an understandable reluctance to overturn jury verdicts on the ground of
inattentiveness during trial. In fact, not a single case has been brought to
our attention which granted a new trial on that ground. Many of the
reported cases involve contradicted allegations that one or more jurors slept
through part of the trial. Perhaps recognizing the soporific effect of many
trials when viewed from a layman’s perspective, these cases uniformly
decline to order a new trial in the absence of convincing proof that the jurors
were actually asleep during material portions of the trial.’ ” (Id. at p. 1349.)
The circumstances in the instant matter fail to meet the high threshold
set out in Bradford. There, the Supreme Court found no abuse of discretion
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where the trial court failed to conduct any inquiry, despite evidence that a
challenged juror had slept for a substantial portion of at least two trial days.
Here, the only evidence that Juror No. 6 had been sleeping was defense
counsel’s assertion that the juror had been sleeping “during a substantial
portion of the testimony,” which was contradicted by the judge and prosecutor
who were also in a position to observe the juror. While the court agreed with
the prosecutor’s observation that Juror No. 6 had her eyes closed for very
short times, neither the court nor the prosecutor saw her fall asleep. Thus,
the only evidence of Juror No. 6 sleeping was defense counsel’s
representation. which included statements such as counsel was “not sure”
and the juror “potentially was not listening during a portion or was actively
or passively asleep.” (Italics added; see People v. Espinoza (1992) 3 Cal.4th
806, 821 [speculation by counsel that juror was sleeping falls short of good
cause requiring the court to conduct further inquiry]; People v. Bowers (2001)
87 Cal.App.4th 722, 731 [“A juror must not be discharged for sleeping unless
there is convincing proof the juror actually slept during trial.”].)
Nor does defendant demonstrate exactly when and for how long Juror
No. 6 was sleeping. Indeed, it seems defendant’s argument that “There is
simply no record how much of the trial Juror Number 6 failed to hear” is
precisely the problem. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411
[noting cases uniformly decline to order new trial in absence of convincing
proof jurors were actually asleep during material portions of trial]; People v.
Jablonski (2006) 37 Cal.4th 774, 807 [inability of juror to perform his or her
duties must be shown to be a “ ‘ “demonstrable reality” ’ ”].)
In sum, given the absence of evidence that Juror No. 6 was asleep for
material portions of the trial and the trial court’s reliance on its own
observations and the observations of the prosecutor, defendant has failed to
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show the trial court abused its discretion in failing to conduct a further
investigation.
III. DISPOSITION
Accordingly, the judgment is affirmed.
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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SANCHEZ, J.
A157824
People v. Villarreal-Guzman
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